NSA telephone spying ‘likely’ illegal, judge says

McClatchy Washington BureauDecember 16, 2013 

NSA Surveillance

A sign outside the National Security Administration campus in Fort Meade, Md.

PATRICK SEMANSKY — ASSOCIATED PRESS

— A federal judge on Monday concluded that a National Security Agency program that collects massive amounts of telephone data “likely” violates the Constitution, propelling a high-stakes fight right toward the Supreme Court.

In an extraordinary 68-page decision, U.S. District Judge Richard Leon of Washington ordered the NSA to stop snooping on two specific individuals who had challenged the so-called “bulk telephony metadata” collection program. While Leon then put a stay on his own order, pending a government appeal, his skepticism about the program’s constitutional validity came through loud and clear.

“I believe that bulk telephony metadata collection almost certainly does violate a reasonable expectation of privacy,” Leon wrote, taking note of the “almost Orwellian technology that enables the government to store and analyze the phone metadata of every telephone user in the United States.”

Appointed to the federal bench by President George W. Bush in 2002, Leon further cautioned that the 21st century surveillance technologies may have outstripped the decades-old legal precedents being used to justify them. The only way to resolve the dilemma spelled out in Leon’s decision is for the Supreme Court to revisit the issues once the U.S. Court of Appeals for the District of Columbia Circuit takes a crack at it.

“There is the very real prospect that the (surveillance) program will go on for as long as America is combating terrorism, which realistically could be forever!” Leon wrote.

In a real twist, Leon said he had the authority to review whether the program is constitutionally suspect even though the data collection was approved by the secretive Foreign Intelligence Surveillance Court.

“Where, as here, core individual constitutional rights are implicated by government action, Congress should not be able to cut off a citizen’s right to judicial review of that government action simply because it intended the conduct to remain secret,” Leon wrote.

Larry Klayman, one of the individuals who challenged the NSA program, applauded the court’s decision.

“This is the biggest decision ever . . . in the history of government litigation,” Klayman said in an interview, adding that the district court’s ruling highlights the problems with the surveillance court, which only hears arguments from government officials. “We have criminal behavior on behalf of the government, and the judge stepped in. And we thank him for that.”

The ruling sparked similar reactions from several lawmakers deeply involved in the debate over NSA surveillance, including Sen. Mark Udall, D-Colo., who serves on the Senate Intelligence Committee, and Senate Judiciary Committee Chairman Sen. Patrick Leahy, D-Vt. Both lawmakers are backing legislation that would end NSA’s dragnet data collection programs.

“The ruling underscores what I have argued for years: The bulk collection of Americans’ phone records conflicts with Americans’ privacy rights under the U.S. Constitution and has failed to make us safer,” said Udall in a statement. “We can protect our national security without trampling our constitutional liberties.”

The decision Monday tees up a clash over whether a 1979 Supreme Court precedent remains valid.

The 1979 ruling, in the case called Smith v. Maryland, concluded that individuals have no reasonable expectation of privacy in the phone numbers they call. That ruling permitted police to install a “pen register” on a suspect’s phone, recording numbers, without a specific warrant. As Leon noted Monday, “The evolutions in the government’s surveillance capabilities (and) citizens’ phone habits” are now “thoroughly unlike” circumstances in 1979.

Klayman, a frequent litigator who has been challenging presidents in court since the Clinton administration in the 1990s, joined with an ally named Charles Strange to sue several federal agencies, as well as individual telecommunications companies. Strange is the father of Michael Strange, a Navy cryptologic technician who died in Afghanistan in 2011 while supporting SEAL Team Six missions.

Klayman and Strange sued shortly after newspapers in June revealed details about the U.S. surveillance program through leaks from former NSA contract employee Edward Snowden. Snowden, in a statement Monday, praised the court’s ruling.

Leon’s order Monday covered telephone data, but not Internet data.

In the preliminary injunction, Leon directed the NSA to stop collecting any “telephony metadata” associated with the Verizon Wireless accounts of Klayman and Strange. Leon also directed the NSA to “destroy any such metadata in its possession that was collected through the bulk collection program.” Citing the “significant national security interests at stake in this case and the novelty of the constitutional issues,” Leon agreed to stay the order so the Obama administration can appeal.

Metadata includes information such as what phone numbers were used to make or receive calls, when the calls took place and how long the calls lasted. According to the National Security Agency, though, this metadata does not include any information about the actual content of the calls. Intelligence analysts use the metadata to “discern connections between terrorist organizations and previously unknown terrorist operatives located in the United States,” Leon explained.

The program began more than seven years ago, during the Bush administration, and has been continued through Barack Obama’s presidency. The program operates by having FBI agents obtain orders from the Foreign Intelligence Surveillance Court, directing telecommunications companies to turn over the information on an ongoing, daily basis.

The National Security Agency deferred questions to the Justice Department, where officials stand by the programs.

“We’ve seen the opinion and are studying it,” said Justice Department spokesman Andrew Ames. “We believe the program is constitutional, as previous judges have found.”

Email: mdoyle@mcclatchydc.com, awatkins@mcclatchydc.com; Twitter: @MichaelDoyle10, @alimariewatkins

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