Obama Administration: “Heads I win, tails you lose”

Headquarters of the National Security Agency

The Department of Justice regards American citizens as “nothing more than rabble,” charges the attorney who won a legal challenge to the National Security Agency’s spy-on-Americans program called PRISM.

The DOJ moved Wednesday to block the plaintiffs in the case brought by attorney Larry Klayman, founder of FreedomWatch, against the NSA’s telephone call-tracking program.

In its motion filed with U.S. District Judge Richard Leon, who earlier issued an injunction against the spy program and called it “Orwellian,” the government is asking that the judge halt any further proceedings while an appeals court examines the ruling that said the government was violating the Constitution.

Klayman said the move wasn’t exactly a surprise in light of the government’s spying on Americans and its reluctance to provide information about the programs.

“This is a further attempt to keep information about the biggest violation of the Constitution in American history from the American people. It’s an outrage,” he said.

He said the Obama administration has the perspective of “heads I win, tails you lose,” and its attitude is: “We control all the information and the American people be damned. They don’t have rights.”

Klayman said he already had requested a status conference on the case, asking the court how to proceed with discovery in preparation for trial.

The government move reveals its true attitude, he said.

“It’s important for the American people to see how the government treats them and views them. We’re nothing more than rabble,” he said.

Politico reported on the government’s motion, which argued: “Further litigation of plaintiffs’ challenges to the conduct of these programs could well risk or require disclosure of highly sensitive information about the intelligence sources and methods involved – information that the government determined was not appropriate for declassification when it publicly disclosed certain facts about these programs.”

The information actually was disclosed when former NSA contractor Edward Snowden leaked details of the program.

The DOJ argued that if the litigation proceeds, “it will ultimately become necessary to conclusively determine, as a factual matter, whether plaintiffs have established their standing to challenge NSA’s alleged interception of the content of their communications, and collection of metadata about those communications.”

“Further litigation of this issue could risk or require disclosure of classified national security information, such as whether plaintiffs were the targets of or subject to NSA intelligence-gathering activities, confirmation or denial of the identities of the telecommunications service providers from which NSA has obtained information about individuals’ communications, and other classified information.”

But that’s exactly the point of his lawsuits, Klayman says: to find out the details of the programs and whether the government, in its alleged pursuit of information about terror activities, has been violating the constitutional assurances of Americans’ privacy.

The government is alarmed at that aim.

“Plaintiffs have indicated in their pleadings (and during argument on their motions for preliminary injunctions) that they intend to pursue discovery to obtain ‘full disclosure and a complete accounting’ of what the government defendants (and other defendants in these cases ‘have done [or been] allowed to do’ in connection with the challenged NSA intelligence programs; ‘identification of any and all ‘targets’ subject to defendants’ surveillance’ and production of ‘all other relevant reports, risk assessments, memoranda, and other documents,’” the government said.

But the Obama administration said it had to keep all that information secret or risk “exceptionally grave damage to national security.”

DOJ lawyers said they would oppose allowing Klayman or anyone else “access to classified information.”

The DOJ is asking Leon to halt proceeding while there are appeals of his ruling that the government likely is violating Fourth Amendment.

The government apparently doesn’t want to release any information, even if that’s the case.

“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,” government attorneys warn.

Josh Gerstein at Politico noted: “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.”

WND reported just days ago that several states are working on plans to resist the NSA operations, strategizing on ways to make the information unusable even if the NSA collects it.

According to the Tenth Amendment Center, lawmakers in Missouri are proposing to amend their state constitution. Their plan would add “and electronic communications and data” to the provision that provides privacy and security for residents.

If changed by voters, it would read: “That the people shall be secure in their persons, papers, homes [and], effects, and electronic communications and data, from unreasonable searches and seizures; and no warrant to search any place, or seize any person or thing, or access electronic data or communication, shall issue without describing the place to be searched, or the person or thing to be seized, or the data or communication to be accessed, as nearly as may be; nor without probable cause, supported by written oath or affirmation.”

The Joint Resolution, pending before the state Senate, proposes allowing Missouri voters to decide next November whether or not to amend their constitution.

According to the Tenth Amendment Center, federal judges and lawyers may squabble over the constitutionality of the NSA data-gathering, but lawmakers could make it impossible for any information obtained to be used in those states.

In Kansas, Rep. Brett Hildabrand, R-Shawnee, prefiled a bill that would “ban all state agencies and local governments in the state from possessing data ‘held by a third-party in a system of record’ and would prohibit any such information from being ‘subject to discovery, subpoena or other means of legal compulsion for its release to any person or entity or be admissible in evidence in any judicial or administrative proceeding.’”

The access the data, under the bill, government would be required to obtain “express informed consent” or a warrant.

In Kansas, it’s called the Fourth Amendment Protection Act.

