Federal District Judge Richard Leon, a conservative jurist known for upholding government powers in national security cases, says the government has gone too far in collecting the telephone records of Americans on the off chance that they might help identify unknown terrorists.
He is the first federal judge to make that finding in the seven years the program has been in operation. His welcome opinion opens a revealing window into the massive, secret undertaking.
His decision, however, is only the first step in a lengthy process of judicial review to determine the constitutionality of the National Security Agency program.
Congress could, and should, short-circuit that judicial review by simply restraining the NSA's vast power to collect all Americans' phone records.
The Obama administration will certainly appeal Judge Leon's order that the NSA must stop collecting the "metadata" of the two plaintiffs in the case, pending his review of the constitutional issue.
The judge stayed his order so that the appeal might be made and decided over the next six months. Judge Leon must decide the case itself, although he clearly tipped his hand in saying that the government program is almost certainly unconstitutional.
He described it as "almost Orwellian."
The government can and likely will appeal his decision right up to the Supreme Court.
Government lawyers argue that a 34-year-old Supreme Court decision (Smith v. Maryland) underpins their argument that business records like those kept by telephone companies are not protected by the Fourth Amendment's prohibition of unreasonable searches and seizures.
But Judge Leon, citing government testimony indicating that millions of American telephone records are routinely searched by the NSA, said recent Supreme Court decisions suggest that it is ready to apply Fourth Amendment standards to dragnet type law enforcement practices such as the telephone metadata collection program of NSA.
If such standards are applied, Judge Leon said, the government would have to show that its collection of the phone records was reasonable because there is a national security need that justifies "continuous daily searches of virtually every American citizen without any particularized suspicion" that they are engaged in terrorist activities.
The government failed to persuade Judge Leon that this is the case.
"Given the limited record before me," he wrote, "I have serious doubts about the efficacy of the metadata collection program" in combating terrorism.
A similar point has been raised by Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, and other informed legislators.
Judge Leon has made a compelling case against the constitutionality of the NSA telephone metadata collection program. But this case must undergo at least two rounds of appeals through the federal judiciary, and that takes time.
In short, the American public is looking at a process that could take years to resolve in the courts, during which the NSA will probably continue collecting telephone information.
There is a much shorter way to end this oppressive intrusion. Congress should just say no, and it will stop.
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