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U.S. phone, Internet surveillance face court challenges

12:27 PM, Nov 16, 2013   |    comments
The sign outside the National Security Agency campus in Fort Meade, Md. (Photo: Patrick Semansky, AP)
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WASHINGTON - The federal government's once-secret telephone and Internet surveillance programs face crucial court hearings in Washington and New York this coming week, and even the Supreme Court is getting in on the act.

The challenges, brought by liberal, conservative and privacy watchdog groups, raise the prospect that a federal judge could order at least a temporary halt to the National Security Agency's snooping on millions of Americans.

U.S. District Court Judge Richard Leon on Monday will hear former Reagan administration lawyer Larry Klayman's request for preliminary injunctions against both of the government's major surveillance programs. One sweeps up telephone companies' data from domestic call records, even though the targets are foreign terrorists. The other goes after cellphone and computer data from major wireless companies and Internet service providers.

"This whole NSA thing unites both political ideologies," Klayman says. "The whole country is outraged."

Four days later, U.S. District Judge William Pauley will hear the American Civil Liberties Union's request for a preliminary injunction against the telephone surveillance program. The ACLU case, based on First and Fourth Amendment protections of speech and privacy, contends that the USA Patriot Act does not authorize such widespread spying.

"Neither the statute nor the Constitution permits the government to engage in that kind of dragnet surveillance of hundreds of millions of people who haven't done anything wrong," says Jameel Jaffer, the ACLU's deputy legal director.

A third case up for review Monday was brought directly to the Supreme Court by the Electronic Privacy Information Center. While the target in the other cases is the government, EPIC is going after the top-secret court that authorized the surveillance of Verizon phone records under the Foreign Intelligence Surveillance Act.

"The FISA court exceeded its authority under current law," says Marc Rotenberg, the group's executive director. His brief to the court notes that everyone - even Supreme Court justices - could be swept up in the phone surveillance program.

The Supreme Court request is considered a long shot because the justices rarely accept cases that don't filter up from lower courts. It was scheduled to be discussed at the justices' private conference Friday and was not among the cases later granted. That makes a denial likely.

In all three cases, the Justice Department argues that the challengers lack standing to bring the lawsuits because they were not directly involved or cannot prove their records were examined.

The solicitor general's briefs also defend the surveillance on national security grounds. Its Supreme Court brief says the program "authorizes the production of business records where there are 'reasonable grounds to believe' that the records are 'relevant' to an authorized and properly predicated ongoing FBI investigation of specific terrorist organizations."

Amnesty International and other civil libertarians brought the last Supreme Court challenge to government surveillance programs in 2012. But in February, the justices ruled 5-4 that the challengers lacked standing because they could not prove they had been wiretapped.

"This theory of future injury is too speculative," Justice Samuel Alito said in announcing the decision, calling it "hypothetical future harm."

Since then, however, leaks from former NSA contractor Edward Snowden have led the government to make much of the programs public, enabling challengers to claim their privacy was invaded.

The person with the most direct claim may be Jamshid Muhtorov, 35, a refugee from Uzbekistan living in Aurora, Colo. His lawyers were told last month by the Justice Department that terrorism-related charges against him stemmed from the warrantless surveillance program.

Muhtorov was arrested in January 2012 on a charge of providing and attempting to provide material support to a designated foreign terrorist organization. The FBI alleged that he planned to travel overseas and fight on behalf of the Pakistan-based Islamist Jihad Union, which has conducted suicide attacks in Uzbekistan and claims responsibility for attacks against coalition forces in Afghanistan.

Based on the insistence of Solicitor General Donald Verrilli, the Justice Department plans to notify other criminal defendants as well when their charges are based on warrantless surveillance. That makes the prospect of a future Supreme Court case more likely.

"All of these cases are different vehicles for trying to get into the courts the issue about large-scale electronic surveillance and the Constitution," says Erwin Chemerinsky, a constitutional law professor and founding dean at the University of California-Irvine School of Law.


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