By: Cliff Kincaid
Accuracy in Media
Conservative U.S. District Judge Richard Leon’s ruling on Monday that the National Security Agency (NSA) metadata collection program is a violation of the Fourth Amendment generated an enormous amount of mostly sympathetic media coverage. Although NSA leaker Edward Snowden insists the ruling validates his release of stolen national security information, the court decision is likely to be thrown out by higher courts because it conflicts with established law and precedent.
Larry Klayman, the plaintiff in the NSA case, Klayman v. Obama, is not a far-leftist. Rather, he is a conservative public interest lawyer who runs Freedom Watch. Klayman says, “We cannot continue to live in a KGB-like police state,” and tells WorldNetDaily that he believes the NSA has been spying on him.
Leon doesn’t refer to the NSA as being like the KGB, but does refer to its surveillance technology as “almost-Orwellian,” a reference to the George Orwell novel about a police state, 1984.
Although Klayman’s victory in this case is getting tons of favorable publicity from the liberal media, it wasn’t too long ago that the liberals were viciously attacking Klayman for declaring at a rally that the U.S. is “ruled by a President who bows down to Allah,” and that Obama should put the Koran down. Klayman called the statements “metaphorical.” His “Reclaim America Now” coalition includes conservative, libertarian, and Christian groups and individuals.
In Klayman’s NSA court case, it is apparent that the Obama administration, for whatever reason, did not aggressively defend the intelligence agency.
A careful reading of the ruling shows that the judge noted, in a footnote, that “The Government could have requested permission to present additional, potentially classified evidence in camera, but it chose not to do so. Although the Government has publicly asserted that the NSA’s surveillance programs have prevented fifty-four terrorist attacks, no proof of that has been put before me.”
The term “in camera” means evidence introduced under guarded circumstances in the court chambers.
In other words, the Obama administration consciously decided not to defend the program before this particular judge. It is not clear if the fear of leaks, or some other factor, was involved.
In any case, Leon acknowledges in his opinion that the collection of this kind of data by the NSA has already been upheld by other U.S. courts in such cases as United States v. Moalin.
In the Moalin case, the NSA collected data used by the FBI to convict a Somali immigrant of conspiring to provide material support to a foreign terrorist group. “Under pressure from Congress,” reported The Washington Post, “senior intelligence officials have offered it as their primary example of the unique value of a National Security Agency program that collects tens of millions of phone records from Americans.”
Pro Publica, a “Journalism in the Public Interest” group supported by the Open Society Foundation of George Soros, has attacked the NSA’s claims that it helped thwart terrorism, and is cited as an authoritative source by Judge Leon in his ruling.
But regardless of the specifics in this case, the U.S. Foreign Intelligence Surveillance Court has approved the NSA program on dozens of occasions.
A declassified opinion from the court regarding a government request for data said, “…the Court considered whether the Fourth Amendment to the U.S. Constitution imposed any impediment to the government’s proposed collection. Having found none in accord with U.S. Supreme Court precedent, the Court turned to Section 215 to determine if the proposed collection was lawful and that Orders requested from this Court should issue. The Court found that under the terms of Section 215 and under operation of the canons of statutory construction such Orders were lawful and required, and the requested Orders were therefore issued.”
The Associated Press quoted Stephen Vladeck, a national security law expert at the American University law school, as saying that 15 different judges on the Foreign Intelligence Surveillance Court have found the data collection to be constitutional. “There’s a disconnect between the 15 judges on the FISA court who seem to think it’s a no-brainer that Section 215 is constitutional, and Judge Leon, who seems to think otherwise,” he said.
The AP also reported that Robert F. Turner, a professor at the University of Virginia’s Center for National Security Law, “predicted Leon’s decision was highly likely to be reversed on appeal. He said the collection of telephone metadata—the issue in Monday’s ruling—already has been addressed and resolved by the Supreme Court.”
Although attorney Klayman insists NSA surveillance has made the U.S. into a “KGB-like police state,” it is NSA leaker Edward Snowden who is now living in Russia under a grant of asylum, and is believed to be under the control of the KGB, now called the FSB.
Former Republican Senator Jon Kyl (AZ) says Snowden is “this generation’s Alger Hiss” and “may be one of the worst traitors in the history of our nation.” Alger Hiss is the State Department official who was convicted of perjury in 1950 for denying he was a Soviet spy; he served 44 months in prison.
Former Reagan National Security Council staffer Oliver North says Snowden will be killed by the Russians when they are done milking him for information.
Rick Ledgett, an NSA official leading a damage assessment probe into the Edward Snowden leaks, told the CBS “60 Minutes” show on Sunday that “it’s worth having a conversation about” giving Snowden amnesty.
It is not clear that members of Congress would approve the NSA or the Obama administration dropping the espionage charges against Snowden and giving him amnesty or immunity from prosecution for the crimes he committed.
Perhaps for this reason, the White House has backed away from talk of amnesty, saying through the National Security Council, “Mr. Snowden is accused of leaking classified information and faces felony charges here in the United States. He should be returned to the U.S. as soon as possible, where he will be accorded full due process and protections.”
Cliff Kincaid is the Director of the AIM Center for Investigative Journalism and can be contacted at [email protected]. View the complete archives from Cliff Kincaid.