Judge Says NSA Program Likely Unconstitutional

First big legal setback since Snowden leaks

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Updated: Dec. 16, 2013, 4:40 p.m. E.T.

The National Security Agency’s program of collecting massive amounts of data about Americans’ phone calls likely violates the Constitution’s protection against unreasonable searches, a federal judge said on Monday.

U.S. District Court Judge Richard Leon ordered the NSA to stop collecting phone records of two plaintiffs who brought the lawsuit, but stayed his own decision while the government appeals, the Associated Press reports. Leon said the government has not proved that collecting so-called metadata about phone calls made prevented any terrorist attacks, Politico reports. He said it likely violates the Fourth Amendment’s ban on unreasonable searches and seizures.

“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 it and analyzing it without judicial approval,” Leon wrote in his 68-page ruling, according to Politico.

It’s the first major legal setback to the NSA’s mass-surveillance program since details of the program were leaked by former NSA contractor Edward Snowden.

In a statement published in the New York Times, Snowden said the ruling would likely be the first of many. “I acted on my belief that the NSA’s 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,” Snowden said. “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.”

Leon’s ruling was made in a lawsuit brought by Larry Klayman, a conservative legal activist.

“I have significant doubts about the efficacy of the metadata-collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism,” Leon wrote. “The government does 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.”

This story was updated to include the statement from Snowden. It was distributed to the New York Times by journalist Glenn Greenwald, who wrote the first story about Snowden’s documents.

29 comments
MiguelCapelo1
MiguelCapelo1

Snowden should have been the Time person of the year.  Not the leader of an archaic and dieing CULT.  In years to come we will see the sacrifice that Snowden made in order to do what was right.

False_Believer
False_Believer

Perhaps the judges are beginning to realize that the NSA are gawking at their communications too. And let us please put an end to this hero/traitor thing. Snowden happens. If you hire n employees to do a task of reprehensibility r, the probability of a leak scales with both n and r, especially when there are no honest-to-goodness outlets for the expression of those who disagree with the pretexts they are fed. Life will get very lonely for the NSA if they insist on treating everyone as suspects.

Fastgirl
Fastgirl

Interesting that it is a conservative and not a lib going after this policy in the courts. If this was a Republican president the libs would be out in full force. Time for the libs to understand that spying on Americans is spying on Ameicans no matter who does it and to the majority of Americans it isn't acceptable. Too bad they only have a problem with the government spying on Americans when it is their opposition doing it.

RobertNguyen
RobertNguyen

Beyond the issue of constitutionality, it is the WH 's responsibility to make real management judgement on the program - is it truly effective and worthy of the money spent in time of our dired budget situation? 

To blindly waste our economic security in the name of physical security is not worthy of national leadership. To simply rubber stamp it is even worse...

lancasterpa
lancasterpa

Snowden must love the freedoms Mother Russia gives him.  I would be the first one to pay for the bullet that he will receive in the future.

RicardoRivera
RicardoRivera

In time this ruling will be overruled. Changes are already coming due to the president's order but don't ever expect it to go away. I hope this debate helps those who feel the government is the boogie man. In truth will they ever be satisfied? In my opinion the leaks are more dangerous than the programs themselves.

Ruleoflaw10
Ruleoflaw10

Courts should examine these surveillance programs, but that doesn't mean snowden didn't break the law and should be prosecuted. Instead, Snowden is offering his services to China, Russia, Brazil to reveal American secrets and do as much damage to our nation as possible. Perhaps some people also think Benedict Arnold is a hero as well, as his justification was that he was trying to save the people as well.

falcon269
falcon269

The lawsuit predates Snowden. Why is he even in this article? Are you suggesting that the judge would have ruled differently without Snowden's stolen information?

PANATAG
PANATAG

@EraNeu 13 Mar"I don't measure a man's success by how high he climbs but how high he

bounces when he hits bottom." - George Patton

say’s new chief

huajoe01
huajoe01

The National Security Agency’s program of collecting massive amounts of data about Americans’ phone calls actually violates the rules of Constitution regarding protection against unreasonable searches. we protest it and defend our rights.

drudown
drudown

"All bad precedents began as justifiable measures." - Julius Caesar


I think the People need to be most concerned with the flagrant disregard of the fundamental precepts behind the Bill of Rights that are being so flagrantly subverted when the Bush Administration placed this patently illegal NSA program in place, e.g., the "reasonable expectation of privacy" that is engraved on the 4th Amendment cannot be "waived" in some boilerplate "terms of service" contained in, say, a social networking or online dating site- that is, simply because we live in newer times- any more than the purported "threat" of criminal activity in newer times justifies disregarding the Fundamental right to Privacy via State Action. Tell me, if the State could merely "hire" or "contract" with private companies acting under the color the law…what exactly is the difference in terms of the Bill of Rights' express protections being rendered a mere form of words?


