The Dan O’Hanlon Essay Competition
First Prize ~ $1,000 Second Prize ~ $500
Edward Snowden, Counter-terrorism and the National Security Agency: Does the Government’s Collection of Telephone Metadata Violate Our Fourth Amendment Rights? The Courts Do Not Agree.
In June of 2013,The Guardian – a London newspaper – reported that the U.S. National Security Agency had secretly collected records of telephone numbers dialed by all customers of Verizon. This was the first of many stories resulting from disclosures of top-secret material by a government contractor named Edward Snowden showing extensive intelligence gathering activity that arguably captures information related to every U.S. citizen.
Snowden used his security clearance to access and illegally download a copious amount of top-secret information from the files of the National Security Agency (“NSA”) – a “serious security breach” that “damaged this country,” according to U.S. Secretary of Defense Chuck Hagel. See “Defense Chief says leaks were serious security breach,” Reuters, June 26, 2013. Snowden then traveled to Hong Kong to disclose the information to particular journalists and a filmmaker he had selected to be the recipients of his evidence. He later fled to Russia, where he remains. Whether he should be considered a hero or a traitor remains the topic of hot debate.
Since Snowden’s disclosures became international news, the NSA’s data-gathering in the name of counter-terrorism has faced challenges to its constitutionality, including two court cases that resulted in rulings last December by federal judges in the U.S. District Court for the District of Columbia and the U.S. District Court for the Southern District of New York. Both rulings have been appealed, and it is widely expected that the issue in the cases will ultimately be ruled upon by the U.S. Supreme Court.
The two federal judges reached opposite conclusions regarding whether the NSA’s gathering of “telephony metadata” violates the Fourth Amendment. The Fourth Amendment, contained within the Bill of Rights to the U.S. Constitution, holds that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
One of the district court judges (Judge Leon) held that the Supreme Court would likely find the NSA’s gathering of “telephony metadata” violates the Fourth Amendment, while the other (Judge Pauley) relied on Supreme Court precedent to find the program constitutional.
As pointed out by Andrew Cohen writing in The Atlantic, “I suspect the two rulings will soon be used side by side in law schools to illustrate how two reasonable jurists could come to completely different conclusions about the same facts and the same laws. . . . The judge who gets overturned on appeal here won’t necessarily be wrong – he’ll just not have the votes on appeal supporting his particular view of the law and the facts.” Cohen, “Is the NSA’s Spying Constitutional? It Depends Which Judge You Ask,” The Atlantic, December 2013.
Your job in this essay contest is to read and consider both decisions and discuss which district judge, in your opinion, made the right decision. In so doing, you should carefully consider and discuss the strongest arguments in each judge’s opinion, and, ultimately, explain why you believe one judge’s conclusion is stronger than the other.
The two district court decisions are below in PDF format. In addition, a PDF of the 1979 Supreme Court’s decision in Smith v. Maryland, considered by both district judges in reaching their opposite conclusions, is also below. Your essay should reflect that you have read and considered all three decisions.
Klayman v. Obama, Civil Action No. 13-0851, slip op. (D.D.C., Dec.16, 2013)
American Civil Liberties Union v. Clapper, Civil Action No. 13-3994, slip op. (S.D.N.Y. Dec. 27, 2013)
Smith v. Maryland, 442 U.S. 735 (1979)
In addition, while there are thousands of articles to be found on this topic, for general background purposes, you may wish to read the following articles:
Suzanna Andrews, Bryan Burrough, Sarah Ellison, “Special Report: The Snowden Saga: A Shadowland of Secrets and Light,” Vanity Fair, May 2014. Available on-line at: http://www.vanityfair.com/politics/2014/05/edward-snowden-politics-interview . This tells Snowden’s story from Snowden’s perspective.
Andrew Cohen, “Is the NSA’s Spying Constitutional? It Depends Which Judge You Ask.” The Atlantic, December 2014. Available on-line at http://www.theatlantic.com/national/archive/2013/12/is-the-nsas-spying-constitutional-it-depends-which-judge-you-ask/282672 .
Adam Liptak and Michael S. Schmidt, “Judge Upholds N.S.A.’s Bulk Collection of Data on Calls,” The New York Times, December 27, 2013. Available on-line at http://www.nytimes.com/2013/12/28/us/nsa-phone-surveillance-is-lawful-federal-judge-rules.html .
You may also wish to consider the report of The President’s Review Group on Intelligence and Communications Technologies. In the wake of Snowden’s disclosures and the resulting controversy, President Obama appointed this group of experts to study and make recommendations regarding how to effectively address “Liberty and Security in a Changing World.” The report can be found on-line at http://www.whitehouse.gov/sites/default/files/docs/2013-12-12_rg_final_report.pdf.
Of course, you can do additional research to support your arguments. You must be sure that all of your research is properly cited and can be located and verified by the contest judges. At all times, you should be cognizant of your Marshall “information literacy” learning outcome as you evaluate the appropriateness of source material.
Rules and Prizes
This contest is open to any Marshall University student who will be enrolled full-time and in good academic standing in September of 2014. A suggested length for a standard academic essay is 10-15 pages, but there is no required length or page limitation.
Winning entries should demonstrate a thorough understanding of the reasoning of each district court’s decision – Judge Leon’s and Judge Pauley’s. All entries should be typewritten, double-spaced, and submitted on standard-size 8.5 x 11 inch paper. You entry should be mailed to the address below. It must be postmarked by July 30, 2014.
Deadline for submission for the 2014 contest is July 30, 2014 (postmarked).
The winners will be recognized in a special awards ceremony dedicated to the Essay Competition as part of the celebration of Constitution Week in September.
Submit entries to:
Patricia Proctor, Director
Simon Perry Center for Constitutional Democracy
Marshall University, Old Main Room 230L
One John Marshall Drive
Huntington, WV 25755
HISTORY OF THE CONTEST
The Dan O’Hanlon Essay Competition was established in 2009, after an anonymous donor requested that Marshall find a way to promote scholarship related to the Constitution and simultaneously honor retired Cabell County Circuit Court Judge Dan O’Hanlon. Prior to his long career on the bench, Judge O’Hanlon served as professor and chair of the Marshall University Criminal Justice Department. In 2007, he was selected by the West Virginia Justice Association as Judge of the Year. The awards for the winners of the competition are presented in a public ceremony each year during the week in September that Marshall University celebrates the birthdays of both the United States Constitution and Chief Justice John Marshall, for whom the university is named.
Laurel Anne Peace (1st) - Disobeying the Constitution
Adam Shaver (2nd) - The Constitution’s Necessity in American Government
Joshua Thompson (1st) – “The Individual’s Voice in Democracy: The Right to Vote”
Lesley Cruickshank (2nd) – “Section 5 of the Voting Rights Act: Preclearance and Public Policy”
W. Austin Smith II (1st) – “Constitutional Interpretation”
Justin Setliff (2nd) – “The View of an Originalist”
Aaron Preece – “The Right to Free Speech in an Academic Setting”
Joshua Cottle — “Protecting the Constitution: Balancing the Rights of the People and the Union”