WASHINGTON, December 18, 2013 — Judge Richard Leon delivered a massive body blow to the NSA’s PRISM program on Monday. The District of Columbia Federal District Court judge issued a 68-page ruling in Klayman vs. Obama, involving an application by the plaintiffs for a restraining order against the program. Leon ruled for the plaintiffs.
When a party seeks a restraining order in federal court, the chief issue before the judge is how likely the plaintiff is to prevail at a trial of the issue. By granting the restraining order, Judge Leon ruled the plaintiffs are likely to prevail.
The restraining order will now be appealed to the D.C. Circuit Court of Appeals, the Circuit Obama is busy trying to pack with left-wing radical judges.
The significance of the ruling at the trial court level cannot be overstated. Trial courts hear witnesses and they make rulings on facts. Appellate courts rule on the application of the law. Once a judge has made a ruling on the facts of the case, the losing party has a very high burden to get an appeals court to overturn the judge’s ruling on the facts of the case.
Judge Leon said something truly significant in his ruling. He wrote, “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.”
Warrantless searches — and the PRISM program is essentially a warrantless search of telephone data — are presumptively invalid. There are exceptions to the need for a warrant. In this case, the NSA is arguing the need to stop terrorist attacks. If the record — the testimony and evidence at the trial court — does not show that the NSA has ever stopped a terrorist attack because of this data, the NSA will be unable to show a compelling need that would allow an exception to the Fourth Amendment’s prohibition against unreasonable searches and seizures.
The dangerous part of this lawsuit is the tactic the government took to stop it. They claimed the plaintiffs had no standing to sue. Under American jurisprudence, in order to sue, you must have suffered an injury. The government claimed that the plaintiffs could not show the NSA had ever eavesdropped on them. Of course, if the plaintiffs asked for that information, they would not be given it because it is classified.
Judge Leon stayed his ruling so that the case could be appealed. It will go to the D.C. Circuit Court of Appeals, and that ruling will take months. Even then, it could go to the Supreme Court.
All of this deals with the temporary restraining order. There still must be a trial on the case, and that could be years away.
Our founding fathers would be appalled at the NSA and how it is shredding the Fourth Amendment. But they would also smile, knowing another part of the Constitution, namely the right to sue, is bringing this offense against liberty to heel.
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