By Jenna Ebersole
Law360, Washington (October 30, 2015, 6:54 PM ET) – A lawyer fighting to stop the NSA’s bulk data collection program before its November expiration urged a D.C. federal judge on Thursday to temporarily halt the program and ignore a contradicting Second Circuit ruling, arguing the decision does not change the fact that without action, the program will continue to violate the Constitution.
Although the Second Circuit recently rejected a similar request to halt the controversial surveillance program, that ruling ignored the constitutional issues at the heart of the data collection and the underlying legislation justifying it, and U.S. District Judge Richard J. Leon does not have to follow that precedent, according to Larry Klayman, leader of the advocacy group Freedom Watch.
Klayman argued he and the other plaintiffs have requested the preliminary injunction to stop the government from violating the Fourth Amendment, and even the new legislation, the USA Freedom Act, could be struck down for allowing the unconstitutional Section 215 to survive for six months during a transition. The act, which requires law enforcement to conduct more “targeted” data-collection, set a program expiration date for the end of November.
“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 said. “That the Second Circuit shirked its judicial responsibility for political reasons is of no import.”
The government asked the D.C. federal court on Thursday to consider the Second Circuit’s opinion in the American Civil Liberties Union case, citing its finding that Congress intended an orderly transition from the program that the court should not meddle in to provide short-term relief. The Second Circuit found that Congress had made a considered judgment to keep Section 215 for six months to ensure the government has the tools it needs to fight terrorism.
But Klayman said that appellate court failed to address the core constitutional question in the case. Klayman and the ACLU filed their cases challenging the data collection in the wake of disclosures on mass surveillance made by former NSA contractor Edward Snowden.
“Given the government defendants’ history of violating the Constitution and then lying about it to Congress, the courts and the American people, this court respectfully needs to enter an order to this effect so that it can oversee even the implementation of the USA Freedom Act, which is not likely to be obeyed given past precedent,” Klayman said.
The government has failed to cite even one instance where the collection stopped a terrorist attack, Klayman said, and ending the program early will only mean that the government would have to get a warrant for information after showing probable cause “as they are required to do under the Constitution.”
A representative for the Department of Justice declined to comment, and Klayman did not respond to a request for comment Thursday.
Judge Leon made a significant ruling on government surveillance in 2013 when he issued a preliminary injunction in Klayman’s case barring the government from collecting metadata associated with the personal Verizon Inc. accounts of Klayman and his co-plaintiff, saying the program was likely unconstitutional.
The D.C. Circuit reversed that decision in August when it found the plaintiffs’ argument rested on an inference of collection rather than evidence and remanded the case. Klayman filed a motion for a new preliminary injunction after adding new plaintiffs earlier in an amended complaint that he said addresses the D.C. Circuit’s conclusion.
Klayman launched his case after Snowden revealed a Foreign Intelligence Surveillance Court order that granted the government’s request to require Verizon to turn over on an “ongoing, daily basis” certain metadata pertaining to all calls made on its networks within the U.S. and between the U.S. and a foreign country.
Klayman is representing himself and the other plaintiffs.
The government is represented by Benjamin C. Mizer, Joseph H. Hunt, Anthony J. Coppolino, James J. Gilligan, Rodney Patton, Julia A. Berman and Caroline J. Anderson of the U.S. Department of Justice.
The case is Klayman v. Obama et al., case number 1:13-cv-00851, in the U.S. District Court for the District of Columbia.
– Additional reporting by Jacob Fischler, Kurt Orzeck and Joe Van Acker. Editing by Philip Shea.