U.S. ‘May not hang a cloak of secrecy over the Constitution’ — NSA loses round one in federal court

NSA logo“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.”

So said U.S. District Court Judge Richard Leon on Monday, describing the National Security Agency’s collection of data about virtually every phone call placed into, out of, or within the U.S. — known as “metadata collection.”

Leon made the statement in an opinion that granted a preliminary injunction requested by activist Larry Klayman that would prohibit the NSA from collecting some of Klayman’s phone records — and a second plantiff’s records — while the lawsuit continues.

The ruling is the first in a cascade of legal actions stemming from revelations about U.S. digital surveillance programs made by former employee Edward Snowden; the legal road almost certainly leads to the U.S. Supreme Court.

Leon immediately stayed his order pending appeal, citing national security interests.

The ruling does establish some interesting grounds for future legal action. Leon, for example, rejects the administration’s legal argument that Constitutional claims against the NSA cannot be reviewed by federal courts because jurisdiction is reserved for the Foreign Intelligence Surveillance Court (FISC) instead.  In other words, he ruled that citizens can challenge the Constitutionality of the NSA surveillance in open federal court.

“Congress has great latitude to create statutory schemes like (FISC), it may not hang a cloak of secrecy over the Constitution,” he wrote.

Leon also equated collection of several years worth of data, and making that data subject to querying, with a search.  Government officials had argued that mere data collection should not be considered a search — and afforded Constitutional protections — until records were actually accessed by an agent.

Leon’s ruling also hurls some direct barbs at both the NSA and government lawyers, at one point saying they were “straining mightily” to make their case, that “the government wants it both ways,” and tha the government is using technology that is “almost Orwellian.”

And in one instance, describing the government’s argument that Klayman’s lawsuit may not have standing because he was Verizon Wireless customer and had not shown that Verizon Wireless records were part of the metadata collection program, Leon writes that logic “Defies common sense and does not exactly inspire confidence!”

He also expresses clear skepticism in the efficacy of the surveillance program.

“The government did not cite a single instance in which analysis of bulk metadata actually stopped an immanent attack,” he wrote.

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About Bob Sullivan 1637 Articles
BOB SULLIVAN is a veteran journalist and the author of four books, including the 2008 New York Times Best-Seller, Gotcha Capitalism, and the 2010 New York Times Best Seller, Stop Getting Ripped Off! His latest, The Plateau Effect, was published in 2013, and as a paperback, called Getting Unstuck in 2014. He has won the Society of Professional Journalists prestigious Public Service award, a Peabody award, and The Consumer Federation of America Betty Furness award, and been given Consumer Action’s Consumer Excellence Award.

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