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. Without question there is a free speech right to communicate in privacy with others. The question is “Does privacy include data about when, who and for how long?” It appears to me that my free speech privacy ought not include this data and protect it from being gathered and disclosed. But we probably do need more objective review by more disassociated commissioners before we allow any agency to go in a “connect the dots” witch hunt. If I do talk someone who appears to be a terrorist, and a witch hunt exposes the existence of that call but not its content, I understand that my future calls can be monitored for content.

  2. Re: Blouise

    There is also a CoinTelPro angle not being debated. This program and similar programs intentionally “framed” innocent people like Martin Luther King, Jr.. Consider that for a moment, a powerful agency like the FBI attacking an innocent citizen for Freedom of Speech exercises – not an actual crime.

    That is why the one-sided FISA Court process is so dangerous. For example: the FBI could show a photograph of a suspect meeting with another suspect that was completely engineered by the FBI, but the suspects themselves can never respond or explain the photo.

    Since the FBI fabricated it, they don’t want the suspect to appear before the judge or the agents may be charged with perjury. Confronting suspects under oath deters fraud by some (not all) FBI, cops and intel personnel. The Church Committee Reports of the 1970’s exposed these tactics by some agencies but few federal agents were criminally prosecuted for these felony crimes.

    The Founding Fathers also wanted confrontation of all suspects and speedy justice.

  3. raff,

    What I find so ridiculous is the Justice Department telling us that the decisions made by 15 judges, decisions we can not read, judges we can not questions, proceedings we can not watch, that those decisions are on equal footing with the decisions rendered by our District Courts.

    Furthermore, these 15 judges were not subject to the process of checks and balances our District Court Judges go through but, rather, put in place by one man and empowered by one man and one man only, the Chief Justice of the Supreme Court.

    When did the coup occur that established the Chief Justices of the Supreme Court as Dictator?

  4. Bringing things full circle, at this point in time the smartest bad guys with the most dangerous capability – wouldn’t use cell phones or electronic devices at all – they will simply stop using the technology.

    They know they are leaving an electronic trail so the real bad guys have probably stopped doing it and could even use it to their advantage.

    Innocent Americans will eventually purchase anti-tracking devices like those used for credit card security cases to block cell signals.

  5. Blouise,
    I also believe that the FISA court as currently used, is unconstitutional. If the people do not have any possible oversight of this portion of the judiciary, how can we ever correct its abuses?

  6. Blouise 1, December 17, 2013 at 12:36 pm

    “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.” (Dredd)

    The thing that concerns me: It is my understanding (and here, once again, please correct me if I am wrong) that all the judges on the FISA court are appointed by the Chief Justice of the Supreme Court. If indeed the government’s claims are true that 15 of those judges have approved NSA’s metadata program over and over again, is the Supreme Court able to provide the proper forum in which this case could be heard? Would the Chief Justice have to recuse himself?
    ———-
    Blouise 1, December 17, 2013 at 12:57 pm

    Dredd,

    Understand that it is my opinion that the FISA court (US Foreign Intelligence Surveillance Court) is, itself, unconstitutional and the use of it by the government for justification in the case before Leon proves why.
    ==============================
    I agree it is not a valid American court.

    There is no due process in the sense that all Americans who are spied upon do not get their required probable cause, their required notice, their required day in court, a chance to call witnesses, cross examine their opponents, nor a jury trial of thier peers if they so choose.

    It is a heinous concept envisioned by depraved minds, minds bereft of American ideals and traditions.

    All Supreme Court justices who stood by and did nothing about it, especially their leader, the Chief, should resign in shame.

    It is a, or the, low-point in American Jurisprudence.

    And what Mike S said.

  7. Dredd,

    Understand that it is my opinion that the FISA court (US Foreign Intelligence Surveillance Court) is, itself, unconstitutional and the use of it by the government for justification in the case before Leon proves why.

    1. “Understand that it is my opinion that the FISA court (US Foreign Intelligence Surveillance Court) is, itself, unconstitutional and the use of it by the government for justification in the case before Leon proves why.”

      Blouise,

      I couldn’t agree more. The entire notion does not meet the constitutional smell test. It would almost seem to be a comic satire of legality if it wasn’t so damned serious.

  8. This type of thinking must be fought against as well: “He (Judge Leon) also said the Justice Department had failed to demonstrate that collecting the information had helped to head off terrorist attacks.”

