Tuesday oral arguments were heard by the Federal Appeals Court for the DC circuit in a key case related to NSA mass surveillance.
Last December, finding for the plaintiffs in Klayman v Obama, Federal District Judge Richard Leon wrote,
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 and analyzing it without prior judicial approval. Surely such a program infringes on that “degree of privacy” that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to be beware “the abridgement of freedom of the people by gradual and silent encroachments by those in power,” would be aghast. (Prior attention by HLSWatch)
Judge Leon stayed his injunction of further surveillance of citizen phone records pending appellate review, given the national security implications and, what the Judge called, “novel” privacy implications of the case.
Josh Gerstein, writing in Politico of Tuesday’s proceedings, perceives:
During oral arguments Tuesday, three judges of the U.S. Court of Appeals for the D.C. Circuit seemed skeptical in various ways about the lawsuits that led to U.S. District Court Judge Richard Leon’s ruling last December that the NSA’s surveillance was likely unconstitutional.
Critics of the National Security Agency’s most embattled program harshly condemned the spying in a top appeals court on Tuesday. Judges, however, seemed largely skeptical of their claims that the spy agency’s bulk collection of Americans’ phone records was unconstitutional. Instead, they seemed to express a desire to reverse a lower court ruling nearly one year ago that called the NSA program “almost Orwellian.”
An audio recording of Tuesday’s Oral Arguments is available here. I have not yet seen a transcript. Writing at the always informative Lawfare blog, Wells Bennett provides his own summary of the arguments.
Mr. Bennett is less inclined than the reporters quoted above to hear a predisposition in the three judge panel’s line of inquiry. Bennett notes, “the day’s questioning was even-handed and vigorous, and exposed weaknesses in arguments advanced by both the government and plaintiffs alike…”
Before the end of the year appellate decisions are expected in three cases emerging from the Snowden revelations: Klayman v Obama, ACLU v Clapper, and Smith v Obama. If all meet with similar appellate findings, then no Supreme Court review is likely. If they disagree — and depending on the nature of the disagreement — the Supreme Court is more likely to take action to resolve.
Late last year, just before the Klayman decision, Edward Snowden commented to the Washington Post, “For me, in terms of personal satisfaction, the mission’s already accomplished,” he said. “I already won. As soon as the journalists were able to work, everything that I had been trying to do was validated. “
A buddy in the intelligence community insists, “Snowden has made all of us less secure.” A long-time lawyer complains of domestic surveillance, “It’s like an ulcer. Maybe it originated with external stress, but now it’s eating us from the inside.”
What’s the right balance? The courts are being asked to decide.