- The Washington Times - Monday, December 16, 2013

A federal judge said Monday that the NSA’s secret phone-snooping program violates Americans’ privacy rights, in a ruling that sets up a major legal and political hurdle for an Obama administration trying desperately to preserve the intelligence tool.

District Court Judge Richard J. Leon’s groundbreaking decision marks the first time a court has ruled against the program. It puts him in conflict with the secret court that usually oversees clandestine operations and has approved the collection of records on most phone calls made in the U.S.

But Judge Leon said James Madison, chief architect of the Bill of Rights, would be “aghast” at what the government is doing.

“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,” the judge wrote in a 68-page opinion. “Surely, such a program infringes on ‘that degree of privacy’ that the Founders enshrined in the Fourth Amendment.”

The judge didn’t overturn the entire program but instead told the government to stop collecting and retaining the phone records of two plaintiffs who sued to challenge the NSA.

Judge Leon also stayed his own ruling to give the government a chance to file an appeal, saying he realized the big national security interests at stake.

Andrew C. Ames, a spokesman for the Justice Department, said attorneys were reviewing the ruling, though he would not comment on the next step.

“We believe the program is constitutional, as previous judges have found,” Mr. Ames said.

Under the program, the National Security Agency collects the telephone numbers, times and durations of phone calls made in the U.S. and stores the data for five years. The government says it looks only into the phone metadata when it suspects someone could be involved in terrorism.

The phone records program, whose existence was leaked by former government contractor Edward Snowden this year, has become a major issue in Washington, where Mr. Obama is desperately trying to preserve it against bipartisan attacks in Congress.

Mr. Snowden issued a statement through Glenn Greenwald, a reporter whose stories exposed the program, saying he was convinced the program wouldn’t survive a court challenge.

“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,” he said.

The ruling likely will strengthen critics’ argument, particularly because Judge Leon was appointed by a Republican president to the federal district court in Washington.

“This is not a left-wing liberal judge. This is one of Bush’s first appointees to the D.C. district. That’s a testament to where we are. I think it speaks volumes that [Judge Leon] wrote that opinion,” said Carl Tobias, a professor at the University of Richmond School of Law.

Indeed, those on both the political right and left praised Judge Leon’s decision.

“The NSA is out of control and operating in an unconstitutional manner,” said Sen. Bernard Sanders, Vermont independent. “Today’s ruling is an important first step toward reining in this agency, but we must go further.”

Some of those lawmakers have introduced a bill to cancel the Patriot Act powers that the government claims.

But the Senate Select Committee on Intelligence this year cleared a bill that would put the NSA program on firm legal footing, requiring more reports but not curtailing any of the basic operations.

Judge Leon’s ruling appears to conflict with a 1970s-era Supreme Court precedent that found broad government records collection powers, but Judge Leon said that earlier ruling didn’t envision the scope of today’s technology.

“The question in this case can more properly be styled as follows: 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 simply does not apply?” the judge wrote. “The answer, unfortunately for the government, is now.”

Another secret court set up by Congress has repeatedly upheld the constitutionality of the program, though in those instances there was no plaintiff to challenge the NSA.

In the case before Judge Leon, lawyer Larry Klayman argued that he and a co-plaintiff were being targeted unfairly. Mr. Klayman accused the government of sending false text messages from his phone.

Government attorneys argued that Judge Leon shouldn’t even be able to hear Mr. Klayman’s case because the Foreign Intelligence Surveillance Court upheld the NSA program. The government also said that since the workings of the program are still classified, Mr. Klayman couldn’t prove his records were collected.

Judge Leon said he is convinced from the government’s own arguments that it is collecting “plaintiff’s metadata — indeed everyone’s metadata.”

Judge Leon doubted most of the Obama administration’s arguments and even questioned the national security value of the phone program.

He said the government even had the chance to present him with evidence in private that could have justified the program but failed to do so.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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