WASHINGTON // The US government is expected to appeal a judge’s decision that the National Security Agency’s bulk collection of millions of Americans’ telephone records is unconstitutional, in a case where the Supreme Court will likely have the last word.
US District Court Judge Richard Leon put his decision to grant an injunction against the NSA on hold on Monday. 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”.
The collection programme was disclosed by former NSA systems analyst Edward Snowden, provoking a heated national and international debate.
Robert F Turner, a professor at the University of Virginia’s Center for National Security Law, predicted Mr Leon’s decision was highly likely to be reversed on appeal. He said the collection of telephone metadata — the issue in Monday’s ruling — already has been addressed and resolved by the Supreme Court.
In his ruling, Mr Leon granted a preliminary injunction against the collecting of the phone records of two men who had challenged the programme, and said any such records for the men should be destroyed. The plaintiffs are Larry Klayman, a conservative lawyer, and Charles Strange, 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 Six.
Mr 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 programme is indeed an unreasonable search under the Constitution’s Fourth Amendment”. The amendment prohibits unreasonable searches and seizures and requires that a search warrant be sanctioned by a judge.
“I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware ‘the abridgement of freedom of the people by gradual and silent encroachments by those in power,’ would be aghast,” he declared.
In addition to civil liberties critics, big communications companies are unhappy with the NSA programme, concerned about a loss of business from major clients who are worried about government snooping.