A federal judge has found the bulk collection of metadata of U.S. phone calls to be “indiscriminate” and “arbitrary” and, therefore, in violation of the Constitution’s 4th Amendment right against unreasonable search and seizure. His opinion was hailed by former NSA contractor Edward Snowden who has been asserting that point as the central basis for his having leaked thousands of classified documents in regard to programs run by the federal agency.
Politico’s Josh Gerstein, who appears to have been the first to break the news today, reports it this way…
U.S. District Court Judge Richard Leon found that the program appears to violate the Fourth Amendment ban on unreasonable searches and seizures. He also said the Justice Department had failed to demonstrate that collecting the information had helped to head off terrorist attacks.
Acting on a lawsuit brought by conservative legal activist Larry Klayman, Leon issued a preliminary injunction barring the NSA from collecting so-called metadata pertaining to the Verizon accounts of Klayman and one of his clients. However, the judge stayed the order to allow for an appeal.
Now, Klayman is, in fact, a Rightwing loon who is separately in the process of, literally, attempting to overthrow the U.S. government. But, as journalist Glenn Greenwald — the man who has been most intensely reporting on Snowden’s leaks — notes today: “the ACLU has a virtually identical lawsuit against the NSA as the one where the judge today ruled against NSA”.
Judge Leon went on to write in his scathing opinion…
The preliminary injunction Leon granted Monday does not require him to make a definitive ruling on the constitutional questions in the case, but does take account of which side he believes is more likely to prevail.
Leon’s 68-page opinion is the first significant legal setback for the NSA’s surveillance program since it was disclosed in June in news stories based on leaks from former NSA contractor Edward Snowden. For seven years, the metadata program has been approved repeatedly by numerous judges on the Foreign Intelligence Surveillance Court and found constitutional by at least one judge sitting in a criminal case.
The judge also described the government’s technology used to store bulk collection of metadata records — records that include “who you called, who called you, for how long, how frequently you communicate, ” etc. — as “almost Orwellian”.
Ian Millhiser, legal journalist at Think Progress observes that last week’s new appointments to the D.C. Circuit Court of Appeal, made possible after the Senate majority voted for a rule change to end Republican obstructionism through filibuster abuse, “probably make it more likely [Judge Leon’s] decision will be upheld.” He further notes that newly confirmed D.C. Circuit Court Judge Nina Pillard is “married to [a] top civil libertarian.” Her husband is Georgetown University law professor David Cole.
As Greenwald tweeted after today’s opinion was issued, “If someone discloses a secret govt program that a Federal Court rules violates the Constitution, that person’s a whistleblower, right?”
Right.
He later added: “In America, the officials who violate Constitutional rights get promotions; those who expose the violations get indictments.”
Senator Ron Wyden (D-OR), who has long been charging that the NSA bulk collection of data was likely unconstitutional or, at least, wildly in contrast to the American public’s understanding of the government’s secret surveillance programs, described Leon’s ruling as a “Big step toward restoring 4th Amendment protections.”
For his part, Snowden responded this way today, according to the New York Times’ Charlie Savage:
I am lovin’ this! Thanks, Brad.
The only question is will we be able to be sure the NSA and other “intellegence” agencies are not doing what the courts and the Constitution say they are not supposed to do.
Alex – I guess we’ll need another whistleblower to know that for sure, eh? In either case, Judge Leon stayed his own injunction, for the moment, pending the government’s inevitable appeal. So, for now, the status quo spying on everyone will continue. Appeal is believed to take about six months, according to Charlie Savage at NYT.
There are several significant rulings made by Judge Leon in conjunction with this preliminary injunction.
First, while Judge Leon ruled that he lacked jurisdiction to hear Klayman’s Administrative Procedure Act claim, he did have jurisdiction to hear the constitutional challenge. If upheld, that, of itself is extraordinarily significant because it will give entities like EFF the ability to pursue such claims in what might aptly be referred the real courts (U.S. District Courts) as opposed to the Kangaroo Courts (FISA Courts) where the government is able to make a one-sided presentation without the adverse parties being present.
Second, there were two preliminary injunction motions. The first motion concerned only the collection and analysis of phone records, and only with respect to Verizon. That motion was granted, albeit stayed. The second motion, which concerned collection and analysis of both phone and internet records, was denied.
The court ruled that it need not address internet data surveillance because the government contends that such activity “was discontinued in 2011.”
The court’s finding that Klayman had standing to challenge both the bulk collection and analysis was based upon facts, contained not only in the earlier FISA court decision, but supplied directly by the government in its legal filings, that distinguish this case from Clapper v. Amnesty Int’l USA, a Supreme Court decision that was handed down last June.
It is likely that the government will appeal. That appeal would be heard by the DC Circuit Court of Appeal. It will interesting to see whether any of the Judges assigned to hear it will include those whose recent appointments were made possible only because of the change in the filibuster rules.
This sentence is disturbing to me. Whether or not an unconstitutional act is effective is irrelevant. The same rational is misused to justify torture, assassination (even of US citizens), and other heinous deeds. The ends do not justify the means!
Re Ska-T @4:
I believe you misunderstood why Judge Leon wrote:
Judge Leon did not make that statement because he felt the efficacy of the program would establish that an otherwise unconstitutional program constitutional. He did so simply to negate the government’s argument that having all phone records under its control permitted the NSA increase the speed of its search for terrorists.
While the effectiveness of a data collection process does not make an unreasonable search and seizure (here metadata collection) reasonable, the fact that the government cannot support its efficiency claims with respect to the purported justification — heading off purported terrorist attacks — adds weight to the plaintiff’s assertion that the blanket metadata collection program is “unreasonable” within the meaning of the 4th Amendment.
This was not the trial stage, it was the preliminary injunction stage, where the party seeking an injunction must show a “likely” win on the merits at trial.
A judge must remain unbiased so Judge Leon indicated that he would “likely” find the facts supporting a holding that would be in the plaintiff’s favor.
It was not that he was unsure, it was that he was at a preliminary phase requiring informed speculation as to who would prevail on the merits.
Brad:
My purpose in bringing up the idea of not knowing if the “intelligence” establishment will follow the rulings of the judicial branch, is that, like the financial system, it seems that some government organizations are above the law and allowed to abuse/break laws and constitutional rights when it suits their purpose, or as SKA-T says “the ends justify the means”.
When one of the officers of a major bank goes on trial for fraud or Cheney/Tenet goes on trial for crimes against humanity, then I will believe there is not a two (or more) tiered system of justice in this country.
Stopping the NSA from doing what it is doing would be great, holding people accountable so that they won’t be as tempted to do so in the future would be better.
An expert panel supports shutting down the activity Judge Leon issued an injunction on.
Perhaps even scarier than the government spying on us… the whole Third Party concept. If the government must legally cease and desist (and as Alex pointed out above (#2), who knows if they will comply if ordered), what about corporate spying, with information to be sold to the highest bidder or used to what unknown purpose? Who is to stop and/or police them?
Stories such as these need to be very clear that about that fact. Too many readers on the web just browse the news and assume that it is a final decision, NSA lost.
For example the ex-CIA chief James Woolsey did not call for “Edward Snowden to be hanged”.
He very simply called for him to be tried for TREASON, a very reasonable wish, with the maximum penalty pointed out.
Add to the definition of ‘Treason’ – stealing all the security details of a nation and/or access codes to the power grid etc.
Glenn is not “reporting on Snowden’s leaks”, he instead is RECEIVING the illegally disseminated classified material, a FELONY for Snowden. Glenn is now profiting off such at First Look Media.
Irwin (#11), thank you for clarifying the status of the legal procedings.
“Treason” is a loaded word, Irwin. Depending on your point of view one might call it “treason” while others would call it exposing unconstitutional behavior protected by an overzealuos and highly secretive intelligence community as well as an enabaling Congress/Executive. I don’t call that treason, I call Snowden’s actions heoric. His actions may be a felony under current law, but if it exposes unconstitutional behavior, then the law stating that it is a felony is suspect at a minumum. Either the law should be eliminated or the rationale for what is considered (top) secret needs to be totally reworked, so that there can be more sunlight on the actions and behaviors of our intelligence community. People should not have to fear jail time or potentially hanging because overzealous individuals and agaecies are acting unconstitutionally and don’t want to be found out. Those behaving unconstitutionally should be cowering in a corner hoping to not be found out, not using the Justice system to squelch the Boy Scouts among us who want to do the right thing.
Irwin Mainway said @ 11:
Well, for what it’s worth, I think we were clear. Though there is always room for improvement, no doubt. So the input is always very much appreciated. That said, the NSA has “lost”. This is a huge blow to them, no matter what is found in subsequent court action, as was the President’s advisory board report that came out the next day.
Speaking of being “very clear” about certain facts. “TREASON” as you, and apparently Woolsey refer to it, is the only crime actually defined in the Constitution. It’s definition is quite clear. It is not a “loaded word” as Alex suggested in his subsequent comment @ 12, nor does it “depend on your point of view”, as he also suggested.
So, in case either of you are unclear about it, let’s all agree on facts before moving forward. This is from the legal definition of “Treason”.
The Treason Clause applies only to disloyal acts committed during times of war. Acts of dis-loyalty during peacetime are not considered treasonous under the Constitution. Nor do acts of Espionage committed on behalf of an ally constitute treason. For example, julius and ethel rosenberg were convicted of espionage, in 1951, for helping the Soviet Union steal atomic secrets from the United States during World War II. The Rosenbergs were not tried for treason because the United States and the Soviet Union were allies during World War II.
So, if Snowden committed “treason”, would you be so kind as to name the “enemy” who we are at war with that he has given aid and comfort to? If you cannot, then your charge — and Woolsey’s (presuming he made it, haven’t checked, he was head of FBI, so should know much better) — is misleading, unclear, inaccurate and, frankly, inappropriate.
You and Woolsey, certainly, should know that. Particularly since Snowden hasn’t been charged with treason, much less found guilty of it.
More from the legal definition of “treason”:
Okay. So let’s pretend we are at war with someone and that Snowden gave “aid and comfort” to them. (I’ll let you tell me who that may be, as mentioned previously.) If he did, are you suggesting he had a “traitorous intent”? That he was hoping to be traitorous, rather than carrying out an “action that is intended to benefit the United States”? If so, are you able to offer even a scintilla of evidence for that charge? If not, you should be very clear when using words such as “treason”, since, to paraphrase you, “many readers on the web just browse the news and assume that” statements such as ‘Snowden committed treason’ has anything in relationship to the truth. It doesn’t.
You also wrote:
No. Sorry. You can’t just “add to the definition” of words that you don’t seem to understand the actual definition for in the first place.
And here’s one last part of the legal definition of “treason”:
Are you saying Snowden should face the potential of being killed by the United States in the course of a trial for “treason”? Really? (For a well-defined crime, mind you, that the information above should make clear that he has not committed — but I look forward to your answers to my questions, in any case.)
Glenn is doing what most of us in the journalist business describe as “journalism”. And damned good, Pulitzer Prize-worthy journalism at that. If you are unclear on the definition of “journalism”, let me know, and I can continue this lecture in a follow-up comment on that.
The quote I have of Woolsey on Fox, about Snowden:
“I think giving him amnesty is idiotic,†Woolsey said. “He should be prosecuted for treason. If convicted by a jury of his peers, he should be hanged by the neck until he is dead.â€
This was reported even by law professor commentator Jonathan Turley as: “Ex-CIA Director Calls For Snowden To Be “Hanged By His Neck Until He Is Dead—
Note how all qualifiers are left out. Who knows how many dozens of websites did exactly the same editor’s trick.
BradBlog pointed out that “treason” only applies in time of War. My suggestion to modify the definition unfortunately left out the part about providing the STOLEN documents to our ENEMIES; sorry. Amending the Constitution is not that improbable; in 1971 the voting age was changed in 4 months, teens could be drafted yet not vote.
The death penalty could be eliminated then – barbaric and not a deterrent.
Has anyone envisioned the chaos caused by the huge quantity of secret documents suddenly released to the entire world, in an unspecified manner, if Edward Snowden was to be “harmed” as ‘journalist’ Greenwald threatened?
Do our enemies have any of the unpublished stolen info or not is a key fact to know before leveling charges. Woolsey doesn’t know that. Many harsh commentators are assuming Russia has some of the trove, with any evidence classified or nonexistent.
I am free to offer my suggestions for updating ‘Treaon’ in the Constitution – drop the Death Penalty and add electronic theft, for extortion or to impact national security.