On Thursday, the fight to preserve democracy and hold government accountable to the people was unfolding in Courtroom 18 of the U.S. District Court for the District of Columbia, four blocks from the Congress. I argued to the court our request for a preliminary injunction to immediately halt the government from spying on you and hundreds of millions of other U.S. citizens. I am pleased to say that I believe we are going to win this for the American people. We expect a decision within a week to 10 days.
Sometimes liberty, the rule of law and a constitutional republic must be won with muskets along the road from Boston to Concord. Sometimes the battle is fought with pen and paper and constitutional arguments. We infinitely prefer the latter, but it is becoming harder and harder to see how anyone can be counted on to preserve our constitutional republic. Few officials in any of the three branches want or seem to remember what their job actually is. Instead, they spend their days lining their own pockets with cash from lobbyists and others. Those few who remain faithful to the Constitution represent our only hopes.
On Oct. 8, I argued once again that the Fourth Amendment of the Constitution is violated by government spying indiscriminately on U.S. citizens within the domestic United States, without a warrant or probable cause. Therefore, I called for the court to strike down as unconstitutional part or all of the new USA Freedom Act as well as Section 215 of the USA Patriot Act.
Our Oct. 8 hearing was before the Honorable Richard J. Leon, who bravely issued the exact same injunction on Dec. 16, 2013. However, on Aug. 28, 2015, Judge Leon’s injunction was overturned by the U.S. Court of Appeals for the District of Columbia Circuit (it had been stayed) after two years of inexcusable foot-dragging. The D.C. Circuit claimed that only customers of Verizon Business Network Services would have standing. So we added as plaintiffs customers of Verizon Business Network Services, although new evidence also shows that Verizon Wireless, which is used by the other plaintiffs, is also involved. And we asked for the preliminary injunction to be ordered back in place, now that the standing issue has been resolved.
Since Judge Leon has already decided this once, he should issue the same order again now. There is a principle called the “law of the case.” The same question presented in the same lawsuit twice should not produce two different results. Applying governing precedents, Judge Leon should decide the same request for a preliminary injunction the same as he did in 2013.
Yet in Thursday’s hearing, we saw our government’s, now run by President Barack Hussein Obama, insatiable appetite to spy on all of us and collect information on its citizens on display ala George Orwell’s “1984.” We can’t forget that it is always possible for law enforcement to get a search warrant or wiretap authorization in any case where there is a legitimate reason to suspect someone of terrorist involvement. Yet the Obama administration is fighting to be able to spy on all Americans without going through the courts. Clearly, the issue is not fighting terrorism, but whether the National Security Agency can ignore the role of the courts.
Lawyers for the NSA, Obama, and other government defendants insisted that the circumstances have changed, so Judge Leon should decide differently this time. The Obama Justice Department argued that Judge Leon must defer to Congress so as to leave the six-month transition undisturbed. Dishonestly, they falsely claimed that there would be an “intelligence gap” if they are not allowed to spy on the American people for even just a few months.
Obama Justice Department lawyers also argued in written briefs and oral argument that the threat from terrorism today from ISIS today is more serious and dangerous than at any time since Sept. 11, 2001. That may surprise the image managers for Hillary Clinton, John Kerry and Barack Obama. But the government defendants’ lawyers could not cite one instance were the NSA’s illegal and unconstitutional spy program had actually stopped a terrorist attack, even while pressed by Judge Leon to do so.
Section 215 of the USA Patriot Act was used to justify mass surveillance of U.S. citizens, even though its text does not actually authorize what was happening. Congress repealed Section 215 following Edward Snowden’s revelations in June 2013 and Judge Leon’s brave ruling in December 2013 in our lawsuit. Congress replaced Section 215 with a watered-down (but still unconstitutional) alternative, the USA Freedom Act.
Congress provided a six-month transition period from mass spying on U.S. citizens under Section 215 to the new USA Freedom Act mass spying on U.S. citizens. The government defendants argued that Judge Leon is required to defer to Congress’ decision to authorize continued mass spying until Nov. 29, 2015.
I argued that Congress cannot authorize violations of the Fourth Amendment for another six months or even another day. “An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed,” as the U.S. Supreme Court proclaimed in Norton v. Shelby County, 118 US 425 (1885). Federal precedents make clear that a constitutional violation for even one day is intolerable and too much.
I repeated Thomas Jefferson’s words: “When government fears the people, there is liberty. When the people fear the government, there is tyranny.” As I told Judge Leon, under the tyranny some in government now assert as the new normal, George Washington and the other Founding Fathers would never have made it to Philadelphia to debate and sign the Declaration of Independence. All of the nation’s Founders would have been arrested and hanged before they ever reached my native city.
Today, Obama and his henchmen at the NSA are collecting information to chill dissent, silence the truth, discredit whistleblowers and attack its critics. Living under such intimidation, government for the people, of the people, and by the people has never been more threatened.
This must end and a preliminary injunction by a courageous judge is the way to start the new American revolution, one that can be won in a court of law rather than through the spilling of blood. More jurists like Judge Leon can make a difference, and we all must pray that cases like these will be assigned to the right jurists who represent We the People like Judge Leon.
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