Monday’s ruling by federal district judge Richard Leon that an NSA program to collect and store cell-phone records is probably a violation of the Fourth Amendment has been met with predictable victory dances by opponents of this program from the right and the left.
Democratic senator Ron Wyden, who has fought a losing battle in the Senate Intelligence Committee against the metadata and other NSA programs, said Judge Leon’s decision “makes clear that bulk phone-records collection is intrusive digital surveillance and not simply inoffensive data collection.”
I dispute all of these statements. Despite the media’s spin to the contrary, I doubt that this ruling means the metadata program is doomed.
First of all, according to the Justice Department, the program survived 35 challenges before 15 separate judges. The point here is that the opinion is just one judge’s view. Others have looked at the relevant issues and found this program to be constitutional. Losing a single decision on a complex and controversial matter like this is not a surprise.
And while Judge Leon has a point that the metadata program touches on new legal issues raised by changing technology, his finding that the 1979 Supreme Court case Smith v. Maryland can no longer be used as the legal justification for the program is simply wrong. The Smith case found that Americans have no expectation of privacy concerning telephone metadata, and that therefore a court order is not needed to obtain such information.
The Smith ruling has been cited in several court cases related to the metadata-collection program and is still quite relevant to this case. Judge Leon may not like this decision, but to disregard it in this way is in essence to overrule the Supreme Court — and to break with the courts’ tradition of showing extreme deference to the other branches of government on matters of national security. This issue is too important to be decided by judges.
It’s worth emphasizing, as Judge Leon noted in his decision, that this is just one of several pending cases against the metadata and other NSA programs. If Judge Leon is willing to do this, it may signal that other judges will do the same. Although this decision could have been worse, we might not be so lucky next time.
Judge Leon stayed his decision until the government can appeal it. He limited his injunction to the government and did not extend it to telecom and Internet companies and their executives as the plaintiffs had requested. (The plaintiffs wanted to hold the telecoms legally liable for complying with government requests for American citizens’ phone records. After Leon’s decision, Verizon moved to dismiss claims against the company in the case.) Leon also refused to rule on the plaintiffs’ claim that the program violated the Foreign Intelligence Surveillance Act, because he agreed with the government that he lacked jurisdiction over this issue.
Despite the over-the-top language in Judge Leon’s opinion, such as his claims that the metadata program is “almost Orwellian” and that he has “little doubt that the author of our Constitution, James Madison . . . would be aghast,” the FISA court, Democratic senator Dianne Feinstein (the chairwoman of the Senate Intelligence Committee), and Representative Dutch Ruppersberger (the top Democrat on the House Intelligence Committee) beg to differ. Feinstein and Ruppersberger, liberal members of Congress, would never have gone along with — and would not continue to support — an intelligence program that posed anywhere near that much of a threat to civil liberties.
Judge Leon also wrote that he has “serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism.” Bipartisan majorities on the Senate and House intelligence committees think otherwise, as do numerous intelligence officials. The Obama administration has defended the NSA program as a crucial tool against terrorism.
I am confident that Judge Leon’s decision will be overturned, and that the metadata program will ultimately be upheld by the Supreme Court. The challenge now is for the Obama administration and Congress to resist the media hysteria that the decision will whip up.
Senator Wyden and Representative Jim Sensenbrenner are pushing legislation to prevent the NSA from engaging in the bulk collection of cell-phone records. The intelligence committees oppose these bills on a bipartisan basis. While the proposed laws do not have majority support in either house, they have many vocal advocates who will try to exploit the ruling to gin up support.
While the Wyden and Sensenbrenner bills would undermine national security, some legislation is certain to be approved by Congress over the next few months to tighten up NSA programs and reassure the American people that these programs are not compromising their privacy and civil liberties. It is crucial that the Leon decision not distract from efforts by the House and Senate leadership and the White House to get this right.
More troubling are recommendations by a five-member panel named by President Obama to review NSA programs in light of the Snowden leaks. According to the Wall Street Journal, this panel — which is composed mostly of Obama loyalists — recently sent a report to the White House with several extremely ill-advised proposals. One would prohibit the NSA from collecting this information and instead require telephone companies to retain the data for calls made on their networks; if this became policy, the NSA would have to jump through legal hurdles before obtaining the information, and the data would be much harder for analysts to use. The panel also called for instituting a mutual “code of conduct” on intelligence collection against U.S. allies, and making the FISA court process more adversarial.
We can hope the White House will not be pressured by the Leon decision into accepting the panel’s recommendations and will listen to senior U.S. intelligence officials, who are certain to strongly oppose them.
Judge Richard Leon did his country a disservice by issuing an emotional ruling that amounted to legislating from the bench, and by ignoring testimony from intelligence-community experts on the legality and usefulness of the metadata program. Supporters of this and other intelligence programs damaged by Edward Snowden need to calmly resist this decision and continue to fight against reckless proposals to roll back crucial intelligence programs.
— Fred Fleitz is a former CIA analyst and staff member with the House Permanent Select Committee on Intelligence. He is the founder and chief analyst of LIGNET.com, a global intelligence and forecasting service.