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. Blouise 1, December 16, 2013 at 9:47 pm

    Dredd,

    Thanks for the additional info on the ACLU’s case in front of Pauley. I’ve bookmarked the links you provided so I can follow the progress and keeping my fingers crossed for a favorable ruling. If the ruling is similar to Leon’s, do you think they both might work their way to SCOTUS?

    I’ve read the government’s claims that fifteen judges in the U.S. Foreign Intelligence Surveillance Court have approved the program on 35 separate occasions and that if Leon’s ruling stands, it may set up a Supreme Court case to arbitrate between Leon’s decision and the FISA court. If Pauley’s ruling comes down on the same side as Leon’s then that would make 2 open court rulings opposed to 15 (supposed) secret court Judges ruling on 35 different occasions.
    =============================
    A copy of Judge Pauley’s decision, where he ordered the case to go forward, is here.

    If Judge Pauley concurs with Judge Leon, and then the D.C. Federal Appellate Court and the Second Circuit Appellate Court, rule on the cases, it is likely the Supreme Court will take the case to update Smith v Maryland, 442 U.S. 735 (1979) which Judge Leon says is technologically out of date regarding “pen registers.”

    Additionally, there was a lot of talk on capitol hill about the bill in the Senate which would reign in the military NSA spying, getting them back within 4th Amendment law.

    If that happens, if that bill becomes law, this case “may become moot” if higher courts want to duck the issue and kick the can down the road.

    This one we have to wait out it would seem.

  2. If only “REFORM” came with holding people accountable for violating the laws that were never to be broken in the first place…

  3. Dredd,

    Thanks for the additional info on the ACLU’s case in front of Pauley. I’ve bookmarked the links you provided so I can follow the progress and keeping my fingers crossed for a favorable ruling. If the ruling is similar to Leon’s, do you think they both might work their way to SCOTUS?

    I’ve read the government’s claims that fifteen judges in the U.S. Foreign Intelligence Surveillance Court have approved the program on 35 separate occasions and that if Leon’s ruling stands, it may set up a Supreme Court case to arbitrate between Leon’s decision and the FISA court. If Pauley’s ruling comes down on the same side as Leon’s then that would make 2 open court rulings opposed to 15 (supposed) secret court Judges ruling on 35 different occasions.

  4. http://www.enewspf.com/latest-news/latest-national/latest-national-news/48820-senator-bernie-sanders-statement-on-court-ruling-against-nsa.html

    Senator Bernie Sanders Statement on Court Ruling Against NSA

    WASHINGTON, DC–(ENEWSPF)–December 16, 2013 – Senator Bernie Sanders (I-Vt.) issued the following statement today after a federal judge declared that the bulk collection of Americans’ telephone records by the National Security Agency is likely to violate the Constitution’s ban on unreasonable searches and probably is not effective in fighting terrorism:

    “I applaud the D.C. District Court’s ruling today on the NSA surveillance program. In my view, the NSA is out of control and operating in an unconstitutional manner. Today’s ruling is an important first step toward reining in this agency but we must go further. I will be working as hard as I can to pass the strongest legislation possible to end the abuses by the NSA and other intelligence agencies.”

    Source: sanders.senate.gov

  5. There once was a bureaucrat named Clapper
    Who lied on on the stand like a Rapper
    He claimed the NSA
    Could legally disobey
    The Constitution & toss it into the Crapper

  6. My compliments go out to the commenters here. I am glad that the Judge issued this opinion but I am heartened by you guys.

    Now, if I can make fun of Clapper.
    [music]
    My Boomerang wont come back!
    My Reputation cant come back!
    I’m the biggest disgrace to the United States base.
    The Nazis have my back.

    I… Can….
    Ride a Kangaroo. Eat itShay too.
    Biggest disgrace to my brain dead race.
    My boomerang wont come back.

  7. I have just read the opinion by Judge Leon. He could perhaps be a little more succinct but I like the analysis. The ACLU suit was previously discussed here on this blog and that Complaint was discussed. The good thing about this case is that it is in the DC Circuit and will go up to that Court of Appeals.

    But the opinion aside. I am encouraged by the comments here on the blog and I agree with most of the comments and the differing takes that you have. The comment right above me here is precious. We have a dog in our dogpac named JackSh!tDog and he does not communicate on the blog here because, unlike itchinBayDog, he will not alter his name to satisfy WordPress.

    The dogpac will be chiming in on this topic. We are mad because we blame the NSA perps for destroying our Dogalogue Machine. That is how we read and write in human and how we communicate with you guys.

    That Clappertrap guy needs to be charged with perjury.

  8. I’m still scratching my head at ALL Senate Intelligence Committee members…
    … That they entertain liars and do jack sh!t about it.

  9. Mike S.,
    You are spot on with your question, which goes far beyond being rhetorical. The same thing has occurred to me. It is this kind of thing which causes many folks to be glad there is a Second Amendment.

  10. This was a wonderful ruling and should it stick then it will be interesting to see what plays out. If the NSA and the Administration refuses to halt the program despite a court ruling then we are headed for one massive constitutional conflict. Impeachment goes on the table. However, what can’t be foreseen is whether those “powers that be” might just reveal how lawless they are and deny the courts right to stop their behavior. In which case the patina of democracy is abraded and people begin to understand what conditions we really are living under.

  11. So if GeneH just happened by OS’s house when OS was away & kicked his door down & went nosing through OS’s papers & effects & got caught by the Laws GeneH would be looking at jail time.

    So now that this court has ruled who’s getting the cuffs slapped on them & held at least waiting for a bail hearing.

    Oh, I see, it’s animal farm again & I get to emotional these issues sometimes.

    I get so pissed at those Nazi Aholes at time I could nails in half.

