Argument: Constitutional Ruling On Metadata Unnecessary

While there has been a lot of celebration of Judge Leon's opinion that the National Security Agency's collection of telephone metadata likely violates the federal Constitution, Just Security's Steve Vladek argues that the district judge faces being reversed by the D.C. Circuit on his holding that the plaintiffs’ Administrative Procedure Act "claim (challenging the metadata program on statutory grounds) is precluded by section 215 itself."

The result? "Then that will bring the statutory question to the fore–for the Court of Appeals to either decide as a matter of first impression or send back to Judge Leon," Vladek writes. "And if, as many (including me) believe, the program can’t be reconciled with the statute, then we’ll end up in the same place (the program in its present form will be enjoined), without ever having to answer the thorny and far more far-reaching Fourth Amendment question concerning twenty-first century expectations of privacy in metadata."