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Americas

NSA spying programme ‘likely unconstitutional', says judge

© AFP

Video by Nicholas RUSHWORTH

Text by FRANCE 24

Latest update : 2013-12-17

A federal judge ruled Monday that the US government's gathering of Americans' phone records is likely unconstitutional, raising "serious doubts" about the value of the NSA's so-called metadata counterterrorism programme.

"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," US District Court Judge Richard Leon, appointed by Republican President George W. Bush in 2002, wrote in a 68-page ruling.

In the first ruling of its kind Judge Leon granted Monday a preliminary injunction against the government’s collecting of the phone records of two men who had challenged it and said any such records for the men should be destroyed.

The plaintiffs are Larry Klayman, a conservative lawyer, and Charles Strange, who is the father of a cryptologist technician who was killed in Afghanistan when his helicopter was shot down in 2011. The son worked for the NSA and support personnel for Navy SEAL Team VI.

The US Department of Justice said it was reviewing the ruling. "We’ve seen the opinion and are studying it,” spokesman Andrew Ames said in a statement. “We believe the programme is constitutional as previous judges have found.”

Leon ruled that the two men “have a substantial likelihood of showing” that their privacy interests outweigh the government’s interest in collecting the data “and therefore the NSA’s bulk collection programme is indeed an unreasonable search under the Constitution’s Fourth Amendment.”

"Abridgement of freedom"

“I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware ‘the abridgment of freedom of the people by gradual and silent encroachments by those in power,’ would be aghast,” he declared.

The collection programme was disclosed by former NSA systems analyst Edward Snowden, provoking ructions around the world and a heated debate over civil liberties.

In a statement provided to reporter Glenn Greenwald and obtained by The Associated Press, Snowden said, “I acted on my belief that the NSA’s mass surveillance programmes would not withstand a constitutional challenge and that the American public deserved a chance to see these issues determined by open courts. Today, a secret programme authorised by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many.”

The Obama administration has defended the programme as a crucial tool against terrorism.

But in his heavily footnoted report, Leon concluded that the government didn’t cite a single instance in which the programme “actually stopped an imminent terrorist attack.”

“I have serious doubts about the efficacy of the metadata collection programme as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism,” he added. He said he was staying his ruling pending appeal “in light of the significant national security interests at stake in this case and the novelty of the constitutional issues”.

'Almost-Orwellian technology'

The government has argued that under a 1979 Supreme Court ruling, Smith vs Maryland, no one has an expectation of privacy in the telephone data that phone companies keep as business records. In that ruling, the high court rejected the claim that police need a warrant to obtain such records.

But Leon said that was a “far cry” from the issue in this case. The question, he said, is, “when do present-day circumstances – the evolutions in the government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies – become so thoroughly unlike those considered by the Supreme Court 34 years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the government, is now.”

He wrote that the court in 1979 couldn’t have imagined how people interact with their phones nowadays, citing the explosion of mobile phones. In addition, he said, the Smith case involved a search of just a few days, while “there is the very real prospect that the [NSA] programme will go on for as long as America is combating terrorism, which realistically could be forever!”

Leon added: “The almost-Orwellian technology that enables the government to store and analyse the phone metadata of every telephone user in the United States is unlike anything that could have been conceived of in 1979.” The judge also mocked the government’s contention that it would be burdensome to comply with any court order that requires the NSA to remove the plaintiffs from its database.

Reversal on appeal?

“Of course, the public has no interest in saving the government from the burdens of complying with the constitution!” he wrote. As for the government’s complaint that other successful requests “could ultimately have a degrading effect on the utility of the programme,” he said, “I will leave it to other judges to decide how to handle any future litigation in their courts”.

Leon is the first judge to voice serious constitutional concerns about the programme.

Robert F. Turner, a professor at the University of Virginia’s Center for National Security Law, told AP that the judge’s decision is highly likely to be reversed on appeal.

He said the collection of telephone metadata – the issue in Monday’s ruling – has already been addressed and resolved by the Supreme Court. Turner said law enforcement officials routinely obtain telephone bills that include the numbers dialled without the use of a warrant.

“The odds that an American will have their phone metadata examined by law enforcement officials are about 1,000-times greater than by the National Security Agency,” Turner said.

(FRANCE 24 with AP, REUTERS)

Date created : 2013-12-17

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