Why this week's anti-NSA court ruling could backfire

Be careful what you wish for

Published December 18, 2013 1:38PM (EST)

This article originally appeared on AlterNet.

AlterNetPundits across the political left should be careful about heaping too much praise on U.S. District Judge Richard Leon for this week’s dramatic ruling that the National Security Agency’s electronic dragnet capturing Americans’ online activities is “significantly likely” to be unconstitutional, even though it is a powerful rebuke to America’s spymasters.

That’s because Leon, a longtime Republican  warrior, is as much of a legal loudmouth and rightwing activist judge as U.S. Supreme Court Justice Antonin Scalia. More importantly, his elbows-out 68-page  opinion is not going to be the last word on the government’s data mining. Leon’s ruling is one of several NSA-related suits moving through the federal courts, including rulings that have reached the opposite conclusion.

“It should be noted that last month Judge Jeffrey Miller of the Southern District of California found the NSA business records program to be constitutional," Sen. Dianne Feinstein, Senate Intelligence Committee chairwoman, said Tuesday. "Leon’s opinion also differs from those of at least 15 separate federal district court judges... Only the Supreme Court can resolve the question on the constitutionality of the NSA’s program."

These conflicts will likely trigger a review by the Supreme Court, where the conservative majority already has sanctioned NSA electronic eavesdropping and is known for elevating government searches over individual rights. In other words, Leon's rebuke may help put the issue in front of a court majority that is poised to codify national security over privacy rights.

“There’s a generalized right of privacy that comes from penumbras and emanations, blah blah blah, garbage,” Scalia said in a  recent speech to the Northern Virginia Technology Council, where he more than signaled his support for unbridled NSA surveillance.

You would think that left-leaning pundits would realize these dynamics and that it is perilous to praise an unabashedly activist judge just because he issued a decision they like. But that’s exactly what appeared in Tuesday’s lead  editorial in  The New York Times.

“The ruling by Judge Leon, who was nominated to the bench by President George W. Bush on Sept. 10, 2001, was remarkable for many reasons, but mainly because there were real people sitting in open court challenging the government’s lawyers over the program’s constitutionality,” the  Times wrote. “It is an enormously symbolic victory for opponents of the bulk-collected program, and a reminder of the adversarial process [a trial]. For seven years, these constitutional issues have been adjudicated under a ‘cloak of secrecy,’ as Judge Leon put it. Now, that cloak has finally been lifted in a true court of law.”

It’s a bit dangerous to praise Judge Leon’s courtroom as a citadel of “true” justice. Leon has a long history of not just making quotable outbursts in decisions and from the bench, but also issuing truly damaging pro-corporate rulings. He singlehandedly stopped new graphic labels for tobacco products after Congress passed new labeling laws, and federal health officials drafted and issued new labeling rules. In that case, he  took Big Tobacco’s side saying that putting photos on cigarette packages was a form of coerced speech that violated their First Amendment commerical speech rights.

You won’t see many references to Leon’s outbursts in the  Times or on many left-leaning blogs, such as Leon  telling the Security and Exchange Commission and IBM’s lawyers in a bribery case that they had to “satisfy me” before accepting a settlement. Nor will you see much about his history as a GOP hitman when he was a congressional staffer who blocked inquiries into the Iran-Contra scandal. To its credit,  ConsortiumNews.com drew on its memory to recall Leon’s role in that 1980s scandal, where Ronald Reagan’s White House traded weapons with terrorists to free American hostages held by Iran.

“Leon clearly possesses a libertarian streak, but he earned his place on the bench by running a partisan cover-up of a historic crime,”  wrote Consortium News’ Robert Parry. “Leon was appointed to his lifetime judicial post by George W. Bush in 2002 after Leon won the gratitude of the Bush Family by protecting its interests as an aggressive and reliable Republican legal apparatchik on Capital Hill. There, the heavy-set Leon gained a reputation as a partisan bully who made sure politically charged investigations reached a desired outcome, whatever the facts.”

That same characterization could be made of the right-wing lawyer who brought the suit that led to Leon’s ruling, Larry Klayman, who has been  picking legal fights for 20-plus years, first with his group called Judicial Watch—now Freedom Watch. Klayman has sought to portray Obama as a closet Muslim, and said he likely was born in Kenya, among his many right-wing crusades.

Beyond the players that resulted in Leon’s striking ruling lies a legal bottom line that opponents of the national security state and domestic spying should note. In Supreme Court doctrine, there is a  famous phrase, “The Constitution is not a suicide pact.”

It refers to the Court’s history over the decades of justifying whatever liberties-infinging activity that the White House deems necessary to preserve the federal government. Civil libertarians should watch to see how the NSA’s electronic dragnet resurfaces at the high Court as  other cases make their way through the federal courts.

"Clearly we have competing decisions from those of at least three different courts (the FISA Court, the D.C. District Court and the Southern District of California)," Feinstein said. "I welcome a Supreme Court review since it has been more than 30 years since the court’s original decision of constitutionality [of NSA spying], and I believe it is crucial to settling the issue once and for all."

With the Roberts Court’s current national security-state embracing majority, it would not be surprising if the Court enshrined the very tactics that Judge Leon criticized, leaving them in place for decades.

By Steven Rosenfeld

Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, the American Prospect, and many others.

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