Federal Court Declares NSA Program Unconstitutional

Richard_J._Leon_NSA logo smallU.S. District Court Judge Richard Leon has handed down a blockbuster decision this afternoon finding that the massive National Security Agency surveillance program is unconstitutional – a view shared by many constitutional scholars including myself. The decision is not only a courageous defense of privacy but a reaffirmation of the integrity and independence of the courts. While President Obama often insists that his authority for such surveillance is clear, the Justice Department has fought mightily (and until now successfully) to block all major challenges of the program from securing judicial review. The decision is also an embarrassment to the “reform” boards set up by the White House, including one that just released its findings on the NSA program (including the assurance that the NSA program is perfectly legal).

The Review Board conclusions were leaked by officials, which noted that the board found that the NSA is operating within the laws. This was the day before Leon issued his ruling saying that the NSA was flagrantly violating the Constitution. Many of us have questioned the hand picked boards, including a privacy board that has yet to issue its recommendations, in the wake of the Snowden scandal.

Leon made it clear that this was not a close question: “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval.” What in interesting is that he stated that he not only saw the legal basis for such searches but failed to see the value of the program as a whole: “I have significant doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism.”

It is a rejection of a new version of old strategic warrants where the government engaged in open surveillance in the hopes of stumbling over a crime. Of course, the Obama Administration insists that it does not require a real warrant for collection metadata, including hundreds of millions of calls and emails. At a time when privacy seems besieged on all sides, the decision is a long-needed victory for civil liberties.

In the opinion below, Leon says that the Framers would be “aghast” at this program and I certainly agree with that assessment, though much of the presidential authority claimed today would likely produce a similar response.

Here is the opinion: NSA opinion

Source: Politico

74 thoughts on “Federal Court Declares NSA Program Unconstitutional”

  1. Sorry about the extraneous info in the last comment which is lengthy enough. I can’t see the full comment without scrolling through it — the box doesn’t expand fully, possibly to discourage cut and paste postings. (:

    1. “Mr. Clapper’s unclassified affidavit to the court — he also filed a classified version, the documents state — contrasts sharply with the findings of President Obama’s advisory committee on signals intelligence, which said in a report made public on Wednesday that the collection of bulk telephone data was of little proven value.”

      It should be noted that James Clapper is a known, self admitted liar on matters related to the case.

      In addition Judges of the FISA court have accused officials of NSA of intentionally misleading them in matters related to this case.

      At the very least I would hope that James Clapper would be required to appear in court to be questioned under oath in regard to the assertions he has made in affidavit

  2. http://www.nytimes.com/2013/12/22/us/white-house-tries-to-prevent-judge-from-ruling-on-surveillance-efforts.html?pagewanted=2&_r=0&hp

    White House Tries to Prevent Judge From Ruling on Surveillance Efforts
    Published: December 21, 2013

    WASHINGTON — The Obama administration moved late Friday to prevent a federal judge in California from ruling on the constitutionality of warrantless surveillance programs authorized during the Bush administration, telling a court that recent disclosures about National Security Agency spying were not enough to undermine its claim that litigating the case would jeopardize state secrets.
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    In a set of filings in the two long-running cases in the Northern District of California, the government acknowledged for the first time that the N.S.A. started systematically collecting data about Americans’ emails and phone calls in 2001, alongside its program of wiretapping certain calls without warrants. The government had long argued that disclosure of these and other secrets would put the country at risk if they came out in court.

    But the government said that despite recent leaks by Edward J. Snowden, the former N.S.A. contractor, that made public a fuller scope of the surveillance and data collection programs put in place after the Sept. 11 attacks, sensitive secrets remained at risk in any courtroom discussion of their details — like whether the plaintiffs were targets of intelligence collection or whether particular telecommunications providers like AT&T and Verizon had helped the agency.

    “Disclosure of this still-classified information regarding the scope and operational details of N.S.A. intelligence activities implicated by plaintiffs’ allegations could be expected to cause extremely grave damage to the national security of the United States,” wrote the director of national intelligence, James R. Clapper Jr.

    So, he said, he was continuing to assert the state secrets privilege, which allows the government to seek to block information from being used in court even if that means the case must be dismissed. The Justice Department wants the judge to dismiss the matter without ruling on whether the programs violated the First or Fourth Amendment.

    The filings also included similar declarations from earlier stages of the California litigation, which were classified at the time and shown only to the court but were declassified on Friday. The judge, Jeffrey S. White of the Northern District of California, had ordered the government to evaluate how the disclosures since Mr. Snowden’s leaks had affected its earlier invocations of the state secrets privilege.

    The plaintiffs have until late January to file a response. Cindy Cohn, the legal director for the Electronic Frontier Foundation, which is leading one of the cases, called the government’s assertion “very troubling.” She said that despite the Snowden revelations, it was still essentially saying, “We can’t say whether the American people have been spied on by their government.”

    Mr. Clapper’s unclassified affidavit to the court — he also filed a classified version, the documents state — contrasts sharply with the findings of President Obama’s advisory committee on signals intelligence, which said in a report made public on Wednesday that the collection of bulk telephone data was of little proven value.

