A three judge panel of the US Court of Appeals for the District of Columbia Friday lifted the injunction against the National Security Agency’s (NSA) metadata phone records collection program on the grounds that the plaintiff did not prove his own phone records were collected and so lacks standing to sue.
The court ruled there aren’t sufficient grounds for the preliminary injunction imposed by the lower court.
The appeals court sent the case back to the lower court for further deliberation on the standing issue.
The move questions the ban on the NSA’s collection that was imposed — and temporarily stayed — by US District Court Judge Richard J. Leon, who earlier ruled the plaintiff “demonstrated a substantial likelihood of success” in his bid to prove his Fourth Amendment right to privacy was violated and that the NSA program was likely unconstitutional.
However, appeals court Judge Stephen Fain Williams, a Senior Circuit Judge on the appeals panel appointed by President Reagan, wrote in his opinion that the lead plaintiff, Larry Klayman, founder of Judicial Watch and Freedom Watch, “lack[s] direct evidence” that records involving his calls “have actually been collected.”
Klayman is a customer of Verizon Wireless, the only phone company the government acknowledged was part of the NSA’s pone meta data collection program.
Conversely, Judge Leon had ruled Klayman “demonstrated a substantial likelihood of success” to prove his Fourth Amendment right to privacy was violated and that the NSA program was unconstitutional.
Under the appeals court’s ruling, the NSA’s metadata phone records collection can continue until it expires at the end of November. Pursuant to the USA Freedom Act, which Congress passed in June, the NSA program was allowed to continue for 180 days until new provisions to address privacy issues go into effect.
“The real impact of the ruling remains to be seen as the Appellate Judges could not agree among themselves as to the proper justification for the reversal, or what should happen next, only that the opinion should be reversed,” responded Robert Cattanach, a partner at the international law firm Dorsey & Whitney who previously worked as a trial attorney for the United States Department of Justice and was also special counsel to the Secretary of the Navy.
Cattanach said, “While finding the plaintiffs’ concerns more than conjectural — Judge [Janice Rogers Brown, a Bush appointee] assumes that plaintiff’s records were collected given comprehensive sweep of NSA’s program – Judge Brown essentially agreed that the plaintiffs had not demonstrated sufficient likelihood of success on the merits required to justify an injunction, starting with the threshold question of whether any of their information has in fact been accessed: ‘In the present case, the plaintiffs concede that there is no single plaintiff who can show that he or she has actually been wiretapped.’”
Brownfurther opined that, “Although one could reasonably infer from the evidence presented the government collected plaintiffs’ own metadata, one could also conclude the opposite.” Consequently Brown wrote, the plaintiffs "fall short of meeting the higher burden of proof required for a preliminary injunction.”
“For his part,” Cattanach said, “Judge Williams was even more skeptical that the plaintiffs, as customers of Verizon Wireless, were included in the collection, which was directed at Verizon’s Business Network Services, and as a result would not allow the litigation to proceed because the plaintiffs have failed to show the likelihood of any injury,” (Taking a not-so-veiled swipe at the Second Circuit Court of Appeals and its opinion assuming the contrary in ACLU v Clapper, decided earlier this year).”
“For his part, Judge [Chief Judge David] Sentelle [also appointed by Reagan] believes that the case should be dismissed outright, rather than remanded to the District Court for further proceeding, because the plaintiffs failed to establish a likelihood of real harm sufficient to invoke the jurisdiction of the court,” Cattanach said.
“So what’s the District Court to do now?” Cattanach asked. “Engage in an exercise of futility. The government is almost certain to deny any access to the specifics of a classified program through discovery, creating the likelihood of a standoff between the plaintiffs and the government, with the court left to rule based on conjecture about what really happened.”
“Judge Brown articulates the conundrum succinctly: ‘Excessive secrecy limits needed criticism and debate. Effective secrecy ensures the perpetuation of our institutions.’ The challenge will be to divine which of these the NSA program is without access to the full facts,” Cattanach said.
