Judge rules NSA data collection likely unconstitution

WASHINGTON – A federal judge has for the first time ruled the National Security Agency’s once-secret policy of collecting the dialing records of all phone calls in the country probably violates the Constitution, a defeat for the government that could alter the political debate over the controversial program and set up an eventual review by the Supreme Court.

Monday’s ruling will not immediately stop the NSA’s data collection program because U.S. District Judge Richard J. Leon immediately stayed it to give the government time to appeal. But the decision nonetheless validated several of the arguments made by critics of the NSA and will likely add force to their push to limit the agency.

The decision was the first public ruling by a judge who had reviewed the agency’s activities since the revelations made last summer by former NSA contractor Edward Snowden. Since then, congressional critics of the NSA’s activities have pushed for legislation to rein in the agency but have so far been fought to a standstill by its defenders.

The NSA’s collection program gathers so-called metadata – such as the numbers that any particular telephone connects with and the length of calls – for virtually every phone call made in the U.S. The NSA keeps the data for five years. Agency officials stress that, unlike with a wiretap, they do not record the contents of any calls. Moreover, they say, they only search a small portion of the database in any year, looking for numbers linked to those used by suspected foreign terrorists.

Even that limited searching, however, can involve millions of phone numbers, Leon noted, adding that what he called a dragnet almost certainly violates the Fourth Amendment’s ban on unreasonable searches.

“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 and analyzing it without prior judicial approval,” wrote the judge, who was appointed to the federal district court in Washington by President George W. Bush.

“We believe the program is constitutional as previous judges have found,” said Andrew Ames, a Justice Department spokesman, referring to the judges of the Foreign Intelligence Surveillance Court, who review the NSA’s activities in secret.

The administration can appeal the decision to the D.C. Circuit Court of Appeals. Just last week, two judges appointed by President Barack Obama were confirmed to that court. From there, the losing side could ask the Supreme Court for review. If the ruling is upheld, Leon would still have to hold further proceedings before making a final ruling for the plaintiffs, who were led by Larry Klayman, a conservative activist who testified that he believes the government is “messing with me.”

Obama has previously directed aides to review the NSA’s programs and determine whether changes are needed, but the White House has so far opposed most suggestions for large-scale changes in what the NSA and other intelligence agencies do.

After the Sept. 11, 2001, terrorist attacks, Congress authorized the government to obtain records that were “relevant to an authorized investigation.”

To the surprise of some lawmakers, the secret foreign surveillance court accepted the agency’s argument that compiling all phone records would be relevant, even when no individual investigation was being conducted.

Officials have insisted the NSA’s program passes constitutional muster and have cited a 1979 case in which the Supreme Court said police detectives did not need a warrant to use a pen register to record what numbers were dialed on a specific phone.

The justices reasoned that these dialing records did not reveal much that was truly private and that individuals had voluntarily turned the information over to the telephone company.

Leon said computerized gathering of all dialing records represented a threat to privacy not anticipated 34 years ago.

“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 wrote. James Madison, the principal author of the Constitution, would be “aghast,” he said.