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December 17, 2013

Judge rules NSA program is likely unconstitutional

WASHINGTON — In the first ruling of its kind, a federal judge declared Monday that the National Security Agency’s bulk collection of Americans’ telephone records is likely to violate the Constitution’s ban on unreasonable search. The program probably isn’t effective in fighting terrorism either, the judge said.

U.S. District Court Judge Richard Leon granted a preliminary injunction against the government’s collecting of the phone records of two men who had challenged it and said any such records for the men should be destroyed. But he put enforcement of that decision on hold pending a near-certain government appeal.

The injunction applies only to the two individual plaintiffs, but the ruling is likely to open the door to much broader challenges.

The plaintiffs are Larry Klayman, a conservative lawyer, and Charles Strange, who is the father of a cryptologist technician who was killed in Afghanistan when his helicopter was shot down in 2011. The son worked for the NSA and support personnel for Navy SEAL Team VI.

Leon, an appointee of President George W. Bush, ruled that the two men “have a substantial likelihood of showing” that their privacy interests outweigh the government’s interest in collecting the data “and therefore the NSA’s bulk collection program is indeed an unreasonable search under the Constitution’s Fourth Amendment.”

“I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware ‘the abridgment of freedom of the people by gradual and silent encroachments by those in power,’ would be aghast,” he declared.

Andrew C. Ames, a spokesman for the Justice Department’s National Security Division, said in a statement, “We’ve seen the opinion and are studying it. We believe the program is constitutional as previous judges have found. We have no further comment at this time.”

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