By Pam Martens: December 17, 2013
So much for political labeling. Yesterday, a Federal Court judge appointed by George W. Bush upheld the public’s right to reasonable searches in a court case challenging the Orwellian phone snooping practices of the Obama administration, a President who rode into office on the promise of hope and change and his record as a former civil rights attorney and constitutional law professor.
While not yet ruling on the merits of the case, Judge Richard Leon made it quite clear to the government where he stands. Judge Leon granted the motion for an injunction to two of the plaintiffs, Larry Klayman and Charles Strange, but placed the injunction on hold pending the outcome of the government’s appeal. He warned the government, however, to prepare its spy programs for the potential of his ruling being upheld by the Appellate Court, writing that he might institute sanctions if the government came back to his court asking for more time to comply with his order months down the road.
Judge Leon spent a good deal of time in his decision explaining the details of the phone spying system, where the government identifies a “seed,” or a potential terrorist target, and then creates a metadata dragnet encompassing potentially millions of phone records of innocent bystanders. Judge Leon wrote: “When an NSA intelligence analyst runs a query using a ‘seed,’ the minimization procedures provide that query results are limited to records of communications within three ‘hops’ from the seed. The query results thus will include only identifiers and their associated metadata having a direct contact with the seed (the first ‘hop’), identifiers and associated metadata having a direct contact with first ‘hop’ identifiers (the second ‘hop’), and identifiers and associated metadata having a direct contact with second ‘hop’ identifiers (the third ‘hop’).”
The Judge explains in a footnote that it’s “easy to imagine the spiderweb-like reach of the three-hop search growing exponentially and capturing even higher numbers of phone numbers.” The Judge used the hypothesis that the “seed” called his local Domino Pizza. The numbers calling in to that number in a five year period would be enormous. Under the government’s practice, that would be the second hop. Then each of the numbers calling into Domino’s Pizza over the past five year period could have their own phone records searched as well (third hop), resulting in millions and millions of innocent people being searched.
In presenting his determination that Federal courts have jurisdiction to review the constitutionality of these otherwise secret programs of the U.S. Government, Judge Leon wrote: “Where, as here, core individual constitutional rights are implicated by Government action, Congress should not be able to cut off a citizen’s right to judicial review of that Government action simply because it intended for the conduct to remain secret by operation of the design of its statutory scheme. While Congress has great latitude to create statutory schemes like FISA, it may not hang a cloak of secrecy over the Constitution.”
In reaching the finding that “Plaintiffs are likely to succeed on the merits of their Fourth Amendment claim,” Judge Leon reasoned that the government’s collection of telephony metadata does indeed constitute a “search,” that is protected under the Fourth Amendment’s mandate that any such governmental “search” be reasonable. The Judge said there is a “significant likelihood” that the plaintiffs will succeed in showing that the searches were “unreasonable.”
The premise of the Fourth Amendment is that a search, to be reasonable, must have a connection to a specific crime. Indiscriminate searches of tens of millions of pieces of metadata with no specific crime in mind would “offend” the Fourth Amendment, according to the ruling.
Judge Leon wrote: “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systemic and high-tech collection and retention of personal data on every single citizen for purposes of querying and analyzing it without prior judicial approval.”
“Rather, the question that I will ultimately have to answer when I reach the merits of this case someday is whether people have a reasonable expectation of privacy that is violated when the Government, without any basis whatsoever to suspect them of wrongdoing, collects and stores for five years their telephony metadata for purposes of subjecting it to high-tech querying and analysis without any case-by-case judicial approval. For the many reasons set forth above, it is significantly likely that on that day, I will answer that question in plaintiffs’ favor.”