A federal judge Monday declared that the National Security Agency’s (NSA) bulk collection of Americans’ telephone records is likely unconstitutional. The judge ruled collection of data must stop but delayed the order pending further appeals.
Judge Richard Leon wrote in a 68-page ruling that the NSA’s record of phone calls violates the Constitution’s Fourth-Amendment protection against unreasonable searches and seizures.
He wrote that he would stay the ruling “in light of the significant national security interests at stake in this case and the novelty of the constitutional issues.” Leon predicted an appeal would take at least six months, and the Supreme Court would probably have the last word. But the judge was confident of his opinion, warning the NSA to use the six months as a transition period to develop Constitutional methods of intelligence.
Plaintiff Larry Klayman of Freedom Watch praised the ruling on Tuesday’s The World and Everything In It.
“Judge Richard Leon stepped forward on behalf of the American people, he took on the tyranny of the other two branches of government,” he said. “They’re now on notice that what they’re doing is illegal, and in fact, what they’re doing is criminal.”
Monday’s ruling faces a long road to permanence, though. Stephen Vladeck, a national security law expert at the American University law school, noted that 15 judges on the Foreign Intelligence Surveillance Court have approved the practice in the past.
The Justice Department is counting on those FISA rulings. “We believe the program is constitutional as previous judges have found,” said Andrew C. Ames, a spokesman for the Justice Department’s National Security Division. “We have no further comment at this time."
The FISA court rulings build on a 1979 Supreme Court ruling related to a small criminal case. Under that ruling, citizens don’t have rights to the telephone data that phone companies keep as business records. Leon ruled, however, that today’s technological capabilities, plus the NSA’s comprehensive, “indiscriminate” methods of data collection, make that ruling obsolete.
“Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware 'the abridgment of freedom of the people by gradual and silent encroachments by those in power,' would be aghast," Leon wrote.
At times, Leon resorted to exclamation points and sarcasm to blast the NSA’s arguments. “The government asks me to find that plaintiffs lack standing based on the theoretical possibility that NSA has collected a universe of metadata so incomplete that the program could not possibly serve its putative function,” Leon wrote. “Candor of this type defies common sense and does not exactly inspire confidence!”
Reaction on Capitol Hill was largely positive from both parties. Leon said the government failed to cite a single instance in which the program “actually stopped an imminent terrorist attack.” Sen. Ted Cruz, R-Texas, agreed, saying that lack of evidence, plus actual attacks like the Boston Marathon bombing, makes for a telling review of the program. “The government has no business conducting overbroad surveillance of ordinary, law-abiding citizens,” he said.
Senate Intelligence Chairwoman Dianne Feinstein, D-Calif., agreed with the Justice Department and the FISA rulings. Her fellow Democrat, New Mexico Sen. Tom Udall, said that FISA court hearings take place largely behind closed doors. “Only one side—the government's—is represented,” he said. “With this case, Americans got their day in court.”
The collection program was disclosed by former NSA systems analyst Edward Snowden, provoking a heated national and international debate.