The FUNCTION of the warrant requirement is to do what your metadata conspicuously tramples: the neutral and detached member of the Judiciary has to APPROVE and duly CIRCUMSCRIBE the information/communications to be searched and seized to limit violation of the People's reasonable expectation of Privacy. Funny, the Media seem to omit ANY reference to this plain meaning of the 4th Amendment but proffer some "third-party doctrine" red herring argument that has as little to do with the threshold inquiry as more recent attempts to conflate GOP declarants like Palin claiming "death panels are in the ACA" with some IPAB red herring, i.e., the IPAB has NOTHING to do with the "scienter" or "mens rea" of the declarant- they are referring to people being killed indiscriminately by the State for being old and infirm, not the Independent Payment Advisory Board.  Moreover, there is no possible "construction" of the cited "third-party exception" that (ahem) wouldn't SWALLOW the 4th Amendment. That doesn't even make logical sense, much less acknowledge the FACT the 4th Amendment is a LIMIT on State Action. 


Equally misplaced is the notion the NSA's "technical means" by which the SEARCH and SEIZURE is effectuated by the State is somehow "new" [see, Berger v. New York (1967) 388 U.S. 41 ("any search and seizure of such unlimited scope and duration- particularly without probable cause- subverts standard of reasonableness embodied in the 4th Amendment")] is therefore as inapt as the notion it is legal. 


As the Court in Berger, supra, noted, the very premise of the UNLAWFUL NSA program would improperly sanction such search and seizures "without specifying what crime has been or is being committed and without describing what conversations are to be overheard- thus failing to 'particularly [describe] the place to be searched, and the person or things to be seized,' as required by the Fourth Amendment")].


Conspicuously, the FACT the Snowden disclosures PROVE that the State knowingly, deliberately and systematically MISUSED the Patriot Act to engage in WARRANTLESS Search and Seizures of LAW ABIDING Americans with no connection to criminal or terrorist activities whatsoever is actually a harbinger of a much deeper issue than meets the eye. It is a larger assault by Foreign governments trying to BRIBE the Congress and Executive branch into acquiescing into such gross subversions of our PRECEDENT that the United States is literally being WEAKENED because of such basic, petty CORRUPTION. 


"What, we have guns and badges so it's different?" - Officer Hoyt, 'Training Day'


Given that the "Decider" was the one that VIOLATED the People's Due Process and Privacy rights, at what point does the Executive branch BREACH its DUTY to the People by REFUSING to hold the lawbreakers accountable? [see, Daniels v. Williams (1986) 474 U.S. 327 ("abuse of discretion by State constitutes Due Process violation"].


“There are times when even justice brings harm with it.” - Sophocles


How is such a refusal by Congress to bring the most fundamental PROTECTIONS of our Founding Fathers' system of checks and balances within the three separate branches of government not a "deprivation" of life, liberty or property? [see, Davidson v. Cannon (1986) 474 U.S. 344]


The People's representatives in government cannot simply abrogate their FIDUCIARY DUTY to uphold the Constitution by "turning another cheek" to the NSA's UNLAWFUL conduct, much less even CONSIDER entering into the Trans-Pacific Partnership that would, inter alia, UNDULY HINDER our own SOVEREIGN RIGHT to enforce our Nation's DUE PROCESS protections (see, e.g., http://www.democracynow.org/2013/10/4/a_corporate_trojan_horse_obama_pusheshttp://www.citizen.org/TPPhttp://www.exposethetpp.org/ )?
This strain of non sequitur, "blanket immunities" afforded to the SAME CORPORATIONS that are BRIBING our Congress and BOTH political parties has reached a point where it could literally kill millions and millions of United States citizens if even "allowed" to go forward, despite being UNCONSTITUTIONAL, i.e., NO TRADE AGREEMENT CAN LIMIT THE PEOPLE'S DUE PROCESS RIGHTS IN THE SEVERAL STATES.
That is what such egregious subversions of Due Process (e.g., NSA program and TPP) aim to do. 

