- The Washington Times - Monday, November 18, 2013

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 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.

Mr. Klayman said he thinks the government has targeted him specifically because of his frequent legal fights with the administration.

“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.

In what Mr. Klayman acknowledged was an emotional moment for him, he warned Judge Leon that allowing the government to continue its snooping programs could spark a new American revolution.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

• Jeffrey Scott Shapiro can be reached at jshapiro@washingtontimes.com.

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