A lawyer who won a federal judge’s determination that the National Security Agency’s spy-on-Americans program is “Orwellian” and likely unconstitutional is encouraging the judge to maintain his stance after a federal appeals court ruled the collection of phone metadata can continue.
The request to Judge Richard Leon from attorney Larry Klayman of Freedom Watch comes after the Second U.S. Circuit Court of Appeals decided not to stop the data collection during a 180-day transition period from an old law to a new one.
The USA Patriot Act, which authorizes the data collection, is being replaced by the USA Freedom Act.
“We conclude that [Paragraph] 215 authorizes the telephone metadata collection program for the period of 180 days from the Freedom Act’s enactment, as part of a larger move to dismantle the program,” the appeals court said.
When government attorneys brought the decision to the attention of Leon, Klayman immediately fired back, arguing “even one day of a violation of our Constitution is one day too many.”
“This court is the sole protector of not just plaintiffs but of all Americans and must be commended for its intended swift action to end the government defendants’ unconstitutional lawlessness at the earliest practicable date,” he wrote. “That the Second Circuit shirked its judicial responsibility for political reasons is of no import.”
The filing Thursday came in the case Klayman brought on behalf of himself and several other individuals. They charge that the government, through its sweeps of data from cell phone systems, is violating the Constitution.
The Second Circuit, Klayman wrote, “conveniently views itself as a lesser branch of government to Congress,” but Leon’s court, “to the contrary, has correctly and courageously carried out its judicial duty.”
“In recent hearings, this court expressed and confirmed its judicial responsibility: ‘I’m prepared to lift the stay I issued … [i]t’s time to move. Let’s get going … [t]his court believes there are millions of Americans whose constitutional rights have been and are being violated.'”
The bottom line is that the court has an obligation to order the government to stop its constitutional violations, the brief argues.
After a hearing earlier this month, Klayman expressed optimism the judge would rule in his favor.
The Washington Times reported at the time that the judge acknowledged “his own concern that the program is continuing to violate millions of Americans’ constitutional rights.”
And the judge noted the importance of getting a ruling soon.
Klayman had argued that Congress doesn’t get a pass to violate the Constitution.
The NSA program, exposed by whistleblower Edward Snowden, scoops up data from cell phone networks and then evaluates it to detect national security threats.
Under the new law to be phased in over the coming months, the cell-phone companies will maintain the data and provide it to the government upon request in accordance with guidelines.
It was at the end of 2013 when Leon issued an injunction to shut down the program. But he stayed his ruling to allow the government to appeal.
It took more than a year-and-a-half, as the spying continued, for the appeals court to rule.
In a previously filed brief, Klayman reminded 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.”
“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 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 contends the fact that the USA Patriot Act, which authorizes the spying, is expiring and is being replaced by the USA Freedom Act does not matter.
The problem 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 argued Klayman used Verizon for his provider but the government was sweeping up data from the Verizon Business Network.
Klayman has added plaintiffs using that network to satisfy the 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 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.”