Just this: there is no such thing as "inadvertent" State Action that contravenes the express language of the Bill of Rights, e.g., "searching and seizing phone records, emails, texts and other privileged/private communications" by ANY means. There is ample case law expressly holding it is per se UNCONSTITUTIONAL. See, Scott v. United States (1978) 436 U.S. 128 ("every wiretap must be conducted in such a way as to minimize the interception of communications not otherwise subject to interception"). This NSA program is the most egregious subversion of Liberty in our Nation's History and is THE defining civil rights issue of our era- just as RECLAIMING the People's rights to have safe, POTABLE water to drink and grow crops and SAFE, REGULATED food to eat are a condition precedent to Liberty. These cannot be "contracted away" in secret TPP meetings by Halliburton and Monsanto executives any more than the "Decider" can unilaterally set fire to the Constitution, i.e., with no fear of reprisal or State retribution.
"Wiretapping is a dirty business." - Chief Justice Taft, Olmstead v. United States (1929) 277 U.S. 438.

I dissent. 


AndreasCY
AndreasCY

Times have changed. Get over it!

S_Deemer
S_Deemer

The USA PATRIOT Act Was never "goody", and monitoring Merkel's phone started as early as 2003.

This decision is a good example of our tri-partite system of powers at work. Hats off to Judge Leon, and I hope this doesn't get reversed as it moves up the judicial chain. It's hard to imagine that this will not reach the Supreme Court; unfortunately, it is possibe that the justices would vote against, but even Scalia has a strong individual rights streak.

jmac
jmac

Snowden:   “Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans’ rights."


What part of the word "likely" does Snowden not grasp in this lower court's ruling?  The judge thinks that collecting this metadata has not prevented any terrorists attacks.   I'm pretty sure NSA might have a comeback to that.    In the meantime, Snowden can sit back and wonder why he really wanted to hurt the U.S. when he was all too happy bragging about wars and the income it gave him under Bush.  


roknsteve
roknsteve

The NSA was a "goody" when Bush was president.  The NSA is "very bad' now that Obama is president.  Same for everything in the Universe. 

commentonitall
commentonitall

So if what they were doing was unconstitutional, then does that void Snowden's charges for that specific crime?  It's an interesting legal question.  He exposed something the NSA was doing which for the time being is considered unconstitutional, if that ruling holds.  It's like punishing someone for letting the public know a company is doing something harmful and unconstitutional.  This should bring about many interesting debates.

jess60901
jess60901

@lancasterpa Best to practice sharpshooting skills on your momma for giving you birth and then you.

jess60901
jess60901

@drudown Thank you, drudown, for the effort you put into your post.  Would that (the endless supply of) morons in this pathetic country be positively influenced by your input.  Thank you.

jmac
jmac

@Leftcoastrocky This program has been legal since 1979.    Snowden has damaged the US by his massive leaking to other countries and you think he deserves man of the year because a trail judge has decided maybe the 1979 ruling doesn't hold in the age of cell phones?  


I would think the 1979 ruling would be even more relevant in the age of al-qaeda and cell phones.  Hello!  

jmac
jmac

@roknsteve Fox News is playing Snowden as a hero  -  they would have played him as an unpatriotic traitor had he done this when he worked on surveillance under Bush.     It reminds me of Occupy Wall Street and the Tea Party being against it when it's the one thing they should have been able to embrace.      

huajoe01
huajoe01

I agree with you at this point. we have the same point that Snowden should deserves man of the year because a trail judge has decided maybe the 1979
ruling doesn't hold in the age of cell phones.

Leftcoastrocky
Leftcoastrocky

@jmac @Leftcoastrocky  Snowden was Time's runner up for man of the year, and that was before "this first major legal setback to the NSA’s mass surveillance program"



jmac
jmac

@Leftcoastrocky @jmac There were ten runner-ups and Greenwald and the media can spin it any way they want but I doubt it will fly.    NSA needs all the help it can get.   China's still hacking into our programs, al Qaeda's still alive and well and scheming and I don't care if they keep my phone records for five years.


If this is all SNowden's got to brag about - a district judge looking to change a 1979 ruling - he's still in the deep trouble he deserves to be in.  Wanta bet this doesn't change the 1979 ruling even with two Democrats on the new D.C. court?