Civil libertarians ecstatic; Whistleblower Snowden hails opinion...
By Brad Friedman on 12/16/2013, 1:40pm PT  

A federal judge has found the bulk collection of metadata of U.S. phone calls to be "indiscriminate" and "arbitrary" and, therefore, in violation of the Constitution's 4th Amendment right against unreasonable search and seizure. His opinion was hailed by former NSA contractor Edward Snowden who has been asserting that point as the central basis for his having leaked thousands of classified documents in regard to programs run by the federal agency.

Politico's Josh Gerstein, who appears to have been the first to break the news today, reports it this way...

A federal judge ruled Monday that the National Security Agency program which collects information on nearly all telephone calls made to, from or within the United States is likely unconstitutional.

U.S. District Court Judge Richard Leon found that the program appears to violate the Fourth Amendment ban on unreasonable searches and seizures. He also said the Justice Department had failed to demonstrate that collecting the information had helped to head off terrorist attacks.

Acting on a lawsuit brought by conservative legal activist Larry Klayman, Leon issued a preliminary injunction barring the NSA from collecting so-called metadata pertaining to the Verizon accounts of Klayman and one of his clients. However, the judge stayed the order to allow for an appeal.

Now, Klayman is, in fact, a Rightwing loon who is separately in the process of, literally, attempting to overthrow the U.S. government. But, as journalist Glenn Greenwald --- the man who has been most intensely reporting on Snowden's leaks --- notes today: "the ACLU has a virtually identical lawsuit against the NSA as the one where the judge today ruled against NSA".

Judge Leon went on to write in his scathing opinion...

"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 it and analyzing it without judicial approval," wrote Leon, an appointee of President George W. Bush.

The preliminary injunction Leon granted Monday does not require him to make a definitive ruling on the constitutional questions in the case, but does take account of which side he believes is more likely to prevail.

Leon's 68-page opinion is the first significant legal setback for the NSA's surveillance program since it was disclosed in June in news stories based on leaks from former NSA contractor Edward Snowden. For seven years, the metadata program has been approved repeatedly by numerous judges on the Foreign Intelligence Surveillance Court and found constitutional by at least one judge sitting in a criminal case.

The judge also described the government's technology used to store bulk collection of metadata records --- records that include "who you called, who called you, for how long, how frequently you communicate, " etc. --- as "almost Orwellian".

Ian Millhiser, legal journalist at Think Progress observes that last week's new appointments to the D.C. Circuit Court of Appeal, made possible after the Senate majority voted for a rule change to end Republican obstructionism through filibuster abuse, "probably make it more likely [Judge Leon's] decision will be upheld." He further notes that newly confirmed D.C. Circuit Court Judge Nina Pillard is "married to [a] top civil libertarian." Her husband is Georgetown University law professor David Cole.

As Greenwald tweeted after today's opinion was issued, "If someone discloses a secret govt program that a Federal Court rules violates the Constitution, that person's a whistleblower, right?"


He later added: "In America, the officials who violate Constitutional rights get promotions; those who expose the violations get indictments."

Senator Ron Wyden (D-OR), who has long been charging that the NSA bulk collection of data was likely unconstitutional or, at least, wildly in contrast to the American public's understanding of the government's secret surveillance programs, described Leon's ruling as a "Big step toward restoring 4th Amendment protections."

For his part, Snowden responded this way today, according to the New York Times' Charlie Savage:

"I acted on my belief that the N.S.A.'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," Mr. 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."