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Judge: NSA phone sweep likely invalid

Finding that the National Security Agency’s global telephone data sweep is so extensive that everyone’s calling information not only is likely to be gathered, but then could be analyzed more closely, a federal judge in Washington, D.C., ruled on Monday that the program probably will be ruled unconstitutional.   He blocked the program as it applied to two telephone users, but then put that order on hold so that the government could appeal it.

U.S. District Judge Richard J. Leon, in identical sixty-eight-page opinions in two cases, declared that the so-called “bulk metadata collection and analysis” program “almost certainly does violate a reasonable expectation of privacy,” and thus would be invalid under the Fourth Amendment’s privacy guarantee.

The ruling runs directly counter to a series of orders by a secret and specialized federal court, the Foreign Intelligence Surveillance Court, declaring that the telephone surveillance does not violate the Fourth Amendment and allowing it to continue.  Judge Leon was the first judge outside the FIS Court to find that the program would run afoul of the Fourth Amendment.  If his order withstands an appeal, and then results in a formal ban by the judge, it would be a major setback for the Obama administration’s anti-terrorism campaign.

From a legal standpoint, the most significant part of Judge Leon’s ruling was that it would undercut the most significant foundation the government has claimed for the legality of the telephone data sweeps.

He ruled that he was not bound by a 1979 Supreme Court ruling that both the Obama Administration and the secret FIS court that has approved the data sweeps have interpreted as authorizing the program.  Judge Leon said that the Supreme Court in the case of Smith v. Maryland did not deal with the communications world as it exists today, so its ruling does not directly apply to what NSA is now doing on a worldwide basis in search of terrorism information.  He found that, today, telephone and other communications companies are essentially engaged in a joint intelligence-gathering program with the federal government.

“This case,” the judge wrote, “is yet the latest chapter in the judiciary’s continuing challenge to balance the national security interests of the United States with the individual liberties of our citizens.  The government, in its understandable zeal to protect our homeland, has crafted a counterterrorism program with respect to telephone metadata that strikes the balance based in large part on a thirty-four-year old Supreme Court precedent, the relevance of which has been eclipsed by technology advances and a cell phone-centric lifestyle heretofore inconceivable.”

He ruled in the case of two cellphone users, who claimed that the global phone data sweeps have captured their calling activity as customers of Verizon Wireless.  Judge Leon concluded that they had an “expectation of privacy” in the records of their calls, and that they had a legal right to be in court to make their Fourth Amendment claim.

In another part of his ruling, however, the judge said he had no authority to rule on the two customers’ separate claims challenging the government’s massive programs — one of which was discontinued two years ago — to collect data on communications via the Internet rather than by telephones.

Judge Leon’s decision on the telephone data program was limited to the Fourth Amendment issue.  He said the challengers did not have a right to be in court to make their claim that the program violates the specific federal law governing foreign intelligence surveillance.

The ruling was only on a preliminary injunction, and thus the judge did not issue a final ruling that the telephone program was actually unconstitutional — only that there was a sufficient likelihood that the challenge would succeed that an order temporarily blocking it was proper.

The ruling was something of a surprise, because it came from a judge with a reputation as a conservative on government national security activity.  For example, Judge Leon has been one of the strongest judges in favor of the government’s power to detain terrorism suspects at Guantanamo Bay, and issued one of the first rulings blocking the detainees there from challenging their captivity — a decision later overturned by the Supreme Court.

The ruling came in a case filed by Larry Klayman, a high-profile challenger in court to many government programs.   He has repeatedly sued federal agencies and is a highly familiar figure in the federal courthouse in Washington.  He formerly was associated with Judicial Watch, Inc.  Judge Leon ruled that his order only applied to Klayman and to another individual customer of Verizon Wireless who joined in the two Klayman lawsuits.

In putting his blocking order on hold to allow the government a chance to appeal it to the D.C. Circuit, the judge warned the government to spend the time during the appeal getting ready to carry out its order if it upheld on appeal.  He said his order would go into effect immediately if it were upheld, and he warned the government that he might impose sanctions if it engaged in any delays if the time came for him to put it fully into effect.

The Justice Department issued a brief statement, saying it was studying the ruling, but adding that “we believe the program is constitutional as previous judges have found.”  Last week, the government told the Senate Judiciary Committee that fifteen separate judges of the specialized FIS Court “have held on 35 occasions” that federal law authorizes the program at issue “in support of counter-terrorism investigations.”

If the government does appeal, its first step would likely be to ask the D.C. Circuit to delay Judge Leon’s order while the appeal proceeds.

Recommended Citation: Lyle Denniston, Judge: NSA phone sweep likely invalid, SCOTUSblog (Dec. 16, 2013, 3:41 PM),