It was only last Friday when an appeals court dissolved the historic preliminary injunction against the National Security Agency (NSA) and government officials issued in my lawsuit against mass surveillance of hundreds of millions without a warrant. That news spread fast even while I finalized last week’s column for WND. Being fortunate to be one of the plaintiffs in that lawsuit and the attorney, I am now pleased this week to share “the rest of the story.”
Since Friday, news coverage – often without the benefit of legal expertise – spread a false narrative. USA Today blared the misleading headline, “Court allows NSA sweep of phone records.” White House Press Secretary Josh Earnest said the appeals court ruling is “consistent with what this administration has said for some time, which is that we did believe that these capabilities were constitutional.”
In fact, the U.S. Court of Appeals for the District of Columbia Circuit did not reach any decision about the surveillance programs or their constitutionality. After two years of inexcusable delay, the D.C. Circuit dissolved the injunction – but allowed our lawsuit to continue – with issues over “standing.” Again, our lawsuit continues, including an opportunity for us to add to the evidence on standing.
Rumors of our lawsuit’s end are greatly exaggerated and false, spread by the Obama White House and its friends in the leftist media. Within days of Friday’s decision, I boarded a “red eye” flight to appear before the Honorable Richard J. Leon, the courageous judge who issued the preliminary injunction, in a status conference within a few blocks of the U.S. Congress. Judge Leon called the hearing to plan and manage the next steps.
Judge Leon explained that he already has sufficient evidence to move forward: “Look, this court has ruled. This court believes, and anyone who’s read its ruling knows this, that there are millions, millions of Americans whose constitutional rights have been and are right now being violated. Tens if not hundreds of millions. But the window that’s remaining for action is very small in the world of law. …”
Judge Leon sought to manage the next steps. He reminded us that the trial judge does not have jurisdiction until the case is officially returned from the appeals court. That normally takes about 52 days, because appellees might want to appeal to the U.S. Supreme Court or request en banc review. Judge Leon wanted to know whether I will appeal. If not, he wants the case handed back to him – pronto.
Thanks to public pressure, Congress did not reauthorize the surveillance programs. They expire on Nov. 29. But Judge Leon clearly realizes that he must issue a new preliminary injunction before then to ensure this doesn’t happen again. The NSA initially was conducting the illegal surveillance without any statutory basis. Judge Leon can base the preliminary injunction directly on the U.S. Constitution. And without such a ruling, there is nothing to stop “Big Brother” from sneaking its way back into domestic surveillance behind closed doors.
Judge Leon warned, “I am not going to allow, if I can help it, any misimpression or impression that the government is trying to run out the clock here.” He asked about our plans to amend the lawsuit. The D.C. Circuit doubted whether I, Charles Strange and Mary Ann Strange (parents of SEAL Team 6 member Michael Strange, killed during the “Extortion 17” helicopter mission) have standing as customers of Verizon Wireless. Edward Snowden revealed an order from the Foreign Surveillance Intelligence Court to Verizon Business Network Services ordering domestic surveillance of U.S. citizens – but the Obama administration is playing games. So if we now add customers of Verizon Business Network Services to the lawsuit, that will remove all doubt about standing, without question or debate. That will instantly short-circuit the D.C. Circuit’s decision – before Nov. 29 when the USA Freedom Act replaces the current law. This new Act attempts to leave telephonic metadata in the hands of the phone companies. But with the NSA’s documented lawlessness, no law can restrain the spy agency from breaking the law. That’s why we need a preliminary and later a permanent injunction, so if the NSA and Obama and company, and any future president breaks the law, Judge Leon can come down on them and hold them in criminal contempt.
The judge explained the status of the situation: “Because if this court finds jurisdiction, I don’t have to write another opinion on the Constitution – on the merits of the constitutional issue. It’s been written. It has been written. Look, look. This court ruled on this issue. To this court, it is beyond even common sense that Verizon Wireless was involved. The government’s admission was that they were intending to create a program to capture the metadata of all cell phone users in the United States. How could you have such a program without capturing the metadata of the second-largest provider of cell phone services in the United States? Of course it had to be … [that Verizon Wireless was also included.]”
Judge Leon further stated to the packed courtroom: “I do not agree that that is – I will apply the law as the D.C. Circuit Court has ruled, obviously. That is my obligation and my duty.
“But it seems to me that the government can’t have it both ways. They have acknowledged the existence of a program that was designed to harvest the metadata of all cell phone users in the United States. And to argue that the second-largest provider, which provides, I don’t know, 40 million or 30 million customers or something like that, was not, you know, participating in that program is just simply not a reasonable conclusion.”
So Judge Leon is convinced that Mr. and Mrs. Strange and I do in fact have standing as users of any Verizon company.
How can Americans believe in a democracy in which the government can spy on our deepest secrets at will? How can there be a true constitutional republic governed by the people when the people are vulnerable to the powers that be?
How can we be sure if Supreme Court Justice John Roberts was not influenced or even subtly intimidated in some of the inexplicable cooked decisions in recent years, such as ruling Obamacare constitutional? How can we be confident that even the D.C. Circuit did not drag its feet for two years out of fear that the NSA might dig up dirt on them if they did not roll over to the spy agency? Can we live in a society that does not recognize “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”? Of course not, and that is why Judge Leon is a “judge’s judge,” one who fearlessly puts the interests of the American people ahead of fear that the NSA and other intelligence agencies will destroy him if he does not, like other compromised judges have in the past by rubber stamping and validating the agency’s felonious conduct.
Media wishing to interview Larry Klayman, please contact [email protected].