Plaintiffs in a case challenging the U.S. government’s programs that spy on innocent Americans have submitted a special supplement to the court, pointing out that the Obama administration has been caught spying even on confidential attorney-client communications – and then providing “false representations” to the court.
“After the … pleading was filed on Feb. 12, 2014, further disclosures concerning the government defendants’ abuses of the National Security Agency’s PRISM program … were revealed and disclosed to the public,” attorney Larry Klayman told the U.S. District Court in Washington.
“Specifically, James Rosen, one of the nation’s premier national security reporters and his colleague Laura Poitras, published an article in the New York Times last Saturday, Feb. 15, 2014, entitled ‘Spying BY N.S.A. Ally Entangled U.S. Law Firm.’”
That posting, Klayman told the court, “revealed through documents provided to Risen and Poitras by whistleblower Edward Snowden that, contrary to the false representations of the government defendants in this case and to Congress and other courts, the overseas calls of lawyers such as Plaintiff Klayman are being intercepted and monitored.”
Klayman brought his case to court late last year, challenging the NSA operations that detect and record data from telephone calls by Americans. In December, when Judge Richard 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 also 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.”
In an interview with the Daily Beast, James Clapper, director of national security, said the problems largely could have been avoided.
“I probably shouldn’t say this, but I will. Had we been transparent about this from the outset right after 9/11 – which is the genesis of the 215 program – and said both to the American people and to their elected representatives, we need to cover this gap, we need to make sure this never happens to us again, so here is what we are going to set up, here is how it’s going to work, and why we have to do it, and here are the safeguards … we wouldn’t have had the problem we had.”
Klayman 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.
In the newest motion, Klayman noted the New York Times report documented, “The list of those caught up in the global surveillance net cast by the National Security Agency and its overseas partners, from social media users to foreign heads of state, now includes another entry: American lawyers.”
The report continued, “A top-secret document, obtained by the former NSA contractor Edward J. Snowden, shows that an American law firm was monitored while representing a foreign government in trade disputes with the United States. The disclosure offers a …. specific instance in which Americans were ensnared by the eavesdroppers, and is of particular interest because lawyers in the United States with clients overseas have expressed growing concern that their confidential communications could be compromised by such surveillance.”
Klayman told WND that he has been involved in such business transactions himself over the years.
“Plaintiffs are submitting this supplement to give the government defendants notice of this newly revealed information so they can address it, if they so desire, in any responsive pleading,” Klayman wrote to the court. “It is thus clear that standing exists, as it does with telephonic metadata. In any event, discovery in this case will bear out the accuracy of the disclosures contained in the New York Times, and even without discovery at this stage of the proceeding with regard to the government defendants’ partial motion to dismiss, the allegations of the Second Amendment Complaint – notwithstanding what has now come to light in the New York Times disclosures – must be accepted as true.”
A copy of the Times report was included in the filing, and it explained that the government of Indonesia had retained a law firm for help in trade talks, and “the NSA’s Australian counterpart, the Australian Signals Directorate, notified the agency that is was conducting surveillance of the talks, including communications between Indonesian officials and the American law firm, and offered to share the information.”
The Times reported, “The NSA is prohibited from targeting Americans, including businesses, law firms and other organizations based in the United States, for surveillance without warrants, and intelligence officials have repeatedly said the NSA does not use the spy services of its partners in the so-called Five Eyes alliance – Australia, Britain, Canada and New Zealand – to skirt the law.”
It continued, “Still, the NSA can intercept the communications of Americans if they are in contact with a foreign intelligence target abroad, such as Indonesian officials.”
The government has been arguing that the case should be thrown out.
But Leon, in the most recent hearing, refused a request from Department of Justice attorney Marcia Berman.
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.
The Justice Department has 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.