After more than nine years of the National Security Agency’s massive telephone tapping program, and a series of court challenges to it, the program finally got a federal appeals court judge’s constitutional blessing on Friday. U.S. Circuit Judge Brett M. Kavanaugh pronounced the data sweeps program to be “entirely consistent with the Fourth Amendment.”
The judge, who sits on the U.S. Court of Appeals for the District of Columbia Circuit, reached out to make his own declaration as he and his ten silent colleagues refused to consider a challenge to the “metadata” program that may have monitored telephone and other electronic traffic of perhaps millions of Americans. He did so just nine days before that program is due to end, under a mandate from Congress early last summer.
Because the challenge in this case was made by an energetic and frequent court litigator, Larry E. Klayman of Washington, D.C., it seemed likely that he might try to take his protest to the Supreme Court. If not, Judge Kavanaugh’s opinion would be the last word on the constitutionality of what NSA has been doing, even though the judge was writing only his own views.
The Circuit Court has three times blocked rulings that the program is unconstitutional, by U.S. District Judge Richard J. Leon of Washington, and two of those orders have come since Leon on November 9 issued his second, sweeping decision finding the program to be a violation of the Fourth Amendment. He first did so in December 2013, but the Circuit Court returned the case to him to reconsider on a technical point of procedure.
Challengers have sought repeatedly to get the federal courts, including the Supreme Court, to strike down the program. Most of those decisions, including one by the Supreme Court two years ago, found that no one could prove that they had actually had telephone or other messages tapped, so they lacked “standing” to sue.
The U.S. Court of Appeals for the Second Circuit was the only other court, at any level, to question the NSA program’s validity, but its ruling earlier this year was limited to the question of whether Congress had written a law to authorize it, and found that the law at issue did not go that far. It did not rule on the constitutional question.
Lawyer Klayman had found a law firm and one of its attorneys to have subscribed to a telephone service that NSA was known to have monitored, and Judge Leon agreed that the “standing” question had thus been answered. The judge then went on to again find the program unconstitutional.
Judge Kavanaugh’s page-and-a-half opinion on Friday endorsed two arguments that the government had made repeatedly in defending NSA’s electronic sweeps: that those did not qualify even as a search under the Fourth Amendment and, even if they were considered to be a search, they satisfied the doctrine of a “special needs” exception to the Fourth Amendment’s requirement of a search warrant.
Conceding that there had been “since and passionate concerns” about what NSA had done, the judge said those policy arguments could be considered by Congress and the Executive Branch. “Those institutions,” he wrote, “possess authority to scale back or put more checks on the program, as they have done to some extent by enacting the USA Freedom Act.”
Congress passed that Act, to bar the kind of bulk, massive collection of telephonic data that NSA had been doing since May 2006, but the change was postponed 180 days to allow NSA to adjust. That six-month span ends a week from Sunday. NSA’s continuation of the program in the meantime is supposed to end then.