- The Washington Times - Wednesday, February 12, 2014

Sen. Rand Paul filed a class-action lawsuit Wednesday to halt the NSA’s phone records collection program and invited millions of Americans to sign up as co-plaintiffs with him, calling the case a chance to re-establish constitutional boundaries on privacy.

The Kentucky Republican, a potential presidential candidate in 2016, said he doesn’t see Congress moving quickly to crack down on the National Security Agency’s snooping and the changes President Obama announced last month don’t go far enough. Instead, he said, Americans must turn to the courts.

“We are filing suit against the president of the United States in defense of the Fourth Amendment,” Mr. Paul said as he stood outside the federal courthouse in Washington, holding up cellphones as props. “There’s a huge and growing swell of protest in this country of people who are outraged that their records would be taken without suspicion, without a judge’s warrant, and without individualization. This, we believe, will be a historic lawsuit.”

Under the NSA program, the government collects and holds five years of phone metadata, including numbers, times and durations of almost all calls made in the U.S., which can be searched without a warrant.

Federal judges in Washington and New York have issued competing decisions. One ruling called the program unconstitutional and the other upheld it.

Mr. Paul’s lawsuit is the latest challenge but probably will not be the decisive one, constitutional scholars said.

SEE ALSO: White House’s NSA snooping violates separation of powers, congressmen say

“The reality is that Sen. Paul is late to this particular party,” said Steve Vladeck, a professor at George Washington University. “Separate challenges to the metadata program are already on appeal to the federal appeals courts in New York and Washington, and class actions tend to move far more slowly to begin with.

“It seems likely that, by the time a federal judge is in a position to reach Sen. Paul’s claims on the merits, they will have been settled by the federal courts and/or Congress,” Mr. Vladeck said.

All sides expect the issue to end up in front of the Supreme Court.

Former Virginia Attorney General Kenneth T. Cuccinelli II, who is acting as attorney for Mr. Paul and Freedomworks, a conservative group that is also part of the case, said they expect to file the first challenge to the NSA that gets certified as a class-action lawsuit.

The lawsuit names as defendants President Obama, Director of National Intelligence James R. Clapper, NSA Director Keith B. Alexander, and FBI Director James Comey.

The Obama administration has maintained that the program is constitutional and legal. As evidence of that, officials point to repeated approval of the program by congressional intelligence committees and a foreign intelligence court. The administration also says the program is an important part of the nation’s effort to prevent another terrorist attack.

But other reviews, including panels appointed by Mr. Obama and Congress, have said the program violates Bill of Rights protections and, according to one of those reviews, violates a telecommunications law that prohibits phone companies from turning over bulk data to federal agencies.

Mr. Paul countered Wednesday that there hasn’t been any evidence that the phone program has prevented an attack. He said he respects the need for security but boundaries must be maintained.

“I am not against the NSA, I am not against spying, I am not against looking at phone records,” Mr. Paul said. “I just want you to go to a judge, have a person’s name and individualize the warrant. That is what the Fourth Amendment says.”

The collection of phone records started under the George W. Bush administration but did not come to light until last year when former government contractor Edward Snowden leaked details to the press.

Larry Klayman, a conservative activist, filed a pair of lawsuits against the Obama administration last summer. In December, he scored a victory when U.S. District Court Judge Richard Leon ruled that the NSA must stop collecting and retaining the phone records of Mr. Klayman and his co-plaintiff.

Judge Leon stayed his order, though, pending an appeal from the Justice Department.

Soon afterward, a federal judge in New York ruled in favor of the NSA program, turning back a constitutional challenge from the American Civil Liberties Union.

Judges who sit on the secret Foreign Intelligence Surveillance Court have approved the program repeatedly, though they occasionally have added restrictions and issued warnings when they thought the government was overstepping its boundaries.

Since winning before Judge Leon, Mr. Klayman has filed another class-action lawsuit that is broader in scope than Mr. Paul’s case.

That lawsuit challenges the government’s data mining program known as Prism. It also challenges Section 215 of the Patriot Act, which grants the government the power to collect records from businesses.

Mr. Paul on Wednesday dismissed reporters’ political questions, but the lawsuit and government snooping programs overall likely will be issues in the 2016 presidential race.

But Mr. Klayman said the politics showed in the way that complaint was written.

“It is very peculiar in that the allegations seem to be watered down,” he told The Washington Times. “It is more of a political document. In any event, as I said, we are pleased finally that Paul is entering the fray. That is fine, but we would like them to accurately reflect that there is another class action out there that was filed much sooner than him. But we welcome his participation and anyone’s participation.”

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