Former Spy Boss Says Judge ‘Not in Good Position’ to Pronounce on NSA Program

'Likely unconstitutional' ruling by Judge Richard Leon is disputed and downplayed

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A federal judge who ruled that the National Security Agency’s (NSA) surveillance of U.S. telephone records was likely unconstitutional is “not in a good position” to evaluate the effectiveness of the program, a former NSA director says.

U.S. District Court Judge Richard Leon said Monday that there was little evidence that the collection of phone metadata “actually stopped an imminent terrorist attack.”

But onetime NSA chief Michael Hayden disputed the judge’s statement, according to Associated Press. “[Leon] makes a judgment that the government was not able to show that this stopped an imminent terrorist attack. That’s not the only metric,” Hayden said, arguing that metadata helped the NSA track and understand terrorist behavior.

The significance of Leon’s ruling was also downplayed by Hayden, who said that the finding would only apply to one case — that brought by lawyer Larry Klayman and Charles Strange, the father of a technician who worked for the NSA when he was killed in Afghanistan in 2011. The two men had sought an injunction against the collection of their phone records.

Professor Robert F. Turner of the University of Virginia’s Center for National Security Law said Leon’s decision was likely to be reversed on appeal. The collection of metadata had already been found constitutional by the Supreme Court, he said.

However,  Stephen Vladeck, an expert in security law at the American University, hailed the judgement as “important symbolically in dispelling the invincibility of the metadata program.”

Klayman called the ruling “great” and “correct.” He said it was the first time “in a long time that a court has stepped in to prevent the tyranny of the other two branches of government.”