Home > Federal Power, Rights > A victory against NSA overreach of power

A victory against NSA overreach of power

December 17, 2013

PrismYesterday Judge Leon (DC District Court) handed down a monumentally important ruling about NSA power. The full finding was posted online by the 10th Amendment Center. Judge Leon found Fourth Amendment violations stemming from the NSA’s bulk collection of telephone metadata.  The judge found the whole NSA phone program to likely be unconstitutional.

One part of the finding is where the Judge points out the duality of the Governments claim in this case (emphasis in this passage are from the original text):

Put simply, the Government wants it both ways. Virtually all of the Government’s briefs and arguments to this Court explain how the Government has acted in good faith to create a comprehensive metadata database that serves a potentially valuable tool in combating terrorism – in which case, the NSA must have collected metadata from Verizon Wireless, the single largest wireless carrier in the United States, as wells as AT&T and Sprint, the second and third-largest carriers.

Yet in one footnote, the Government asks me to find that plaintiffs lack standing based on the theoretical possibility that the 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.

That is one of the best statements I’ve seen against the NSA bulk collection program. And this is from a Federal Judge!

I also like how this judge invoked Orwell later in the document when talking about Fourth Amendment specifics:

Third, 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.

Aside from the great Orwell shout-out, I think the Judge is making an important statement in this sentence. Too often government agencies twist existing law so they can apply new regulations and power in ways that could not have existed at the time that law passed. If the NSA truly believed they needed to bulk collect metadata from all cell phones in the US they should have come to Congress and sought such power out. Instead they decided to interpret an old law in a way they favored. If not for Snowden being a whistle-blower it is unlikely the average American citizen would even know this bulk collection of people’s private data was being collected. I applaud the Judge for finding that the NSA used an old law in a way that really doesn’t fit the modern world. If only more Judges would do that when dealing with federal agencies.

So what was the judge’s decision? Here is an excerpt from the Judge’s conclusion:

But in the meantime, for all the above reasons, I will grant Larry Kalyman’s and Charles Strange’s requests for an injunction and enter and order that (1) bars the Government from collecting, as part of the NSA’s Bulk Telephony Metadata Program, any telephony metadata associated with their personal Verizon accounts and (2) requires the Government to destroy any such metadata in its possession that was collected through the bulk collection program.

That is great news! An injunction against the NSA program and a requirement for the Government to destroy data already collected in this NSA program. That is a great victory!

But wait! The judge is handing down a great decision, but he also realizes this case will proceed up to the next court:

However, in light of the significant national security interests at stake in this case and the novelty of the constitutional issues, I will stay my order pending appeal. In doing so, I hereby give the Government fair notice that should my ruling be upheld, this order will go into effect forthwith.  Accordingly, 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. 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.

So the Judge put a stay on his order, pending the appeal process. That is understandable, I don’t think anyone expected the NSA to be torn down by one Judge. However it is worth noting that the Judge did say the NSA must begin planning on disbanding the program  in the event his ruling is upheld by the higher courts. He also seemed pretty short-tempered about the thought that the Government might not act swiftly enough if that were to happen.

I expect the appeal process to be somewhat of a roller-coaster. The next step for this case will be the DC Circuit Court. That is the very same circuit court that Senator Reid went nuclear on in the Senate so President Obama could have more favorable decisions to his overreaches of power. It is therefore quite likely Judge Leon’s decision will be overruled in the DC District Court. Then it will fall upon the Supreme Court to make a final determination. That is the court I fear the most in this decision. It has been so wishy-washy on cases in the last twenty years that it is almost impossible to predict what they will decide.

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