Larry Klayman, the former Reagan administration prosecutor who won a preliminary injunction Dec. 16 against the government’s collection of all American phone records, says the White House’s surveillance review panel should be ignored.
The five-member panel released a 303-page report Dec. 18 containing 46 recommended changes to intelligence practices.
“It’s a ruse,” Klayman tells U.S. News. “This is an age-old government practice: When caught with their hand in the cookie jar, they come up with a ‘solution.’” The practice is somewhat similar to advocating a law outlawing murder after killing someone, he says.
Klayman expects Department of Justice attorneys to file an appeal within a few days challenging the legal victory he received from U.S. District Court Judge Richard Leon against the National Security Agency’s collection of phone records.
Leon’s ruling was the first major legal blow against the NSA following leaks from Edward Snowden that began in June. Another U.S. District Court judge, William Pauley of New York, is considering an injunction request against the phone program as part of a case brought by the American Civil Liberties Union.
Klayman says he may seek to skip over the U.S. Court of Appeals for the District of Columbia and take the government’s appeal of Leon’s injunction directly to the U.S. Supreme Court.
The White House panel released its suggestions two days after Leon’s ruling, and President Barack Obama said Friday he will consider them and reach a decision sometime in January on which ideas – if any – he plans to implement.
One suggestion from the panel is that the NSA’s collection of all American phone records be discontinued and replaced with the voluntary two-year-or-longer retention of those records by phone companies. The records could then be acquired in non-emergency cases by court order.
Michelle Richardson, legislative counsel with the ACLU’s Washington Legislative Office, tells U.S. News such a measure might eliminate an important “de facto civil liberties protection” by making the data available for civil and criminal cases when it otherwise might not have been.
“I share the same concern, if not horror,” Klayman says. “You cannot trust Verizon and the other companies.”
He points to the Foreign Intelligence Surveillance Court order leaked by Snowden to The Guardian in June, which compelled Verizon Business Network Services to secretly and continuously hand over to the government metadata on all phone calls it processed.
“The order by Judge [Roger] Vinson could have been appealed by Verizon,” Klayman says. “[But] they just rolled over, they didn’t care.”
Klayman says phone companies are “fat and happy” from government contracts and cannot be trusted to protect Americans’ privacy.
If Obama does end or modify the NSA phone program as cases against it are pending, Klayman believes the cases would continue.
The conservative activist, who founded the legal watchdog groups Judicial Watch and Freedom Watch, says he has had unusual experiences with technology as he sues to stop the NSA programs.
When he checked his email using a smartphone Sunday, he says, “I was getting old emails on Yahoo going back six years – they were popping up six years out of date. [It was] very strange.” Klayman made similar claims during a Nov. 18 hearing in Leon’s courtroom, saying text messages were sent from his phone without his knowledge.
Klayman says Leon was courageous to issue a preliminary injunction against the NSA, which “can crush you whenever it wishes.”
The seasoned legal activist says he felt numb when Leon – whom Klayman called “an American hero” – issued a thorough denunciation of the “almost-Orwellian” phone program.
“I couldn’t quite take it all in, in many ways,” he says. “I was elated and it finally dawned on me that this could be the biggest decision against the government in the history of litigation.”
Leon ruled the government is almost certainly violating the Fourth Amendment rights of Americans. He ordered the government to end its phone metadata program and destroy its five-year stash of data, but stayed implementation of the order pending appeal.
Although Leon rested his injunction decision on Fourth Amendment grounds, Klayman expects to prove at trial that the NSA’s phone-record collection also violates the First Amendment, leaning on Supreme Court precedent against actions that may chill Americans’ freedom of assembly.
“It’s like a double-barrelled shotgun – we have the First and Fourth amendments here,” he says, adding “and the Fifth because there was no due process at the Foreign Intelligence Surveillance Court.”