When U.S. District Court Judge Richard Leon in late 2013 ruled that the National Security Agency program collecting information on nearly all telephone calls in the U.S. likely is unconstitutional, he delayed enforcement of his ruling to allow an appeal process he expected to be six months.
That was 19 months ago, and now the lawyer who won that decision says it’s time for the judge to lift his stay and order enforcement.
The case against the NSA was brought by attorney Larry Klayman of Freedom Watch, who explained in a brief filed this week that the court’s Dec. 16, 2013, order anticipated it would take about six months “for the appellate process to review this court’s preliminary injunction.”
Klayman cited the court order, which said:Â “Accordingly, I fully expect that during the appellate process, which will consume at least the next six months, the government will take whatever steps necessary to prepare itself to comply with this order when, and if, it is upheld. Suffice it to say, requesting further time to comply with this order months from now will not be well received and could result in collateral sanctions.”
Klayman, in a renewed request for Leon to lift the stay, charged the Obama Justice Department, infected by “delay tactics,” is influencing the U.S. Court of Appeals for the District of [Columbia] Circuit,” which, after 19 months “still has not ruled on the government defendants’ appeal.”
He argued that lifting the stay “would likely serve as an incentive for the D.C. Circuit to finally rule on this issue.”
“It does not serve the interests of plaintiffs nor hundreds of millions of Americans that the D.C. Circuit has not ruled on this case as constitutional violations continue daily,” he wrote. “The stay of the preliminary injunction of Dec. 16, 2013, should now be lifted.”
He explained his goal in the legal action was simply to have the government follow the law.
“This is not an extraordinary relief,” he wrote.
He said it’s just that the NSA and other agencies need to “follow and respect the Fourth Amendment to the U.S. Constitution.”
Since the original decision, Congress has allowed the Patriot Act under which the NSA was operating its spy-on-Americans program to expire and enacted a new USA Freedom Act.
But that “does not alter the consideration of this case.”
“This case was not only about the illegal conduct of the NSA in violation of Section 215 and the First, Fourth and Fifth Amendments to the U.S. Constitution,” Klayman said.
“Based on its past pattern of illegal and unconstitutional conduct, strong evidentiary inferences arise that the NSA will resume accessing telephone metadata and other confidential and private data through some other vehicle or law. Thus, that the law will someday change does not render this case moot. It is only [through] court intervention that the NSA will be forced to put an end to their unconstitutional actions.”
He notes Leon’s order that “mass surveillance” is a violation of the Fourth Amendment and said reauthorizing the same mass surveillance still is a violation.
A decision by a secret intelligence court to reauthorize the mass surveillance “does not change the U.S. Constitution and does not make the NSA’s collection of telephone metadata legal,” he explained.
In 2013, Leon found the NSA program appears to run afoul of the Fourth Amendment prohibition on unreasonable searches and seizures. He said the Justice Department failed to show that collecting the metadata on telephone calls helped to head off terrorist attacks.
Klayman previously has argued to the appeals court that the case needs to be heard and resolved.
All that he wants, he explained at the time, “is that the lower court’s ruling be upheld and that [the government] thus be preliminarily ordered to obey and adhere to the Fourth Amendment of the Constitution and that the illegally collected metadata be purged.”
The government has cited the new USA Freedom Act, which takes effect in six months, and a decision by the ultra-secret Foreign Intelligence Surveillance Court that “grants the government’s application to resume the Section 215 bulk telephony-metadata program during a temporary transition period.”
The new law requires telephone companies to store and produce on demand data on telephone calls instead of having the government collect it.
NSA contracter Edward Snowden blew the whistle on the agency’s vacuum-cleaner approach of sweeping up everyone’s data, called “bulk telephony metadata.” That was earlier in 2013, and Snowden has been living in exile in Russia as a wanted man by the U.S. government ever since.
Several of America’s heavyweights on civil rights and liberties, the American Civil Liberties Union and the Electronic Frontier Foundation, have sided with Klayman.
The data that the NSA collects, they explained, “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.”
Klayman had sued the NSA over the collection of telephone metadata from Verizon customers that was detailed in documents released by Snowden.
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.
Leon’s ruling called the government operations “almost Orwellian.”