Writing in the August/September 2014 issue of Homeland Security Today, Professor Robert Turner, who holds both professional and academic doctorates from the University of Virginia School of Law where in 1981 he co-founded the Center for National Security Law, and served for three years as Counsel to the President’s Intelligence Oversight Board in the White House, said, “If the critics believe NSA collection of telephony metadata—which can be searched by computer to identify phone numbers that have connected to numbers used by known foreign terrorists—is unconstitutional, then presumably they will feel it is unconstitutional for the police to search Department of Motor Vehicle (DMV) license plate records to try to identify the owner of a vehicle used by an apparent sexual predator. And, by this logic, we should certainly shut down the massive FBI criminal justice information facility in Clarksburg, West Virginia, where a vast computer database contains hundreds of millions of fingerprints which are routinely searched without a warrant to identify prints found at crime scenes—unless the FBI can show it has “probable cause” that every person whose prints are in the database likely committed the crime each search is attempting to solve. This is, of course, absurd.”
Continuing,Turner wrote, “The NSA is not ‘spying’ on hundreds of millions of Americans. It is collecting information (such as telephone records) so that a computer can scan through vast amounts of data searching for one or more matches that might produce possible suspects in a foreign intelligence or counterterrorism investigation. During all of 2012, only 288 phone numbers of known or suspected international terrorists were entered into this database to try to identify phone numbers within the United States that had been used to communicate with those phone numbers. This process does not collect a single word of conversation, or even identify who was speaking on either phone at the time. It merely gives the date, time and duration of each call. To collect the content of such communications today requires a judicial warrant.”
Turner said, “The Supreme Court expressly held in the 1979 case of Smith v. Maryland that collecting telephony metadata does not require a warrant, and assistant US attorneys routinely use administrative subpoenas (without involving a judge or obtaining a warrant) to obtain telephone and other business records to present to grand juries. I had the great pleasure of debating former University of Chicago Law School Dean Geoffrey Stone in February. Dean Stone was a member of the President’s five-member Review Group on Intelligence and Communications Technologies and is a leading constitutional scholar. During the debate, he acknowledged that under current Supreme Court precedent, the NSA metadata collection program is constitutional—but he disagreed with the Court’s ruling in Smith v. Maryland. Perhaps the Court will at some point modify or reverse that case, in which case the NSA will certainly alter its practices to comply with the law. But, until then, the program is fully consistent with the Fourth Amendment.”
“A key job of intelligence analysts is often described as ‘connecting the dots.’ But before you can connect the dots, you must collect the dots. And that’s what NSA has been trying to do,” Turner continued. “As with fingerprint and DMV searches, a computer scans vast amounts of data, but human beings actually see a tiny fraction of that information. If the events of September 11, 2001 did not bother you—and if you are not concerned that there are foreign terrorists plotting even more devastating attacks, perhaps involving nuclear or biological weapons—then you might favor shutting down the NSA and accepting the consequences. I don’t think most Americans would select that option if they understood the facts. But if you ask them whether they want the government to violate the Bill of Rights, they will quite properly and indignantly respond in the negative (as would I). But that’s not happening.”
Turner continued: “I have not seen all of the highly-classified NSA documents [Ed] Snowden stole … but as someone who has studied national security and intelligence law for decades, I have not yet seen anything that was clearly illegal. The public has been up in arms because pundits and legislators from both political extremes have assured them that the Constitution is being violated. But I don’t see it. In 1968, Congress by statute acknowledged that the President has independent constitutional power to authorize warrantless electronic surveillance for foreign intelligence purposes, and every appellate court to decide the issue has agreed. In 2002, the appellate court established by [the] Foreign Intelligence Surveillance Act [FISA] unanimously took notice of this, adding: ‘We take if for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.’ I worked in the Senate when FISA was enacted in1978, and it was my view at the time that it was blatantly unconstitutional."
Given the conflicting court rulings, the case is likely to end up before the Supreme Court.
