Judge: NSA phone program likely unconstitutional
Judge: NSA phone program likely unconstitutional
By JOSH GERSTEIN | 12/16/13 1:36 PM EST Updated: 12/16/13
3:51 PM EST
A federal judge ruled Monday that the National Security
Agency program which collects information on nearly all telephone calls made
to, from or within the United States is likely unconstitutional.
U.S. District Court Judge Richard Leon found that the program
appears to violate the Fourth Amendment ban on unreasonable searches and
seizures. He also said the Justice Department had failed to demonstrate that
collecting the information had helped to head off terrorist attacks.
Acting on a lawsuit brought by conservative legal
activist Larry Klayman, Leon issued a preliminary injunction barring the NSA
from collecting so-called metadata pertaining to the Verizon accounts of
Klayman and one of his clients. However, the judge stayed the order to allow
for an appeal.
“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary
invasion’ than this systematic and high-tech collection and retention of
personal data on virtually every single citizen for purposes of querying it and
analyzing it without judicial approval,” wrote Leon, an appointee of President
George W. Bush.
The preliminary injunction Leon granted Monday does not
require him to make a definitive ruling on the constitutional questions in the
case, but does take account of which side he believes is more likely to
prevail.
Leon’s 68-page opinion is the first significant legal
setback for the NSA’s surveillance program since it was disclosed in June in
news stories based on leaks from former NSA contractor Edward Snowden. For
seven years, the metadata program has been approved repeatedly by numerous
judges on the Foreign Intelligence Surveillance Court and found constitutional
by at least one judge sitting in a criminal case.
The Justice Department persuaded those courts that the
collection of information on the time and length of calls, as well as the
numbers called, did not amount to a search under the Fourth Amendment because
that information is routinely available to telephone companies for billing
purposes and is shared with those firms voluntarily.
Government lawyers and the judges who found the NSA
program legal pointed to a 1979 Supreme Court ruling, Smith v. Maryland, which
found no search warrant was needed by police to install a device which recorded
the numbers dialed on a particular phone line.
But Leon said the three-decade-old precedent was not
applicable to a program like the NSA’s because of its sophistication and
because telephone use has become far more intense in recent years.
“The ubiquity of phones has dramatically altered the
quantity of information that is now available and, more importantly, what that
information can tell the Government about people’s lives,” the judge wrote. “I
cannot possibly navigate these uncharted Fourth Amendment waters using as my
North Star a case that predates the rise of cell phones.”
The judge went on to conclude that the searches involved
in the NSA metadata program were likely not permissible under the Fourth
Amendment in part because there was little evidence the program has actually
prevented terrorism.
“I have significant doubts about the efficacy of the
metadata collection program as a means of conducting time-sensitive
investigations in cases involving imminent threats of terrorism,” Leon wrote.
“The government does not cite a single instance in which analysis of the NSA’s
bulk metadata collection actually stopped an imminent attack, or otherwise
aided the Government in achieving any objective that was time-sensitive in
nature.”
The judge’s ruling was issued just before White House
press secretary Jay Carney took the podium for the daily press briefing. Carney
said he was unaware of the decision and he referred inquiries to the Justice
Department.
“We are reviewing the court’s decision,” DOJ spokesman
Andrew Ames said.
Similar lawsuits challenging the program are pending in
at least three other federal courts around the country. In addition, criminal
defendants are beginning to challenge the program after the Justice Department
disclosed it had played a role in investigating their cases.
Critics of the NSA program leapt on Leon’s decision as
evidence that the legal foundation of the surveillance effort is deeply flawed.
“The ruling underscores what I have argued for years: The
bulk collection of Americans’ phone records conflicts with Americans’ privacy
rights under the U.S. Constitution and has failed to make us safer,” Sen. Mark
Udall (D-Colo.) said in a statement urging passage of legislation ending the
so-called bulk collection program. “We can protect our national security
without trampling our constitutional liberties,” he added.
At a hearing last month, Leon said he knew that his
decision would be far from the last word on the issue, which is almost certain
to wind up at the Supreme Court.
However, he added some flair to his opinion Monday,
referring at one point to the Beatles and at another to Federalist Papers
author James Madison, who later became president.
“Surely, such a program infringes on ‘that degree of
privacy’ that the Founders enshrined in the Fourth Amendment. Indeed, I have
little doubt that the author of our Constitution, James Madison, who cautioned
us to beware ‘the abridgement of freedom of the people by gradual and silent
encroachments by those in power’ would be aghast,” the judge wrote.
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