There is is a third branch of government, and United States District Judge Richard Leon's beautiful, well-reasoned Fourth Amendment analysis demonstrates perfectly the result when the courts are allowed to work as intended.
U.S. District Court Judge Richard Leon found that the program appears to violate the Fourth Amendment ban on unreasonable searches and seizures. He also said the Justice Department had failed to demonstrate that collecting the information had helped to head off terrorist attacks. . . .
“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval,” wrote Leon, an appointee of President George W. Bush.
Even though it only applies to Klayman plaintiffs and is stayed pending appeal, the significance of Judge Leon's monumental opinion cannot be overstated. It provides a precedential road-map for civil libertarians and privacy advocates and shuts down attorneys from the Bush and Obama administrations alike who have been all too happy to effectively repeal the Fourth Amendment. Judge Leon's opinion reestablishes the Fourth Amendment as the backbone protecting us against unnecessary government intrusion.
Judge Leon's opinion gives lie to the surveillance state apologists who have argued that the phone records program is "legal" because it was approved by the secret Foreign Intelligence Surveillance Court (FISC).
Case in point, watch this exchange (at minute 10) that I had with George Stephanopoulos in July where he argued that "the surveillance programs were passed by Congress and overseen by a court."
Now, five months later, a non-secret court that, unlike the FISC which only hears the government's side of the case, heard both sides of the argument roundly rejected the government's argument that mass surveillance is constitutional. And, Congress has proposed bi-partisan legislation (USA Freedom Act) that would end the bulk collection of all Americans' phone records, an effort spearheaded by one of the authors of the PATRIOT Act, Rep. James Sensenbrenner, who believes the program far exceeds Congressional intent.
Judge Leon stayed his opinion pending appeal, and the case is on the fast track to the Supreme Court, which dismissed a similar case earlier this year (Clapper v. Amnesty) relying in part on then-false assertion from the Solicitor General that the Justice Department informed criminal defendants when it used evidence from the NSA program against them.
Leon's opinion further vindicates whistleblower Edward Snowden, whose revelations made this an half a dozen other lawsuits possible. My organization, the Government Accountability Project explained in June that Snowden met the legal definition of a whistleblower because he
". . . disclosed information about a secret program that he reasonably believed to be illegal."
Perfectly timed to debunk the NSA public relations infomercial 60 Minutes aired on Sunday, yesterday's opinion proves Snowden right, yet again.
As Leon so eloquently put it:
Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware "the abridgment of freedom of the people by gradual and silent encroachment by those in power," would be aghast.