The Judge who said no to the NSA
By James Oliphant, From The American Lawyer
When Judge Richard Leon took on the NSA over its collection of phone data, it wasn’t the first time he had questioned government’s antiterrorism tactics.
Once again, Richard Leon isn’t buying what the government has been trying to sell him in the war on terror.
In December, the U.S. district court judge in Washington, D.C., made headlines when he was the first federal judge to hold that the National Security Agency’s telephonic data surveillance program was likely unconstitutional. The decision made Leon, a George W. Bush appointee, a hero to progressives and libertarians alike and earned him praise from the likes of fugitive NSA leaker Edward Snowden and senators such as Ted Cruz and Rand Paul, and criticized by intelligence hawks such as Democratic Sen. Dianne Feinstein, the chair of the Senate Intelligence Committee, and Michael Mukasey, the former Bush attorney general. It also placed more pressure on the White House to dramatically scale back the program, something the president has so far resisted.
Leon has struck at the heart of the government counterterrorism rationale before: Five years ago, he was the first judge to order a bevy of detainees released from the prison at Guantánamo Bay. Then, as now, he simply wasn’t prepared to take the government’s word—no matter which party held the White House.
In 2008 Leon held in a habeas corpus proceeding that the Bush administration couldn’t justify holding five Algerian men at Guantánamo. In the NSA case, he found that the Obama administration couldn’t show that the surveillance program, which collects billions of telephone numbers but not the substance of the calls, was essential to repelling security threats. Then, as in now, “it would have been very easy for him to err on the side of national security,” his longtime friend, D.C. attorney David Laufman, says.
Leon’s NSA opinion drew inspiration both from a federalist, James Madison, and a committed socialist, George Orwell—and tapped into the widespread unease over the agency’s collection of bulk data. “James Madison, who cautioned us to beware ‘the abridgment of freedom of the people by gradual and silent encroachments by those in power,’ would be aghast,” Leon wrote. Unless checked, the NSA program could go on as long as the nation combats terrorism, which,” he said, “realistically could be forever.”
Leon went even further. In a move that critics might deride as judicial activism, the judge disregarded what other experts saw as controlling precedent, a 1979 Supreme Court decision that held that telephone calling records aren’t protected by the Fourth Amendment. Instead, Leon concluded that Americans today have an “entirely different” relationship with their phones than they did 35 years ago because of the central role they have taken in consumers’ lives, and called current monitoring technology “the stuff of science fiction.”
Other judges weren’t so quick to agree. U.S. District Judge William Pauley in Manhattan, an appointee of President Bill Clinton, soon upheld the NSA program on the grounds of the 1979 precedent. The Foreign Intelligence Surveillance Court in Washington has also held the program to be legal in an unclassified decision released last year. The matter is likely to end up before the Supreme Court, and Leon could well find himself on the losing end.
Being reversed likely won’t matter. As a judge, Leon seems to take a particular delight in poking the federal beast with a stick. “I don’t think anything intimidates him,” says Jim Leach, a former Iowa congressman who worked with Leon when he was a Republican counsel in the House of Representatives. The NSA ruling was no surprise to Stephen Oleskey of Boston’s Hiscock & Barclay, who represented the five Algerians in Guantánamo: “It was consistent with the man I saw try and decide our case,” he says. Oleskey vividly recalls Leon five years ago departing from his written order to urge the U.S. Department of Justice not to appeal, saying that they had been held long enough. The government stood down. (Leon found a sixth man to be properly detained as an agent of al-Qaida.)
Leon was personally concerned about the plight of the prisoners, Oleskey says. “He didn’t want to prolong that case,” he says. “He didn’t want to prolong the suffering of these men.”
What makes decisions like these more notable is that if any member of the federal bench appeared to have come pre-equipped to toe the government line, it was Leon. Nominated by Bush the day before 9/11, Leon is, those who know him say, an undeniable conservative, one who attends Federalist Society mixers. He was a Republican House counsel during congressional probes into both the Iran-Contra scandal and the so-called October Surprise—allegations that Ronald Reagan’s presidential campaign secretly negotiated for the release of American hostages in Iran. And when Leach served as the top Republican on the House Financial Services Committee, Leon spearheaded the inquiry into Madison Guaranty Savings and Loan Association, the failed financial institution that was the leading edge of what became known as Whitewater.
Leon’s conservative philosophy, however, appears to take the form of a deep skepticism of governmental overreach. He recently ruled against the U.S. Food and Drug Administration in two major suits, holding that the agency couldn’t regulate e-cigarettes and couldn’t force cigarette makers to place gruesome warning labels on packages. (In the former case, he inveighed against what he termed the FDA’s “tenacious drive to maximize its regulatory power.”) Last year, he ruled against the Federal Reserve in a closely watched case over so-called swipe fees for debit card transactions, holding that banks improperly capped the amount that merchants can collect on each transaction.
