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By Orville Schell, Michael Massing

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Judge Richard Leon’s Anti-NSA Ruling May Not Be All You Think It Is

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Posted on Dec 19, 2013
(AP/Francisco Seco)

By Bill Blum

I don’t want to throw a wet blanket on the celebration, but at least two cautions are warranted about federal Judge Richard Leon’s surprising opinion declaring that the NSA’s telephone metadata program likely violates the Fourth Amendment’s prohibition against unreasonable searches and seizures:

First, while Leon’s ruling is a genuinely courageous step forward, it is by no means as sweeping as reported by news outlets like MSNBC in the initial hours after the decision was released. Second, the ruling has been stayed pending appeal to the D.C. Circuit Court of Appeals, and thereafter, the Supreme Court. Leon’s opinion is merely the first step in a process that will take years to conclude, and the ultimate outcome remains highly uncertain.

To understand why both cautions should be heeded, it’s necessary to plough through all 68 pages of Leon’s dense prose, footnotes included.

There were actually two consolidated cases before Leon, both brought by tea party activist and longtime “birther” Larry Klayman, a former federal prosecutor who runs the Washington-based right-wing group Freedom Watch. Each case was filed in June, after The Guardian newspaper’s publication of a secret Foreign Intelligence Surveillance Court order, leaked by Edward Snowden, directing a Verizon subsidiary to turn over its telephone metadata to the NSA.

Each case named President Obama as a defendant, together with the NSA, the Justice Department, sundry other federal officials and Verizon. Each alleged that NSA spying violated the First, Fourth and Fifth amendments as well as various provisions of the Foreign Intelligence Surveillance Act.


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Klayman represented himself in both cases, along with four other individuals, including Charles Strange, the father of a Navy SEAL killed in Afghanistan. Klayman also sought class certification in the cases to represent “all similarly situated” U.S. citizens who have been victimized by NSA spying—in other words, nearly everyone.

For purposes of clarity—but unfortunately overlooked by the mainstream press—Leon designated the lawsuits as Klayman I and Klayman II. Distinguishing between the two cases is critical to understanding Leon’s decision.

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