Supreme Court Declines Speedy Review of NSA Phone Program
A judge ruled in December the 'almost Orwellian' program
almost certainly is unconstitutional.
By Steven Nelson April 7, 2014
The U.S. Supreme Court denied conservative legal activist
Larry Klayman’s request for a fast-tracked review of the National Security
Agency’s bulk collection of American phone records on Monday.
Klayman won a preliminary injunction against the program
– stayed pending appeal – from U.S. District Judge Richard Leon on Dec 16. Leon
deemed the collection “almost Orwellian” and almost certainly a violation of
the Fourth Amendment. He did not address Klayman’s First and Fifth Amendment
arguments in the preliminary decision.
The Department of Justice appealed Leon’s ruling to the
U.S. Court of Appeals for the D.C. Circuit, but Klayman sought to leapfrog that
appeals court and take the case directly to the Supreme Court.
“This case is of such imperative public importance that
it justifies deviation from normal appellate practice and requires immediate
consideration and determination in the Supreme Court,” he wrote in his filing
with the high court.
The court denied Klayman's request without comment.
“It was a long shot, we gave it a college try,” Klayman
tells U.S. News. “It’s not surprising, they obviously want it to go through the
intermediate-level appellate courts first. [But] I wish they had taken it
because every day our constitutional rights are violated is a day too much. It
certainly would have served the American people to have this resolved as soon
as possible.”
After vigorously defending the program for months,
President Barack Obama announced in March he favors ending the NSA’s in-house
collection and five-year retention of all American phone records if Congress
passes legislation to that effect. His administration has proposed requiring
warrants before the NSA can collect records from phone companies.
If the program is ended and the contested collection
banned, it’s possible cases filed after whistleblower Edward Snowden’s June
2013 leaks will be deemed moot by courts.
“The court can only enjoin programs that will continue
into the future, not programs that existed in the past,” Douglas Laycock, a
professor at the University of Virginia School of Law, told U.S. News after
Obama’s pivot.
There are at least six lawsuits challenging the program.
Each seeks declarations that the program is unconstitutional and permanent
injunctions ending it.
Klayman, unlike other challengers, seeks damages from
Verizon and U.S. officials – which may keep his two cases alive, experts say.
Cases brought by the Electronic Frontier Foundation, the American Civil
Liberties Union and Sen. Rand Paul, R-Ky., do not seek damages.
“If the change comes in the form of a formal statute,
rather than simply an executive branch discretionary decision, and there is no
issue of past damages … I would put my money on the judiciary's finding the
issue moot,” said Martin Redish, a professor at the Northwestern University
School of Law.
Phone companies complying with government surveillance
were granted immunity by Congress in 2007, but the government may be on the
hook for damages if it's found to have violated Section 2712 of the Stored
Communications Act.
“If Congress passes a statute saying that bulk data
collection is not authorized … And if what the plaintiffs want is an injunction
against future collection of bulk data, then any dispute about whether bulk
data collection would be lawful in the absence of the new statute would be
moot,” Harvard Law School professor Richard Fallon said.
“By contrast, if someone brought a damages action seeking
to recover for harm caused by data collection that had occurred in the past,
and was alleged to be unlawful at the time when it happened in the past, then a
statute retroactively ‘clarifying’ what Section 215 [of the Patriot Act] meant
in the past would be evidence, but not necessarily controlling evidence, with
regard to what Section 215 meant in the past,” Fallon said.
After Leon’s December ruling, Klayman divided his
original class-action lawsuit into a truncated case with a handful of
plaintiffs – aimed toward reaching the Supreme Court – and a class-action,
which likely will wind more slowly through the legal process.
Klayman’s challenge has been the most successful of the
anti-NSA lawsuits to date. The ACLU’s suit was dismissed Dec. 27 by U.S.
District Judge William Pauley of New York. That ruling is being appealed. Two
cases filed by the EFF are pending in federal court in California and Paul’s
lawsuit – filed Feb. 12 – may proceed parallel to Klayman’s class-action in
D.C.
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