Judge's Ruling Could Jeopardize NSA Surveillance

A D.C. trial judge says the government's "bulk metadata" program relies on a 34-year-old precedent obviated by current technologies.

General Keith Alexander is director of the NSA. (Associated Press)

Richard J. Leon already had an impressive career in law and Republican politics when George W. Bush nominated him to the federal D.C. District Court—on Monday, September 10, 2001, no less. Since then, he has consistently demonstrated ideological independence, no matter which administration officials offended his constitutional principles. It was Leon, for example, who in November 2008 ordered the release from Guantanamo Bay of five Algerians who had been detained there by American forces.

This is the context for the judge's 68-page ruling Monday in Klayman v. Obama, which jeopardizes at least part of the federal government's domestic-surveillance program. Leon is many things, but he's no radical. He crafted a cogent, reasoned analysis explaining why he believes that the NSA's "Bulk Telephony Metadata Program" may violate the Fourth Amendment privacy rights of at least some American citizens—and why the plaintiffs in the case before him have the right in the first place to come to court for a redress of their grievances against the federal government.

The landmark order, the first in the Age of Snowden, comes after a request for an injunction halting the surveillance program pending trial. But though the judge says the program is likely unconstitutional, he has not blocked its operation. Instead, he has given the Obama Administration time to appeal his ruling to the D.C. Circuit Court of Appeals and then, perhaps, to the Supreme Court. We are still much closer to the beginning of this story than we are to the end. Even if the government loses on appeal, it would just lead to a trial, which the losing side presumably would appeal as well.

I've set forth below some of the notable quotes from the ruling. It strikes me as a classic trial judge's opinion, one that stretches existing precedent beyond its breaking point, and thus one to which the appellate courts will afford virtually no deference. That means this ruling (no matter how sensible it may seem) is likely to be overturned or at least limited upon appeal. The newly constituted D.C. Circuit Court, with three Obama nominees confirmed to it this year, will quickly face a constitutional challenge to one of the most controversial government programs around.

The Ruling

The first thing you ought to know is that Leon, like many jurists, buried his lede. Here's one of the key passages from the ruling—and it comes late, at  pages 65-66 of the opinion:

This case is yet the latest chapter in the Judiciary’s continuing challenge to balance the national security interests of the United States with the individual liberties of our citizens. The Government, in its understandable zeal to protect our homeland, has crafted a counterterrorism program with respect to telephone metadata that strikes the balance base in large part on a thirty-four year old Supreme Court precedent, the relevance of which has been eclipsed by technical advances and a cell phone-centric lifestyle heretofore inconceivable.

The case to which Leon refers is Smith v. Maryland, a 1979 Supreme Court decision in which the justices held that the installation and use of a pen register on a telephone did not constitute a "search" under the meaning of the Fourth Amendment. Leon believes that technology has rendered Smith as obsolete as cell phones have rendered dial phones. If he's right, the Obama Administration may indeed lose this case. If he's wrong, I suspect it will be Supreme Court Justices Antonin Scalia and Clarence Thomas who tell him so.

The second thing to know about the ruling is that it's a surprise Leon ruled on the merits of the case at all. He first had to conclude that the plaintiffs, including the ubiquitous Larry Klayman, had legal standing to challenge the lawfulness of the government activity. Since September 11, 2001, plaintiffs in terror-law cases have failed, one after the other, to convince the federal courts that they have such standing. Here's how Leon puts it, in a passage some might consider ripe for the picking on appellate review:

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 for the conduct to remain secret by operation of the design of its statutory scheme. While Congress has great latitude to create statutory schemes like FISA, it may not hang a cloak of secrecy over the Constitution.

There is more, much more, about standing. Not until page 42 of the 68-page ruling does the judge move on from it. Those first 42 pages include this instant classic (emphasis in original):

Put simply, the Government wants it both ways. Virtually all of the Government’s briefs and arguments to this Court explain how the Government has acted in good faith to create a comprehensive metadata database that serves as a potentially valuable tool in combating terrorism—in which case the NSA must have collected metadata from Verizon Wireless, the single largest wireless carrier in the United States, as well as AT&T and Spring, the second and third largest carriers.

Yet in one footnote, the Government asks me to find that plaintiffs lack standing based on the theoretical possibility that the NSA has collected a universe of metadata so incomplete that the program could not possibly serve its putative function. Candor of this type defies common sense and does not exactly inspire confidence! 

The third thing to know about the ruling is that Leon frames the key constitutional question in a very candid way:

When do present-day circumstances—the evolutions in the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies—become so thoroughly unlike those considered by the Supreme Court thirty four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now.

What follows is a lengthy bit of analysis in which Leon seeks to contrast the facts of the Smith case from the case before him. The Smith case involved a “short-term, forward-looking (as opposed to historical), and highly-limited data collection." Leon continues (emphasis in original):

The NSA telephone metadata program, on the other hand, involves the creation and maintenance of a historical database containing five years’ worth of data. And, I might add, there is the very real prospect that the program will go on for as long as America is combating terrorism, which realistically could be forever!

Next the judge contrasted the relationships at issue in Smith with the ones at issue in the case before him. "In Smith," Judge Leon writes,

the Court considered a one-time, targeted request for data regarding an individual suspect in a criminal investigation, which in no way resembles the daily, all-encompassing, indiscriminate dump of phone metadata that the NSA now receives as part of its Bulk Telephony Metadata Program.

It’s one thing to say that people expect phone companies to occasionally provide information to law enforcement; it’s quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the Government.

Next, he focuses on the advance of technology since Smith was decided. “The almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979," he writes, before turning to what he calls the most important reason why he believes the precedent is outdated.

Put simply, people in 2013 have an entirely different relationship with phones than they did thirty-four years ago …. Records that once would have revealed a few scattered tiles of information about a person now reveal an entire mosaic—a vibrant and constantly updating picture of the person’s life.

I can see the steam coming out of Scalia's ears when he reads that passage. Leon thinks Smith ought to be overturned and has made a fine case for it, but it's not his precedent to overturn. And the D.C. Circuit—and by extension the Supreme Court itself—consistently has upheld the executive branch's terror-law powers since the last Guantanamo Bay ruling by the justices in 2008. Will we get the answer here in 2014? 2015?

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.