Judge: NSA phone program likely unconstitutional

[WestVirginiaRebel]

Politico:

A federal judge ruled Monday that the National Security Agency program which collects information on nearly all telephone calls made to, from or within the United States is likely unconstitutional.

 

U.S. District Court Judge Richard Leon found that the program appears to violate the Fourth Amendment ban on unreasonable searches and seizures. He also said the Justice Department had failed to demonstrate that collecting the information had helped to head off terrorist attacks.

 

Acting on a lawsuit brought by conservative legal activist Larry Klayman, Leon issued a preliminary injunction barring the NSA from collecting so-called metadata pertaining to the Verizon accounts of Klayman and one of his clients. However, the judge stayed the order to allow for an appeal.

 

“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 it and analyzing it without judicial approval,” wrote Leon, an appointee of President George W. Bush.

________

 

Big Brother goes too far?

[Valin]

NSA Judicial Ruling Will Be Shortlived ... But Program Still Has Big Political Problems

Andrew C. McCarthy

December 17, 2013

 

Prediction: If youve gone up in a balloon over U.S. district judge Richard Leons ruling yesterday, holding the NSAs telephony metadata collection and analysis program unconstitutional, enjoy the ride while you can. Its going to be a short one.

 

Judge Leons decision is almost comically lawless. In the most sensible part of it, he stayed his ruling for however long it takes the D.C. Circuit to hear the appeal and doubtless reverse him.

 

To cut to the chase, as we have noted here before, the Supreme Court ruled in its 1979 Smith v. Maryland case that a telephone service providers records of a customers telephone activity e.g., the fact that a call happened, the phone numbers involved, the duration of the call, but not the actual content of the call do not implicate the Fourth Amendment. Judge Leon reasoned, if you can call it that, that he did not need to follow Smith because wait for it its a really old case and times have changed. It may be, and they may have, but lower court judges dont get to do that. (And how do you figure the mainstream media organs celebrating Judge Leon today would react if some other district judge tried the its too old, plus times and technology have changed razzle-dazzle on, say, Roe v. Wade?) In the federal judiciary, only the Supreme Court has the authority to reverse its own precedents. Unless and until the high court does so, the district courts and circuit courts of appeal are bound to follow those precedents, even if they are long in the tooth albeit, not nearly as long in the tooth as the Fourth Amendment itself, which says nothing about expectation of privacy, much less about a persons having a privacy interest in property that belongs not to him but to a third-party service provider.

 

(Snip)

[Valin]

Judges, Leave the NSA Alone

By The Editors

12/20/13

 

Federal judge Richard Leons ruling that the National Security Agencys collection of telephone-call data violates the Fourth Amendment was based on slipshod legal arguments, and ruled on a question that a court of its level should not even have considered. Unfortunately, the conclusions of a review of the NSAs work ordered by President Obama, released this week, have a similar problem: They rely on faulty legal reasoning to justify a power grab by the courts.

 

The court contended that technology has advanced so much that records of phone calls (metadata) cannot be consulted without a warrant even though, in a 1974 case, the Supreme Court ruled that the government needed no warrant to obtain metadata (through the installation of a pen register).

 

The presidents review board endorses a conclusion similar to Leons: It stitches together concurring opinions from a largely irrelevant 2012 Supreme Court case to suggest that the Constitution justifies, and maybe requires, giving courts much more control over the NSAs use of metadata. The panel claims that it is agnostic on the Fourth Amendment question, but this discussion reveals its members clear preference for judicial power.

 

The right check on our national surveillance programs, as they work today, is not the Constitution, with which they clearly comply, but politicians and the public, who are discomfited by them. In some cases, they have reason to be: Abuses do happen, oversight is necessary, and the programs effectiveness has to be proven to the satisfaction of the public.

 

(Snip)

[Valin]

The President Distances Himself from the NSA

John Yoo

December 20, 2013

 

The big news out of the press conference is President Obamas waffling on the NSA. The president is commander-in-chief and responsible for our governments national security operations. Yet Mr. Obama talks about the NSA as if it were some group of agents outside the executive branch, and that it is an interesting to talk about reforming it.

 

(Snip)

 

But instead of defending the NSA program, President Obama seems more worried about whether the NSA should be more restrained in wiretapping communications that takes place outside the U.S. Although he says he will study the problem and give a major speech next year, watch for Obama to try to shift as much authority over intelligence as he can to Congress or the courts for oversight. President Obama clearly does not like the heavy national-security responsibilities of his office, and with Gitmo, the trial of terrorists, and Syria, he will do his best to offload the job onto others.

[Draggingtree]

Branco Cartoon – Objection Overruled

Posted by A.F. Branco ▪ Monday, December 23, 2013 at 1:00pm

Note: You may reprint this cartoon provided you link back to this source. To see more Legal Insurrection Branco cartoons, click here. Branco’s page is Cartoonist A.F.Branco