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Federal judge says NSA's bulk phone collection unconstitutional

By Frederic J. Frommer

Associated Press

LAST UPDATED: 12:03 p.m. HST, Dec 16, 2013

WASHINGTON » In the first ruling of its kind, a federal judge declared today that the National Security Agency's bulk collection of Americans' telephone records is likely to violate the Constitution's ban on unreasonable search. The program probably isn't effective in fighting terrorism either, the judge said in a lengthy opinion filled with blistering criticism.

U.S. District Court Judge Richard Leon granted a preliminary injunction against the government's collecting of the phone records of two men who had challenged it 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 "metadata" 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.

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."

The collection program was disclosed by former NSA systems analyst Edward Snowden, provoking a heated debate over civil liberties.

In a statement provided to reporter Glenn Greenwald and obtained by The Associated Press, Snowden 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."

"I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism," he added.

He said was staying his ruling pending appeal "in light of the significant national security interests at stake in this case and the novelty of the constitutional issues."

The government has argued that under a 1979 Supreme Court ruling, Smith v. Maryland, no one has an expectation of privacy in the telephone data that phone companies keep as business records. In that ruling, the high court rejected the claim that police need a warrant to obtain such records.

But Leon said that was a "far cry" from the issue in this case. The question, he said, is, "When do present-day circumstances — the evolutions in the government's surveillance capabilities, citizens' phone habits, and the relationship between the NSA and telecom companies — become so thoroughly unlike those considered by the Supreme Court 34 years ago that a precedent like Smith simply does not a apply? The answer, unfortunately for the government, is now."

He wrote that the court in 1979 couldn't have imagined how people interact with their phones nowadays, citing the explosion of cellphones. In addition, he said, the Smith case involved a search of just a few days, while "there is the very real prospect that the (NSA) program will go on for as long as America is combatting terrorism, which realistically could be forever!"

Leon added: "The almost-Orwellian technology that enables the government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived of in 1979."

The judge also mocked the government's contention that it would be burdensome to comply with any court order that requires the NSA to remove the plaintiffs from its database.

"Of course, the public has no interest in saving the government from the burdens of complying with the Constitution!" he wrote. As for the government's complaint that other successful requests "could ultimately have a degrading effect on the utility of the program," he said, "I will leave it to other judges to decide how to handle any future litigation in their courts."

Stephen Vladeck, a national security law expert at the American University law school, said Leon is the first judge to say he has serious constitutional concerns about the program.

"This is the opening salvo in a very long story, but it's important symbolically in dispelling the invincibility of the metadata program," he added.

Vladeck said 15 judges on the Foreign Intelligence Surveillance Court have examined Section 215 of the Patriot Act, the provision of law under which the data collection takes place, without finding constitutional problems. "There's a disconnect between the 15 judges on the FISA court who seem to think it's a no-brainer that Section 215 is constitutional, and Judge Leon, who seems to think otherwise."

Vladeck said there is a long road of court tests ahead for both sides in this dispute and that a higher court could ultimately avoid ruling on the big constitutional issue identified by Leon. "There are five or six different issues in these cases," Vladeck said.

Robert F. Turner, a professor at the University of Virginia's Center for National Security Law, said searching the databases involved in the National Security Agency case is similar to searching motor vehicle records or FBI fingerprint files.

The judge's decision is highly likely to be reversed on appeal, Turner said.

He said the collection of telephone metadata — the issue in today's ruling — has already been addressed and resolved by the Supreme Court. Turner said law enforcement officials routinely obtain telephone bills that include the numbers dialed without the use of a warrant.

"The odds that an American will have their phone metadata examined by law enforcement officials are about 1,000-times greater than by the National Security Agency," Turner said.

Associated Press writers Mark Sherman, Pete Yost, Nedra Pickler and Kimberly Dozier in Washington and Bradley Brooks in Brazil, contributed to this story.

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HD36 wrote:
We would never have known what the NSA was doing if not for Snowden. When you give up liberty for security, you end up losing both.
on December 16,2013 | 08:43AM
lee1957 wrote:
The program was vetted through both the executive and legislative branches of government. Although the general public did not know except for Snowden, the program was not some rogue NSA operation.
on December 16,2013 | 10:41AM
eoe wrote:
"Vetted" is probably too strong a term. Basically a bunch of scaredy pants in congress passed the patriot act - probably didn't even read it - and then the NSA used a series of secret decisions to interpret that law as broadly as possible. But you are right - not a rogue program. Just the natural tendency of intelligence agencies to use secrecy and crisis, and ignorance to expand their powers as much as possible.
on December 16,2013 | 10:59AM
RichardCory wrote:
Vetted? By whom, and in what capacity, and with how much information being disclosed? Unless you can answer these questions, then don't try to vouch for this clearly unconstitutional program. Even a child could see how widespread domestic surveillance is antithetical to democratic institutions. Trying to pretend that this was just a "foreign" surveillance tool is naive, as Snowden has revealed.
on December 16,2013 | 11:14AM
localguy wrote:
No wonder the Government wanted to get their hands on Snowden so bad. He is exposing how they are willfully violating the constitution. All those dysfunctional NSA bureaucrats have been lying to our faces for years, fingers crossed behind their backs. Way to go Edward!!!!
on December 16,2013 | 09:27AM
HanabataDays wrote:
"bulk collection of phone records violates the Constitution's ban on unreasonable searches." Gee, ya think?!
on December 16,2013 | 09:33AM
RandolphW wrote:
A lot of government jobs hang in the balance on this judicial ruling. Now, the government will toss even more lies into our faces.
on December 16,2013 | 09:41AM
Hawaii_Libertarian wrote:
The Obama-worshiping Star-Advertiser buried this article as fast as possible. The "Constitutional Scholar: Obama is a fraud and should be impeached for treason for trashing the Constitution. This story should be front page news, but the Star-Advertiser is nothing put pure propaganda for Obama and the Democrat Party. If Bush was still president, the Star-Advertiser and the Honolulu TV stations would be wailing about it for days and you wouldn't be able to get the story off the front page. Tulsi Gabbard spoke out eloquently on the floor of the U.S. House of Representatives 4 months ago in support of Republican Justin Amash's amendment to curb NSA abuses, but you never read about it in the Star-Advertiser, Hawaii News Now, KITV, or KHON. Check out Tulsi's speech at 19:27 in the C-Span video at the link below if you want the truth without editorial comment. http://youtu.be/61sGhUA3qEc
on December 16,2013 | 08:39PM
nodaddynotthebelt wrote:
"Vladeck said 15 judges on the Foreign Intelligence Surveillance Court have examined Section 215 of the Patriot Act, the provision of law under which the data collection takes place, without finding constitutional problems. "There's a disconnect between the 15 judges on the FISA court who seem to think it's a no-brainer that Section 215 is constitutional, and Judge Leon, who seems to think otherwise."" Of course these judges would not speak out. They don't want to become the subject of spying themselves.
on December 17,2013 | 10:50AM
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