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Judge rules NSA snooping 'likely' unconstitutional

| Monday, Dec. 16, 2013, 7:54 p.m.

WASHINGTON — A federal judge on Monday concluded that a National Security Agency program that collects enormous amounts of telephone data “likely” violates the Constitution, propelling a high-stakes fight toward the Supreme Court.

In an extraordinary 68-page decision, U.S. District Judge Richard Leon of Washington ordered the NSA to stop snooping on two specific individuals who had challenged the so-called “bulk telephony metadata” collection program. While Leon then put a stay on his order, pending a government appeal, his skepticism about the program's constitutional validity came through loud and clear.

“I believe that bulk telephony metadata collection almost certainly does violate a reasonable expectation of privacy,” Leon wrote, taking note of the “almost Orwellian technology that enables the government to store and analyze the phone metadata of every telephone user in the United States.”

Appointed to the federal bench by President George W. Bush in 2002, Leon further cautioned that the 21st-century surveillance technologies may have outstripped the decades-old legal precedents being used to justify them. The only way to resolve the dilemma spelled out in Leon's decision is for the Supreme Court to revisit the issues once the Court of Appeals for the District of Columbia Circuit takes a crack at it.

“There is the very real prospect that the (surveillance) program will go on for as long as America is combating terrorism, which realistically could be forever!” Leon wrote.

In a twist, Leon said he had the authority to review whether the program is constitutionally suspect even though the data collection was approved by the secretive Foreign Intelligence Surveillance Court.

“Where, as here, core individual constitutional rights are implicated by government action, Congress should not be able to cut off a citizen's right to judicial review of that government action simply because it intended the conduct to remain secret,” Leon wrote.

Larry Klayman, one of the individuals who challenged the NSA program, applauded the court's decision.

“This is the biggest decision ever in the history of government litigation,” Klayman said in an interview, adding that the district court's ruling highlights the problems with the surveillance court, which only hears arguments from government officials. “We have criminal behavior on behalf of the government, and the judge stepped in. And we thank him for that.”

The ruling sparked similar reactions from lawmakers deeply involved in the debate over NSA surveillance, including Sen. Mark Udall, D-Colo., who is on the Senate Intelligence Committee, and Senate Judiciary Committee Chairman Patrick Leahy, D-Vt. Both lawmakers are backing legislation that would end NSA's dragnet data collection programs.

“The ruling underscores what I have argued for years: The bulk collection of Americans' phone records conflicts with Americans' privacy rights under the U.S. Constitution and has failed to make us safer,” Udall said. “We can protect our national security without trampling our constitutional liberties.”

The decision on Monday sets up a fight over whether a 1979 Supreme Court precedent remains valid.

The 1979 ruling, in the case Smith v. Maryland, concluded that individuals have no reasonable expectation of privacy in the phone numbers they call. That ruling permitted police to install a “pen register” on a suspect's phone, recording numbers, without a specific warrant. As Leon noted, “The evolutions in the government's surveillance capabilities (and) citizens' phone habits” are “thoroughly unlike” circumstances in 1979.

Leon directed the NSA to “destroy any such metadata in its possession that was collected through the bulk collection program.” The National Security Agency deferred questions to the Justice Department, where officials stand by the programs.

“We've seen the opinion and are studying it,” said Justice Department spokesman Andrew Ames. “We believe the program is constitutional, as previous judges have found.”

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