    It does not matter if mass surveillance were to head off a terrorist attack. As of right now you are more likely to drown in a bathtub than be killed by a terrorist. We don’t destroy our Constitution for the Global War on Bathing. As my neighbor pointed out, Hitler’s minions experimented on prisoners. Those experiments, which resulted in the mutilation and death of prisoners, helped the German army. For example, doctors learned how long human beings could tolerate cold, how to make adjustments that would enable people to withstand further depths/times of being cold. Well, YEAH! It worked!!!! Killing and mutilating prisoners helped the German Army! No problem then with killing and mutilating prisoners. It was for the good of the nation!

    The drone killing of people at wedding parties, people attending funerals, of babies, women, men and other obvious pre-terrorists isn’t exactly winning hearts and minds in other nations. The concept of blowback comes to mind. IMO it is likely that the US will have another successful terrorist attack.

    1. good law enforcement is precluded by mass surveillance and 2. we should not surrender the rule of law under any circumstance. It is the rule of law which keeps our citizens safe. It is the mechanism for confronting extraordinary dangers poses by an unlawful and out of control oligarchy bent on controlling everyone and everything through mass surveillance.

    Link to quote above: http://www.politico.com/story/2013/12/national-security-agency-phones-judge-101203.html#ixzz2nks4Yo24

  9. “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.” (Dredd)

    The thing that concerns me: It is my understanding (and here, once again, please correct me if I am wrong) that all the judges on the FISA court are appointed by the Chief Justice of the Supreme Court. If indeed the government’s claims are true that 15 of those judges have approved NSA’s metadata program over and over again, is the Supreme Court able to provide the proper forum in which this case could be heard? Would the Chief Justice have to recuse himself?

  10. @Mike Spindell “Edward Snowden meets my definition of a heroic person and is being persecuted for his heroism.”

    Right on! Edward Snowden, true patriot and great American hero.

    Does anyone believe there would have been standing for this case to proceed without Snowden’s revelations?

    How about a petition on the White House’s web page:

    https://petitions.whitehouse.gov/

    to give Snowden the President’s Medal of Freedom?

  11. That Glenn Greenwald is a juggernaut, pulls no punches, frames the topics in the most natural and obvious ways, and goes for the jugular everytime he is confronted by supposedly unbiased journalists and interviewers. In that interview he even made a deft jab at MSNBC, citing their accusations that Snowden was a traitor; now that it is coming around, and this ruling gives his position legitimacy, his jabs are all the more sharp.
    I only wish I had the sheer presentational brilliance of Greenwald. He uses words on the fly like a light saber, he pulls knowledge and perspectives from all over the map and ties it all together. yum, just yum.

    1. Edward Snowden meets my definition of a heroic person and is being persecuted for his heroism.

  12. Otteray Scribed @ December 17, 2013 at 6:53 am

    Dredd sez, “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.”
    ****************************************
    My concern is whether they will ignore the law. They have demonstrated an eager willingness to skirt existing laws, lie to Congress and the public, and do their damnedest to go after anyone who tattles on their illegal and unconstitutional activities.
    ============================
    The military NSA debacle caused some talking in public about immunity for Snowden, if he tells no more truth, but the White House cleaned that situation up:

    The White House says a National Security Agency official who suggested the U.S. consider granting Edward Snowden amnesty was expressing his personal opinion.

    White House spokesman Jay Carney says President Barack Obama’s position hasn’t changed. He says Snowden faces felony charges and should be returned to the U.S. Carney says Snowden would be afforded due process if returned from Russia, which has granted him temporary asylum.

    Carney’s comments came after NSA official Richard Ledgett said it was worth discussing amnesty for Snowden under the right conditions.

    (Star Tribune, emphasis added). The Obama admin. is so right wing on this the neoCons are blushing.

    This could do harm to democrats who are Stalinists in the 2014 elections, when it comes to the issue of spying on Americans.

    Anyway, your questioning of the ability of the military NSA to go back to being a good American institution (which they once were) puts us in the position of wondering whether a rogue agency can return to American Constitutional Values anymore, or whether such agencies must be scrapped as an example for future reference.

  13. “An Open Letter to the People of Brazil”

    by Edward Snowden

    12/16/2013

    http://www1.folha.uol.com.br/internacional/en/world/2013/12/1386296-an-open-letter-to-the-people-of-brazil.shtml

    Six months ago, I stepped out from the shadows of the United States Government’s National Security Agency to stand in front of a journalist’s camera.

