|Dianne Feinstein, member of the United States Senate. (Photo credit: Wikipedia)|
Feinstein issued a statement saying:
"...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..."
Feinstein said that:
"...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..."
Feinstein asserted that only the Supreme Court can resolve the question on the constitutionality of the NSA's program. She said she welcomed a Supreme Court review since it had been more than 30 years since the court's original decision on constitutionality, and she believes it is crucial to settling the issue once and for all.
But in yesterday's ruling, Judge Leon was adamant and although he kept his decision from being acted upon immediately, he indicated he was certain the Supreme Court would uphold his decision. He wrote:
"...in light of the significant national security interests at stake in this case and the novelty of the constitutional issues, I will stay my order pending appeal. In doing so, I hereby give the Government fair notice that should my ruling be upheld,this order will go into effect forthwith. Accordingly, I fully expect that during the appellate process, which will consume at least the next six months, the Government will take whatever steps necessary to prepare itself to complyh with this order when, and if, it is upheld. Suffice it to say, requesting further time to comply with this order months from now will not be well received and could result in collateral sanctions..."
Not included in that debate between Senator Feinstein and Judge Leon, is the "Maplight" factor, which examined campaign contributions to members of the intelligence committee by businesses which had been granted contracts by the National Security agency. While this is not illegal, it calls into question the ethics, morals and motives of those serving on intelligence oversight committees, which are tasked with monitoring and controlling intelligence activities by contractors and the National Security Agency.
The article (which you can see HERE) reports that companies "....receiving intelligence contracts are major donors to members of the intelligence committees, including L-3 Communications, General Dynamics, Lockheed Martin, Northrop Grumman, and Honeywell International...Campaign contributions amount to $3.7 million.
Another article in Maplight, by Donny Shaw reveals that Senator Feinstein has received 3 times more money from top intelligence service contractors than Senator Patrick Leahy of Vermont. (See that breakdown HERE)...
"...Feinstein has continually defended the legality of the phone records program and at a hearing earlier this month said, 'I will do everything I can to keep this program from being cancelled out...to destroy it is to make this nation more vulnerable.'..."
Feinstein asserts further that in spite of Judge Leon's ruling:
"...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.”
Still another factor is President Obama's recent appointment of Patricia Millet to the Appeals Court for the District of Columbia, which rules on the legality of White House actions and federal agency regulations, an appointment that gives that court a 5-4 majority in favor of Democrat appointments.
Another possible twist in they dynamics of this development is that the political "Left" has demonstrated noticeable opposition to NSA spying programs, and may add its argument and political force toward getting the unconstitutionality of the NSA programs upheld.
Vanguard of Freedom