I am talking here of the workaday jurists who deal with the public on a daily basis, not the well-connected grandees of the Supreme Court, who usually grab the headlines. To this day, the most famous of them is Judge Learned Hand, a well-born son of Albany who spent fifteen years in the federal courthouse of the Southern District of New York, and another thirty-seven years on the United States Court of Appeals for the Second Circuit. More recently, there have been other notable judges, of course, including Jed Rakoff, also of the Southern District, who, in 2011, threw out a settlement between the Securities and Exchange Commission and Citigroup because it didn’t contain any admission of wrongdoing on behalf of the big bank—this despite the fact that the bank stood accused of defrauding investors in a mortgage-bond offering.
Now comes Judge Richard J. Leon, who sits on the federal court in the District of Columbia. Leon has ruled that the National Security Agency’s routine collection of phone records from hundreds of millions of Americans “infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment,” which prohibits the government from carrying out unreasonable searches and seizures.
In some ways, it should be noted at the outset, Leon and Hand were practically opposites. A Republican conservative who worked in the Justice Department during the Reagan years, Leon also served as special counsel to the House Banking Committee’s Whitewater investigation, before George W. Bush appointed him to the federal bench, in 2001. Hand was a lifelong progressive. Early on, he supported Teddy Roosevelt. A bit later, he helped Herbert Croly to found The New Republic, for which he wrote a number of articles. As judges, what is common to Hand and Leon is a strong suspicion of the federal government encroaching on ancient liberties.
During the First World War, when Hand was still a district-court judge, he struck down parts of the Espionage Act, a precursor to the Patriot Act, which had proscribed any actions that hindered the war effort, including the circulation of seditious materials. Citing the First Amendment, Hand defended the publication of The Masses, a left-wing journal that was stridently anti-war. According to Gerald Gunther, the late constitutional scholar who wrote a lengthy and widely praised biography of Hand, the arguments he made in the The Masses case played an important role in persuading the Supreme Court to strengthen freedom-of-speech statutes.
Most of Leon’s rulings have attracted less notice, but some of them were notable, nonetheless. In an article in Tuesday’s Times, Sheryl Gay Stolberg recalls that, in 2010, he threw out an obscenity case involving a Californian pornographer; in 2012, he barred the use of imported barbiturates used in executions; and, in 2008, he ruled that five Algerians had been illegally detained in the Guantánamo Bay prison camp and ordered the government to free them.
In describing the N.S.A.’s snooping as “almost Orwellian,” and in suggesting that James Madison would be “aghast,” Judge Leon has queried the legitimacy of domestic-surveillance policies authorized by not one but two Presidents. Like all dissident voices, his will be subjected to attacks. In an important sense, though, he has merely stated what should be obvious to anybody who hasn’t swallowed the tendentious justifications offered up by the Bush and Obama Administrations: in the wake of 9/11, the U.S. government moved in a profoundly authoritarian and illiberal direction.
The process of seeking to undermine the ruling has already begun. If you read some of the online commentary on Leon’s sixty-eight-page ruling, you will see suggestions that he is a maverick, an unhinged libertarian, and a judge who doesn’t understand the law. That is only to be expected. After Edward Snowden showed how far the surveillance state had extended its tentacles, he was described as a kook, a traitor, or, worst of all, a mere “contractor” who had no right to question the wisdom of his superiors and his government. This very weekend, Bill Richardson, the former Energy Secretary and U.S. Ambassador to the United Nations, was on “Meet the Press,” repeating this dismissive line.
On the same show, General Michael Hayden, a former head of the N.S.A., defended the actions of the agency, saying,
There is no abuse. And, by the way, I don’t see any unlawfulness either. This is all done according to the Madisonian formula. The President authorized, the legislature legislated, and the courts oversaw. Now, we can have a legitimate argument among free people as to whether or not it’s wise, as to whether or not we generally agree it’s a proper balance between liberty and security. But there were no abuses.
But this, of course, is the very argument that Judge Leon has sought to dismantle. In granting the plaintiffs legal standing to sue the government on the grounds that they, most likely, had had their phone records seized, he breached the wall that had kept the legal arguments about domestic surveillance confined inside the secretive FISA court that has generally served as a rubber stamp for the authorities. And in rejecting the Administration’s argument that bulk collection of phone data is allowed under a 1979 Supreme Court ruling in the case of Smith v. Maryland, Leon has invited higher courts, and ultimately the Supreme Court, to revisit the entire issue of how privacy can be defined, and protected, in the information age.
