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NSA Phone Program Likely Unconstitutional, Federal Judge Rules

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A federal judge ruled Monday that the National Security Agency's phone record surveillance program is likely unconstitutional.

U.S. District Court Judge Richard Leon said that the agency's controversial program, first revealed by former NSA contractor Edward Snowden earlier this year, appears to violate the Constitution's Fourth Amendment, which protects Americans against unreasonable searches and seizures. The program collects records of the time and phone numbers involved in every phone call made in the U.S., and allows that database to be queried for connections to suspected terrorists.

"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, a George W. Bush appointee, in the ruling.

"Indeed, 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."

The federal ruling came down after conservative activist Larry Klayman filed a lawsuit against the program in June. The suit claimed that the NSA's surveillance "violates the U.S. Constitution and also federal laws, including, but not limited to, the outrageous breach of privacy, freedom of speech, freedom of association, and the due process rights of American citizens."

Leon largely seemed to agree, ordering the government to stop collecting the phone records of Klayman and another plaintiff, and to destroy the records already collected. But he also stayed that order, giving the government another chance to argue the program doesn't violate the Constitution.

"We've seen the opinion and are studying it. We believe the program is constitutional as previous judges have found," the Justice Department said in a statement.

Klayman's lawsuit was the first against the agency over the phone records program. In October, a separate district judge in New York heard arguments in another lawsuit brought by the American Civil Liberties Union against the phone records program.

In a statement, the ACLU's legal director, Jameel Jaffer, said, "This is a strongly worded and carefully reasoned decision that ultimately concludes, absolutely correctly, that the NSA's call-tracking program can't be squared with the Constitution."

In both cases, the government has argued that a 1979 Supreme Court case supports its contention that once Americans have turned over personal information on whom they have called, and when, to their phone providers, they have lost their claims to privacy.

But Leon said that "present-day circumstances -- the evolutions in the Government's surveillance capabilities, citizens' phone habits, and the relationship between the NSA and telecom companies" -- made the case before him "thoroughly unlike" the 1979 dispute.

Unlike 30 years ago, he said, the phone companies are now operating "what is effectively a joint intelligence-gathering operation with the Government," and our phone call metadata, subject to "almost-Orwellian" government technology, is far more revealing now than it was then.

Leon was unimpressed with the orders from the Foreign Intelligence Surveillance Court, established by Congress to rule on the NSA's activities in secret, that have authorized the bulk metadata collection.

When constitutional rights are involved, he said, "Congress should not be able to cut off a citizen's right to judicial review of that Government action simply because it intended for the conduct to remain secret." Congress "may not hang a cloak of secrecy over the Constitution."

In Congress, where members have been debating whether to end the NSA's program, one senator immediately hailed Leon's ruling.

"The ruling underscores what I have argued for years: The bulk collection of Americans' phone records conflicts with Americans' privacy rights under the U.S. Constitution and has failed to make us safer," Sen. Mark Udall (D-Colo.), a Senate Intelligence Committee member, said in a statement. "We can protect our national security without trampling our constitutional liberties."

Read the full ruling below:

D.C. District Court NSA Opinion

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