Feds to comply with court order in NSA case

By Bob Unruh


The U.S. government is preparing to comply with a federal judge’s order to stop its collection of telephone data of citizens who sued, charging their Fourth Amendment rights were violated.

James Gilligan, a special litigation counsel for the Department of Justice, asked attorney Larry Klayman of Freedom Watch for the numbers to be excluded from the NSA’s surveillance program.

The program has been in the news since it was exposed by former NSA contractor Edward Snowden, who has sought refuge in Russia.

Klayman sued the government on behalf of himself and others. U.S. District Judge Richard Leon agreed, ordering a halt to the spying on some telephone numbers.

Gilligan told Klayman: “As you know, the government has sought a stay of the court’s preliminary injunction issued on November 9, 2015. However, if the court’s injunction is not stayed, then in order to comply with the injunction (and without confirming or denying that the government has collected or possesses records of the Little plaintiffs’ calls under the Section 215 bulk telephony-metadata program), the government will require: (1) all telephone numbers and calling card numbers associated with the Little plaintiffs’ telephone subscriptions from November 2010 to the present; and (2) the time frames during which each identified telephone number and calling card was used by the Little pilaintiffs within the relevant period.”

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The U.S. Court of Appeals for the D.C. Circuit issued a stay of Leon’s injunction on Tuesday. But it is only temporary and is expected to last through the end of the week. Klayman and the government both have an opportunity to file briefs on the dispute before the order expires.

Leon noted that halting the surveillance on one plaintiff might require a shutdown of the entire program. But because of the secret nature of the NSA’s work, many details remain unclear.

The appeals court said the administrative stay it issued immediately was just “to give the court sufficient opportunity to consider the merits of the [government’s] motion for a stay … and should not be construed in any way as a ruling on the merits.”

Klayman’s arguments are due Friday; the government’s Monday.

The NSA has been taking – without permission and, until Snowden’s leak, without consumers knowing – the records of millions of Americans’ telephone calls.

The data includes the the telephone numbers and the length of the call.

The program is to be replaced by a new plan from Congress scheduled to begin in just weeks that will have telephone companies keep such records and hand it over to the government on occasion.

That’s instead of having the NSA collect the data directly.

Gilligan told Klayman he needs the plaintiffs’ telephone numbers as soon as possible.

“In the event that an identified number is no longer assigned and/or a new number is assigned to any of the Little plaintiffs between now and the end of the program on November 29, please provide the government with timely updates of this information,” he wrote.

The government has claimed it would take “several weeks” for a change to be implemented by the NSA, and it may have to shut down the entire project as a result.

The ruling from Leon came almost two years after he issued an injunction to halt the program. At that time, he stayed his injunction to give the government time to appeal.

But the 2nd U.S. Circuit Court of Appeals took most of that time to decide on a secondary issue, and even though the collection program is about to expire and be replaced by a new set of rules, Leon said enough is enough.

“I will grant plaintiffs J.J. Little and J.J. Little & Associates’ requests for an injunction and enter an order consistent with this opinion that (1) bars the government from collecting, as part of the NSA’s Bulk Telephony Metadata Program, any telephony metadata associated with these plaintiffs’ Verizon Business Network Services accounts and (2) requires the government to segregate any such metadata in its possession that has already been collected,” he said in his recent ruling.

Leon explained that in his December 2013 opinion, he stayed his order “pending appeal in light of the national security interests at stake and the novelty of the constitutional issues raised.”

“I did so with the optimistic hope that the appeals process would move expeditiously,” he said. “However, because it has been almost two years since I first found that the NSA’s Bulk Telephony Metadata Program likely violates the Constitution and because the loss of constitutional freedoms for even one day is a significant harm … I will not do so today.”

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He said the plaintiffs are likely to succeed on the merits of their Fourth Amendment claim at a coming trial.

Leon noted the importance of protecting the Fourth Amendment and concluded he could not “allow the government to trump the Constitution merely because it suits the exigencies of the moment.”

He continued, “To be sure, the very purpose of the Fourth Amendment would be undermined were this court to defer to Congress’s determination that individual liberty should be sacrificed to better combat today’s evil.”

In the program, the NSA monitors the telephone numbers used in calls in an effort to identify potential national security threats.

Leon pointed out that “although the daily bulk collection, storage and analysis of telephony metadata is not expressly authorized” by the law, the government went ahead with the program.

“This is one of the most significant cases in the history of litigation against the government,” Klayman said.

“Never before in American history have people been subjected to such egregious violations of their constitutional rights,” he said. “Thank God that there are judges like Leon who will stand up for the American people. Without this, revolution is almost assured if more judges do not start to do their job, like Leon, and protect the citizenry from government tyranny.”

In Leon’s original injunction, he called the program “almost Orwellian.”

Klayman originally sued the NSA, Barack Obama, then-Attorney General Eric Holder and a number of other federal officials. 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, the CIA and the FBI.

Plaintiffs in the case include Klayman, Charles and Mary Ann Strange, Michael Ferrari, Matt Garrison and J.J. Little.

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.”

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