By Jimmy Hoover
Law360, Washington (October 8, 2015, 7:27 PM ET) – A D.C. federal judge cast doubt Thursday on allowing the National Security Agency to continue its bulk data collection program ahead of its expiration date, noting that he has already said the activities may be unconstitutional.
U.S. District Judge Richard Leon revealed his skepticism during arguments in a preliminary injunction hearing from lead plaintiff Larry Klayman, who has in effect challenged the provision of the USA Freedom Act extending collection activities supposedly authorized under its predecessor, the Patriot Act, until Nov. 29, when the agency is ordered to make a full transition to the more restrictive law.
Given his own earlier finding in the case, as well as a May decision from the Second Circuit finding the program was not even authorized under the Patriot Act to begin with, Judge Leon questioned an attorney for the government on its legal authority to continue the old-regime collection activities.
Leon said the government attorney was “slicing the bologna too thin” when she proposed that the Freedom Act’s sunset both extended the authorities of its predecessor and created authorities of its own for the program.
Notwithstanding those constitutional problems, Justice Department attorney Julia A. Berman countered, the court should allow the program to continue for public interest reasons given the threat that an “intelligence gap” would pose in the midst of increased terrorist activities around the world.
“There are also technological capabilities that need to be put in place,” Berman said, referring to the agency’s transition to the new collection regime under the Freedom Act.
In defense of her public interest argument, Berman cited a Supreme Court decision in Brown v. Plata that allowed the state of California two years to bring itself in compliance with the Eighth Amendment in a case involving the overcrowding of the state’s prisons.
Responding, Leon said, “Very different kind of situation, don’t you think?”
The judge expressed frustration with the government’s failure to provide specific instances in which the agency foiled a terrorist plot as a result of their program as supporting evidence in the case. “I can receive classified information,” Judge Leon assured Berman. “Is it because they’re unwilling or unable?”
When Berman responded with a declaration from an FBI official that the program is extremely important, the judge quipped, “That sounds lovely but that’s not very helpful.”
Judge Leon first found the program to be likely unconstitutional in December 2013 when he issued a preliminary injunction barring the government from collecting metadata associated with the personal Verizon Inc. accounts of Klayman and his co-plaintiff, Charles Strange. That decision, however, was reversed this year by a panel of the D.C. Circuit, which found that the plaintiffs’ argument rests on an inference instead of metadata collection rather than evidence.
During oral arguments Thursday, Klayman commended Leon several times for the earlier ruling in the case, further calling him the “last hope of the American people.”
“All plaintiffs have asked for is that the government defendants obey the law and obey the Fourth Amendment. No less. No more,” Klayman said.
Judge Leon said he would issue a ruling on the preliminary injunction motion in the next two weeks.
Klayman is representing himself and the other plaintiffs.
The U.S. is represented by Benjamin C. Mizer, Douglas N. Letter, H. Thomas Byron III and Henry C. Whitaker.
The cases are Klayman v. Obama et al., case number 1:13-cv-00851, and Klayman et al. v. Obama et al., case number 1:13-cv-00881, in the U.S. District Court for the District of Columbia.
– Additional reporting by Allison Grande and Jacob Fischler. Editing by Patricia K. Cole.
For more information, contact Freedom Watch at (424) 274-2579 or email@example.com