Hearing looming for judge to put brakes on NSA

At a federal court hearing scheduled for Thursday, a judge could put the brakes on the National Security Agency's program to swipe data from entire cell telephone networks and analyze it.

The plaintiff's attorney contends in a new brief that a judicial order to halt the spying is needed, because it "does not matter which statute governs, it has been demonstrated time … and time again that the government defendants do not follow the laws on the books."

The lawsuit was filed nearly two years ago by attorney Larry Klayman of Freedom Watch. It alleges the NSA's spy-on-Americans program violated the Constitution, and U.S. District Judge Richard Leon decided that probably was correct.

He issued an injunction ordering the program halted but stayed his ruling to give the government time to appeal. The higher court recently returned it to Leon to hold a hearing on discovery, and the judge confirmed his intention to move quickly on the issue.

An injunction could be issued at the hearing Thursday, according to attorneys.

In a brief filed this week, Klayman writes to remind the judge that "every element supporting a renewed preliminary injunction has already been decided by this court and now governs as the law of the case."

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"An injunction from this court is required, at a minimum, so that there will be continuing oversight of serious, continuing violations of the Fourth Amendment," he wrote. "Preliminary injunctive relief will be an indispensable safeguard of constitutional rights and civil liberties."

The ruling is needed, he said, because "the government defendants have shown a pattern and practice of violating constitutional rights no matter what laws are in effect."

He continued: "Moreover, the government defendants have lied continuously to Congress, the FISA court, this court and the American people about this warrantless surveillance. Their most recent brief underscores their lack of honesty and sincerity, again, unbelievably claiming that since they hold all the cards about their illegal and unconstitutional activities – and arrogantly will not confirm or deny that plaintiffs have been surveilled – plaintiffs cannot meet the standard of proof for a preliminary injunction."

He said the government has "trashed" the Constitution and now is telling Americans "it is 'heads I win tails you (the people) lose.'"

Klayman wrote that a preliminary injunction is needed so that the government "can be held to obey the law, and can be held in contempt, if necessary."

He said requiring the government to follow the Fourth Amendment "is not too much to ask."

"Importantly," he wrote, "the government defendants do not actually deny that they spied, without probable cause, upon these plaintiffs."

Klayman explains the fact that the USA Patriot Act, under which the spying has been done, is expiring and is being replaced by the USA Freedom Act, does not matter.

The analysis remains, he wrote, "because the government defendants do not admit to any limitation from those particular statutes on … spying on plaintiffs and other U.S. citizens who have no connection to terrorism."

At a previous hearing, Leon approved Klayman's plan to file a fourth amended complaint and said he would expect a renewed motion for a preliminary injunction.

In Leon's original injunction, he called the program "almost Orwellian."

The U.S. Court of Appeals for the District of Columbia then ruled on a technicality – standing – and not on the district court's original determination.

The higher court had said Klayman used Verizon for his provider, when the claims that the government was sweeping up data involved Verizon Business Network.

Klayman has added plaintiffs using that network to satisfy the specific concern.

Klayman originally sued the NSA, Barack Obama, then-Attorney General Eric Holder and a number of other federal officials after the spy program was revealed by whistleblower Edward Snowden, who has fled to Russia.

Plaintiffs in the case include Klayman, Charles and Mary Ann Strange, Michael Ferrari, Matt Garrison and J.J. Little and other defendants include NSA chief Keith Alexander, U.S. Foreign Intelligence Surveillance Court Judge Roger Vinson, Director of National Intelligence James Clapper, CIA chief John Brennan, FBI chief James Comey, the Department of Justice, CIA and FBI.

Klayman has explained the action is to stop the program and seek damages.

Snowden blew the whistle on the agency's vacuum-cleaner approach to data collection, called "bulk telephony metadata."

Two of America's influential civil-rights groups, the American Civil Liberties Union and the Electronic Frontier Foundation, have sided with Klayman.

The data that the NSA collects, they explained in a brief, "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 groups' brief said "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."