And even when Leon was enmeshed in some of Washington’s most contentious episodes, he demonstrated he could never be cast as a conservative caricature. In the October Surprise investigation, Leon entered into a widely praised partnership with the Democratic counsel, the late D.C. white-collar lawyer E. Lawrence Barcella, to investigate and debunk the conspiracy theory. And in Whitewater, Leach says, Leon exhibited his temperate side: Although some Republicans wanted to see then–First Lady Hillary Clinton testify, the committee opted not to call her, in order to demonstrate that the probe had limits.
Leon has a strict rule about not speaking to the media, but his friends describe him as a loyal and gregarious man who dotes on his college-age son and, in Laufman’s words, “doesn’t make enough time for life outside the bench.” For his part, Oleskey, a longtime progressive, ended up feeling some kinship with Leon, despite their opposing worldviews. Both hail from Massachusetts, and Oleskey not long ago attended a talk that Leon gave at Boston’s Suffolk Law School, Leon’s alma mater.
Leon, he said, told the audience, “You shouldn’t make assumptions on what judges will do based on their past politics.”
James Oliphant is a Washington, D.C.–based journalist who writes about the intersection of law and politics.
PHOTO: Richard Mia
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Related story:
Judge blocks government’s destruction of NSA surveillance data
By Julia Love, The Recorder
SAN FRANCISCO — A federal judge has blocked the government from destroying telephone metadata collected by the National Security Agency that plaintiffs say is critical to suits challenging the constitutionality of the surveillance.
In a two-page order issued Monday, U.S. District Judge Jeffrey White of the Northern District of California granted an emergency motion from the Electronic Frontier Foundation to thwart the destruction of potential evidence in Jewel v. NSA, 08-4373, and First Unitarian Church of Los Angeles v. NSA, 13-3287, a pair of suits that object to the federal government’s harvesting of telephone call data.
On Friday, the Department of Justice notified the court of its plan to begin clearing records on Tuesday morning that are more than 5 years old, setting in motion a frenzied round of briefing over the fate of the data. White will consider whether to allow the government to purge the data at a hearing on March 19.
“It is undisputed that the court would be unable to afford effective relief once the records are destroyed, and therefore the harm to plaintiffs would be irreparable,” White wrote. “A temporary restraining order is necessary and appropriate in order to allow the court to decide whether the evidence should be preserved with the benefit of full briefing and participation by all parties.”
DOJ lawyers wrote in court papers that they were heeding the Foreign Intelligence Surveillance Court’s mandate to destroy the data. The secretive court, which oversees surveillance carried out under the Foreign Intelligence Surveillance Act, requires the records to be wiped clear after five years.
Government lawyers tried to amend the rules to preserve older data for limited use in pending civil litigation over the surveillance programs. But in an order issued Friday, FISC Presiding Judge Reggie Walton balked at the request, noting that the NSA sweeps up the data of citizens who are not the subject of law enforcement investigations.
“The amended procedures would further infringe on the privacy interests of United States persons whose telephone records were acquired in vast numbers and retained by the government for five years to aid in national security investigations,” wrote Walton, a federal district judge in Washington, D.C.
His order put EFF lawyers in the curious position of trying to halt the purging of records that they didn’t want to be collected in the first place. Although they seek an injunction to stop the data collection, EFF lawyers stressed that the evidence must not be disrupted in the interim.
“The only way to stop the data collection is to have the lawsuit have its normal course,” Cindy Cohn, EFF’s legal director, said in an interview.
A Justice Department lawyer declined to comment.
DOJ lawyers did not notify the foreign intelligence court of a preservation order entered by former federal judge Vaughn Walker, who oversaw the Jewel case before his retirement. Despite the FISC’s refusal to revise the rules, White has ample authority to enforce preservation orders in the Northern District cases, Cohn said. “There’s nothing that indicates that the FISC gets to overrule a district court judge,” she said. “The FISC doesn’t have the authority to overwrite the Federal Rules of Civil Procedure.” Kurt Opsahl, an EFF senior staff attorney, noted that one of the group’s aims is to notify citizens whose calls were tracked, which would be impossible without a complete record.
Cohn insisted that the question before White is clear-cut.
“This isn’t complicated law. These are rules that every lawyer knows,” she said. “You cannot throw away evidence that might be relevant to the case.”
PHOTO: U.S. District Judge Jeffrey White, Northern District of California
For more on this story go to: http://www.therecorder.com/id=1202646358770/Judge-Blocks-Government%27s-Destruction-of-NSA-Surveillance-Data#ixzz2vfhz7IGu
