NSA Phone Program Probably Unconstitutional, Judge Rules

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Medea Benjamin of CodePink protests as Director of the National Security Agency Gen. Keith Alexander waits for the beginning of a hearing before the House (Select) Intelligence Committee on Oct. 29, 2013 in Washington, DC. Close

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Medea Benjamin of CodePink protests as Director of the National Security Agency Gen. Keith Alexander waits for the beginning of a hearing before the House (Select) Intelligence Committee on Oct. 29, 2013 in Washington, DC.

The National Security Agency’s program of collecting telephone-call data is probably illegal, a federal judge ruled, allowing a lawsuit claiming it violates the U.S. Constitution to go forward.

In the first federal court decision to enable a challenge to the surveillance program, U.S. District Judge Richard Leon in Washington said the plaintiffs would probably prevail at trial on their claim that the Constitution’s Fourth Amendment right to privacy outweighs the government’s need to gather and analyze the information.

Leon granted a temporary order blocking the government from collecting what’s known as metadata from the Verizon Wireless accounts of the two plaintiffs, conservative legal activist Larry Klayman and Charles Strange, who in court papers said the U.S. government may have intentionally killed his son in Afghanistan. He also required the U.S. to destroy any such information in the NSA’s possession.

Leon froze the order while the government makes a likely appeal “in light of the significant national security interests at stake in this case and the novelty of the constitutional issues,” according to yesterday’s ruling.

The case marks the first time a district court judge has ruled on the NSA program, disclosed this year in leaks by the former agency contractor Edward Snowden. The Foreign Intelligence Surveillance Court, which reviews government requests for permission to engage in electronic surveillance of foreign suspects who may be communicating with U.S. citizens, has said the data collection is constitutional.

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A workstation inside the Threat Operations Center at the NSA in Fort Meade, Maryland. Close

A workstation inside the Threat Operations Center at the NSA in Fort Meade, Maryland.

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Photographer: Paul J. Richards/AFP via Getty Images

A workstation inside the Threat Operations Center at the NSA in Fort Meade, Maryland.

Published Accounts

Leon’s ruling addressed motions made in two separate lawsuits, each filed by Klayman -- founder of the public interest group FreedomWatch -- in the wake of published accounts of NSA surveillance activities revealed bySnowden.

Snowden, sought by the U.S. on criminal charges, is in Russia, which has granted him temporary asylum.

Klayman said he was “elated” with Leon’s decision.

“There are very few judges who have the courage to do what Judge Leon did,” he said. “He’s an American hero.”

Klayman, a practicing lawyer, said the NSA’s actions had made the U.S. into a police state where “you can’t make one phone call, you can’t send any e-mails, because you think the government is watching.” That has chilled rights of free speech and free association, he said.

Justice Department

While he disagrees with Leon’s ruling, former NSA Director Michael Hayden told MSNBC’s “Morning Joe” today that the upshot is the agency is “going to have to have more transparency to sustain these programs.”

White House press secretary Jay Carney said he hadn’t seen the ruling and referred questions to the Justice Department.

Andrew Ames, a spokesman for the department, said in an e-mail, “We believe the program is constitutional as previous judges have found.” The department is reviewing the decision, he said.

Ed McFadden, a Verizon spokesman, said the company couldn’t immediately comment on the ruling.

U.S. Senator Patrick Leahy of Vermont, a Democrat who heads the chamber’s Judiciary Committee, said in a statement that he welcomed the decision. His committee has held three hearings in recent months on issues addressed in the litigation, he said.

“This is a very significant ruling,” Kevin Bankston, policy director for the Washington-based Open Technology Institute, a policy and research organization, said in a phone interview. The ruling should have “significant implications” for how the White House and Congress deal with the NSA program, he said.

‘Talking Point’

“It robs the government of its talking point that the courts have never found there to be a meaningful privacy interest in phone records,” he said. “This decision absolutely should shift the debate.”

Leon, an appointee of President George W. Bush, rejected the assertion by President Barack Obama’s administration that Americans don’t have a right to privacy for records showing phone numbers called and the duration of the connection.

The administration, and the foreign intelligence court, have relied on a 1979 Supreme Court ruling that such data isn’t protected by the Fourth Amendment.

“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,” Leon wrote.

‘Surveillance Capabilities’

“When do present-day circumstances -- the evolution in the government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies -- become so thoroughly unlike those considered by the Supreme Court 34 years ago that a precedent like Smith does not apply?” Leon asked. “The answer, unfortunately for the government, is now.”

The judge said that while he accepts without question the Obama administration’s position that combating terrorism is of “paramount importance,” the government offered no explanation as to how removing the records of the two plaintiffs from the NSA’s database would damage that effort.

He also said he was “not convinced at this point in the litigation that the NSA’s database has ever truly served the purpose of rapidly identifying terrorists in time-sensitive investigations.”

The case is Klayman v. Obama, 13-cv-881, U.S. District Court, District of Columbia (Washington).

To contact the reporters on this story: Andrew Harris in federal court in Chicago at aharris16@bloomberg.net; Chris Strohm in Washington at cstrohm1@bloomberg.net

To contact the editors responsible for this story: Michael Hytha at mhytha@bloomberg.net; Bernard Kohn at bkohn2@bloomberg.net

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