    Get me a ball room full of Scotsmen, a few pints & have OS drag in the pipes & we’ll fix a few of those boys by sunrise. LOL Just a passing thought.

  12. Blouise 1, December 16, 2013 at 5:11 pm


    I believe, correct me if I’ve got it wrong, that Judge William Pauley has reserved decision on an ACLU request to halt the National Security Agency surveillance programs pending the outcome of its lawsuit against President Barack Obama’s administration. That case was also heard in late November.

    ==============================
    I have been following that case, reading documents filed therein, and posting about it.

    No, Judge Pauley did not stay anything.

    In fact he said let’s git ‘R done after the chief judge gave the government a stay because of the “government shutdown”.

    He called BS on that and ordered the case to proceed.

    He probably already would have ruled but for the delay.

    He heard oral argument and is now preparing a decision.

    Again, my link from up-thread (ACLU v. Clapper).

  13. Metadata, metadata. word fong trash. Metadata sounds innocuous. So does the word “data”. Nowdays every article in learned magazines has the phrase: “The data suggests…” The words like “facts” or “information derived from the tape recording of Judge Louis Brandeis….”
    The government throws up this metadata phrase like they are looking at ads on the wall at a subway stop. Nothing private, nothing from your vault.

    Clapper is a criminal. His name will replace the word Claptrap.

  14. I believe, correct me if I’ve got it wrong, that Judge William Pauley has reserved decision on an ACLU request to halt the National Security Agency surveillance programs pending the outcome of its lawsuit against President Barack Obama’s administration. That case was also heard in late November. -Blouise

    https://www.aclu.org/national-security/aclu-v-clapper-challenge-nsa-mass-phone-call-tracking

    “ACLU v. Clapper – Challenge to NSA Mass Call-Tracking Program

    The ACLU has filed a lawsuit challenging the constitutionality of the National Security Agency’s mass collection of Americans’ phone records. The complaint argues that the dragnet, justified by the Patriot Act’s Section 215, violates the right of privacy protected by the Fourth Amendment as well as the First Amendment rights of free speech and association. The complaint also charges that the program exceeds the authority that Congress provided through the Patriot Act. The lawsuit seeks to end the mass domestic spying and have all of the collected data deleted. Oral argument on the ACLU’s motion for a preliminary injunction and the government’s motion to dismiss was held on November 22 in New York, and we are now awaiting the court’s decision.

    View all of the documents filed in the case>>

    More on NSA surveillance, reform legislation, and other ACLU cases>>

    On June 5, 2013, The Guardian revealed details of the NSA’s domestic spying activities, including a secret order from the Foreign Intelligence Surveillance Court (FISC) to Verizon Business Network Services. The order required the company to turn over on “an ongoing daily basis” phone call details including whom calls are placed to and from, when those calls are made, and how long they last. This information, known as metadata, can reveal intimate details about our private lives. The order is part of an ongoing program that continues today. On June 11, the ACLU and NYCLU, both of which are current or recent Verizon Business customers, filed the lawsuit.

    Because the NSA’s aggregation of metadata constitutes an invasion of privacy and an unreasonable search, it is unconstitutional under the Fourth Amendment. The call-tracking program also violates the First Amendment, because it vacuums up sensitive information about associational and expressive activity.

    The Patriot Act’s Section 215 – also known as the “business records” provision – allows the FBI to obtain secret court orders from the FISC compelling third parties to produce “any tangible thing” that is “relevant” to foreign intelligence or terrorism investigations. In addition to the constitutional claims above, the lawsuit charges that the executive branch’s use of Section 215 goes far beyond what the statute permits. Whatever Section 215’s “relevance” requirement might allow, it does not permit the government to cast a seven-year dragnet sweeping up every phone call made or received by Americans.

    The ACLU is also currently litigating a Freedom of Information Act lawsuit seeking documents on the government’s legal interpretation and use of Section 215, and has also filed a motion with the FISC asking it to release its secret opinions authorizing the NSA program.

    The ACLU’s 2008 lawsuit challenging the constitutionality of the FISA Amendments Act, which authorized the so-called “warrantless wiretapping program,” was dismissed 5–4 by the Supreme Court in February 2013 on the grounds that the plaintiffs could not prove that they had been monitored. The ACLU does not believe the issue of standing to be a problem in ACLU v. Clapper because of the FISC order showing that the NSA is collecting the telephone records of all Verizon Business customers – including the ACLU.”

  15. The ACLU’s Press Release:

    https://www.aclu.org/national-security/judge-rules-against-nsa-phone-data-collection

    Judge Rules Against NSA on Phone Data Collection

    December 16, 2013

    FOR IMMEDIATE RELEASE

    CONTACT: media@aclu.org

    WASHINGTON – A federal court ruled today that the NSA’s mass call-tracking program violates the Constitution. The lawsuit was filed in Washington by activist Larry Klayman. The American Civil Liberties Union is currently litigating a similar legal challenge in New York, ACLU v. Clapper.

    ACLU Deputy Legal Director Jameel Jaffer, one of two attorneys who argued the ACLU case last month, had this reaction to today’s ruling:

    “This is a strongly worded and carefully reasoned decision that ultimately concludes, absolutely correctly, that the NSA’s call-tracking program can’t be squared with the Constitution. As Judge Leon notes, the government’s defense of the program has relied almost entirely on a 30-year-old case that involved surveillance of a specific criminal suspect over a period of two days. The idea that this narrow precedent authorizes the government to place every American under permanent surveillance is preposterous. We hope that Judge Leon’s thoughtful ruling will inform the larger conversation about the proper scope of government surveillance powers, especially the debate in Congress about the reforms necessary to bring the NSA’s surveillance activities back in line with the Constitution. The bipartisan USA Freedom Act, which has 130 co-sponsors already, would address the constitutional problems that Judge Leon identifies.”

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