The spying-industrial complex always rationalizes pervasive domestic spying on the basis that, supposedly, it is necessary to keep us safe. But as I pointed out in a speech on the Floor of the House a few months ago, there is no threat to national security when I call my mother.
On Monday, in the landmark decision of Klayman v. Obama, No. 13-0851 (D.D.C. Dec. 16, 2013), Judge Richard Leon ordered an end to NSA monitoring of the two innocent plaintiffs. The NSA’s “bulk telephony metadata program” generates a report to the NSA on every phone call that every American makes. Judge Leon invited the NSA to prove in court that this program had ever contributed in any way to thwarting a terrorist attack. The NSA came up empty. Here is the key element of Judge Leon’s ruling on that issue:
The Government asserts that the Bulk Telephony Metadata Program serves the “programmatic purpose” of “identifying unknown terrorist operatives and preventing terrorist attacks.” Govt.’s Opp’n at 51 — an interest that everyone, including this Court, agrees is “of the highest order of magnitude,” In re Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 551 F.3d 1004, 1012 (FISA Ct. Rev. 2008); see also Haig v. Agee, 453 U.S. 280, 307 (1981) (“It is obvious and unarguable that no governmental interest is more compelling than the security of the Nation.” (internal quotation marks omitted)). A closer examination of the record, however, reveals that the Government’s interest is a bit more nuanced — it is not merely to investigate potential terrorists, but rather, to do so faster than other investigative methods might allow. . . .
Yet, turning to the efficacy prong, 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. In fact, none of the three “recent episodes” cited by the Government that supposedly “illustrate the role that telephony metadata analysis can play in preventing and protecting against terrorist attack” involved any apparent urgency. SeeHolley Decl. ¶¶ 24-26. In the first example, the FBI learned of a terrorist plot still “in its early stages” and investigated that plot before turning to the metadata “to ensure that all potential connections were identified.” Id. ¶ 24. Assistant Director Holley does not say that the metadata revealed any new information — much less time-sensitive information — that had not already come to light in the investigation up to that point. Id. In the second example, it appears that the metadata analysis was used only after the terrorist was arrested “to establish [his] foreign ties and put them in context with his U.S. based planning efforts.” Id. ¶ 25. And in the third, the metadata analysis “revealed a previously unknown number for [a] co-conspirator . . . and corroborated his connection to [the target of the investigation] as well as to other U.S.-based extremists.” Id. ¶ 26. Again, there is no indication that these revelations were immediately useful or that they prevented an impending attack. Assistant Director Holley even concedes that bulk metadata analysis only “sometimes provides information earlier than the FBI’s other investigative methods and techniques.” Id. ¶ 23 (emphasis added). Given the limited record before me at this point in the litigation — most notably, the utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than other investigative tactics — I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism. See Chandler, 520 U.S. at 318-19 (“Notably lacking in respondents’ presentation is any indication of a concrete danger demanding departure from the Fourth Amendment’s main rule.”). Thus, plaintiffs have a substantial likelihood of showing that their privacy interests outweigh the Government’s interest in collecting and analyzing bulk telephony metadata and therefore the NSA’s bulk collection program is indeed an unreasonable search under the Fourth Amendment.
 The Government could have requested permission to present additional, potentially classified evidence in camera, but it chose not to do so. Although the Government has publicly asserted that the NSA’s surveillance programs have prevented fifty-four terrorist attacks, no proof of that has been put before me. See also Justin Elliott & Theodoric Meyer, Claim on ‘Attacks Thwarted’ by NSA Spreads Despite Lack of Evidence, PROPUBLICA.ORG (Oct. 23, 2013), http://www.propublica.org/article/claim-on-attacks-thwarted-by-nsa-spreads-despite-lack-of-evidence (“‘We’ve heard over and over again the assertion that 54 terrorist plots were thwarted’ by the [NSA’s] programs. . . . ‘That’s plainly wrong. . . . These weren’t all plots and they weren’t all thwarted. The American people are getting left with the inaccurate impression of the effectiveness of the NSA programs.'” (quoting Sen. Patrick Leahy)); Ellen Nakashima,NSA’s need to keep database questioned, WASH. POST, Aug. 9, 2013, at A01 (“[Senator Ron] Wyden noted that [two suspects arrested after an investigation that involved use of the NSA’s metadata database] were arrested ‘months or years after they were first identified’ by mining the phone logs.”).
. . . 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 beware “the abridgement of freedom of the people by gradual and silent encroachments by those in power,” would be aghast.
I applaud Judge Leon’s ruling. In my opinion, the NSA has run a giant con game on the American People, telling us that we have to give up our freedom to preserve our safety, when in fact the NSA has done little or nothing to keep us safe. The NSA has tried to fool us, knowing that a fool and his freedom are soon parted. Thank you, Judge Leon, for telling the truth to the American People.
Let Freedom Ring.
Rep. Alan Grayson
original email to me may not be available: