Three judges at the U.S. Court of Appeals for the District of Columbia on Monday gave a pass to a National Security Agency spy-on-Americans program that had been declared as likely unconstitutional by a trial court judge.

The appeals court ruled the federal agency doesn’t even have to stop collecting metadata on the two cell-phone numbers identified by the lower court.

The attorney handling the case, Larry Klayman of Freedom Watch, said he will immediately ask for a ruling from the full court or go to the U.S. Supreme Court.

It’s the second time the federal appeals court has stayed rulings from U.S. District Judge Richard Leon against the spy program, which lifts metadata from massive numbers of American cell-phone accounts routinely.

The first time was nearly two years ago, when Leon found the program “almost Orwellian” and granted an injunction but stayed it pending the appeals-court decision.

This time, Leon, irritated that the appeals court took nearly two years to move the case the first time it arrived, issued no stay. So the appeals judges stepped in at the request of the Obama administration, ruling that the spying can continue, even on the two plaintiffs identified as having had their Fourth Amendment  rights violated, J.J. Little and J.J. Little & Associates.

Klayman told WND after the ruling that it looks like the program is more about spying on Americans than identifying terrorist threats.

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Klayman, a former federal prosecutor, said: “As Judge Leon wrote in his latest preliminary injunction order of November 9, 2015, the D.C. Circuit sat on this case for nearly two years while the constitutional rights of millions of Americans continue to be violated. Now, obviously gun-shy after the Paris terrorist attacks, the appeals court has again put its head in the sand and not stood up for the privacy rights of We the People. Importantly, as Judge Leon pointed out … Obama and his NSA had not been able to show, on the court record, that its mass surveillance stopped even one terrorist attack, here or overseas.”

He continued: “With the Paris terrorist attacks, which went undetected by the NSA and our other intelligence agencies, it’s now clear that the mass surveillance is more designed to spy on ordinary Americans than to effectively catch terrorists before they attack. We at Freedom Watch will ask the full D.C. en banc panel of 9 judges to lift the stay imposed just today and if that does not happen, we will go immediately to the Supreme Court. As ironically the D.C. Circuit itself held in a case styled United States v. Mills, 571 F.3d 1304 (D.C. Cir. 2009), even one day that the Constitution is violated is one day too much.”

In his plea to the appeals judges to let Leon’s ruling take effect, Klayman previously charged the government indicated it actually was spying on “everyone.”

“Unequivocally, the public’s interest in combating terrorism is of paramount important for the United States and its citizens,” Klayman acknowledged. “But the notion that after being on notice of their constitutional violations and illegal activity for two years, appellants, with arguably (and hopefully) the highest technological supercomputer in the world, have failed to decipher a way to remove a mere two names or phone numbers from the database, first underscores that the database has never truly served its own purpose, and second, confirms the fact that the appellants have indeed been surveilling everyone.

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

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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 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 the metadata and give it to the government on request, according to certain criteria.

“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.”

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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