US Federal Judge Gives NSA, Congress and Obama Administration a Civics Lesson

By Peter Bernstein December 17, 2013

The headline could almost be that the Internet exploded on December 16. For those who may have been offline for the past 24 hours, what set off the blogosphere, was a ruling by Judge Richard Leon, U.S. District Court for the District of Columbia. Using some rather colorful language, Judge Leon ruled that the bulk collection of Americans’ telephone records by the National Security Agency (NSA) likely violates the Fourth Amendment U.S. constitution.  That would be the amendment which prohibits unreasonable search and seizures.

Metadata gathering on U.S. citizens is a No, No

Calling the practice of collecting metadata (time, place, number called, etc., but not listening to every phone call made by everyone) was characterized by the judge in his opinion as being, “almost Orwellian” (see quote below).   He even cited President James Madison, considered the Father of the U.S. constitution, as likely being “aghast” at the extent of government over-reach in its surveillance activities.

The reason for the ruling was a case brought by lawyer Larry Klayman and Charles Strange, father of a cryptologist killed in Afghanistan when his helicopter was shot down in 2011. Strange’s son worked for NSA and carried out support for Navy Seal Team Six, the elite unit that killed Osama bin Laden. 

A few choice words in the opinion are worth noting based not just on their rationale but also the potential impact down the road. Here is a sampling:

  • “The government does not cite a single case in which analysis of the NSA’s bulk metadata collection actually stopped an imminent terrorist attack”
  • “Given the limited record before me at this point in the litigation – most notably, the utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than other investigative tactics – 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.”
  • “Plaintiffs have a substantial likelihood of showing that their privacy interests outweigh the government’s interest in collecting and analyzing bulk telephony metadata and therefore the NSA’s bulk collection program is indeed an unreasonable search under the fourth amendment,” he wrote.
  • "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 in 1979," he wrote.  (This is a reference to the US supreme court ruling a fourth amendment case, Smith v. Maryland which the NSA says justifies their record collection. 
  • “The government asks me to find that plaintiffs lack standing based on the theoretical possibility that NSA has collected a universe of metadata so incomplete that the program could not possibly serve its putative function… Candor of this type defies common sense and does not exactly inspire confidence!”

And, while I may be showing my feelings about all of this, my favorite line in the entire opinion, which the judge affirmed he believes will ultimately stand the test of judicial review, was  one about the 1978 surveillance law which created the secret surveillance practices when permission is given by the FISA court established to review snooping requests and which has become extremely controversial as an abridgement of freedom-  since it explicitly restricts the ability of citizens to sue for relief.  Judge Leon wrote that, “While Congress has great latitude to create statutory schemes like FISA…it may not hang a cloak of secrecy over the constitution.”

This is Just the Beginning of a Process

With the dust having settled a bit, here is where we stand. 

First, the Obama administration is sticking to its guns regarding the efficacy of the NSA phone call metadata program which was the first of whistle-blower Edward Snowden’s revelations back in June.  President Obama is scheduled to meet with tech executives today to discuss how today about fixing the site, but this is sure to come up as a subject of interest. 

In a briefing, Press Secretary Jay Carney said a review of NSA activities that came out of the Snowden leaks was presented to President Obama on December 13 and contained more than 40 separate recommendations. Carney said the President would be reviewing the report before making the findings public. Carney also noted, “We expect the overall internal review to be completed in January. After that, the president will deliver remarks to outline the outcome of our work and at that time we will make public the review group's full report and other conclusions of our work.”

Secondly, Snowden over the weekend was the center of attention. NSA director Keith Alexander on the popular on CBS 60 Minutes defended the need and constitutionality to collect metadata date but also said the agency would love to know everything Snowden had. This touched off speculation about Snowden being offered amnesty which the White House quickly shot down. 

Snowden, however, did weigh in on the Judge Leon’s ruling. In a statement he 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.”

Third, reaction was as could be expected with civil libertarians calling it a victory and supporters calling it a blow in favor of terrorists. 

The only thing the government got out of the ruling was the Judge’s decision to stay the implementation of it which would have stopped NSA collection of metadata in its tracks. 

How Good a Prognosticator is Judge Leon?

The civics lesson here, especially for readers who are not citizens of the U.S., is not just Judge Leon’s interpretation of the law, but that we have a long way to go.  The case will likely land at the U.S. Court of Appeals for the District of Columbia circuit next.  This will be interesting because after a long delay in the confirmation process which caused the Democrats in the U.S. Senate to change the filibuster rules on presidential nomination, that court now has two new “liberal” members. After that, given the criticality of the case, no matter how it goes, this appears rightfully headed to the U.S. Supreme Court.

Playing handicapper as well as judge, Leon stated, “I fully expect that during the appellate process, which will consume at least the next six months, the government will take whatever steps necessary to prepare itself to comply with this order when, and if, it is upheld.”  He added that, “Suffice it to say, requesting further time to comply with this order months from now will not be well received and could result in collateral sanctions.”

This is a multi-headed hydra, to say the least, with the report findings to be reviewed and released and the appellate process involved. Plus, all of this will be going on in the run-up to the next congressional elections in November.  Given that NSA appears to have no real idea of what Mr. Snowden may still have in the estimated over 1 million documents he purloined and based on how various foreign governments and commercial interests react to what happens in the U.S. courts, congress and public opinion here and abroad, making predictions about outcomes seems problematic.  We shall see just how good at this the Judge is. 

One would suspect that there are going to be some changes made to the law based on everything that will be on the table.  However, what those could be is as big a mystery as what Snowden still has since legislative gridlock in the U.S., is the gift that keeps on giving.   

Edited by Stefania Viscusi
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