NSA snoop­ing pro­grams taken to fed­eral court

The Washington Times Weekly - - National - BY STEPHEN DINAN AND JEF­FREY SCOTT SHAPIRO

A pub­lic in­ter­est lawyer who says the gov­ern­ment is “mess­ing” with his text mes­sages pleaded with a fed­eral judge Mon­day to halt the gov­ern­ment’s elec­tronic snoop­ing pro­grams, in a case that tests whether Amer­i­cans will be able to chal­lenge the NSA’s phone-records col­lec­tion in reg­u­lar courts.

The case raises com­plex but fun­da­men­tal le­gal ques­tions about whether fed­eral courts will be able to probe into some of the gov­ern­ment’s most se­cret pro­grams, which Congress and the in­tel­li­gence com­mu­nity have shrouded.

Com­pound­ing the dif­fi­cul­ties fac­ing Larry Klay­man, founder of Free­dom Watch and the man su­ing to stop the data col­lec­tion, is that the gov­ern­ment won’t even tell him whether his records have been caught up in the pro­gram — po­ten­tially a key is­sue if Mr. Klay­man wants to have stand­ing to sue.

“Your honor, you are the last step, the last bas­tion of pro­tec­tion for the Amer­i­can peo­ple,” Mr. Klay­man told U.S. Dis­trict Court Judge Richard Leon.

Obama ad­min­is­tra­tion at­tor­neys packed the court­room to watch the case, which Judge Leon said breaks le­gal ground, along with a sim­i­lar chal­lenge filed by the Amer­i­can Civil Lib­er­ties Union in a fed­eral court in Man­hat­tan.

Judge Leon gave both sides another week to file fi­nal briefs in the case and didn’t tip his hand about which way he is lean­ing.

“I don’t know how I’m go­ing to rule,” the judge said. “But I do know this: What­ever I de­cide, it’s go­ing up­stairs to the court of ap­peals and prob­a­bly even the U.S. Supreme Court.”

Oral ar­gu­ments in the ACLU’s case are slated for Fri­day.

Late Mon­day, Di­rec­tor of Na­tional In­tel­li­gence James R. Clap­per de­clas­si­fied doc­u­ments lay­ing out other snoop­ing pro­grams, in­clud­ing what he said was a now-de­funct op­er­a­tion to record meta­data from emails. That in­cluded who was send­ing a mes­sage, who it was sent to, and the time and date.

The spy chief as­sured Amer­i­cans that the pro­gram didn’t cap­ture the con­tents of the emails, and that the in­for­ma­tion was stored se­curely and only avail­able for “coun­tert­er­ror­ism pur­poses.”

The pro­gram was first de­tailed in leaks by for­mer gov­ern­ment con­trac­tor Ed­ward Snow­den ear­lier this year. Pres­i­dent Obama re­port­edly or­dered the pro­gram ended in 2011 be­cause it wasn’t pro­vid­ing any leads.

The court or­der al­low­ing the email col­lec­tion was heav­ily redacted but it showed the court ac­cept­ing the un­chal­lenged as­sur­ances of gov­ern­ment of­fi­cials that they needed the pro­gram and that they would not abuse it. But in another opin­ion, the court made clear the gov­ern­ment oc­ca­sion­ally had pre­sented in­ac­cu­rate in­for­ma­tion to the judges, and that the NSA ig­nored the gov­ern­ment’s own rules for who would be al­lowed to see the data be­ing stored.

In the court­room, the Obama ad­min­is­tra­tion says Judge Leon shouldn’t even be able to hear Mr. Klay­man’s case.

Jus­tice Depart­ment at­tor­ney James J. Gil­li­gan said Congress wrote the For­eign In­tel­li­gence Sur­veil­lance Act and the Pa­triot Act to give a spe­cial for­eign in­tel­li­gence sur­veil­lance court ju­ris­dic­tion to ap­prove the snoop­ing pro­grams.

That court re­peat­edly has ap­proved the Na­tional Se­cu­rity Agency’s phone-records col­lec­tion pro­gram, so a dif­fer­ent rul­ing by Judge Leon would coun­ter­mand an or­der from a fel­low court.

Mr. Gil­li­gan said nei­ther Mr. Klay­man nor his fel­low plain­tiffs can prove that gov­ern­ment pro­grams have col­lected their spe­cific data, which means they can­not prove harm and can­not make a le­gal chal­lenge.

The gov­ern­ment has con­firmed that it ob­tained a se­cret court or­der al­low­ing the col­lec­tion of some Ver­i­zon phone cus­tomers’ meta­data, but Mr. Gil­li­gan said that or­der doesn’t cover Ver­i­zon Wire­less cus­tomers. He said the gov­ern­ment has never ac­knowl­edged whether in­for­ma­tion from those wire­less cus­tomers, or cus­tomers of other car­ri­ers, are be­ing col­lected.

Judge Leon seemed skep­ti­cal that he had the power to wade into the fight.

“Congress has made it pretty clear they don’t think I have that au­thor­ity,” he told Mr. Klay­man, point­ing to the statute that gives the se­cret court — which is, like his court, set up un­der Ar­ti­cle III of the Con­sti­tu­tion — the power to hear th­ese cases, with re­view by an ap­peals board and even­tu­ally the Supreme Court.

Mr. Klay­man replied that the Con­sti­tu­tion gives dis­trict courts the power to hear ques­tions of con­sti­tu­tional sig­nif­i­cance and said the in­tel­li­gence-gath­er­ing in this case vi­o­lates his rights un­der the First, Fourth and Fifth amend­ments.

Much like a crim­i­nal grand jury, the gov­ern­ment has the power to make its case ex­clu­sively to the se­cret in­tel­li­gence court with­out fac­ing con­trary ev­i­dence from an op­pos­ing party or mem­ber of the pub­lic.

In the case of a grand jury, the de­fen­dant even­tu­ally has the chance to fight the charges at trial. But in the case of the se­cret court, the Obama ad­min­is­tra­tion ar­gued that no in­di­vid­ual has stand­ing to chal­lenge the de­ci­sion.

The lack of an op­po­nent has drawn crit­i­cism from some mem­bers of Congress who want to cur­tail the broad au­thor­ity the ad­min­is­tra­tion claims

A bill writ­ten by Rep. F. James Sensen­bren­ner Jr. of Wis­con­sin, the Repub­li­can au­thor of the Pa­triot Act, and Sen. Pa­trick J. Leahy of Vermont, the Demo­cratic chair­man of the Se­nate Ju­di­ciary Com­mit­tee, would cre­ate a spe­cial ad­vo­cate whose job would be to raise pri­vacy con­cerns and is­sues within the se­cret court, in or­der to add some of the ad­ver­sar­ial process of reg­u­lar court pro­ceed­ings.

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