CHRISTMAS COMES EARLY

Christmas has come a little early for lovers of liberty, thanks to five federal judges and a White House task force.

*The National Security Agency’s collection of "metadata" on nearly all telephone calls made to, from or within the United States appears to violate the Fourth Amendment ban on unreasonable searches and seizures, U.S. District Judge Richard Leon said Monday (12/16).

"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," Judge Leon said. 

He issued a preliminary injunction barring NSA from collecting data on the Verizon accounts of Larry Klayman, the plaintiff who brought the lawsuit, and one of Mr. Klayman’s clients, but then stayed his ruling to permit the administration to appeal.

*During oral arguments in a different case last month, U.S. District Judge William Pauley also expressed skepticism about the legal basis for the NSA collection program.

Mr. Klayman founded Judicial Watch, a conservative watchdog group.  Judge Leon was appointed to the bench by President George W. Bush.  He is in the District of Columbia.  Judge Pauley, who was appointed by President Bill Clinton, is adjudicating a lawsuit brought by the American Civil Liberties Union, a liberal watchdog group.  He is in New York.

*On Wednesday (12/18), U.S. District Judge Ellen Seal Huvelle criticized the Obama administration for excessive secrecy.

"The government’s unwarranted expansion of the presidential communications privilege at the expense of the public’s interest in disclosure," she said in ruling on a Freedom of Information Act suit.  "The government appears to adopt the cavalier attitude that the President should be permitted to convey orders throughout the Executive Branch without public oversight, to engage in what is in effect governance by ‘secret law.’"

*U.S. District Judge Brian Cogan ruled Monday (12/16) the Obamacare provision requiring employers of nonprofits to provide contraception in health plans for employees violates First Amendment guarantees of religious freedom.

HHS Secretary Kathleen Sebelius cannot enforce a mandate Congress did not approve, nor decide unilaterally what the First Amendment means, Judge Cogan said in issuing a permanent injunction against enforcement of the provision.

Judge Cogan ruled in a lawsuit brought by the Roman Catholic Diocese of New York.  Last month U.S. District Judge Arthur Schwab issued a preliminary injunction against the provision in a lawsuit brought by the Catholic Dioceses of Pittsburgh and Erie.

*The task force hand picked by President Barack Hussein Obama to review government surveillance policy issued a report Wednesday (12/18) critical of the scope and effectiveness of NSA surveillance.

Telecom companies should have control of the database of their customers’ metadata (to which numbers calls are made, and how long they last), said the President’s Review Group on Intelligence and Communications Technologies.  The NSA should be permitted to access that database only after getting an order from the FISA court. 

The task force had been expected to rubber stamp the surveillance programs.

The day before, CEOs of America’s biggest technology companies — most of whom have been financial supporters of Mr. Obama — met with the president in the White House.  They’d planned to complain that government surveillance policies were undermining trust in their services and were hurting the economy.  But Mr. Obama spent most of the time making a pitch for Obamacare.

Many experts in national security law expect Judge Leon’s injunction to be overturned on appeal.  But it might not matter.  A bipartisan consensus has formed that the NSA must be reined in.

The government’s argument these massive data collection sweeps are necessary for national security has been undermined by the paucity of evidence suggesting they do any good.  Judge Leon said he asked the Justice Department to show him how the collection of metadata was helping to catch bad guys, but they couldn’t do it.

Their review indicated collection of telephone metadata "was not essential to preventing attacks," the White House task force said.

In a Gallup poll this week, 72 percent of Americans said big government was a greater threat than big business or big labor.  That’s the most ever, up from 55 percent in 2009.  If the courts don’t curb the NSA, Congress will.

Jack Kelly is a former Marine and Green Beret and a former deputy assistant secretary of the Air Force in the Reagan administration. He is national security writer for the Pittsburgh Post-Gazette.