WASHINGTON (AP) — In the first ruling of its kind, a
federal judge declared Monday that the National Security Agency's bulk
collection of Americans' telephone records is likely to violate the
Constitution's ban on unreasonable search. The program probably isn't
effective in fighting terrorism either, the judge said in a lengthy
opinion filled with blistering criticism.
U.S. District Court Judge Richard Leon granted a preliminary injunction
against the government's collecting of the phone records of two men who
had challenged it and said any such records for the men should be
destroyed. But he put enforcement of that decision on hold pending a
near-certain government appeal, which may well end up at the Supreme
The injunction applies only to the two individual plaintiffs, but the
ruling is likely to open the door to much broader challenges to the
"metadata" collection and storage.
The plaintiffs are Larry Klayman, a conservative lawyer, and Charles
Strange, who is the father of a cryptologist technician who was killed in
Afghanistan when his helicopter was shot down in 2011. The son worked for
the NSA and support personnel for Navy SEAL Team VI.
Leon, an appointee of President George W. Bush, ruled that the two men
"have a substantial likelihood of showing" that their privacy interests
outweigh the government's interest in collecting the data "and therefore
the NSA's bulk collection program is indeed an unreasonable search under
the Constitution's Fourth Amendment."
"I have little doubt that the author of our Constitution, James Madison,
who cautioned us to beware 'the abridgment of freedom of the people by
gradual and silent encroachments by those in power,' would be aghast," he
Andrew C. Ames, a spokesman for the Justice Department's National Security
Division, said in a statement, "We've seen the opinion and are studying
it. We believe the program is constitutional as previous judges have
found. We have no further comment at this time."
The collection program was disclosed by former NSA systems analyst Edward
Snowden, provoking a heated debate over civil liberties.
In a statement provided to reporter Glenn Greenwald and obtained by The
Associated Press, Snowden said, "I acted on my belief that the NSA's mass
surveillance programs would not withstand a constitutional challenge and
that the American public deserved a chance to see these issues determined
by open courts. Today, a secret program authorized by a secret court was,
when exposed to the light of day, found to violate Americans' rights. It
is the first of many."
The Obama administration has defended the program as a crucial tool
But in his 68-page, heavily footnoted opinion, Leon concluded that the
government didn't cite a single instance in which the program "actually
stopped an imminent terrorist attack."
"I have serious doubts about the efficacy of the metadata collection
program as a means of conducting time-sensitive investigations in cases
involving imminent threats of terrorism," he added.
He said was staying his ruling pending appeal "in light of the significant
national security interests at stake in this case and the novelty of the
The government has argued that under a 1979 Supreme Court ruling, Smith v.
Maryland, no one has an expectation of privacy in the telephone data that
phone companies keep as business records. In that ruling, the high court
rejected the claim that police need a warrant to obtain such records.
But Leon said that was a "far cry" from the issue in this case. The
question, he said, is, "When do present-day circumstances — the evolutions
in the government's surveillance capabilities, citizens' phone habits, and
the relationship between the NSA and telecom companies — become so
thoroughly unlike those considered by the Supreme Court 34 years ago that
a precedent like Smith simply does not a apply? The answer, unfortunately
for the government, is now."
He wrote that the court in 1979 couldn't have imagined how people interact
with their phones nowadays, citing the explosion of cellphones. In
addition, he said, the Smith case involved a search of just a few days,
while "there is the very real prospect that the (NSA) program will go on
for as long as America is combatting terrorism, which realistically could
Leon added: "The almost-Orwellian technology that enables the government
to store and analyze the phone metadata of every telephone user in the
United States is unlike anything that could have been conceived of in
The judge also mocked the government's contention that it would be
burdensome to comply with any court order that requires the NSA to remove
the plaintiffs from its database.
"Of course, the public has no interest in saving the government from the
burdens of complying with the Constitution!" he wrote. As for the
government's complaint that other successful requests "could ultimately
have a degrading effect on the utility of the program," he said, "I will
leave it to other judges to decide how to handle any future litigation in
Stephen Vladeck, a national security law expert at the American University
law school, said Leon is the first judge to say he has serious
constitutional concerns about the program.
"This is the opening salvo in a very long story, but it's important
symbolically in dispelling the invincibility of the metadata program," he
Vladeck said 15 judges on the Foreign Intelligence Surveillance Court have
examined Section 215 of the Patriot Act, the provision of law under which
the data collection takes place, without finding constitutional problems.
"There's a disconnect between the 15 judges on the FISA court who seem to
think it's a no-brainer that Section 215 is constitutional, and Judge
Leon, who seems to think otherwise."
Vladeck said there is a long road of court tests ahead for both sides in
this dispute and that a higher court could ultimately avoid ruling on the
big constitutional issue identified by Leon. "There are five or six
different issues in these cases," Vladeck said.
Robert F. Turner, a professor at the University of Virginia's Center for
National Security Law, said searching the databases involved in the
National Security Agency case is similar to searching motor vehicle
records or FBI fingerprint files.
The judge's decision is highly likely to be reversed on appeal, Turner
He said the collection of telephone metadata — the issue in Monday's
ruling — has already been addressed and resolved by the Supreme Court.
Turner said law enforcement officials routinely obtain telephone bills
that include the numbers dialed without the use of a warrant.
"The odds that an American will have their phone metadata examined by law
enforcement officials are about 1,000-times greater than by the National
Security Agency," Turner said.