WASHINGTON - A U.S. district judge ruled Monday that the National Security Agency program that is systematically keeping records of all Americans’ phone calls likely violates the Constitution, and he ordered the government to stop collecting data on two plaintiffs’ personal calls and destroy the records of their calling history.
In a 68-page ruling, Judge Richard J. Leon of the U.S. District Court for the District of Columbia called the program’s technology “almost Orwellian” and suggested that James Madison, the author of the Constitution, would be “aghast” to learn that the government was encroaching on liberty in such a way.
“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,” Leon wrote. “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment.”
Leon ruled that the two men “have a substantial likelihood of showing” that their privacy interests outweigh the government’s interest in collecting the data “and therefore the NSA’s bulk collection program is indeed an unreasonable search under the Constitution’s Fourth Amendment.”
Leon stayed his injunction “in light of the significant national security interests at stake in this case and the novelty of the constitutional issues,” allowing the government time to appeal it, a matter that he said could take six months.
Vanee Vines, a spokesman for the National Security Agency, had no immediate comment on the ruling.
The injunction applies only to the two plaintiffs, but the ruling is likely to open the door to much broader challenges to the records collection and storage.
The ruling is the first successful legal challenge brought against the program since it was revealed in June after leaks by former agency contractor Edward Snowden. It was brought by several plaintiffs led by Larry Klayman, founder of the public interest group FreedomWatch, and Charles Strange, the father of a cryptologist technician who was killed in Afghanistan when his helicopter was shot down in 2011.
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 agency’s actions had made the U.S. into a police state where “you can’t make one phone call, you can’t send any emails, because you think the government is watching.” That has chilled rights of free speech and free association, he said.
The American Civil Liberties Union has filed a similar lawsuit in the Southern District of New York.
Jameel Jaffer, deputy legal director of the ACLU, called Leon’s ruling “a strongly worded and carefully reasoned decision that ultimately concludes, absolutely correctly, that the NSA’s call-tracking program can’t be squared with the Constitution.”
In addition to civil-liberties critics, big communications companies are unhappy with the agency’s program, concerned about a loss of business from major clients who are worried about government snooping. President Barack Obama will meet today with executives from leading technology companies. The meeting was previously scheduled.
After the ruling, Andrew Ames, a spokesman for the Justice Department’s National Security Division, said in a statement, “We’ve seen the opinion and are studying it. We believe the program is constitutional as previous judges have found. We have no further comment at this time.”
The ruling broke new legal ground by deciding that today’s computerized gathering of all dialing records represents a new threat to privacy that was not fully recognized in the past.
In 1979, the Supreme Court ruled in the Smith v. Maryland case that phone records - unlike the content of phone calls - were not protected under the Fourth Amendment. The justices allowed police detectives to use a much more primitive technology - a pen register - to record the numbers a suspect dialed without a search warrant.
The National Security Agency’s computers today can gather, store and sift millions of calls, which changes the constitutional balance, Leon wrote.
Because technology has changed so much, and the scope of the government’s surveillance operations is so much greater than what was involved in the 1979 case, that ruling no longer can be considered a binding precedent, the judge said.
“When do present-day circumstances - the evolutions 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 simply does not apply? The answer, unfortunately for the government, is now,” Leon wrote.
He also questioned whether the phone records were useful in fighting terrorism. “The government does not cite a single instance in which analysis of the NSA’s bulk data collection actually stopped an imminent attack,” he wrote.
Sen. Mark Udall, a Colorado Democrat and member of the Intelligence Committee, said Leon’s ruling “underscores what I have argued for years: The bulk collection of Americans’ phone records conflicts with Americans’ privacy rights under the U.S. Constitution and has failed to make us safer.”
Sen. Patrick Leahy, D-Vt. and chairman of 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.
Stephen Vladeck, a national security law expert at the American University law school, said Leon is the first judge to say he has serious constitutional concerns about the program.
“This is the opening salvo in a very long story, but it’s important symbolically in dispelling the invincibility of the metadata program,” he said.
Vladeck said there is a long road of court tests ahead for both sides in this dispute and that a higher court could ultimately avoid ruling on the big constitutional issue identified by Leon. “There are five or six different issues in these cases,” Vladeck said.
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.
Vladeck said 15 judges on the Foreign Intelligence Surveillance Court have examined Section 215 of the USAPATRIOT Act, the provision of law under which the data collection takes place, without finding constitutional problems. “There’s a disconnect between the 15 judges on the FISA court who seem to think it’s a no-brainer that Section 215 is constitutional, and Judge Leon, who seems to think otherwise.”
In a statement distributed by journalist Glenn Greenwald, who was a recipient of leaked documents from Snowden and who wrote the first article about the bulk data collection, Snowden hailed the Monday ruling.
“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.”
The case was Klayman v. Obama, 13-cv-881, U.S. District Court, District of Columbia (Washington).
Information for this article was contributed by Charlie Savage of The New York Times; by David G. Savage of the Tribune Washington Bureau; by Andrew Harris, Chris Strohm and Laurie Asseo of Bloomberg News; and by Frederic J. Frommer, Mark Sherman, Pete Yost, Nedra Pickler, Kimberly Dozier and Bradley Brooks of The Associated Press.
Front Section, Pages 1 on 12/17/2013