A federal district judge brought some sanity Monday to the debate over National Security Agency practices by ruling that its collecting and keeping records of Americans’ phone calls was probably unconstitutional.
Judge Richard J. Leon of the District of Columbia said that the activities, revealed by ex-NSA contractor Edward J. Snowden in June, were likely in violation of the Fourth Amendment’s prohibition on unreasonable searches and seizures. He called the NSA’s actions “almost Orwellian,” referring to author George Orwell’s portrayal of government as the invasive and totalitarian “Big Brother” in his book “1984.” He added that President James Madison, the principal author of the Bill of Rights, would be “aghast” at what the federal government is doing to its citizens in the name of national security.
In the short run, he ordered the NSA to stop collecting data on the several plaintiffs in the case and to destroy all records of their calling history.
Judge Leon also gave the federal government time to appeal his judgment and allowed it in the meantime to continue its program of bulk metadata collection. He justified his invitation to the government to appeal on grounds of its “national security” argument, even though he noted that in this case the government had presented no evidence of an imminent terrorist attack that its program had prevented.
The ruling is the first to strike back on behalf of the constitutional rights of Americans not to have their personal communications data comprehensively collected and preserved by the government. The judge’s decision also apparently cut counter to the secret rulings of the Foreign Intelligence Surveillance Court. Since Judge Leon was appointed by President George W. Bush, he cannot be easily accused of liberal bias.
The nation will now see if President Barack Obama responds to the ruling by bridling NSA spying on Americans or whether he succumbs instead to security officials’ demands that more such communications be intercepted and collected by U.S. surveillance agencies. We urge the president to side with the Constitution.