Dec 17 2013
Washington—Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.) today released the following statement on a ruling by D.C. District Court Judge Richard Leon that the NSA business records program may be unconstitutional:
“Judge Leon made a preliminary ruling yesterday that the NSA business records program may be unconstitutional. The preliminary injunction was stayed pending appeal by the government.
“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.
“Judge Miller was ruling on a real world terrorist case involving the February 2013 conviction of Basaaly Moalin and three others for conspiracy and providing material support to the Somali terrorist organization Al-Shabaab. In that case, the NSA provided the FBI with information gleaned from an NSA query (under Section 215) of the call records database that established a connection between a San Diego-based number and a number known to be used by a terrorist with ties to al Qaeda.
“In upholding these convictions, Judge Miller cited Smith v. Maryland (1979) the controlling legal precedent and held the defendants had ‘no legitimate expectation of privacy’ over the type of telephone metadata acquired by the government—which is the ‘to’ and ‘from’ phone numbers of a call, its time, its date and its duration. There is no content, no names and no locational information acquired.
“Judge Leon’s opinion also differs from those of at least 15 separate federal district court judges who sit, or have sat, on the FISA Court and have reauthorized the program every 90 days—a total 35 times in all.
“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). I have found the analysis by the FISA Court, the Southern District of California and the position of the Department of Justice, based on the Supreme Court decision in Smith, to be compelling.
“Only the Supreme Court can resolve the question on the constitutionality of the NSA’s program. I welcome a Supreme Court review since it has been more than 30 years since the court’s original decision of constitutionality, and I believe it is crucial to settling the issue once and for all. In the meantime, the call records program remains in effect.
“Those of us who support the call records program do so with a sincere belief that it, along with other programs, is constitutional and helps keep the country safe from attack. I believe the program can benefit from additional transparency and privacy protections—including additional public reporting and added court review provisions which were recently adopted by the Senate Intelligence Committee in the bipartisan FISA Improvements Act.”