Attorneys defending the National Security Agency’s bulk telephone metadata collection program appeared in a Washington courtroom on Wednesday, facing off once again with a judge who has already against them.
District Judge Richard Leon had rejected an earlier bid by the Department of Justice to postpone Wednesday’s hearing, which was scheduled following a decision last Friday by a federal appeals court. The higher court had vacated Judge Leon’s 2013 ruling that the NSA’s dragnet had likely violated the constitutional rights of conservative activist Larry Klayman.
The founder of Freedom Watch, Klayman sued the government upon the release of documents by NSA whistleblower Edward Snowden. The information disclosed by Snowden showed that the spy agency was collecting the call records of millions of Americans under the Patriot Act.
Appellate judges last week had remanded the case back to the district court because they concluded that Klayman didn’t have grounds to sue. They said he lacked standing because he couldn’t prove definitively that records on his own personal communications had found their way into the NSA’s collection net. They noted in their decision, however, that during upcoming district court proceedings, the plaintiffs may be able to collect more evidence to establish standing.
That process is likely to prove challenging, however. As appellate judge Janice Rogers Brown noted in her decision Friday, “It is entirely possible that, even if plaintiffs are granted discovery, the government may refuse to provide information (if any exists) that would further plaintiffs’ case.”
“Plaintiffs’ claims may well founder in that event,” she stated, adding that “such is the nature of the government’s privileged control over certain classes of information.”
Those challenging the program remain optimistic.
“We are pleased that Judge Leon is moving quickly to address the continued Orwellian illegal surveillance of all Americans, not just my clients and me,” Klayman said in a statement before the hearing. He added that Judge Leon is “a courageous judge and we are hopeful that he will now implement a procedure to allow us to quickly seek and obtain justice.”
During proceedings in 2013, Judge Leon described the NSA’s telephone metadata collection as “almost-Orwellian.”
