Judge Deals Blow to NSA Phone Spying

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from The Wall Street Journal,

Says Program Is ‘Almost Certainly’ Unconstitutional.

A federal judge ruled Monday that the National Security Agency’s collection of phone records “almost certainly” violates the Constitution, setting up a larger legal battle over long-secret counterterrorism programs.

U.S. District Judge Richard Leon’s sharply worded opinion labeled as “almost Orwellian” the NSA’s bulk phone-surveillance program, one of several shots the judge took at the spying and its legal justifications.

The ruling, in U.S. District Court in Washington, D.C., will have little immediate legal effect because the judge stayed the opinion until an expected government appeal is heard. But it likely propels the matter to higher courts and should give new momentum to efforts in Congress to rein in such surveillance. Bulk collection of phone records was first authorized by the Patriot Act, passed by Congress after the 2001 terror attacks, and then was placed under the supervision of a secret foreign intelligence court in 2006.

Sen. Patrick Leahy (D., Vt.), chairman of the Senate Judiciary Committee and a leading advocate of surveillance changes, hailed the ruling, as did American Civil Liberties Union attorney Jameel Jaffer, who called it a “carefully reasoned decision.”

But backers of the NSA’s efforts said Judge Leon advocated standards for surveillance that would be difficult if not impossible to meet. Stewart Baker, a former official for the Department of Homeland Security, called the judge’s ruling “a remarkably tone-deaf approach to a program that was started because we failed to identify some of the 9/11 hijackers.”

Judge Leon, who was appointed by President George W. Bush, ruled in favor of Larry Klayman, a conservative activist and lawyer who founded the groups Judicial Watch and Freedom Watch. Mr. Klayman filed suit in June, claiming that the program violated his Fourth Amendment right against unreasonable search.

On a daily basis, the NSA collects records of nearly every call made in the U.S. and enters them into a database in order to search for possible contacts among terrorism suspects. The scope of the program was revealed when former NSA contractor Edward Snowden this past spring leaked documents describing the program.

“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 [Supreme Court ruling],” the judge wrote, adding that such bulk data collection and analysis “almost certainly does violate a reasonable expectation of privacy.”

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