A federal judge handed civil liberties groups a landmark victory Monday, issuing an injunction against the National Security Agency’s phone surveillance program in a scathing ruling that labeled the agency’s actions “almost-Orwellian” and unconstitutional.
Under the program, the NSA collects data on all telephone calls made in the United States. The agency says the program is necessary in the war against terrorism, but critics say the actions are a clear violation of the Constitution’s Fourth Amendment protection against unreasonable searches and seizures.
Judge Richard J. Leon halted the program but stayed his injunction, meaning the NSA can continue to collect the data while the ruling is appealed. Nevertheless, the tone of Leon’s ruling was a big blow to the Obama administration and politicians from both parties who have defended the program.
Leon reached back to the Founding Fathers in blasting the program.
“Surely, such a program infringes on ‘that degree of privacy’ that the Founders enshrined in the Fourth Amendment,” wrote Leon, a nominee of President George W. Bush. “Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware ‘the abridgement of freedom of the people by gradual and silent encroachments by those in power,’ would be aghast.”
The case was brought by conservative activist Larry Klayman.
“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,” Leon wrote.
He cited a Supreme Court ruling that said justices “must assure preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Quoting another Supreme Court opinion, Leon wrote, “The basic purpose of the Fourth Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.”
The government’s attorneys, Leon said, failed to make the case that the NSA program was necessary.
“The Government asserts that the Bulk Metadata Program serves the ‘programmatic purpose’ of ‘identifying unknown terrorist operatives and preventing terrorist attacks,’” Leon wrote. “… A closer examination of the record, however, reveals that the Government’s interest is a bit more nuanced – it is not merely to investigate potential terrorists, but rather, to do so faster than other investigative methods might allow. “
In its legal briefs, Leon wrote, the government did not “cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature.”
In one significant paragraph, Leon wrote:
The Fourth Amendment typically requires a ‘neutral and detached authority be interposed between the police and the public,’ and it is offended by ‘general warrants’ and laws that allow searches to be conducted ‘indiscriminately and without regard to their connection with a crime under investigation.’ 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 and analyzing it without prior judicial approval.
The Fourth Amendment says, in part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”
The case is Klayman v. Obama.