    I shared with the world evidence proving some governments are building a world-wide surveillance system to secretly track how we live, who we talk to, and what we say.

    I went in front of that camera with open eyes, knowing that the decision would cost me family and my home, and would risk my life. I was motivated by a belief that the citizens of the world deserve to understand the system in which they live.

    My greatest fear was that no one would listen to my warning. Never have I been so glad to have been so wrong. The reaction in certain countries has been particularly inspiring to me, and Brazil is certainly one of those.

    At the NSA, I witnessed with growing alarm the surveillance of whole populations without any suspicion of wrongdoing, and it threatens to become the greatest human rights challenge of our time.

    The NSA and other spying agencies tell us that for our own “safety”-for Dilma’s “safety,” for Petrobras’ “safety”-they have revoked our right to privacy and broken into our lives. And they did it without asking the public in any country, even their own.

    Today, if you carry a cell phone in Sao Paolo, the NSA can and does keep track of your location: they do this 5 billion times a day to people around the world.

    When someone in Florianopolis visits a website, the NSA keeps a record of when it happened and what you did there. If a mother in Porto Alegre calls her son to wish him luck on his university exam, NSA can keep that call log for five years or more.

    They even keep track of who is having an affair or looking at pornography, in case they need to damage their target’s reputation.

    American Senators tell us that Brazil should not worry, because this is not “surveillance,” it’s “data collection.” They say it is done to keep you safe. They’re wrong.

    There is a huge difference between legal programs, legitimate spying, legitimate law enforcement – where individuals are targeted based on a reasonable, individualized suspicion – and these programs of dragnet mass surveillance that put entire populations under an all-seeing eye and save copies forever.

    These programs were never about terrorism: they’re about economic spying, social control, and diplomatic manipulation. They’re about power.

    Many Brazilian senators agree, and have asked for my assistance with their investigations of suspected crimes against Brazilian citizens.

    I have expressed my willingness to assist wherever appropriate and lawful, but unfortunately the United States government has worked very hard to limit my ability to do so — going so far as to force down the Presidential Plane of Evo Morales to prevent me from traveling to Latin America!

    Until a country grants permanent political asylum, the US government will continue to interfere with my ability to speak.

    Six months ago, I revealed that the NSA wanted to listen to the whole world. Now, the whole world is listening back, and speaking out, too. And the NSA doesn’t like what it’s hearing.

    The culture of indiscriminate worldwide surveillance, exposed to public debates and real investigations on every continent, is collapsing.

    Only three weeks ago, Brazil led the United Nations Human Rights Committee to recognize for the first time in history that privacy does not stop where the digital network starts, and that the mass surveillance of innocents is a violation of human rights.

    The tide has turned, and we can finally see a future where we can enjoy security without sacrificing our privacy. Our rights cannot be limited by a secret organization, and American officials should never decide the freedoms of Brazilian citizens.

    Even the defenders of mass surveillance, those who may not be persuaded that our surveillance technologies have dangerously outpaced democratic controls, now agree that in democracies, surveillance of the public must be debated by the public.

    My act of conscience began with a statement: “I don’t want to live in a world where everything that I say, everything I do, everyone I talk to, every expression of creativity or love or friendship is recorded.

    That’s not something I’m willing to support, it’s not something I’m willing to build, and it’s not something I’m willing to live under.”

    Days later, I was told my government had made me stateless and wanted to imprison me. The price for my speech was my passport, but I would pay it again: I will not be the one to ignore criminality for the sake of political comfort. I would rather be without a state than without a voice.

    If Brazil hears only one thing from me, let it be this: when all of us band together against injustices and in defense of privacy and basic human rights, we can defend ourselves from even the most powerful systems.

  14. Re: Otteray Scribe

    Agreed. Any law is meaningless without penalties and enforcement. There has to be a healthy “risk” of penalty for law enforcement and intel personnel to not violate the U.S. Constitution.

    Most judges and juries would allow mitigating circumstances in legitimate cases and likely not prosecute legitimate emergencies.

  15. Dredd sez, “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.”
    ****************************************

    My concern is whether they will ignore the law. They have demonstrated an eager willingness to skirt existing laws, lie to Congress and the public, and do their damnedest to go after anyone who tattles on their illegal and unconstitutional activities.

  16. Jameel Jaffer, ACLU attorney, appeared on “All In with Chris Hayes” yesterday 12-16-13. A great video to watch for the longterm implications of this ruling.

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