- The Washington Times - Wednesday, September 9, 2015

The conservative lawyer challenging the National Security Agency’s bulk phone data collection program is acting on a federal judge’s suggestion to beef up his case against the government by adding another plaintiff who used the cell-phone network that the government has publicly admitted to tracking.

In court documents filed Tuesday, Larry Klayman asked to amend his ongoing lawsuit to add California law firm J.J. Little and Associates and lawyer Jeffrey James Little as plaintiffs.

In a hearing last week, U.S. District Judge Richard Leon laid out a road map for Mr. Klayman to more quickly revive his case after a federal appeals court ruled against it.

As part of his advice, Judge Leon suggested Mr. Klayman find a new plaintiff who used Verizon Business Network Services for cellphone service — which is known to have been providing data to the NSA under the phone-snooping program.

In the latest court filing, Mr. Klayman writes that Mr. Little is a criminal defense lawyer whose firm subscribes to Verizon Business Network Services.

“He is therefore in the line of fire of Government surveillance by the Government Defendants. This implicates breaches of attorney-client privilege and work product,” Mr. Klayman wrote.

Mr. Little did not return calls seeking comment. Mr. Klayman declined to discuss how Mr. Little became involved in the lawsuit.

Judge Leon had previously issued an injunction blocking the NSA’s program — calling the bulk data collection likely unconstitutional — but put his order on hold until the appeals court ruled.

When the D.C. Circuit in August overturned his injunction, the court concluded that Mr. Klayman had failed to prove that his and his fellow plaintiffs’ calls were scooped up in the phone-records dragnet.

The appeals court sent the case back to Judge Leon to decide whether to give Mr. Klayman a chance to try to gather more evidence — though the appeals court judges acknowledged that where a secret program was involved, that might not be possible.

The rulings issued by the three-judge appeals court panel made note of the fact that Mr. Klayman and his original plaintiffs were subscribers to Verizon Wireless and not Verizon Business Network Services.

“Thus, unlike some others who have brought legal challenges to the bulk collection program, plaintiffs lack direct evidence that records involving their calls have actually been collected,” wrote Judge Stephen F. Williams in his opinion.

Mr. Klayman said Wednesday that the new filings including a Verizon Business customer should be able to put the runaround to rest.

“All the judge now needs to do is confirm they did survey the plaintiffs,” Mr. Klayman said.

Judge Leon has expressed an interest in expediting the case due to impending deadlines for the government to alter operation of the NSA program and has scheduled an upcoming hearing for Sept 16.

Under the USA Freedom Act, passed by Congress and signed by President Obama earlier this summer, the government will have to halt its bulk collection of data Nov. 29.

After that point, the NSA can no longer store bulk phone metadata, and federal investigators will instead have to request data from phone companies every time they suspect a number is involved in a terrorism investigation.

• Andrea Noble can be reached at anoble@washingtontimes.com.

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