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WASHINGTON — “I just denied your motion to dismiss,” U.S. District Court Judge Richard Leon told Department of Justice attorney Marcia Berman.
“Do you understand that?” he asked, speaking slowly and deliberately, apparently straining to keep his patience.
The judge appeared frequently perplexed by Berman’s explanations Monday afternoon in the federal courtroom as to why the government was not prepared to argue its case after filing a motion three weeks ago asking him to halt further proceedings while appeals go forward in the nation’s biggest spy case.
Leon had already ruled in December that the National Security Agency had probably violated Americans’ Fourth Amendment rights against unreasonable search and seizure with its PRISM program.
Monday, the two sides in the case were to argue over whether the NSA had also violated First Amendment rights to free speech and Fifth Amendment rights to due process.
The plaintiff’s attorney, Larry Klayman, announced Monday he has filed a request with the U.S. Supreme Court, asking it to leap-frog the appeals court and decide for itself the question of whether the NSA violated Fourth Amendment rights. Additionally, Klayman agreed last week to drop Verizon as a defendant.
The government attorneys apparently took those developments to mean they would not have to argue the remaining constitutional issues Monday, those involving possible violations of the First and Fifth Amendments.
After the seemingly astonished judge informed Berman that he was denying the government’s motion for dismissal of the case, he chided her that the government had put itself in position where it could be declared in default.
Leon then slowly and deliberately asked the Justice Department attorney, “So, when are you going to answer the complaint?”
Berman said Monday, and Leon accepted that.
Adding to the somewhat unusual circumstances of the trial was the fact the defense table was crowded with five Justice Department attorneys and one from Verizon, while Klayman sat all alone at the plaintiff’s table.
That did not seem to perturb Klayman, who told WND he is confident he will win “because the American people are on our side.”
He said Leon essentially told the government to “quit dragging your heels, and get the show on the road.”
Klayman said the government is employing delaying tactics in the hope events overtake the proceedings.
In December, when Leon ruled the NSA’s mass collection of phone data was probably unconstitutional, he ordered the agency to stop collecting such data on Klayman and Charles Strange, the father of a Navy SEAL killed in action in Afghanistan.
Leon ruled that the Foreign Intelligence Surveillance Act, or FISA, contains no language expressly barring any third-party challenges to FISA court orders. That meant that Klayman’s clients had standing to bring such a lawsuit and dispute the constitutionality of the NSA spying program, something the government disputes. That’s when Leon also ruled the government had likely violated the Fourth Amendment’s prohibition on unreasonable searches and seizures.
Klayman’s lawsuit was filed after former NSA contractor Edward Snowden revealed a FISA court order that allowed the government, under a provision of the Patriot Act, to require Verizon to provide data on all calls made on its networks within the U.S. and between the U.S. and a foreign country.
Klayman has also filed class-action claims on behalf of all U.S. citizens who are Verizon subscribers, saying the government has violated their First, Fourth and Fifth Amendment rights.
He previously told WND, “This is a further attempt to keep information about the biggest violation of the Constitution in American history from the American people. It’s an outrage,” he said.
He said the Obama administration has the perspective of “heads I win, tails you lose,” and its attitude is “we control all the information and the American people be damned. They don’t have rights.”
“It’s important for the American people to see how the government treats them and views them. We’re nothing more than rabble,” he said.
The government’s motion argued: “further litigation of plaintiffs’ challenges to the conduct of these programs could well risk or require disclosure of highly sensitive information about the intelligence sources and methods involved – information that the government determined was not appropriate for declassification when it publicly disclosed certain facts about these programs.”
But in court on Monday, Klayman argued that there are many ways the government could provide him access to NSA information needed for the trial without endangering national security, including conducting all such proceedings in private with a judge or government official presiding.
The attorney said he had done that previously, with a CIA employee monitoring the information he learned while pursuing a case about possible Chinese spying.
The Justice Department had argued that if the trial proceeded, “Further litigation of this issue could risk or require disclosure of classified national security information, such as whether plaintiffs were the targets of or subject to NSA intelligence-gathering activities, confirmation or denial of the identities of the telecommunications service providers from which NSA has obtained information about individuals’ communications, and other classified information.”
But that’s exactly the point of his lawsuits, Klayman said. They were filed to find out the details of the programs and whether the government, in its alleged pursuit of information about terror activities, has been violating the constitutional assurances of Americans’ privacy.
Follow Garth Kant on Twitter @DCgarth