McCarthy: Judge’s Decision Striking NSA Program Will Not Stand

Here at Ordered Liberty in late July, I opined that the national-security right was losing the debate over the National Security Agency’s controversial telephony “metadata” program. On Monday, a federal district judge in Washington ruled that the program violates the Fourth Amendment and must be dismantled. The decision, naturally, prompted standing ovations from our counter-counter-terrorism cognoscenti. The applause will fade rapidly.

Judge Richard Leon’s 68-page opinion is lawless – long on populist vent, short on jurisprudence. It is likely to have no substantive effect: Leon stayed his ruling until it can be reviewed by the D.C. Circuit Court, which shouldn’t need more than a nanosecond to reverse it. That is not because the appellate judges will be unsympathetic to the concerns that animate Judge Leon. It is because lower federal courts are honor-bound to follow controlling Supreme Court precedents, a duty the D.C. Circuit is apt to take more seriously than did Judge Leon.

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