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December 17, 2013

Judge's word on NSA program won't be the last

WASHINGTON (AP) — A federal judge made headlines Monday by declaring that the National Security Agency's bulk collection of millions of Americans' telephone records is likely unconstitutional. But even he realized his won't be the last word on the issue.

U.S. District Court Judge Richard Leon put his decision to grant an injunction against the NSA on ice, predicting a government appeal would take at least six months. He said he was staying the ruling pending appeal "in light of the significant national security interests at stake in this case and the novelty of the constitutional issues."

Even after the appeals court rules, the Supreme Court will probably have the last word.

"This is the opening salvo in a very long story, but it's important symbolically in dispelling the invincibility of the metadata program," said Stephen Vladeck, a national security law expert at the American University law school.

Vladeck said 15 judges on the Foreign Intelligence Surveillance Court have examined Section 215 of the USA Patriot Act, the provision of law under which the data collection takes place, without finding constitutional problems. "There's a disconnect between the 15 judges on the FISA court who seem to think it's a no-brainer that Section 215 is constitutional, and Judge Leon, who seems to think otherwise."

Vladeck said there is a long road of court tests ahead for both sides in this dispute and said a higher court ultimately could avoid ruling on the big constitutional issue identified by Leon. "There are five or six different issues in these cases," Vladeck said.

Robert F. Turner, a professor at the University of Virginia's Center for National Security Law, predicted Leon's decision was highly likely to be reversed on appeal. He said the collection of telephone metadata — the issue in Monday's ruling — already has been addressed and resolved by the Supreme Court.

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