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.
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.
Although both Klayman cases sought preliminary injunctions against the NSA, Klayman I aimed to stop the agency only from continuing its “metadata” program of collecting the phone activity records of virtually all Americans. Klayman II was far more ambitious, seeking to halt not only the telephone metadata program, but also the agency’s targeted collection of Internet data content, such as emails and chat sessions.
At the outset of his opinion, Leon clarified that his ruling had nothing to do with Klayman’s request for class certification, essentially postponing any decision on class-wide coverage to subsequent stages of the case. More importantly, in the opening pages and footnotes, the judge also concluded that the plaintiffs in Klayman II lacked legal standing to litigate the issue of electronic Internet surveillance as a result of the Supreme Court’s decision, announced last term, in Clapper v. Amnesty International.
In Clapper, the high court, employing logic that would make George Orwell and Franz Kafka blush, held that a group of human rights organizations could not proceed with an NSA complaint alleging unlawful secret email intercepts because they could not prove that their emails in fact had been intercepted or would likely be intercepted in the future. Rather than criticize such logic, Leon fully embraced it, writing that his conclusion on standing as to email surveillance was “squarely dictated” by Clapper.
In addition to turning aside Klayman II’s all-important surveillance challenge, Leon turned aside both Klayman cases, including the metadata contentions raised in each, as to all of the individual plaintiffs except Klayman himself and Strange. Only Klayman and Strange, Leon reasoned, had standing to proceed with the metadata issue because only they are Verizon customers directly affected by the Verizon metadata order.
Only after laying out these vital limitations did Leon turn to the merits of the metadata program, concluding that it violated the Fourth Amendment rights of Klayman and Strange. In the process, and to his lasting credit, Leon rejected the administration’s reliance on a Supreme Court case from 1979 (Smith v. Maryland), in which the court had held that the government’s installation without a warrant of a “pen register” device in telecom equipment to record the phone numbers—but not the content—of calls made by a robbery suspect was not a search within the meaning of the Fourth Amendment because telephone users voluntarily surrender that information whenever they place a call.
Smith, Leon wrote, was a case from the pre-digital era, limited to a single criminal suspect in an investigation that lasted a mere 13 days. The NSA’s metadata program, by contrast, concerns the cellphone calls placed by millions of innocent Americans in a war on terror of indefinite duration. Leon also brushed aside the administration’s reliance on the numerous secret decisions that the judges of the FISA Court have handed down validating the metadata program.
Still, even as we salute Leon for his willingness to question at least some of the constitutional underpinnings of the surveillance state, it is imperative to keep my second caution in mind—that Leon has stayed his entire ruling pending appellate review.
Once Leon’s ruling is scrutinized by the D.C. Circuit and the Roberts court, little if any of it may remain in effect. In the end, reining in the NSA likely will require political action, either by way of legislation like the bipartisan USA Freedom Act or implementing the recommendations of Obama’s NSA task force, both of which call for ending the metadata program in its present form. Or perhaps mass public protests will be necessary.
So keep the champagne on ice. We’ve won an important battle in the war to protect privacy with Judge Leon’s ruling, but the war itself continues.