WASHINGTON – A federal judge made headlines by declaring that the National Security Agency’s bulk collection of millions of Americans’ telephone records is likely unconstitutional. But even he realized his won’t be the last word on the issue as higher courts are expected to take a look at the case .
U.S. District Court Judge Richard Leon put his decision to grant an injunction against the NSA on hold, predicting a government appeal would take at least six months. He said he was staying the ruling pending appeal “in light of the significant national security interests at stake in this case and the novelty of the constitutional issues.”
Even after the appeals court rules, the Supreme Court will probably have the last word in the case.
“This is the opening salvo in a very long story, but it’s important symbolically in dispelling the invincibility of the metadata program,” said Stephen Vladeck, a national security law expert at the American University law school.
The collection program was disclosed by former NSA systems analyst Edward Snowden, provoking a heated national and international debate.
Vladeck said 15 judges on the Foreign Intelligence Surveillance Court have examined Section 215 of the USA 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 ultimately could 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, predicted Leon’s decision was highly likely to be reversed on appeal. He said the collection of telephone metadata — the issue in Monday’s ruling — already has been addressed and resolved by the Supreme Court.
In his ruling, Leon granted a preliminary injunction against the collecting of the phone records of two men who had challenged the program, and said any such records for the men should be destroyed. The plaintiffs are Larry Klayman, a conservative lawyer, and Charles Strange, 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 Six.
Leon, an appointee of former 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.” The amendment prohibits unreasonable searches and seizures and requires that a search warrant be sanctioned by a judge.
“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 declared.
The Obama administration has defended the program as a crucial tool against terrorism.
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.