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A check on power

Published December 18. 2013 4:00AM

Monday's decision by a federal judge concerning the National Security Agency's out-of-control electronic surveillance program once again demonstrates the effectiveness of the system of checks and balances constructed by the framers of the U.S. Constitution to protect the rights outlined in that document.

While the executive branch continues to rationalize the surveillance of the phone records of virtually every citizen and Congress chooses not to intervene, Judge Richard J. Leon of the Federal District Court for District of Columbia finally pointed out the obvious - the program is an outrageous encroachment on liberty.

The Fourth Amendment secures the "right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches," permitting such searches only with the issuing of a warrant based on "probable cause" of criminal behavior.

The NSA's "metadata" program sifts through all phone and other electronic communications - numbers dialed and dates - looking for patterns and connections that might suggest a terrorist conspiracy. Everyone is a suspect.

"I cannot imagine a more 'indiscriminate' and 'arbitrary' invasion' of that 'degree of privacy' that the founders enshrined in the Fourth Amendment," Judge Leon wrote.

His is not a final ruling. Instead, the judge approved an injunction sought by several plaintiffs, led by conservative legal activist Larry Klayman, to stop the surveillance of their communications. Recognizing that the constitutional issues raised by this and other legal challenges are headed for the U.S. Supreme Court, Judge Leon stayed his decision pending the government's appeal.

Justice Department lawyers tried to argue that the 1979 Supreme Court decision in Smith v. Maryland, which concluded law enforcement could use phone company records as evidence without violating caller privacy rights, allows the NSA program. Judge Leon rejected that contention, noting the broad scope of the NSA surveillance and advances in technology make it "a far cry" from the 1979 robbery case.

Indeed, in a 2012 decision finding it unconstitutional for police to plant GPS tracking devices to monitor an individual's movements, five Supreme Court justices questioned the validity of the 1979 decision, noting technological changes.

To protect constitutional rights, the Supreme Court should use this and other related decisions to rein in the abusive surveillance program.

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