Judge rules NSA’s bulk collection of phone records is likely unconstitutional

December 16, 2013 at 12:00 AM EDT
Edward Snowden
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JUDY WOODRUFF: In the first legal setback for the National Security Agency since the disclosures by Edward Snowden, a federal judge ruled today that its phone metadata collection program is likely unconstitutional.

U.S. District Court Judge Richard Leon found that the program appeared to breach the Fourth Amendment prohibition on unreasonable searches and seizures and that the Justice Department failed to show that the mass collection helped stop terrorist attacks.

In a statement provided to reporter Glenn Greenwald, Edward Snowden reacted to the ruling, saying — quote — “Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many” — end quote.

Well, joining me now to discuss the ruling, the lawsuit that prompted it, and what it means for the NSA’s program is reporter Josh Gerstein of Politico.

Welcome back to the program, Josh.

Tell us about what was behind this lawsuit, who is behind it and so forth.

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JOSH GERSTEIN, Politico: Well, it’s really one of at least four lawsuits that have been filed in the wake of the Edward Snowden disclosures earlier this year about this metadata program that sweeps up information on billions, maybe trillions of phone calls that have been made over the last five years to, from and within the U.S.

This particular lawsuit was filed in Washington, D.C., by a conservative legal activist many people may remember from the Clinton years by the name of Larry Klayman. And he’s just the one without happened to get a ruling on his lawsuit first, before some of these other suits brought by perhaps better-known organizations like the ACLU made it to get some initial rulings.

JUDY WOODRUFF: Now, the judge wrote along, what is described as a blistering opinion. What essentially is he saying is unconstitutional here?

JOSH GERSTEIN: Well, first he says that this is a search, what the NSA is doing does get into the private information of Americans.

The government’s position has been that it doesn’t get into really private information, that you disclose this kind of information when you make a phone call, the phone company knows what numbers you’re calling, how long the call is, and for decades, the government, supported by a Supreme Court decision from the 1970s, has said that once you reveal that information to a third party, it’s not protected and the government doesn’t even need a warrant to look at it.

And the judge here is essentially departing from that decision and saying what the NSA is doing in terms of its scope and also in terms of the way people communicate these days, it’s just a different situation. And to compare it to picking up on a landline in the 1970s, it’s just not similar.

JUDY WOODRUFF: So, what is he saying that is different, though, about what previous courts have ruled? What is different about this data collection?

JOSH GERSTEIN: Well, he says the scope of it, for one thing; to collect information on every American’s telephone calls and all the calls that they make is different than going after one or two suspected criminals on a specific phone line.

We’re talking here about the fact that 99.99 percent of the information the government collects in this program is not connected to any crime. They’re just ordinary phone calls. But the government says they need all that information so that if they determine later there might be a tie to terrorism, they can go back and look at it.

JUDY WOODRUFF: And he also is saying that there’s no — that the government hasn’t provided any proof that this collection has stopped any terrorist attacks.

JOSH GERSTEIN: Right.

He does say that it appears to him that it’s ineffective, that maybe in some instances it does get the government information sooner on — perhaps on some types of terrorist investigations. But they have never shown to him anyway a case where this was the decisive factor that led them to wrap up a terrorist plot they wouldn’t have found out about anyway. And, frankly, that’s also something the government’s had trouble articulating up on top of Capitol Hill, just how many times has this program been critical.

JUDY WOODRUFF: So, now, this is not the Supreme Court. It’s not an appellate court. It is a federal district judge. So what is the significance? What will this mean?

JOSH GERSTEIN: Well, in terms of legal significance and immediate significance, I don’t think it’s very important from a legal perspective, because, as you say, the appeals courts will eventually weigh in. And there’s three or four other lawsuits. There are also criminal cases where this is coming up.

So, one or more of those will eventually work their way to the Supreme Court, and the Supreme Court will have to deal with this issue. But right now, we have decisions being made at the White House and on Capitol Hill about what kinds of reforms should be implemented on this program. And I do think that the judge coming out and saying that he thinks it’s unconstitutional and perhaps, more problematic, saying that it’s ineffective will influence that debate and might push forward some reforms that might not have made it across the finish line otherwise.

JUDY WOODRUFF: What is — you have talked to a lot of people around this. What is the administration saying? I saw the NSA put out a statement saying, we continue to believe what we’re doing is constitutional.

JOSH GERSTEIN: Yes, look, they believe it’s legal. And they point to the fact that the Foreign Intelligence Surveillance Court, which is made up of judges of the same rank as Judge Leon, 15 of those judges have authorized or reauthorized this program and found it to be constitutional.

What the critics will say is, look, that wasn’t an open court proceeding, as we saw in the statement from Mr. Snowden via Glenn Greenwald. Those were secret proceedings, where nobody was arguing against the legality of the program. And now we’re really having the first debate or battle where it’s really joined between two sides arguing the legal merits.

JUDY WOODRUFF: So, continue to watch.

JOSH GERSTEIN: Definitely.

JUDY WOODRUFF: Josh Gerstein, thank you.

JOSH GERSTEIN: Thank you, Judy.