WASHINGTON — U.S. District Court Judge Richard J. Leon recognized the gravity of the situation Monday, as he considered whether to bring an end to the federal government’s high-tech spy program probing the lives of even ordinary Americans.
Former Justice Department Attorney Larry Klayman had filed a request for a preliminary injunction that would have halted the National Security Agency’s PRISM program, which the government insists is essential to national security.
That’s why the judge said, “I’m not kidding myself, no matter how I rule, it’s going to end up in the Court of Appeals and probably the Supreme Court.”
So, instead of ruling then and there, Judge Leon gave both sides a week, until next Tuesday, to consider their arguments and to decide if there were anything they wish to add.
NSA spy program could be halted
Klayman’s suit is the first to challenge the legality of the NSA spy program.
He claimed the program violates the privacy rights of over 300 million citizens by accessing their cell phone, Internet and social media communications without considering whether they have any connection to terrorists or terrorism.
One NSA program supposedly targets foreign terrorists but still collects domestic telephone records. A separate program that Klayman is also challenging collects cell phone and computer data from major wireless companies and Internet service providers.
A preliminary injunction could shut down those NSA operations until a trial is held.
Klayman’s case was filed after whistleblower Edward Snowden revealed the massive extent of the NSA’s spy program, and questions were raised about whether the Foreign Intelligence Surveillance Act, or FISA, court was adequately monitoring the NSA.
2 key points
The case revolves around two key points.
One is whether sufficient harm was done to the plaintiffs by NSA spying.
The other is whether a District Court has jurisdiction, or the power to rule, in a case involving a FISA court. The FISA court meets in secret and decides whether to grant government requests for spy activities.
Justice Department lawyer James Gilligan said the District Court does not have the authority to decide this case. He said only the FISA court and the Supreme Court have that authority.
Gilligan also said Klayman can not prove the NSA looked at his phone or Internet records.
Judge Leon said biggest question was whether his court does have jurisdiction, and that he felt Congress had indicated he doesn’t.
Klayman replied that Congress did not mean to leave individuals with nowhere to turn, if the government illegally spied upon them, and therefore the judge had the authority to rule in this case.
“Is it really that simple?” asked Leon.
Klayman stated simply, “It is.”
Klayman also accused the government of having a long history of lying to FISA courts to get the information it wants.
And, he noted, his clients have no right to attend FISA hearings, so “this is the only court we can be in.”
Klayman called the judge “the last guard … the last sentry to the tyranny in this country.”
Government ‘trying to intimidate us’
Charles and Mary Anne Strange have joined the class-action suit, which seeks billions in damages.
Their 25-yer-old son, Michael, was an NSA cryptologist supporting a SEAL Team VI mission called Extortion 17 when they were shot down by the Taliban on Aug. 6, 2011.
The Stranges and Klayman have filed a separate lawsuit accusing Vice President Joe Biden and Defense Secretary Leon Panetta of revealing that SEAL Team VI carried out the operation that killed Osama bin Laden, making the team vulnerable to retaliation.
When Judge Leon asked Klayman why he thought the NSA would be interested in him and his clients, he said, “I believe the government is trying to intimidate us.”
Klayman said his defendants received emails from him that he never sent, and even a text from their dead son. The attorney speculated the NSA was sending them a message that they could do whatever they want.
The former Reagan administration Justice Department attorney noted he had been highly critical of the current administration, and during Monday’s hearing, even charged that Americans are now effectively live in a police state.
Access by low-level personnel?
He told the judge the Patriot Act was never intended to allow the government to sweep up American’s emails and social media messages.
The case challenges the NSA’s ability to “systematically gather, intercept and analyze vast quantities of telephonic and online ‘metadata’ of U.S. citizens.”
As WND reported, the administration claims the data collected is limited to phone calls and email records and not the content of those transmissions, but Rep. Jerrold Nadler, D-N.Y., said he was “startled” to learn in a secret congressional briefing how NSA analysts can decide for themselves whether to access the content of a domestic phone call.
“If low-level personnel are using PRISM in this way, one can only imagine what high-level political appointees and supervisors are doing and are capable of doing on behalf of the Obama administration,” Klayman said.
Judge: ‘Government holds all the cards’
The judge asked the government attorney what should happen if a decision by a FISA court judge violated the rights of a citizen – would Leon’s District court not have the authority to take on such a case?
Gilligan said perhaps, but claimed the defendants had offered no proof that any of their information had been collected by the government.
But, the judge asked quizzically: How can it be determined if the NSA had spied on anyone, since the “government holds all the cards”?
The government attorney replied the Supreme Court had ruled it is the plaintiff’s burden to prove they had been harmed in such cases, and that if they had suffered no abuse, they had no reasonable expectation of privacy
The judge pointed out that ruling had been made in 1979 and “things have changed an awful lot since then.”
He advised the government attorneys to look a recent Supreme Court ruing on a GPS case in which they “signaled concern over the privacy to individuals, even those who have committed criminal offenses.”
Spy data provides vivid profiles of Americans
Leon also noted that GPS technology pales in comparison to what is used by the NSA.
The judge further observed that even “metadata” – information such as someone’s location, spending habits and so forth – could be used to create a vivid profile of a person.
Gilligan replied, nonetheless, the 1979 case was still the law of the land and that, even back then, a list of numbers could be very revealing, something that was considered at the time.
He added, that to gain access to the actual content of information, the government had to prove to a FISA court a reasonable suspicion of wrongdoing.
He called it “very intricate oversight.”
But, the judge disagreed, saying the FISA courts did not have the capacity to oversee anything – only to approve or deny requests to collect information.
Gilligan said if there is any failure to comply, the government must report it to the FISA court.
“Like the girlfriends issue?” the judge asked, referring to a revelation in August that about a dozen NSA employees had spied on love interests or spouses.
Gilligan said those were isolated incidents, and “most” of those involved had been disciplined.
Congressman: No authority to collect phone records
After the hearing, Klayman told WND he was satisfied with what had happened in court Monday and with the judge’s line of questioning.
Among the critics of NSA actions has been Rep. Jim Sensenbrenner, R-Wis., who authored the Patriot Act. He explains that law does not give the NSA authority to collect he phone records of all Americans, as has been happening.
He’s sponsoring legislation to specifically ban that.
Nick Dranias of the Goldwater Institute’s Center for Constitutional Government told US News that Leon likely has the judicial authority to review secret FISC cases.
“I don’t think the court should have any problem taking jurisdiction over this,” Dranias told US News. “I would think you could make a pretty plausible argument that a genuine full-fledged Article III court would have primary jurisdiction over constitutional issues, particularly when you have real litigation going on, as opposed to a more administrative judicial role.”
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