Why the White House Can’t Defend Against the NSA Court Ruling
A District Court decision that the NSA’s sweeping data collection program is unconstitutional paves the way for a Supreme Court review of the counterterrorism program, and creates a major headache for the Obama administration in the process.
“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,” U.S. District Court Judge Richard Leon wrote.
Here are five takeaways from Leon’s incendiary opinion.
1) The government can’t or won’t justify the program. The NSA, through affidavits, offered three instances in which metadata collected under the program was helpful in piercing a terror plot, but Leon found none of them warranted the intrusion into the privacy of innocent individuals. “The government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped a terrorist attack, or aided the government in an investigation that was time-sensitive in nature,” he wrote. He seized upon a concession by Robert Holley, the assistant director of the FBI’s counterterrorism division, that collection of bulk data only “sometimes” was faster than the Bureau’s other investigation methods. Going further, he noted that the NSA has publicly asserted that the surveillance program has prevented “54” attacks, but noted none of that evidence had been brought before him, even in private in a classified briefing.
2) Technology is moving faster than the law. Leon rejected earlier legal precedent, saying a 1979 case that upheld the FBI’s collection of telephone records in criminal investigations had no applicability in the current climate. “The almost-Orwellian technology that enables the government to store and analyze the telephone metadata of almost everyone in the United States is almost unlike anything that could have been conceived in 1979,” Leon wrote. Phones themselves have changed, he said. They are maps and cameras and music players and “lighters people hold up at rock concerts.” The ubiquity of phones, he wrote, “has dramatically altered the quantity of information that is now available and more importantly, what that information can tell the Government about people’s lives.”
3) Americans are at the mercy of an unprecedented union between industry and government. With alarm, Leon noted that the NSA program was not the traditional situation in which law enforcement approached a private company to secure its reluctant assistance. Instead, he suggested an almost conspiratorial fusion between the interests of the NSA and the telecom industry: “It’s one thing to say people expect telephone companies to occasionally provide information to law enforcement. It is quite another to suggest our citizens expect all phone companies to operate what is essentially a joint intelligence-gathering program with the government.”
4) Leon is just one judge—and can be an iconoclast. Much was made Monday about Leon being an appointee of George W. Bush, but he has a history of not buying the government’s line when it comes to counterterrorism. After assuming the trial bench in 2002, he quickly forced the government to justify keeping detainees at Guantanamo Bay without supplying evidence in court to support their unlimited imprisonment. Ultimately, he ordered the release of five of them in 2008. More importantly, the decision of a single federal judge at the district court level has no bearing on the conclusion that another district court judge might reach or what an appeals court might conclude.
5) The Senate’s “nuclear option” could make trouble for Obama. The White House hailed Majority Leader Harry Reid’s decision last month to trigger the so-called “nuclear option” to eliminate the minority party’s ability to block federal judicial nominees. But in this case, that move could come back to haunt the administration. Two potential liberal votes to scale back the NSA program, Patricia Millett and Nina Pillard, were confirmed to the D.C. Circuit last week, with a third nominee, Robert Wilkins, expected to be approved by the Senate this week. The presence of the three reshapes the balance of power on the court between conservatives and liberals and greatly increases the chances that the three-judge panel that ends up hearing Leon’s appeal could be comprised of two or even three Democratic appointees – and that Leon’s opinion could be upheld.