A federal judge ruled Monday that the National Security Agency's bulk collection of millions of Americans' telephone records is likely unconstitutional.
In his ruling, U.S. district Court Judge Richard Leon granted a preliminary injunction against the collecting of the phone records of two men who had challenged the program, and said any such records for the men should be destroyed. He 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," Leon declared.
The Obama administration has defended the program as a crucial tool against terrorism.
But in his 68-page opinion, Leon concluded that the government didn't cite a single instance in which the program "actually stopped an imminent terrorist attack."
The injunction applies only to the two individual plaintiffs, but it's likely to open the door to much broader challenges to the records collection and storage. What's even more significant is that Leon is a conservative judge who was appointed by Republican President George W. Bush, so opposition to the surveillance program is not a right-wing, left-wing thing.
Vermont's two United States senators, both of whom sway left of center, are applauding the ruling. U.S. Sen. Patrick Leahy, D-Vt., said Americans deserve an "open and transparent debate about the constitutionality, efficacy, and appropriateness of the government's dragnet collection programs."
In a separate statement, U.S. Sen. Bernie Sanders, I-Vt., said the NSA "is out of control and operating in an unconstitutional manner. Today's ruling is an important first step toward reining in this agency but we must go further. I will be working as hard as I can to pass the strongest legislation possible to end the abuses by the NSA and other intelligence agencies."
Sanders is right to pursue this matter further, for one federal judge's ruling certainly won't bring an end to the NSA spying controversy. In fact, Leon put his decision to grant an injunction against the NSA on hold, predicting a government appeal would take at least six months. He said he was staying the ruling pending appeal "in light of the significant national security interests at stake in this case and the novelty of the constitutional issues."
Even after the appeals court rules, the Supreme Court will probably have the last word.
"This is the opening salvo in a very long story, but it's important symbolically in dispelling the invincibility of the metadata program," Stephen Vladeck, a national security law expert at the American University law school, told the Associated Press.
Vladeck points out that 15 judges on the Foreign Intelligence Surveillance Court have examined Section 215 of the USA Patriot Act, the provision of law under which the data collection takes place, without finding constitutional problems. "There's a disconnect between the 15 judges on the FISA court who seem to think it's a no-brainer that Section 215 is constitutional, and Judge Leon, who seems to think otherwise."
So if the FISA court is going by the Patriot Act, then the obvious solution is to repeal the law, particularly the part that allows for the massive surveillance of Americans' phone and Internet records, or at least pass another law to end the abuses by the NSA and other intelligence agencies.
We wish Sanders and the rest of Congress lots of luck in this endeavor.