“I want to make sure that electronic privacy in Kansas is protected in the same way that physical letters in the mail are protected from random government searches,” Hildabrand told the center. “Each day, we hear a new revelation about how the NSA is violating our personal privacy. My bill will ensure the state of Kansas doesn’t utilize this illegally obtained data.”
Read more at http://mobile.wnd.com/2014/01/obama-moves-to-block-nsa-slayers-lawsuit/#Ru2FgeMfYVWafTbI.99

Judge Rules NSA Surveillance Unconstitutional….Ya think?

This is positive. I like it quite a bit. However, I am now so skeptical that I think they’ll find a way to overturn this ruling. Guess I’ve been around long enough to truly wear the badge of cynic. LOL!

Anyway, it is good news, and I really like to share positive things whenever I have the chance.

Judge: NSA phone program likely unconstitutional

The NSA headquarters are pictured. | AP Photo

The ruling is the first significant legal setback for the NSA’s surveillance program. | AP Photo

By JOSH GERSTEIN | 12/16/13 1:36 PM EST Updated: 12/16/13 7:44 PM EST

A federal judge ruled Monday that the National Security Agency program which collects information on nearly all telephone calls made to, from or within the United States is likely unconstitutional.

U.S. District Court Judge Richard Leon found that the program appears to violate the Fourth Amendment ban on unreasonable searches and seizures. He also said the Justice Department had failed to demonstrate that collecting the information had helped to head off terrorist attacks

Acting on a lawsuit brought by conservative legal activist Larry Klayman, Leon issued a preliminary injunction barring the NSA from collecting so-called metadata pertaining to the Verizon accounts of Klayman and one of his clients. However, the judge stayed the order to allow for an appeal.

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval,” wrote Leon, an appointee of President George W. Bush.

The preliminary injunction Leon granted Monday does not require him to make a definitive ruling on the constitutional questions in the case, but does take account of which side he believes is more likely to prevail.

Leon’s 68-page opinion is the first significant legal setback for the NSA’s surveillance program since it was disclosed in June in news stories based on leaks from former NSA contractor Edward Snowden. For seven years, the metadata program has been approved repeatedly by numerous judges on the Foreign Intelligence Surveillance Court and found constitutional by at least one judge sitting in a criminal case.

(WATCH: Boehner says Edward Snowden is a ‘traitor’)

The Justice Department persuaded those courts that the collection of information on the time and length of calls, as well as the numbers called, did not amount to a search under the Fourth Amendment because that information is routinely available to telephone companies for billing purposes and is shared with those firms voluntarily.

Government lawyers and the judges who found the NSA program legal pointed to a 1979 Supreme Court ruling, Smith v. Maryland, which found no search warrant was needed by police to install a device which recorded the numbers dialed on a particular phone line.

But Leon said the three-decade-old precedent was not applicable to a program like the NSA’s because of its sophistication and because telephone use has become far more intense in recent years.

“The ubiquity of phones has dramatically altered the quantity of information that is now available and, more importantly, what that information can tell the Government about people’s lives,” the judge wrote. “I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones.”

The judge went on to conclude that the searches involved in the NSA metadata program were likely not permissible under the Fourth Amendment in part because there was little evidence the program has actually prevented terrorism.

“I have significant doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism,” Leon wrote. “The government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature.”

Edward Snowden himself praised the decision.“I acted on my belief that the NSA’s mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts. Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many.”

The judge’s ruling was issued just before White House press secretary Jay Carney took the podium for the daily press briefing. Carney said he was unaware of the decision and he referred inquiries to the Justice Department.

“We are reviewing the court’s decision,” DOJ spokesman Andrew Ames said.

Similar lawsuits challenging the program are pending in at least three other federal courts around the country. In addition, criminal defendants are beginning to challenge the program after the Justice Department disclosed it had played a role in investigating their cases.

Critics of the NSA program leapt on Leon’s decision as evidence that the legal foundation of the surveillance effort is deeply flawed.

“The ruling underscores what I have argued for years: The bulk collection of Americans’ phone records conflicts with Americans’ privacy rights under the U.S. Constitution and has failed to make us safer,” Sen. Mark Udall (D-Colo.) said in a statement urging passage of legislation ending the so-called bulk collection program. “We can protect our national security without trampling our constitutional liberties,” he added.

At a hearing last month, Leon said he knew that his decision would be far from the last word on the issue, which is almost certain to wind up at the Supreme Court.

However, he added some flair to his opinion Monday, referring at one point to the Beatles and at another to Federalist Papers author James Madison, who later became president.

“Surely, such a program infringes on ‘that degree of privacy’ that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware ‘the abridgement of freedom of the people by gradual and silent encroachments by those in power’ would be aghast,” the judge wrote.

Read more: http://www.politico.com/story/2013/12/national-security-agency-phones-judge-101203.html#ixzz2ngs4geDM