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Judge in Phila.-linked case: NSA phone sweep likely illegal

In a case brought by a Philadelphia man, a federal judge in Washington ruled Monday that the National Security Agency's bulk collection of phone records is likely unconstitutional.

Larry Klayman, a lawyer, called Strange "an American hero."
Larry Klayman, a lawyer, called Strange "an American hero."Read more

In a case brought by a Philadelphia man, a federal judge in Washington ruled Monday that the National Security Agency's bulk collection of phone records is likely unconstitutional.

The ruling offered the first legal setback to a controversial program that records data on nearly all calls placed to or from the United States.

In a 68-page opinion, U.S. District Judge Richard J. Leon described the agency's phone metadata surveillance program as "almost Orwellian" and said it more than likely posed a violation of constitutional rights against search and seizure.

"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, an appointee of President George W. Bush.

Leon's decision Monday is the first judicial opinion to directly challenge the program since it was revealed in June by former NSA contractor Edward Snowden. But, the judge noted, it is not likely to be the last time it is challenged in court.

Several similar cases await hearings in federal judicial districts across the country. And, in a nod to an all-but-certain appeal by the Obama administration, Leon stayed his own ruling Monday, citing "the significant national security interests at stake in this case and the novelty of the constitutional issues."

He said he would allow the government to appeal his decision first, a process he estimated would take about six months.

It came in response to a suit by Charles Strange of Torresdale, who, as a Verizon subscriber, contended that the phone company had been compelled to allow access to his records.

Since his son, Michael, an NSA cryptologist, was killed in Afghanistan two years ago, Strange has harshly and publicly criticized the agency and President Obama. He argued that his political activism made him a likely target for abusive surveillance by the NSA.

In his complaint, he cited several technological anomalies - including text messages sent from his number that he claims he didn't write and an e-mail he says he received addressed from his dead son - as signs of illegal agency monitoring.

"This all started with me asking questions," he said in an interview Monday. "Hopefully, we get some answers for the people of America."

In an interview Monday, his lawyer, conservative activist Larry Klayman, who was also included as a plaintiff in the suit, praised Leon's courage and described Strange as an "American hero."

"The American people have to take their hat off to Judge Leon," Klayman said. "They've been looking for someone to protect them from the decisions of the other two branches of government."

A Justice Department spokesman said government lawyers continued to review the opinion. "We believe the program is constitutional," he said.

Detailed and at times fanciful, with references to the Beatles and the Founding Fathers, Leon's ruling offered only a preliminary referendum on whether the NSA had violated Strange's and Klayman's privacy rights while they continue to pursue their claims in court.

But the judge left little doubt as to which side he thought would prevail.

"The author of our Constitution, 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," he wrote.

The Justice Department has for years persuaded judges on the Foreign Intelligence Surveillance Court that collection of phone numbers called and the time and length of calls did not amount to an unlawful search under the Fourth Amendment.

In Strange's case, the Obama administration argued that such information is freely available to phone companies, which collect such information on their subscribers. It pointed to a 1979 U.S. Supreme Court ruling, Smith v. Maryland, that found that no search warrant was needed to install a device to record such data at a telephone company's office.

But Leon balked at the comparison of the current program to the facts of the case that produced the decades-old precedent.

"People in 2013 have an entirely different relationship with phones than they did 34 years ago," he wrote. "I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cellphones."

Leon also rejected claims that the surveillance program was essential in the government's efforts to combat terrorism.

"The government does not cite 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," he said.

Strange is only one of Klayman's clients who have challenged NSA surveillance programs in Leon's court.

A separate suit, pitting two additional plaintiffs against the agency and a host of communications and technology companies, including Google, Microsoft, Facebook, and Apple, challenges the NSA's PRISM program, another clandestine surveillance effort that collects stored Internet communications.

Leon declined to issue a preliminary injunction in that case Monday.