WASHINGTON – A federal appeals court in Washington has lifted an injunction against the National Security Agency’s call records program on the grounds that the plaintiff has not proved his own phone records were collected and so lacks standing to sue.
The move lifts a ban on the NSA’s collection that had been imposed – and temporarily stayed – by a U.S. District Court judge in December 2013.
The program, after it was acknowledged by the government in the summer of 2013, spurred heated national, congressional and legal debate over whether it was proper and lawful for the NSA to collect millions of Americans’ phone records in an effort to detect terrorist plots.
Congress in June put an end to the program, passing a law that barred the government from collecting phone and other records in bulk. But the NSA is continuing to do so as it transitions the program to phone companies by December.
In Friday’s ruling, a three-judge panel of the U.S. Court of Appeals for the District of Columbia sent the case back to the lower court for further deliberation on the standing issue.
Circuit Court Judge Stephen Williams wrote that the lead plaintiff, conservative legal activist Larry Klayman, “lack[s] direct evidence” that records involving his calls “have actually been collected.”
The ruling’s significance is limited by its procedural nature and the fact that it does not address the constitutionality or legality of the surveillance program.
Klayman lashed out at the panel for its timing. “An ill-informed first-year law student could have written this within one day,” he said. “Why did you wait nearly two years after Leon issued his decision? You delayed getting to the issues. During that time the constitutional rights of Americans continue to be violated.”
He nonetheless said that he was confident he would prevail. He said that he could amend his complaint to include plaintiffs who are customers of Verizon Business Network Services.
He accused the panel of “reacting to the politics of the Washington Republican establishment ... who say, ‘Do what you want, NSA.’“
“Nobody’s against doing surveillance of terrorists,” he said. “What we’re saying is get a warrant.”
To date, the only appeals court to rule on the merits of the NSA program is the 2nd U.S. Circuit Court of Appeals in New York, which in May held the collection violated the Patriot Act and was “unprecedented and unwarranted.”
That court will hear arguments next week on the American Civil Liberties Union’s request that the agency be required to end the collection immediately – not in November.
The court in Klayman’s case observed that Klayman’s effort to prove standing was complicated by the possibility that the government could withhold information that would bolster his allegations. “Plaintiffs’ claims may well founder in that event,” said Circuit Court Judge Janice Rogers Brown. “But such is the nature of the government’s privileged control over certain classes of information.”
The ruling, said Harley Geiger, senior counsel for the Center for Democracy and Technology, “demonstrates that excessive secrecy limits debate and reform. It leads to unbalanced surveillance programs and provides victims with little or no recourse.”
