WASHINGTON — In the first ruling of its kind, a federal judge declared Monday that the National Security Agency's bulk collection of Americans' telephone records is likely to violate the Constitution's ban on unreasonable search. The program probably isn't effective in fighting terrorism either, the judge said in a lengthy opinion filled with blistering criticism.
U.S. District Court Judge Richard Leon granted 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. But he put enforcement of that decision on hold pending a near-certain government appeal, which may well end up at the Supreme Court.
The injunction applies only to the two individual plaintiffs, but the ruling is likely to open the door to much broader challenges to the "metadata" collection and storage.
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.
Leon, an appointee of President George W. Bush, 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 program is indeed an unreasonable search under the Constitution's Fourth Amendment."
"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.
Andrew C. Ames, a spokesman for the Justice Department's National Security Division, said in a statement, "We've seen the opinion and are studying it. We believe the program is constitutional as previous judges have found. We have no further comment at this time."
The collection program was disclosed by former NSA systems analyst Edward Snowden, provoking 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 programs 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 program authorized 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 program as a crucial tool against terrorism.
But in his 68-page, heavily footnoted opinion, Leon concluded that the government didn't cite a single instance in which the program "actually stopped an imminent terrorist attack."
"I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism," he added.
He said 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."
The government has argued that under a 1979 Supreme Court ruling, Smith v. 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.