U.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