Under wraps

Judge Leon’s decision is important for at least two reasons. First, it shows the inadequacy of the secret, one-sided review that has until now been the NSA program’s only oversight. From 2006 to 2013, fifteen different judges on the secret Foreign Intelligence Surveillance Court reviewed the program and every one of them deemed it lawful. But they did so in proceedings closed to the public, and in which they heard from no one representing the hundreds of millions of Americans whose privacy is at stake. Now that the program has been disclosed and subjected for the first time to public adversarial testing, it has been declared unconstitutional. Secret, one-sided proceedings are rarely a good way to decide fundamental issues of constitutional rights. 

The New York Review of Books: The NSA on Trial, December 18, 2013 

If nothing else, Judge Leon’s decision was a powerful critique of the secret court that supervises the program. He noted that 15 judges of the court, the Foreign Intelligence Surveillance Court, have issued 35 orders authorizing it, even as the government “repeatedly made misrepresentations and inaccurate statements about the program.”

Barry Friedman, a law professor at New York University who is at work on a book on the Fourth Amendment, said that only Judge Leon’s work was worthy of a federal judge.

“Judge Leon’s reads as though there is a living, breathing, thinking person behind it,” he said. “Right or wrong ultimately, it is full of detail, real-world fact and serious consideration. The FISA court opinions are lifeless. They read like a machine wrote them.” 

NY Times: After Ruling Critical of N.S.A., Uncertain Terrain for Appeal, December 17, 2013