Kevin Johnson, USA Today
WASHINGTON - A federal judge ruled Monday that the National Security Agency's controversial surveillance program that collects millions of Americans' telephone records may be unconstitutional.
U.S. District Judge Richard Leon ruled in a lawsuit brought by conservative activist Larry Klayman that the legal challenge to the massive surveillance program -- disclosed in full earlier this year by former NSA contractor Edward Snowden - would likely succeed.
Leon, appointed to the bench by President George W. Bush, issued a preliminary injunction against the program but suspended the order to allow an appeal by the Justice Department. "The court concludes that plaintiffs have standing to challenge the constitutionality of the government's bulk collection and querying of phone record metadata, that they have demonstrated a substantial likelihood of success on the merits of their Fourth Amendment claim and that they will suffer irreparable harm absent...relief,'' Leon wrote.
During oral arguments in the case last month, Klayman, a former Reagan administration lawyer who leads the advocacy group Freedom Watch, called the judge "the last guard ... the last sentry to the tyranny in this country."
Justice Department lawyer James Gilligan argued that Klayman lacked standing to bring the case because he could not prove the NSA examined his phone or Internet records.
Gilligan also said Leon could not review the statutory authority granted by Congress under FISA -- only the secret courts and the Supreme Court have that power. Leon did not rule on the congressional authorization, only on Fourth Amendment grounds.
U.S. District Judge William Pauley heard a separate case filed by the American Civil Liberties Union that also sought a preliminary injunction against the telephone surveillance program. The ACLU case, based on First and Fourth Amendment protections of speech and privacy, contends that the USA Patriot Act does not authorize such widespread spying.
"Neither the statute nor the Constitution permits the government to engage in that kind of dragnet surveillance of hundreds of millions of people who haven't done anything wrong," says Jameel Jaffer, the ACLU's deputy legal director.A third case denied last month by the Supreme Court was brought directly there by the Electronic Privacy Information Center. While the target in the other cases is the government, EPIC went after the top-secret FISA court that authorized the surveillance of Verizon phone records under the Foreign Intelligence Surveillance Act.
In all the cases, the Justice Department argued that the challengers lack standing to bring the lawsuits because they were not directly involved or cannot prove their records were examined.The solicitor general's briefs also defend the surveillance on national security grounds. Its Supreme Court brief says the program "authorizes the production of business records where there are 'reasonable grounds to believe' that the records are 'relevant' to an authorized and properly predicated ongoing FBI investigation of specific terrorist organizations.
"Amnesty International and other civil libertarians brought the last Supreme Court challenge to government surveillance programs in 2012. But in February, the justices ruled 5-4 that the challengers lacked standing because they could not prove they had been wiretapped. "This theory of future injury is too speculative," Justice Samuel Alito said in announcing the decision, calling it "hypothetical future harm.
"Since then, however, a continued stream of leaks from former Snowden have led the government to make much of the programs public, enabling challengers to claim their privacy was invaded.