NSA Reprimand ~ Judge Involkes Founding Fathers (Larry Elder)

From the Washington Examiner:

A U.S. federal judge has moved into the NSA spying scandal in a timely enough manner to begin to give hope to frightened U.S. citizens that there may be a way to make the government respect their rights. The Washington Post reported on Dec. 16, 2013, a U.S. federal judge has ruled the NSA’s collecting of phone records is probably not constitutional. On Monday U.S. District Judge Richard J. Leon ruled that the National Security Agency’s collection of virtually all Americans phone records is almost certainly not constitutional.

U.S. District Judge Richard J. Leon has found that a lawsuit presented by Larry Klayman, who is a conservative legal activist, has “demonstrated a substantial likelihood of success” based on the Fourth Amendment guarantees of privacy protections against unreasonable searches. Judge Leon has said, “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.”

USA Today reports that the lawsuit brought by conservative activist Larry Klayman against NSA spying may very well succeed. Judge Leon has issued a preliminary injunction against the NSA telephone spying program. However, he suspended the order to allow an appeal by the Justice Department, which said it has been reviewing the decision….

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The Wall Street Journal points out how the Judge may have overstepped his bounds:

Federal Judge Richard Leon has become a sudden political celebrity after his remarkable opinion holding that antiterror surveillance is unconstitutional and, even more remarkably, enjoining the entire program. If only his legal reasoning were as compelling as his new repute.

Klayman v. Obama was filed in the D.C. district court in the backwash of the Edward Snowden disclosures and claims that the National Security Agency’s bulk collection of telephone records violates the Fourth Amendment’s ban on unreasonable searches. Judge Leon’s 68-page opinion stays his injunction pending appeal.

The largest flaw is that the Supreme Court already considered the constitutional claims at stake here, and Judge Leon simply waves off the relevant precedent of Smith v. Maryland. That 1979 decision by Harry Blackmun —no conservative—held that the warrantless police installation of a pen register that collected telephony metadata was not a search within the meaning of the Fourth Amendment.

While obtaining the content of phone calls requires a warrant, the High Court ruled that people have no “reasonable expectation of privacy” for information about phone calls such as the date, time and length of their calls and the numbers they dial. Such transactional data inevitably belong to the service provider, not to individuals—and the NSA acquiring them is no different than the local police doing it in Smith.

NSA collection may even be less invasive, to the extent the vastness of its database that does not include names or addresses is a greater guarantee of anonymity. Queries of this repository are supervised by the Foreign Intelligence Surveillance Court, and then passed to the FBI to determine if a specific number should be investigated for links to terror cells, with further legal restrictions thereafter.

Judge Leon argues the NSA program now constitutes a search because changes over the last 34 years, including cell phones and the advance of the government’s technological capacities, mean that Smith no longer obtains. The High Court’s precedents don’t have a statute of limitations, but Judge Leon riffs that “I am convinced that the surveillance program before me now is so different from a simple pen register that Smith is of little value.”


Judge Leon’s opinion is likely to be reversed on appeal, but that doesn’t mean it can’t do political damage in the meantime. It lands amid the renewed left-libertarian campaign to treat terrorists the same as domestic criminals, and with a President who seems unwilling to publicly defend the powers he has used for five years.

Judge Leon seemed to be playing to this chorus with such polemical flourishes as “almost-Orwellian technology” and James Madison “would be aghast.” This is the stuff of political campaigns, not judging, especially from a lower federal court. Less excitable appellate judges will have to provide a Constitutional reeducation.

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