Of course, the appeals court, to which the Administration will now hasten, could toss out Judge Leon’s ruling, and, if the plaintiffs appeal that ruling, the Supreme Court, as it has done in the past, could refuse to hear a domestic-surveillance case. But Judge Leon’s arguments, which were artfully constructed, will not be so easily dismissed. Rather than challenging the FISA court head on, he accepted the government’s argument that he didn’t have the authority to decide whether it had overstepped its bounds in approving government orders that forced telephone companies, such as Verizon and AT&T, to turn over customer records. Where Judge Leon sought to make his stand was in the more open ground where the legacy of the Founding Fathers meets contemporary policies and realities. On the issue of whether the government’s conduct was constitutional, he asserted that his court had a right to rule, and he reached the conclusion that, most likely, it wasn’t.
In composing his ruling, Judge Leon followed in the spirit of Hand, a famously eloquent writer, by supplementing his citations of legal precedents with broader arguments expressed in clear, and occasionally vivid, prose. He began, as he had to, by acknowledging the force of the Smith v. Maryland ruling, in which the Supreme Court said that a suspected criminal had no reasonable expectation of privacy in the numbers he dialled from his home phone because he transmitted them to the phone company voluntarily, and in the knowledge that the company recorded them as part of its business records. But then, Judge Leon went on:
The question in this case can be more properly be styled as follows. When do present day circumstances—the evolution in the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies—become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith does not apply. The answer, unfortunately for the Government, is now.
In Smith v. Maryland, Judge Leon continued,
The court considered a one-time, targeted request for data regarding an individual suspect in a criminal investigation … which in no way resembles the daily, all-encompassing, indiscriminate dump of phone metadata that the NSA now receives as part of its Bulk Telephony Metadata Program. It’s one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint-intelligence gathering operation with the Government … The almost Orwellian technology that enables the government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979.
This, of course, is also the argument put forward by Snowden, who, in a statement issued via the journalist Glenn Greenwald, hailed the ruling. “I acted on my belief that the N.S.A.’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,” Snowden said. “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.”
That may be wishful thinking: we shall see. The appeals process will take a while. Meanwhile, other similar cases, including ones brought by the American Civil Liberties Union and the Electronic Frontier Foundation, are still to be heard. But whatever happens, Judge Leon deserves great credit. Judged by all appearances, the Obama Administration was (and is) preparing to announce some more cosmetic reforms that will make the domestic-surveillance system look a bit less draconian, while preserving its essentials, including the systematic collection of metadata. Judge Leon has upended this narrative. He has shifted the Snowden saga from the political stage, where it appeared to be going nowhere, into the legal arena—the regular, open one, not the rigged FISA system—which, in this country, is where issues of civil liberties and human rights usually get resolved.
Sadly, progress in these matters is often fitful. Sixty-three years ago, when Learned Hand was a well-known figure on the Court of Appeals, a case came before him that centered around the Fourth Amendment ban on unreasonable searches and seizures. It concerned Judith Coplon, an employee of the Department of Justice who had been sentenced to fifteen years in prison for stealing defense information and passing it to the Russians. In a ruling that subjected him to a lot of vituperation from the media and the public, Hand overturned Coplon’s conviction on the grounds that the government had wiretapped her phone and seized some of her property without obtaining a warrant. Hand believed that Coplon was guilty. He didn’t believe that the government’s legitimate end of uncovering her treachery justified the means it had used to convict her. “Perhaps, if you reflect,” he later wrote in a letter to a critic, “you will agree that it is not desirable to convict people, even though guilty, if to do so it is necessary to violate those rules on which the liberty of all of us depends.”
In our day, the war on terror has replaced the Cold War as the justification for infringing on individual freedom and privacy. However, the argument that the authorities trot out to justify their actions is pretty much the same one that they have always relied on: national security trumps all. Would that there were more judges willing to say it doesn’t.
Original Article
Source: newyorker.com/
Author: John Cassidy
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