By Jody Godoy
Law360, New York (November 17, 2015, 1:45 PM ET) – The U.S. government successfully parried a federal court order on Monday that would have required it to shut down its mass telephone record collection program just weeks before a law passed this summer requires the National Security Agency to replace the program with a more targeted regime.
The D.C. Circuit froze U.S. District Judge Richard J. Leon’s order that would have pulled the plug on the government’s bulk collection of call records to give the government a shot at appeal – an appeal that is unlikely to wrap up before the Nov. 29 deadline set by Congress in the USA Freedom Act that will end the program anyway. The appeals court had previously issued a temporary stay while it considered arguments by the government and Larry Klayman, who has been fighting the surveillance program in Washington’s federal court.
Klayman sued in 2013 to force the government to end the program. Those efforts hit a roadblock in August when an appeals court said he could not prove his phone records including call recipients and times had been collected. Klayman did not subscribe to Verizon Wireless Business Network, the only wireless company the government has acknowledged participated in the controversial phone data collection program, the appeals court said at the time.
A fourth amended complaint fixed the problem in September by adding J.J. Little and his firm, J.J. Little & Associates PC, who did subscribe to VWBN.
The Monday ruling without further explanation by the three-judge panel came a week after Judge Leon issued a preliminary injunction against the NSA on behalf of Little and his firm.
Despite government arguments that there was no proof VWBN still participated in the program, Judge Leon found it was likely the Verizon unit’s involvement continued. The judge also said Little was likely to prevail in showing the NSA program violated the Constitution’s prohibition on unlawful searches and seizures.
After Judge Leon issued the order, the government urged him to put it on hold, a request rejected the next day.
The government then took its case to federal appeals court, arguing to the D.C. circuit that the only way to immediately stop collecting information on the phone numbers in question would be to halt the program entirely. Doing so now would leave an “intelligence gap” and thwart lawmakers’ plan to give intelligence agencies a transition period which is set to expire in a short few weeks.
Little argued back that is disingenuous for the government to claim it’s too difficult to remove a mere two names from the sophisticated database when Judge Leon had told the feds to prepare to do so back in 2013.
The lawyer also pushed back against the government’s argument that he had not been harmed, citing the 2013 order in which the judge underlined the principle that a constitutional loss of rights, even for a short period, constitutes injury.
“Appellants cannot – and should not be able to – rely on the failed argument that it may be burdensome to avoid obeying the Constitution,” the lawyer said.
Counsel for the parties and a representative for the government did not immediately reply to requests for comment on Tuesday.
Circuit Judges David S. Tatel, Thomas B. Griffith and Patricia A. Millett sat on the panel for the D.C. Circuit.
Klayman is representing himself and the other plaintiffs.
The government is represented by Benjamin C. Mizer, Channing D. Phillips, Douglas N. Letter, H. Thomas Byron Iii and Catherine H. Dorsey 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. The appeal is Klayman v. Obama et al., case number 15-5307, in the U.S. Court of Appeals for the District of Columbia Circuit.
– Additional reporting by Jacob Fischler and Kurt Orzeck. Editing by Rebecca Flanagan.