An attorney suing the federal government over the National Security Agency’s spy programs says the Obama administration is delaying and obstructing the court, and a default judgment against the individual defendants would be an appropriate remedy.
The case was brought by attorney Larry Klayman in U.S. District Court in Washington over the NSA’s PRISM spy program that gathers details about the telephone calls and contacts of innocent Americans.
Citing the privacy provisions of the U.S. Constitution, the case demands a halt to the violations along with damages.
Klayman’s new motion “for entry of default” against President Obama, Attorney General Eric Holder and others is based on the new statement by the government that its answers are not on behalf of the defendants as individuals.
The government argued that the defendants “retain their rights, upon being served, to plead separately and to raise any defenses available to them.”
But the defendants already were served, in both public and individual capacities, Klayman says court records show.
“Attached is an affidavit (Exhibit 1) confirming that service was made on the individual government defendants in all capacities, both official and personal. Indeed, the served complaint sets forth that they are being sued in their individual and professional capacities, and each individual defendant thus had additional notice of this when each was served.”
He noted that when the Obama Justice Department informed the court it was representing the defendants, it “made no distinction about service in both capacities and subsequent pleadings also bear this out.”
“It stands to reason that when an individual government defendant receives the complaint, he or she is served in both capacities, especially when the complaint specifically states so,” Klayman said.
“The Obama Justice Department is playing its usual game, which has been to try to delay, obstruct and throw a monkey-wrench into every aspect of this case, which as the court has observed is a matter of ‘pinnacle’ national importance,” he told the court.
Klayman also faults the government for claiming it cannot respond to questions because the matters are secret for national security reasons.
“In fact, in over eight places in the government defendants’ answer, the government’s lawyers spurn this court by hiding behind classified national security information claiming ‘Government defendants can neither admit or deny’ many of the plaintiffs’ allegations, ‘without revealing or tending to reveal classified national security information that is subject to protection from disclosure of law.’”
Klayman insisted the government’s national-security claims are invalid.
“It seems that the government defendants conveniently forget that this court has a security clearance and that if indeed there are legitimate national security issues, the government defendants should have responded to the court with an in camera answer, in addition to the public one,” he wrote.
He called the argument an “obvious subterfuge” and said the defendants are using it to withhold “vital information necessary for this case to move forward and are again showing a disrespect not just to this court, but the entire judicial system.”
Klayman said, “Apparently, they think they can make up, as it suits them, the Federal Rules of Civil Procedure, and ignore the admonitions of this court at the status conference/hearing of Feb. 3, 2014.”
WND reported only days earlier that Klayman warned the Obama administration was 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,” 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.”
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.