NSA got lump of coal for Christmas

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Christmas came early for lovers of liberty, thanks to five federal judges and a White House task force.

*The National Security Agency’s collection of “metadata” on nearly all telephone calls made to, from or within the United States appears to violate the Fourth Amendment ban on unreasonable searches and seizures, U.S. District Judge Richard Leon said Dec. 16.

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval,” Judge Leon said.

He issued a preliminary injunction barring NSA from collecting data on the Verizon accounts of Larry Klayman, the plaintiff who brought the lawsuit, and one of Mr. Klayman’s clients, but then stayed his ruling to permit the administration to appeal.

*During oral arguments in a different case last month, U.S. District Judge William Pauley also expressed skepticism about the legal basis for the NSA collection program, but today approved it.

Mr. Klayman founded Judicial Watch, a conservative watchdog group. Judge Leon was appointed to the bench by President George W. Bush. Judge Pauley, who was appointed by President Bill Clinton, wass adjudicating a lawsuit brought by the American Civil Liberties Union.

*On Dec. 18, U.S. District Judge Ellen Seal Huvelle criticized the Obama administration for excessive secrecy in a ruling on a Freedom of Information Act suit, commenting on “the government’s unwarranted expansion of the presidential communications privilege at the expense of the public’s interest in disclosure.”

“The government appears to adopt the cavalier attitude that the president should be permitted to convey orders throughout the executive branch without public oversight, to engage in what is in effect governance by ‘secret law.’”

*U.S. District Judge Brian Cogan ruled Dec. 16 the Obamacare provision requiring employers of nonprofits to provide contraception in health plans for employees violates First Amendment guarantees of religious freedom.

Health and Human Services Secretary Kathleen Sebelius cannot enforce a mandate Congress did not approve, nor decide unilaterally what the First Amendment means, Judge Cogan said in issuing a permanent injunction against enforcement of the provision.

Judge Cogan ruled in a lawsuit brought by the Roman Catholic Diocese of New York. Last month U.S. District Judge Arthur Schwab issued a preliminary injunction against the provision in a lawsuit brought by the Catholic Dioceses of Pittsburgh and Erie.

*The task force hand picked by President Barack Obama to review government surveillance policy issued a report last week critical of the scope and effectiveness of NSA surveillance, surprising those who expected it to rubberstamp those programs.

Telecom companies should have control of the database of their customers’ metadata (to which numbers calls are made, and how long they last), said the President’s Review Group on Intelligence and Communications Technologies. The NSA should be permitted to access that database only after getting an order from the FISA court.

CEOs of America’s biggest technology companies met with the president in the White House Dec. 17 to tell him government surveillance policies were undermining trust in their services and hurting the economy. But Mr. Obama spent most of the time making a pitch for Obamacare.

Americans have noticed how cavalierly the Obama administration treats the law, the Constitution, and their liberties, and they don’t like it. In a Gallup poll, 72 percent of Americans said big government was a greater threat than big business or big labor. That’s the most ever, up from 55 percent in 2009.

Many experts in national security law expect Judge Leon’s injunction to be overturned on appeal. But it might not matter. A bipartisan consensus has formed that the NSA must be reined in. If the courts don’t do it, Congress will.

Care must be taken not to throw the baby out with the bathwater. But the government’s inability to produce evidence they do much good undermines the argument massive data sweeps are needed to protect national security.

Their review indicated collection of telephone metadata “was not essential to preventing attacks,” the White House task force said.

He’d asked the Justice Department to show him how metadata sweeps were helping to catch terrorists, but Justice failed to do so, Judge Leon said.

Jack Kelly is a columnist for the Post-Gazette: jkelly@post-gazette.com or 412-263-1476.

First Published December 27, 2013 3:37 PM

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