There's a new national hero among us. U.S. District Judge Richard Leon of the District of Columbia last week punched out the National Security Agency, a bully grown far too big for its britches. He called the NSA's bulk collection of telephone records "almost Orwellian" and possibly "unconstitutional."
For years, the government's domestic spying effort was one of the nation's most carefully guarded secrets. Suggestions that the federal government was eavesdropping on everyone's conversations and reading everyone's mail was the work of geeks in tinfoil hats, like obsessions with faked moon landings, second gunmen on the grassy knoll and abductions by aliens. Edward J. Snowden changed all that with the release of proof that reality was worse than the tinfoil conspiracies.
As Judge Leon put it: "I cannot imagine a more 'indiscriminate' and 'arbitrary' invasion than this systematic and high-tech collection and retention of personal data on virtually every citizen for purposes of querying and analyzing it without prior judicial approval."
When the total surveillance program began, hidden in the shadows, there was no need to justify the billions of dollars spent in manpower and equipment to tap into every major communications provider in the country. When the Obama administration was called in to court to explain itself, the Justice Department cited a 30-year-old Supreme Court case to say everything was OK. In the last days of the time of disco, the high court approved the surveillance used to catch a Maryland bank robber who had made threatening telephone calls from a landline. It never occurred to the justices they were approving surveillance of everyone's telephones because such things were not technically possible. "Nor could the Court in 1979 have ever imagined how the citizens of 2013 would interact with their phones," Judge Leon observed.
Judge Leon wrote that 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." Terrorist attacks have occurred while the surveillance program has been fully operational, and there's no reason to think they won't happen again, whether the government snoops or not.
Many, perhaps most, Americans take the government at its word when it says "we'll protect you," whether from terrorism, from poverty or from a bad sickness. But an enormous surveillance bureaucracy hasn't ensured real security.
This realization is growing. The judicial mills grind slowly, with appeals of appeals of appeals, so a bipartisan group of senators is gathering support to do something. "We can protect our national security without trampling our constitutional liberties," says Sen. Mark Udall of Colorado, a Democrat, and he has drafted legislation to limit what the National Security Agency can do. Sen. Rand Paul of Kentucky, a Republican, is drawing up a class-action lawsuit against the NSA to show the NSA snoopers who's boss. Judge Leon's ruling, he says, "reminds the federal government that it is not above the law."
Congress could pull the plug on the NSA surveillance scheme now, rather than rely on the courts to do so. The ability to tune in uninvited on the thoughts and private musings of any American at any time, as documented in emails and recorded by electronic devices, goes beyond what George Orwell, the English novelist, imagined. The Fourth Amendment demands that searches are only to be conducted against men and women with proper warrants properly executed, and only with probable cause of the commission of a crime.
"Thanks to the Founding Fathers," writes John Cassidy in The New Yorker magazine, "federal judges are empowered with the job security and the leeway to think for themselves. And on occasion, thank the Lord, some of them exercise these freedoms." We agree, and thank Judge Leon as well, for being one of the heroes.