Nevertheless, Judge Leon talked a tough game in his 43-page ruling in a case that ping-ponged to the appellate courts and back.
Advertisement
Leon on Monday enjoined the NSA from collecting data about those plaintiffs, J.J. Little and his California law firm, J.J. Little & Associates, and this time refused to stay his order, saying that the government had more than 22 months to prepare.
Judge Leon noted that he stayed his own ruling last time, but “because the loss of constitutional freedoms for even one day is a significant harm, I will not do so today”.
He said the plaintiffs are likely to succeed on the merits of their Fourth Amendment claim.
The “government bears just as great a responsibility to protect the individual liberties of those very citizens.”
.
In the program, the NSA monitors the telephone numbers used in calls in an effort to identify potential national security threats.
Congress has allowed bulk telephone data – the subject of leaks by former intelligence contractor Edward Snowden – to continue until a 180-day transition period expires on November 29.
Several plaintiffs sued, and Leon ruled the program is likely unconstitutional.
Instead of providing this Court with specific examples of the Program’s success, the Government makes the bootstrap argument that the enactment of the USA Freedom Act confirms the importance of this Program to meeting the Government’s special needs.
Monday’s ruling comes nearly two years after Judge Leon made a similar decision, calling the mass record collection program “almost Orwellian”, and only 20 days before the program is expected to end due to the Congress passing the USA Freedom Act in June.
With the Government’s authority to operate the Bulk Telephony Metadata Program quickly coming to an end, this case is perhaps the last chapter in the Judiciary’s evaluation of this particular Program’s compatibility with the Constitution.
In his scathing response, Leo declared that he “cannot, and will not, sit idle in the face of likely constitutional violations for fear that it might be viewed as meddling with the decision of a legislative branch that lacked the political will, or votes, to expressly and unambiguously authorize the program for another six months”.
In an interview, Klayman said, “Thank God there’s someone like Judge Leon who will stand up for the American people”.
But for the Little plaintiffs, there was no such hurdle.
When the NSA identifies communications that may be associated with terrorism, it issues intelligence reports to other federal agencies …[ the law] authorized the NSA to collect almost all call detail records generated by certain telephone companies in the United States, and specifies detailed rules for the use and retention of these records.
He called it “a sweeping, and truly astounding program that targets millions of Americans arbitrarily and indiscriminately”.
Finally, he said, Americans were kept in the dark by the government. Not quite! Congress did not explicitly authorize a continuation of the Program.
Klayman wrote that a preliminary injunction is needed so that the government “can be held to obey the law, and can be held in contempt, if necessary”. And now that’s happened, and Leon has, once again declared the program unconstitutional and ordered an injunction to have it stopped.
Advertisement
Updated on November 9, 2015: This article was updated to include comment from the Justice Department. Klayman added new plaintiffs to the case and filed a new complaint with additional information, leading to Monday’s order. This decision could set a precedent for other cases, according to David Greene with the Electronic Frontier Foundation.
