Judge Downplays Threat of Government Surveillance

WASHINGTON (CN) - A D.C. Circuit judge applauded his colleagues in refusing to hold an en banc rehearing of the U.S. government surveillance program found unconstitutional.

Though U.S. District Judge Richard Leon has now found twice that the National Security Agency's collection of cellphone metadata is unconstitutional, the D.C. Circuit has blocked both rulings from taking effect.

Last week, one of the challengers to the government's program in Washington, conservative legal activist Larry Klayman petitioned the D.C. Circuit to review the stay en banc, saying "even one day that the Constitution is violated is one day too much."

The D.C. Circuit shot the request down with little fanfare Friday.

Judge Brett Kavanaugh wrote in a brief concurring opinion that he denied the emergency petition because he finds that "the government's metadata collection program is entirely consistent with the Fourth Amendment."

With the challengers unlikely to show success on the merits, Kavanaugh said his court "was right to stay the District Court's injunction against the government's program."

Of critical importance to Kavanaugh is the fact that the Fourth Amendment bars "only unreasonable searches and seizures." (Emphasis in original.)

"The Fourth Amendment allows governmental searches and seizures without individualized suspicion when the Government demonstrates a sufficient 'special need' - that is, a need beyond the normal need for law enforcement - that outweighs the intrusion on individual liberty," Kavanaugh added.

In this case, "preventing terrorist attacks on the United States" is the special need the government serves by collecting communications metadata, the judge said.

For Kavanaugh, any privacy intrusion fails to outweigh "that critical national security need."

"The government's program does not capture the content of communications, but rather the time and duration of calls, and the numbers called," the opinion continues.

Any policy arguments regarding the government's program remain up to Congress and the executive branch to decide, Kavanaugh added.

"Those institutions possess authority to scale back or put more checks on this program, as they have done to some extent by enacting the USA Freedom Act," he wrote.

Congress passed the USA Freedom Act in June to stop the government from obtaining bulk telephone metadata, beginning Nov. 29. Before that deadline, however, the government can continue its old collection habits under the Patriot Act.

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