Judge's Ruling Could Jeopardize NSA Surveillance

Back to Leon. He concludes that the plaintiffs “have a very significant expectation of privacy in an aggregated collection of their telephony metadata covering the last five years, and the NSA’s Bulk Telephony Metadata program significantly intrudes on that expectation.” As a result, he had to determine whether the Obama Administration had offered any justification that would trump this privacy expectation. He found it had not. "The Government,” he writes,

does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature. In fact, none of the three “recent episodes” cited by the Government that supposedly “illustrate the role that telephony metadata can play in preventing and protecting against terrorist attack” involved any apparent urgency.

And then, finally, the judge's coup de grace:

I cannot imagine a more “indiscriminate” and “arbitrary invasion” than this systematic and high-tech collection and retention of personal data on virtually every citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on “that degree of privacy” that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware “the abridgement of freedom of the people  gradual and silent encroachments by those in power,” would be aghast.

 Take some time this holiday season to read the entire ruling. Leon has given the nation a gift: In a single document, vetted by an independent mind, he chronicles both the factual history of the metadata program as well as the statutory underpinnings of it. He places the facts and the law into constitutional context. And he places the constitutional dynamics of the case into historical context. It's a worthy endeavor. Even if Leon is overturned on appeal, it won't mean he was wrong.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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