5 Things to Know About the NSA Court Ruling

Refusing to offer evidence to justify the program puts the NSA and White House in a tough legal position.

WASHINGTON, DC - OCTOBER 29: (L-R) Deputy Director of the National Security Agency Chris Inglis, Director of the National Security Agency Gen. Keith Alexander, Director of National Intelligence James Clapper, and Deputy Attorney General James Cole testify during a hearing before the House (Select) Intelligence Committee October 29, 2013 on Capitol Hill in Washington, DC. The committee held a hearing on 'Potential Changes to the Foreign Intelligence Surveillance Act (FISA).' 
National Journal
James Oliphant
Dec. 16, 2013, 4:42 p.m.

A Dis­trict Court de­cision that the Na­tion­al Se­cur­ity Agency’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.

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