Are Heroes of the Constitution Bringing It Back?

January 1, 2014 • Commentary
This article appeared on Cato​.org on January 1, 2014.

On Dec. 16, a federal judge’s ruling may have marked a historic turning point in the civil war between President Barack Obama and those Americans intent on preventing the executive branch from being the sole rule of law while We The People are no longer a self‐​governing republic.

The next day, the lead editorial in The New York Times concerning Klayman v. Obama cited Judge Richard Leon’s ruling in favor of plaintiffs that included conservative legal activist Larry Klayman. Judge Leon, who sits on the bench of the Federal District Court for the District of Columbia, argued that the National Security Agency’s continuous collection of all our phone records “ ‘almost certainly’ violates the Fourth Amendment’s prohibition against unreasonable searches” (“A Powerful Rebuke of Mass Surveillance,” The New York Times, Dec. 17).

Who nominated this patriotic judge to the influential court?

It was George W. Bush, back in 2001. But Bush, along with Vice President Dick Cheney, began to toss aside the Constitution’s mandatory separation of powers after Sept. 11.

Judge Leon, while sometimes leaning conservative, can also be an insistent libertarian. For example, consider this illustration from November 2008, covered by The Wall Street Journal:

The judge “ordered the release of five men U.S. forces took from Bosnia to Guantanamo Bay in 2002, ruling that the Bush administration relied on insufficient evidence to imprison them indefinitely as ‘enemy combatants’ ” (“Judge Orders 5 Gitmo Inmates Released,” Jess Bravin, The Wall Street Journal, Nov. 21, 2008).

That may have made Dick Cheney growl.

And in his recent NSA decision, Judge Leon alerted future U.S. historians and students to this: The Bush and Obama administrations, along with compliant Congresses, had not been able to show a “single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time‐​sensitive in nature.”

Meanwhile, all of us lost our Fourth Amendment rights to personal privacy.

“The judge,” according to The New York Times, “wrote that James Madison ‘would be aghast’ at the degree of privacy invasion the data sweep represents.”

That’s a quotation I treasure.

It should be noted that Judge Leon’s decision is not final; it will no doubt be appealed all the way up to the Supreme Court. And I’m skeptical that a John Roberts‐​led court would forthrightly embrace the Constitution, even though The New York Times cheered in its editorial that Judge Leon’s ruling “is an enormous symbolic victory for opponents of the (warrantless) bulk‐​collection program … for seven years, these constitutional issues have been adjudicated under a ‘cloak of secrecy,’ as Judge Leon put it. Now that cloak has finally been lifted in a true court of law.”

Whether or not you agree with this judge, whom I regard as a hero of the Constitution, it’s clear that there would not have been a case to judge had it not been for the “leaks” — the disclosure of so many other government acts of contempt for our personal privacy — by Edward Snowden, the former contractor for the NSA.

I’ve already noted that, depending on the candidates for the presidency in 2016, I may write in Snowden for the Oval Office.

This is hardly a unanimous feeling in our nation. Former U.S. Ambassador to the United Nations John Bolton is not alone in believing, as reported by the American Civil Liberties Union, that Snowden “ought to swing from a tall oak tree” for revealing so much of the government’s unconstitutional programs.

The ACLU disagrees and so would James Madison.

What is Snowden’s reaction to Judge Leon’s resurrection of the Fourth Amendment? From Moscow, where he has temporary asylum, he issued a statement, which was released to the public by another one of my heroes, Glenn Greenwald. Greenwald first began the distribution of Snowden’s salutary leaks through The Guardian.

Said Snowden: “I acted on my belief that the NSA’s mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts. Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many.”

We’ll see if this “first of many” rulings will eventually rescue the Fourth Amendment. It’s not going to be easy or quick.

On Dec. 27, for example, a federal judge in New York, William H. Pauley III, ruled in a case brought by the ACLU (ACLU v. Clapper) that, as The New York Times reported in a front‐​page story, “a National Security Agency program that collects enormous troves of phone records is legal” (“A Judge Upholds N.S.A. Collection of Data on Calls,” Adam Liptak and Michael S. Schmidt, The New York Times, Dec. 28).

Naturally, Obama’s alleged Justice Department expressed its pleasure.

Dig this section of Judge Pauley’s conclusion: “No doubt, the bulk telephony metadata collection program vacuums up information about virtually every telephone call to, from, or within the United States. That is by design, as it allows the NSA to detect relationships so attenuated and ephemeral they would otherwise escape notice” (“NSA’s Phone Data Collection Program Lawful, Federal Judge Rules,” Jacob Gershman, The Wall Street Journal, Dec. 27).

Therefore, he added, nonetheless justifying his contrary ruling to Judge Leon’s, “As the Sept. 11 attacks demonstrate, the cost of missing such a thread can be horrific.”

What’s the cost to our Constitution regarding Judge Pauley’s verdict? An aghast James Madison might have had a stroke.

What’s your bet on the ultimate Supreme Court ruling?

And, furthermore, as future vacancies occur on the high court, who will be controlling the Congress and the presidency?

Edward Snowden told Barton Gellman of The Washington Post: “For me, in terms of personal satisfaction, the mission’s already accomplished” (“Edward Snowden, after months of NSA revelations, says his mission’s accomplished,” Gellman, The Washington Post, Dec. 23).

Snowden celebrated our Constitution too soon.

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