    The panel’s experts concluded that “there has been no instance in which N.S.A. could say with confidence that the outcome would have been different” in a terror investigation without the collection of the telephone data. “Moreover, now that the existence of the program has been disclosed publicly, we suspect that it is likely to be less useful still.”

    Mr. Clapper, however, suggested that the program was one of many that needed to continue, and he discussed a litany of threats, mostly emanating from Al Qaeda and its affiliates, that he said made the program vital. He argued that revealing additional details, including whom it targets or how companies like AT&T and Verizon have given the N.S.A. access to its equipment and data, would be harmful.

    “Disclosing or confirming further details about these activities could seriously undermine an important tool — metadata collection and analysis — for tracking possible terrorist plots,” he wrote, and could reveal methodology, thus “helping foreign adversaries evade detection.”

    Still, Mr. Clapper’s description of the program as “an important tool” for tracking possible plots was a downgrade in rhetorical urgency. In earlier, now-declassified court filings, he and other officials had portrayed it as “an essential tool.”

    Mr. Obama, in a news conference on Friday, strongly suggested that he was looking for a way to split the difference between these two views. He stopped short of endorsing the advisory group’s recommendation that the data should be held by telecommunications companies or a private consortium that has yet to be created.

    “Just because we can do something doesn’t mean we necessarily should,” he said, repeating a line he has used often.

    The newly declassified affidavits discuss a now-familiar list of threats to the United States coming from Al Qaeda and groups that share some of its ideology, including a plot in 2006 to blow up airliners over the Atlantic Ocean and the attempted car bombing in Times Square in 2010. But one of the documents makes reference to a renewed effort by Al Qaeda to obtain a nuclear weapon after 2005. It did not cite evidence.

    The California litigation over warrantless surveillance represents the remnants of a wave of lawsuits filed in 2006 after The New York Times revealed that the Bush administration had authorized a program of wiretapping without warrants. Most of the initial suits were filed against telecommunications companies and were dismissed after Congress passed a law retroactively immunizing them for participating in the programs.

    One of the lawsuits had also named the N.S.A. as a defendant, and in 2008 the Electronic Frontier Foundation refiled a case against the N.S.A. and a series of government officials, challenging the range of domestic surveillance and data collection activities. Several of the claims in those cases have been dismissed, but the First and Fourth Amendment ones remain.

    The new filings came five days after another judge, Richard J. Leon of Federal District Court in the District of Columbia, ruled — in a case filed shortly after Mr. Snowden’s first reported disclosures — that the call-logging program in its current form probably violated the Fourth Amendment and called it “almost Orwellian.” The government is expected to appeal that decision.

    1. @Oky1

      Klayman sounds like a thoroughly disagreeable fellow to me. Any one who sues their mother to recover cost of medical care for his grandmother rises to the level of near mythical bad taste in my book.

      But I would be perfectly comfortable with the devil himself filing a law suit against illegal NSA activity.

      I don’t know about Lemon but Toobin is always a laugh – a welcome, usually hilarious, break in all the gloom of national news.

      I do note that after Toobin commented, with high seriousness, that the case affects everybody, he went on to make his remarks about Klayman and tried to characterize Klayman as a kook.

      I will take it as a given that Klayman is a kook. Doesn’t it take some sort of nut to challenge the NSA and the intelligence community?

      But why, exactly, is that relevant in the discussion of the legal merits of this case, it’s chances to prevail in higher courts, and the effects of NSA spying on the open society that many of us value?

      As I said Toobin is always a hoot. But this performance pushes the envelope even for Toobin and marks him as a master of dry parody of informed comment. In my opinion the only one who comes close to Toobin was the late Phil Hartman in his early days.

  3. Congress could obviate the problem by passing a statute requiring telephone service providers to maintain the metadata for a period of five years. Since the metadata would be in the hands of a private enterprise, the Fourth Amendment would not be implicated. The government could only access the metadata with a warrant.

    The government would not be collecting information about private citizens. The telephone service providers collect the information anyway for billing purposes. The only change would be that they would be required to maintain the records for a set period of time during which the government could access the information only with a warrant. The information would not be lost and the government could not snoop.

  4. Dale,

    I don’t think that you understand the power of the metadata.
    It is a picture of your life. Anyone who holds that has the ability to wield immense power over you.

    You don’t appear to need a Constitution.
    You believe that your rulers will always have your best interests at heart.
    You don’t think that the immense power of mass-surveillance could ever be used against innocents.
    You don’t foresee any situation in which you would join with other to agitate against how you are being ruled.

    “appears to be a terrorist”
    What’s that?
    MLK ‘appeared to be a terrorist’.
    The victims of McCarthyism ‘appeared to be terrorists’.
    The Occupy movement ‘appeared to be terrorists’.
    The first two got off very lightly – mass-surveillance-wise.

    Mass surveillance is not about fighting terrorism.
    It’s about control.

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