A legal challenge to the National Security Agency’s program of spying on Americans has received the support of two privacy-rights heavyweights, the American Civil Liberties Union and the Electronic Frontier Foundation.
Attorney Larry Klayman, founder of Freedom Watch and a columnist for WND, previously obtained a stunning preliminary ruling by a district court judge that the NSA surveillance likely is unconstitutional.
The case has been advanced to the U.S. Court of Appeals for the District of Columbia Circuit, and the two organizations have filed a friend-of-the-court brief in support of the district court ruling.
“The call records collected by the government are not just metadata – they are intimate portraits of the lives of millions of Americans,” the brief states.
The data, it says, “reveals political affiliation, religious practices and peoples’ most intimate associations.”
“It reveals who calls a suicide prevention line and who calls their elected official; who calls the local tea-party office and who calls Planned Parenthood.”
The brief says, “the relevant fact for whether an expectation of privacy exists is that the comprehensive telephone records the government collects – not just the records of a few calls over a few days but all of a person’s calls over many years – reveals highly personal information about the person and her life.”
The brief cites a previous study of volunteers in which analysts, using metadata over a short period of time, were able to identify who was considering an abortion, who had a heart condition, who had multiple sclerosis and who owned which brand name of handgun.
Klayman sued the NSA over the collection of telephone metadata from Verizon customers that was detailed in documents released by intelligence-document leaker Edward Snowden. In December 2013, U.S. District Judge Richard Leon issued a preliminary ruling that the program was likely unconstitutional, and the case is currently on appeal before the U.S. Court of Appeals for the District of Columbia Circuit.
“Metadata isn’t trivial,” EFF Legal Fellow Andrew Crocker said. “Collected on a massive scale over a broad time period, metadata can reveal your political and religious affiliations, your friends and relationships, even whether you have a health condition or own guns. This is exactly the kind of warrantless search the Fourth Amendment was intended to prevent.”
The brief explains that changes in technology and the government’s new emphasis on mass surveillance mean that “the holding of the 1979 Supreme Court case Smith v. Maryland that the government relies on (often called the ‘third-party doctrine’) does not apply.”
“Dragnet surveillance is and has always has been illegal in the United States,” said ACLU spokesman Alex Abdo. “Our country’s founders rebelled against overbroad searches and seizures, and they would be aghast to see the liberties they fought hard to enshrine into our Constitution sacrificed in the name of security. As even the president himself has recognized, we can keep the nation safe without surrendering our privacy.”
Klayman had asked for a court hearing to “ascertain why the government and individual defendants have made material misrepresentations and material omissions of fact.”
Klayman’s case challenged the constitutionality of the NSA and CIA surveillance programs targeting American citizens who have no connection to terrorism. President Obama and Attorney General Eric Holder also are defendants in the case.
Klayman said he was filing a variety of motions now that the U.S. Supreme Court has declined to conduct an early review of the historic ruling by Leon that enjoined the government from collecting data from hundreds of millions of Americans.
The motion notes that while the government alleged it stopped accessing and reading the Internet metadata of American citizens in 2011, Sen. Ron Wyden, D-Ore., said in a March 28 letter, citing National Intelligence Director James Clapper, that the government is accessing not only Internet data content under the so-called PRISM program but also the Internet metadata.
“Thus, in order to deceive this court, plaintiffs and the American people, the government and individual defendants have been playing a shell-game,” Klayman’s motion charged.
The government falsely stated that it ceased accessing Internet metadata and other data, the brief asserts, but it’s now clear through Clapper’s admissions to Wyden “that they simply moved this unconstitutional metadata collection violation of the Fourth, First and First Amendment rights over to their continuing PRISM program.”
The brief charges “the defendants simply cannot be believed,” stating it’s “now documented fact that the defendants, by and through the Obama Justice Department, headed by Attorney General Eric Holder, have lied to this court.”
Klayman had wanted to leapfrog a middle appellate level court and go directly to the U.S. Supreme Court for a quick resolution on the spy programs. But the high court passed the controversy back to Leon, declining to put the case on a fast track for review, and putting the case on track to the appeals court.
Leon stayed his ruling, but the motions now seek to have the stay lifted and the original ruling applied to the government.
Klayman, a former Justice Department prosecutor, said it’s important for the sake of the American people and the plaintiffs to resolve the case as soon as possible.
“Even one day more of these Orwellian violations of our constitutional rights is too much, as this illegal surveillance is a means for the government to coerce and enslave the populace into submission to the rule of establishment politicians of both political parties,” he said.
“For anyone who challenges the authority of this ruling class is subject to being destroyed with the government’s use of the most private of information. Thus, the stakes are high and we intend to win this battle for all Americans.”
Leon’s decision deemed the collection of data from innocent Americans “almost Orwellian” and almost certainly a violation of the Fourth Amendment.