Feds move to block discovery in NSA lawsuits
Feds move to block discovery in NSA lawsuits
By JOSH GERSTEIN | 1/8/14 8:57 PM EST
The Justice Department moved Wednesday night to block the
plaintiffs in the most successful legal challenges to the National Security
Agency's call-tracking program from obtaining more details about how the
surveillance effort operates.
In a motion filed with U.S. District Court Judge Richard
Leon, government lawyers asked the judge to halt further proceedings before him
while appeals go forward in a pair of lawsuits brought by conservative legal
activist Larry Klayman. The suits led last month to Leon's landmark ruling that
the NSA's call database, aimed at making it easier for the government to trace
leads in potential terrorism cases, likely violated the Fourth Amendment to the
U.S. Constitution.
"Even if the mere collection of information about
Plaintiffs’ communications constitutes a Fourth Amendment search...conclusively
resolving the reasonableness of that search ultimately could risk or require
disclosure of exceptionally sensitive and classified intelligence information
regarding the nature and scope of the international terrorist threat to the
United States, and the role that the NSA’s intelligence-gathering activities
have played in meeting that threat," the government motion states.
"Plaintiffs have made clear their intentions to seek
discovery of this kind of still-classified information, concerning targets and
subjects, participating providers, and other operational details of the
challenged NSA intelligence programs," the motion adds. "Contentious
litigation over the availability of classified information to litigate these
cases against the Government Defendants, and the significant risks to national
security if such information were disclosed, could and should be avoided by
allowing the Court of Appeals to rule first on the legal viability of
Plaintiffs’ claims against the Government Defendants."
Klayman's past litigation has been known for being as
impactful and sometimes more impactful in the discovery phase, where lawyers
demand documents and conduct depositions, as in its ultimate outcome. So, the
government's desire to head that process off for now, and perhaps entirely, is
understandable.
Klayman didn't immediately respond to an e-mail seeking
comment for this item, but made clear in an interview last month that he was
eager to start demanding information on the NSA's surveillance efforts.
"We’re heading to discovery. We’ve got an entree
into the NSA,” he crowed just after Leon issued his ruling determining that the
mass collection of phone data was probably unconstitutional. The conclusion led
Leon to order a halt to NSA's gathering of phone data on Klayman and one of his
clients, but the judge halted that part of his order pending appeal.
The new government filing also underscores a still
unresolved aspect of the NSA call-tracking effort: just how comprehensive it
is.
"Although the Government has acknowledged that the
program involves the collection and aggregation of a large volume of data from
multiple providers, it has not represented in this litigation, nor does the
record contain any representations by the Government, that the program captures
information about all (or even virtually all) telephone calls to, from, or
within the United States," the Justice Department lawyers wrote.
The motion goes on to point to a declassified Foreign
Intelligence Surveillance Court order from August that stated: "production
of all call detail records of all persons in the United States has never
occurred under this program."
While not noted in the new motion, a report from an
outside group President Barack Obama tapped to examine surveillance efforts
added more granularity about the program to the public record last month.
"The meta-data captured by the program covers only a portion of the
records of only a few telephone service providers,” the Review Group report
said.
Comments
Post a Comment