On Friday, a federal trial judge in New York boldly declared that very same surveillance program is constitutional as applied to the ACLU, the phone records of which also were collected and stored. Here is the link to the ruling, authored by U.S. District Judge William Pauley, a nominee of President Bill Clinton. It was a Democratic appointee, the record will also reflect, who first endorsed the legality of this once-secret, mass data collection program

Judge Leon last week issued a temporary injunction halting the program-- but then stayed the application of his ruling so that the Obama Administration could appeal it to the D.C. Circuit Court of Appeals. Judge Pauley today denied a request for an injunction by the ACLU and granted the Obama Administration's motion to dismiss the case. An appeal to the Second Circuit surely will follow. The first judge concluded the government would lose on the merits. The second judge concluded that the government had won on the merits.

Judge Pauley ruled that the NSA's collection efforts do not violate the Fourth Amendment, citing its interpretation by the Supreme Court in a 1979 case styled Smith v. Maryland. But Judge Leon ruled that the surveillance program does likely violate the Fourth Amendment's protection against unreasonable searches, and he rejected the Smith case as technologically outdated. One judge went around the precedent of Smith. The other judge embraced that precedent and said he had no right to ignore Smith.

Judge Leon last week ruled that Congress did not intend to prevent plaintiffs whose records were seized and stored from coming to federal court to challenge the validity of the NSA's surveillance program. Judge Pauley Friday ruled that Congress indeed intended to preclude that very thing—allowing the people or companies whose records were collected to have access to federal courts while limiting the court access of the telephone companies that provided the information.

Judge Leon last week questioned the effectiveness of the government's program, asserting that federal officials did not "cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack." Judge Pauley asserted the exact opposite: "The effectiveness of bulk telephony metadata collection cannot be seriously disputed."

Judge Leon peppered his lengthy opinion with expressions of great skepticism for the government's justifications. His lack of deference toward the executive branch and its intelligence operations was palpable. "I cannot imagine a more 'indiscriminate' and 'arbitrary invasion' than this systematic and high-tech collection and retention of personal data," he wrote.

Judge Pauley peppered his lengthy opinion with expressions of great respect for the government's surveillance efforts. His respect for the nation's intelligence operations was palpable. “While there have been unintentional violations of guidelines," he wrote, "those appear to stem from human error and the incredibly complex computer programs that support this vital tool.”