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Why the NSA Ruling Could Backfire into a Court Disaster We'll Regret for Decades

Judge Richard Leon is no friend of progressives—and never has been.
 
 
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Pundits 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 searchs 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.