U.S. judge again rules NSA collection of phone data is likely unconstitutional
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Version 0 of 1. For the second time in as many years, a federal judge on Monday called the National Security Agency’s bulk collection of Americans’ telephone records likely unconstitutional, ordering a halt to the surveillance program three weeks before it is set to be phased out. The immediate impact of the decision by U.S. District Judge Richard J. Leon of Washington was not clear, although civil liberties groups called it an important judicial rebuke of what Leon called an “astounding” and “unparalleled” example of dragnet surveillance. Leon’s opinion barred only the NSA’s collection of data relating to two of the individual and business plaintiffs who filed suit, and the judge indicated that no appeal would likely resolve the question of the legality of the program before it expires Nov. 29. Indeed, Justice Department officials late Monday asked Leon to immediately stay his opinion pending appeal. Benjamin C. Mizer, principal deputy assistant attorney general, and others wrote Leon to argue that even a limited injunction would require the NSA to terminate the program while making requisite technical changes. “That result is contrary to the judgment of Congress and the President that this important counter-terrorism intelligence program should end only after the current transition . . . to avoid creating an intelligence-collection gap that could place national security at risk,” Justice Department officials wrote. Jameel Jaffer, deputy legal director of the American Civil Liberties Union, which filed a friend-of-the-court brief supporting the plaintiffs in the case, said that whatever the short-term impact, Leon’s opinion calls into question the legality of any other types of open-ended government collection of data about millions of Americans, such as their location, finances or credit reports. “The government should now commit to destroying the call records that it collected illegally — not just its database of ‘raw’ data but any subsidiary databases that include query results,” Jaffer said. “It should also reconsider the lawfulness of other bulk surveillance programs that have not been officially acknowledged.” Under the NSA program, secretly initiated in 2001 under executive power and approved by the Foreign Intelligence Surveillance Court in 2006, the agency gathered millions of Americans’ phone records daily in an effort to detect terrorist plots. The program collected telephone “metadata” — including the number, time and duration of calls, but not their content — from billions of phone calls from an unknown number of large phone companies. Under challenges from the courts in recent years, Congress approved legislation in June to end the program after a transition period. Under the new USA Freedom Act, records collection is scheduled to shift to private telephone companies by Nov. 29, at which point the government must obtain court approval to query information. The government had begun to do so voluntarily last year after the program’s disclosure in June 2013 based on a document leaked by former NSA contractor Edward Snowden. Leon originally ordered a halt to the NSA program in December 2013. He became the first federal judge to conclude that the program appeared to violate Americans’ Fourth Amendment right to privacy. [ U.S. judge rules NSA phone collection program is likely unconstitutional ] Leon stayed that decision pending appeal. This August, a panel of the U.S. Court of Appeals for the District of Columbia Circuit sent the case back to him, ruling narrowly that plaintiffs led by conservative legal activist Larry Klayman, founder of Freedom Watch, had not proved that their records were among those the government had collected. The plaintiffs then amended their case to include customers of Verizon Business Network Services, a Verizon unit known to have participated in the program. Leon on Monday enjoined the NSA from collecting data about those plaintiffs, J.J. Little and his California law firm, J.J. Little & Associates, and this time refused to stay his order, saying that the government had more than 22 months to prepare. “The fact remains that the indiscriminate, daily bulk collection, long-term retention, and analysis of telephony metadata almost certainly violates a person’s reasonable expectation of privacy,” Leon wrote in his new opinion, calling the NSA program “a dragnet of unparalleled proportions” with “monumental” constitutional effects. Leon previously had called the NSA program “almost Orwellian,” and said he thought “that tens of millions of Americans’ constitutional rights have been — and are being — violated.” In an interview, Klayman said, “Thank God there’s someone like Judge Leon who will stand up for the American people.” “This case is perhaps the last chapter in the Judiciary’s evaluation of this particular Program’s compatibility with the Constitution,” Leon wrote. “It will not, however, be the last chapter in the ongoing struggle to balance privacy rights and national security interests under our constitution in an age of evolving technological wizardry.” Elizabeth Goitein, co-director of the Brennan Center for Justice’s liberty and national security program, said Leon’s order is not “pointless symbolism” but an important commitment to the rule of law “at a time when the executive branch and the [Foreign Intelligence Surveillance Court] have shown themselves all too willing to play fast and loose with the law’s terms.” Ellen Nakashima contributed to this report. |