A federal judge in the District of Columbia hearing arguments Thursday on a revived motion to block NSA phone snooping acknowledged his own concern that the program is continuing to violate millions of Americans’ constitutional rights.
But U.S. District Judge Richard Leon has not decided whether to issue a second preliminary injunction to block the collection of phone metadata in the final weeks of activity as part of the National Security Agency program.
“It’s important to get this ruling out as fast as possible,” Judge Leon said at the end of the latest hearing in conservative lawyer Larry Klayman’s challenge.
During his arguments, Mr. Klayman asked that the judge declare the entire USA Freedom Act unconstitutional and disband the bulk collection practice.
“Congress does not have the right to violate the Constitution,” said Mr. Klayman, adding that if the act is struck down as unconstitutional, lawmakers could work overtime to draw up legislation to prevent any intelligence gap in the interim.
The act was adopted by Congress and signed by President Obama this summer to overhaul the NSA’s program and to wind down bulk collection of phone data by Nov. 29. After that point, the NSA can no longer store bulk phone metadata and federal investigators will have to request data from phone companies if they suspect phone numbers are linked to terrorism.
Judge Leon previously issued an injunction blocking the NSA program but put his order on hold until the appeals court ruled. When the U.S. Court of Appeals for the D.C. Circuit overturned his injunction in August, the court concluded that Mr. Klayman failed to prove that his and his fellow plaintiffs’ calls were scooped up in the phone records dragnet and sent the case back to the lower court so more evidence could be heard.
Justice Department attorney Julia Berman argued that striking the program in its current form would create an intelligence gap because technological capabilities to bridge the means of collection would not be up and running until the end of November.
Judge Leon questioned whether the NSA’s phone snooping program has foiled any terrorist plot. Noting that specific evidence on any successes might be classified information, he added, “I can receive classified evidence.”
Ms. Berman declined to get into specifics but said the FBI warned that the Islamic State and other terrorist groups were encouraging small-scale attacks in the United States. She said the speed of the current spying technology is required to prevent such attacks.
She asked Judge Leon to defer to Congress, which endorsed the program by extending it, and to allow it to remain in place as is until the end of November.