Federal judge rules against NSA spying

Kevin Johnson and Richard Wolf, USA TODAY 9:48 p.m. EST December 16, 2013

Decision by U.S. District Court Judge Richard Leon is the first of several expected over the next few months and is certain to be appealed.



(Photo: Patrick Semansky, AP)

Story Highlights

• The ruling is the first of several that are likely in the coming months on the scope of NSA's surveillance program
• The Department of Justice says it is reviewing the decision
• NSA Director Keith Alexander: "There isn't a better way'' to help defend the country from potential terror threats

WASHINGTON — A federal judge ruled Monday that the National Security Agency's controversial surveillance program that collects millions of Americans' telephone records may be unconstitutional.

U.S. District Court Judge Richard Leon ruled in a lawsuit brought by conservative activist Larry Klayman that the legal challenge to the massive surveillance program — disclosed in full earlier this year by former NSA contractor Edward Snowden — would likely succeed.

Leon, appointed to the bench by President George W. Bush, issued a preliminary injunction against the program but suspended the order to allow an appeal by the Justice Department, which said it was reviewing the decision.

The ruling is the first of several that are likely in the coming months as federal judges from New York to California review complaints from liberals and conservatives alike about the scope of the NSA's snooping. Leon's acknowledgment that the case is sure to be appealed is an indication that those appeals might wind up at the U.S. Supreme Court.

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"The court concludes that plaintiffs have standing to challenge the constitutionality of the government's bulk collection and querying of phone record metadata, that they have demonstrated a substantial likelihood of success on the merits of their Fourth Amendment claim (of unlawful search and seizure), and that they will suffer irreparable harm absent…relief,'' Leon wrote.

And in perhaps the most definitive assessment of the program's effectiveness, Leon said the government "does not cite a single instance in which analysis of the NSA's bulk metadata collection actually stopped an imminent 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,'' the judge said.

The government has publicly asserted that the NSA's surveillance programs have assisted in averting dozens of terrorist threats, but Leon said "no proof of that has been put before me.'' He said the government could have requested permission to offer such evidence in a closed hearing, "but it chose not to do so.''

Snowden, in a statement published first by The New York Times, said he believed that the "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," said the former contractor, who was granted limited asylum in Russia to avoid espionage-related charges in the U.S.

Klayman, a former Reagan administration official who heads the conservative watchdog group Freedom Watch, heralded the judge for "standing in the breach for the American people."

"Judge Leon is a hero," Klayman said. "This is the first time in my experience that any judge has stuck his neck out, and he did what's right. Let's hope other judges will follow suit and take an example from Judge Leon, because the American people have felt defenseless."

Leon's decision comes less than a week after NSA Director Keith Alexander told a Senate committee that "there isn't a better way'' to help defend the country from potential terrorist threats than the ongoing sweep of telephone records.

"There is no other way to connect the dots,'' Alexander told the Senate Judiciary Committee in a renewed defense of NSA surveillance programs. "We cannot go back to a pre-9/11 moment.''

Alexander noted that the national security threat had been mounting in recent months, referring in particular to the "crisis" in the Middle East. "Taking these programs off the table is not the thing to do,'' he said.

Of all of Snowden's disclosures, details about the vast phone record program has driven a six-month debate on Capitol Hill and across the country about the scope of the government's surveillance operations. That debate has produced a wave of proposed legislation to limit or eliminate parts of the government's surveillance apparatus.

"Because we can do something, it doesn't really make sense to do it,'' Senate Judiciary Chairman Patrick Leahy, D-Vt., told Alexander last week, adding that aspects of the bulk collection programs are "beyond extraordinary in the U.S.''

During oral arguments in the Klayman case last month, the former Reagan administration lawyer who leads the advocacy group Freedom Watch called the judge "the last guard ... the last sentry to the tyranny in this country."

MORE:: Coverage of oral arguments in the case

Justice Department lawyer James Gilligan argued that Klayman lacked standing to bring the case because he could not prove the NSA examined his phone or Internet records.



Conservative activist Larry Klayman brought the legal challenge to the NSA massive surveillance program.(Photo: Hillery Smith Garrison, AP)

Gilligan also said Leon could not review the statutory authority granted by Congress under the Foreign Intelligence Surveillance Act (FISA) — only the secret courts and the Supreme Court have that power. Leon did not rule on the congressional authorization, only on Fourth Amendment grounds.

U.S. District Judge William Pauley heard a separate case filed by the American Civil Liberties Union that also sought a preliminary injunction against the telephone surveillance program. The ACLU case, based on First and Fourth Amendment protections of speech and privacy, contends that the USA Patriot Act does not authorize such widespread spying.

Jameel Jaffer, the ACLU's deputy legal director who argued that case in court, hailed Monday's ruling. "This is a strongly worded and carefully reasoned decision that ultimately concludes, absolutely correctly, that the NSA's call-tracking program can't be squared with the Constitution," Jaffer said.

"We hope that Judge Leon's careful decision will inform the larger debate about the proper scope of government surveillance powers. It should certainly inform the debate in Congress about the reforms necessary to bring the NSA's surveillance activities back in line with the Constitution."

A third case denied last month by the Supreme Court was brought directly there by the Electronic Privacy Information Center. While the target in the other cases is the government, EPIC went after the top-secret FISA court that authorized the surveillance of Verizon phone records under FISA.

In all the cases, the Justice Department argued that the challengers lack standing to bring the lawsuits because they were not directly involved or cannot prove their records were examined.

However, the department has been notifying criminal defendants in separate cases when the terrorism-related charges against them stem from the warrantless surveillance program. That makes the prospect of a future Supreme Court case more likely.

The solicitor general's briefs also defend the surveillance on national security grounds. Its Supreme Court brief says the program "authorizes the production of business records where there are 'reasonable grounds to believe' that the records are 'relevant' to an authorized and properly predicated ongoing FBI investigation of specific terrorist organizations."

Amnesty International and other civil libertarians brought the last Supreme Court challenge to government surveillance programs in 2012. But in February, the justices ruled 5-4 that the challengers lacked standing because they could not prove they had been wiretapped.

"This theory of future injury is too speculative," Justice Samuel Alito said in announcing the decision, calling it "hypothetical future harm."

Since then, however, a continued stream of leaks from former Snowden have led the government to make much of the programs public, enabling challengers to claim their privacy was invaded.


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