Judge: NSA program is likely unconstitutional
By FREDERIC J. FROMMER
the associated press | December 17,2013
This photo shows a sign outside the National Security Agency (NSA) campus in Fort Meade, Md.
WASHINGTON — In a ruling with potentially far-reaching consequences, a federal judge declared Monday that the National Security Agency’s bulk collection of millions of Americans’ telephone records likely violates the U.S. Constitution’s ban on unreasonable search. The ruling, filled with blistering criticism of the Obama administration’s arguments, is the first of its kind on the controversial program.
Even if NSA’s “metadata” collection of records should pass constitutional muster, the judge said, there is little evidence it has ever prevented a terrorist attack. The collection program was disclosed by former NSA systems analyst Edward Snowden, provoking a heated national and international debate.
U.S. District Court Judge Richard Leon granted a preliminary injunction against the collecting of the phone records of two men who had challenged the program and said any such records for the men should be destroyed. But he put enforcement of that decision on hold pending a near-certain government appeal, which may well end up at the Supreme Court.
The injunction applies only to the two individual plaintiffs, but the ruling is likely to open the door to much broader challenges to the records collection and storage.
The plaintiffs are Larry Klayman, a conservative lawyer, and Charles Strange, who is the father of a cryptologist technician who was killed in Afghanistan when his helicopter was shot down in 2011. The son worked for the NSA and support personnel for Navy SEAL Team VI.
Leon, an appointee of President George W. Bush, ruled that the two men “have a substantial likelihood of showing” that their privacy interests outweigh the government’s interest in collecting the data “and therefore the NSA’s bulk collection program is indeed an unreasonable search under the Constitution’s Fourth Amendment.”
“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,” he declared.
In addition to civil liberties critics, big communications companies are unhappy with the NSA program, concerned about a loss of business from major clients who are worried about government snooping. President Barack Obama will meet today with executives from leading technology companies. The meeting was previously scheduled, but the NSA program is sure to be on the agenda, and now the court ruling will be in the mix.
After the ruling, Andrew C. Ames, a spokesman for the Justice Department’s National Security Division, said in a statement, “We’ve seen the opinion and are studying it. We believe the program is constitutional as previous judges have found. We have no further comment at this time.”
Snowden, in a statement provided to reporter Glenn Greenwald and obtained by The Associated Press, said, “I acted on my belief that the NSA’s mass surveillance programs would not withstand a constitutional challenge and that the American public deserved a chance to see these issues determined by open courts. Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many.”
The Obama administration has defended the program as a crucial tool against terrorism.
But in his 68-page, heavily footnoted opinion, Leon concluded that the government didn’t cite a single instance in which the program “actually stopped an imminent terrorist attack.”