A federal judge on Monday declared the National Security Agency’s apparent practice of tapping Americans’ phones and storing data “indiscriminate” and “arbitrary” and said the practice will likely be ruled unconstitutional.
A leading expert on constitutional law told WND, unless the NSA abuse is stopped, the nation will continue to see tyranny similar to that inflicted by the British during the American Revolution.
In the case, Judge Richard Leon minced few words in denouncing the NSA’s strategy of gathering as much phone, Internet and other data as it can in case it’s ever needed as part of a criminal investigation.
“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every citizen for purposes of querying and analyzing it without prior judicial approval,” said Judge Leon in his ruling on Klayman v. Obama. “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment.”
Leon further stated the NSA appeared to be engaging in a direct violation of the Fourth Amendment’s guarantee against unreasonable search and seizure, that the plaintiff would likely win on the merits and they had proven “irreparable damage.”
The ruling will not take effect anytime soon, however, since Leon is staying his own decision in anticipation of a Justice Department appeal to a higher court.
Nonetheless, Leon’s ruling has civil liberty champions very upbeat.
John Whitehead, president of the Rutherford Institute and author of “A Government of Wolves: The Emerging American Police State,” weighed in on the matter in an interview with WND.
“I think it’s very significant because it’s very clear under the Fourth Amendment. The Fourth Amendment says that the government can’t do surveillance and a policeman can’t touch us unless they have actual evidence we’re doing something illegal,” he said.
Whitehead believes Judge Leon was too kind to the NSA in allowing the program to continue while the case is decided in higher courts, although he understands why Leon acted the way he did. Whitehead said it is vital for governments to have probable cause before gathering personal data on any American.
“If not, we’re back to the days of the general warrants, and that’s why we have a Fourth Amendment. The British would execute a general warrant, and they would search everybody’s home to see if they could find something that someone was doing illegally,” said Whitehead, who noted Leon rejected the government’s argument that the metadata program clearly helped to foil many terrorist attacks.
“I think if the judge sticks to his guns, [he should make] the NSA show some actual facts. If they’re alleging something, they should have to show the facts. If not, I think it is absolutely a clear violation of our rights,” said Whitehead.
“I think we need to slow this train down. I think the government knows if they have facts, they should be able to listen in and check out and see if there’s some kind of evidence showing a terrorist attack,” he said. “But doing so on my phone messages and my text messages or yours, that’s clearly unconstitutional.”
Whitehead is very confident that an examination of the NSA’s activity through the lens of the Fourth Amendment will yield a victory against the government, but he said that’s not necessarily how this case will ultimately be decided.
“It definitely depends on the judge you’re before,” he said. “We’ve had cases with the TSA for example. We challenged some TSA policies over the body scanners and all the searches they were doing. The judge actually said he ruled in favor of the TSA because there was a secret order. No one ever saw the secret order.
“That’s the kind of instances we get into. But if we live in a secret police state, my feeling is that if the wrong person gets into power, people are going to get into a lot of trouble and historical regimes show that. I do hope that the right kind of judge hears this case and we stay very consistent with our constitutional freedoms.”