I haven’t read Judge Richard J. Leon’s decision saying the NSA surveillance of cell phone records is a violation of the Fourth Amendment but have seen in some of the news reports certain quotes from his decision. From my understanding of the law of search and seizure he is way off base. I expect that either the Court of Appeals or the United States Supreme Court will find that he erred in his findings but until then we’ll be deluged with misinformation about what the NSA is doing.
In fact it seems even Judge Leon doesn’t understand it. It’ll be a while before his finding is reversed but he at least had the sense to stay his decision, which means it won’t ever take effect. This will play out well in the liberal cocktail DC circuit where he’ll get more than his 15 minutes of fame but it makes one question the wisdom of the man.
There’s a part of his decision that really bothers me since it borders on silliness. Judge Leon wrote: ‘‘I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware ‘the abridgment of freedom of the people by gradual and silent encroachments by those in power,’ would be aghast,’’ at the extent of the surveillance conducted by the NSA.
James Madison. 4th president of the United States. Born in 1751 and died in 1836. He had a hand in writing the 4th Amendment which states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Judge Leon’s hyperbolic comment as to Madison’s reaction seems relatively obtuse. I suggest it is absurd to talk about how someone living in the 18th Century would react to things of today. I’m sure there are many things that have happened since 1836 would have aghast James Madison such as electric lights, automobiles, airplanes, the Holodomor, the Holocaust, A bombs, H bombs, intercontinental missiles, nuclear submarines, man in space, man walking on the moon, the Hubble Space Telescope, smart weapons, Internet and drones, to just name a few things. He would also be unable to envision the type of terrorism that now exists in this world as we have seen with people flying planes into buildings or blowing up airplanes or strapping explosives to themselves in order to murder others.
Suggesting we decide things of today based upon how an 18th Century person would react to them seems patently wrong. How then do we apply the words in that document “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, . . . “ to today’s reality?
I suggest we must focus on what is reasonable and what is unreasonable. It seems it is reasonable for a country to take appropriate measures to secure the safety and well-being of its people. In light of the threat, the question to answer is whether the NSA was doing something unreasonable?
I suggest not. It was not capturing the contents of our conversations. By this I mean it was not listening to or recording what one person said to another or wrote to another. Nothing spoken or written was seized. This seems to be overlooked by most who comment on this matter.
All that NSA captured was that phone XYZ, listed to a certain person, contacted another phone, MNO, listed to a certain person, on a certain time and date and the contact lasted a certain amount of time. The enormous amount of cell phone information captured (billions?) insures the protection of everyone. We can rest assured that no one will ever access that information until some future date, and then only if there is a reason to suspect that XYZ was involved in something that gave a reasonable suspicion of illegality.
Judge Leon wrote ““Thirty-four years ago, when people wanted to send ‘text messages,’ they wrote letters and attached postage stamps, . . . ” That’s true, technology has changed drastically. But Judge Leon formed the wrong conclusion from the great changes over the last 34 years. A proper reading of history would require him to say that James Madison would be aghast that the NSA did not take every reasonable action to keep the American people safe.