Dear Mr. President,
U.S. District Court Judge Richard Leon ruled yesterday that the NSA’s bulk collection of phone data “almost certainly” violates the 4th Amendment. He handed down an injunction to stop collecting data on the plaintiffs, destroy data already collected…and then stayed his own injunction for “national security” concerns until the government can appeal, a process that can take up to six months. Once again, “national security” trumps all. But today’s NYT (“Judge Questions Legality of N.S.A. Phone Records” p. A1), reports that Judge Leon rejected the legal basis for the NSA’s collection program which rests on distorting, twisting and misapplying a 1979 Supreme Court ruling—Smith v. Maryland—which involved the warrantless collection of phone records on a criminal defendant who, the court ruled, could not expect protection under the 4th Amendment; not even remotely like collecting every record of every phone call on every person every day. The judge also said the government had failed to cite “a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive.” Since the NSA’s discredited claim of “54 plots averted,” there’s been no mention of plots stopped or attacks averted and you can bet they’d be trumpeting them from here to kingdom come if there were. So why are we spending $10.8 billion a year on an enterprise which subverts and ignores the law, causes irreparable harm to our reputation at home and abroad, engenders mistrust and suspicion worldwide and cannot point to a single case where they helped foil an attack? And why are people like Clapper and Alexander not in jail for lying and misleading Congress, the FISA Court and the public? Why are they still treated with respect and their word taken as gospel while Manning languishes in Fort Leavenworth and Snowden has to take refuge in Russia? Why are whistleblowers persecuted while perpetrators of war crimes and crimes against humanity go free and are treated as dignitaries? But the real underlying issue is secrecy, not just the NSA’s but the entire Obama government. And secrecy invariably leads to abuse and injustice. As the Times editorial put it today, “For seven years, these constitutional issues have been adjudicated under ‘a cloak of secrecy,’ as Judge Leon put it. Now, that cloak has finally been lifted in a true court of law.” Score one for the good guys.