Unpersuasive Judicial Punctuation

April 27

The latest NSA data dump is a set of declassified pleadings on the 215 metadata program. The program has been upheld by all the Foreign Intelligence Surveillance Court (FISC) judges and by district court William Pauley in New York.  It was, however, ruled unlawful once — by DC district judge Richard Leon. Judge Leon’s opinion was colorful, but it hasn’t proved especially persuasive.

The declassified documents may tell us why.  They disclose the latest court fight over the program.  A telecom company that received a 215 order (identified by Ellen Nakashima of the Washington Post as Verizon) asked the FISC to reconsider the program in light of Judge Leon’s ruling.   Judge Rosemary Collyer of the FISC did so, and made short work of it, laying out and rejecting each of Judge Leon’s reasons for treating the program as a fourth amendment violation.  No surprise, really.

But what has to hurt is Judge Collyer’s dead-pan takedown of Judge Leon’s hyperventilating prose. And in a parenthetical, no less.  Summarizing Judge Leon’s reasons for not following Smith v. Maryland, Judge Collyer writes:

The NSA program, on the other hand, “involves the creation and maintenance of a historical database containing five years’ worth of data” and might “go on for as long as America is combating terrorism, which realistically could be forever!” Id. (italics and exclamation point in original).

Yes, indeed they were. Which raises two questions about Judge Leon’s opinion:

1. Is this the first judicial opinion rendered unpersuasive by its punctuation?

2. Was his CAPS LOCK key broken?

NOTE:  Ironically, considering the content of the post, WordPress is refusing to publish italics, a rebellion that resists both <i> and <em> HTML coding.  That’s why I’ve had to use bold where Judge Leon used italics.

UPDATED to correct a typo in Judge Pauley’s name.  Thanks, Matt!

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Eugene Volokh · April 27