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 for collecting information.
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.
The advocate also would have the power to appeal secret court decisions.
“My colleagues have received text messages I never sent. I think they’re messing with me,” Mr. Klayman said. He said he believed the government was targeting him with false messages to send a signal that it could get to him.