Judge's strike at U.S. surveillance won't be last word

Judge Richard Leon's criticism of government snooping on Americans' phone records is almost certain to meet with conflicting decisions from other courts.

WASHINGTON — U.S. District Court Judge Richard Leon posed a basic concern as he opened a sparsely attended hearing into the federal government's telephone and Internet surveillance program exactly one month ago: Could the plaintiffs bring the case, and did he have authority to handle it?
It was a humble start for a 64-year-old jurist who could not have foreseen the national security issues that would consume much of his time for the next dozen years when he was nominated by President George W. Bush on Sept. 10, 2001.
Now Leon has claimed his 15 minutes of fame with a 68-page decision challenging the constitutionality of the National Security Agency's surveillance program.
Yet for all of his colorful phrasing (he described the NSA's collection of millions of Americans' phone records as "Orwellian"), Leon's is far from the last word in a debate that began six months ago with the unauthorized disclosures by former NSA contractor Edward Snowden.
Leon's stinging rebuke flies in the face of decisions rendered in secret by 15 Foreign Intelligence Surveillance Court judges who have approved the widespread snooping every 90 days since 2006. It also challenges a 1979 decision in which the Supreme Court denied privacy protections to telephone records.
Those decisions and others, including a November ruling by a federal judge in California upholding the sweeping phone data collection program, form the basis for the government's claimed authority to conduct such surveillance operations. Now they appear destined to be vetted in full — and in public — for the first time by the nation's highest legal authorities.
"Only the Supreme Court can resolve the question on the constitutionality of the NSA's program,'' said Senate Intelligence Committee Chairwoman Dianne Feinstein, D-Calif., one of the strongest advocates for the surveillance programs. "It has been more than 30 years since the court's original decision of constitutionality, and I believe it is crucial to settling the issue once and for all.''
That prospective venue for settling the national security debate, made even more contentious by Leon's ruling, is about the only thing lawmakers, civil liberties advocates and legal analysts can agree on.
"It is not clear one way or another how this will be ultimately decided,'' said University of Notre Dame law professor Jimmy Gurule, who applauded Leon's decision as a "victory for the U.S. Constitution and the rule of law.''
The Justice Department, which has yet to comment on its all-but-certain appeal, said it remained confident in its authority to continue the programs. "We believe the program is constitutional, as previous judges have found,'' spokesman Andrew Ames said.
That previous judicial review, Deputy Attorney General James Cole told a Senate panel last week, includes a decision rendered in November by U.S. District Court Judge Jeffrey Miller. He denied an appeal by four convicted terror associates who claimed in part that the phone collection program violated their Fourth Amendment right to privacy.
"Judge Miller was ruling on a real-world terrorist case,'' Feinstein said Tuesday.
Orin Kerr, a George Washington University law professor who specializes in computer crime law, said other federal courts are more likely to follow the Supreme Court's 1979 ruling in Smith v. Maryland and approve the phone-tracking program. He called Leon "an outlier in his approach to the main Supreme Court case."
The U.S. Court of Appeals for the D.C. Circuit, which would consider the Justice Department appeal, mostly has backed the government in cases involving national security. It is dominated by conservative judges, but three new judges named by President Obama will tilt the balance of power.
If the issue does go to the Supreme Court, it would be decided by a different set of justices than those who decided the Smith case. The court has not addressed directly the issue of informational privacy. But two petitions for review involve conflicting lower-court rulings on the privacy of cellphone data during arrests, and the court is likely to hear one or both of them next year.
"They will give the court an opportunity to begin to develop a theory of informational privacy," says Erwin Chemerinsky, a constitutional law scholar and dean of the University of California-Irvine School of Law.
Having laid down a marker, Judge Leon now plays the role that U.S. District Court Judge Henry Hudson of Virginia played in December 2010, when he was first to strike down the individual mandate at the core of President Obama's health care law.
Hudson's verdict represented the initial shot across the bow in a case that wound up at the Supreme Court. Within hours of his ruling, Randy Barnett, a Georgetown University Law Center professor who first argued that the law was unconstitutional, got an e-mail from Yale Law School professor Jack Balkin. "Your argument is officially not frivolous anymore," Balkin wrote.
"It changes the dynamic when you have a federal judge endorse the argument that you've made, even one," says Barnett, a libertarian who agrees with Leon's decision. "This is a necessary first step to an outcome invalidating the bulk data collection program."
Leon clearly recognized that by granting conservative gadfly Larry Klayman's request for a preliminary injunction but staying its impact while the Justice Department mounts what will be a vigorous appeal — something the judge predicted at the Nov. 18 hearing.
"However I come out," Leon said, "I know it's going upstairs."