- Apr 24, 2013
- 1,200
Attorney Larry Klayman, who last year won a federal court judgment against the National Security Agency’s spy-on-Americans program that keeps records of phone calls, has told an appeals court considering the same dispute not to trust what the government says.
Because it lies.
“It is clear that this court should not believe anything that the government appellants-cross-appellees say,” wrote Klayman in a brief submitted to the U.S. District Court of Appeals for the District of Columbia.
“They are holding all of the cards and pretending as though they have safeguarded the rights of Americans when in fact every time there is a leak of information the exact opposition has been shown to be true,” he wrote.
Klayman sued the NSA over the collection of telephone metadata from Verizon customers that was detailed in documents released by intelligence-document leaker Edward Snowden. In December, U.S. District Judge Richard Leon ruled the NSA program likely is unconstitutional and ordered the government to stop collecting data on the two plaintiffs. He stayed his injunction, however, “in light of the significant national security interests at stake in this case and the novelty of the constitutional issues.”
Klayman, founder of Freedom Watch and a columnist for WND, prepared a supplemental brief following a court hearing on election day. He filed it with the court along with a “motion for leave to file,” which responds to questions that couldn’t be fully addressed in court due to lack of time.
The three judges who heard arguments Tuesday, the Associated Press reported, expressed “uncertainty about where to draw the line between legal surveillance and violations of constitutional rights.”
At issue are orders for the FBI from the secret Foreign Intelligence Surveillance Court telling telephone companies to give the government “metadata,” details about telephone traffic, such as the numbers dialed.
WND has reported on the case since it developed, including when two privacy-rights heavyweights, the American Civil Liberties Union and the Electronic Frontier Foundation, weighed in on Klayman’s side.
An EFF friend-of-the-court brief in support of the district court ruling said, “The call records collected by the government are not just metadata – they are intimate portraits of the lives of millions of Americans.”
The data, EFF said, “reveals political affiliation, religious practices and peoples’ most intimate associations.”
“It reveals who calls a suicide prevention line and who calls their elected official; who calls the local tea-party office and who calls Planned Parenthood.”
Help Larry Klayman with his class-action suit against Obama’s use of the NSA to violate Americans’ rights
In his newest brief, Klayman explains that not only has his email apparently been used inappropriately, other plaintiffs also reported apparent government manipulation of their computers.
He cited the affidavit of David Siler, a computer expert who helped troubleshoot the computer owned by plaintiffs Charles and Mary Ann Strange, the parents of a Navy SEAL killed in the August 2011 crash of a Chinook helicopter in Afghanistan.
Siler found: “During my trouble shooting of the workstation, I found multiple viruses, spyware and keystroke loggers that had been installed on the workstation on the same date and time that Charles Strange had given me as the time he inserted the disc [from the government] into his computer to view the crash report.”
Klayman said his own electronic devices also were targeted.
“Government appellants-cross-appellees have never sought to refute this uncontroverted evidence. Instead, they simply represent that neither the lower court nor this court are entitled to know what it is they are doing much less appellees/cross-appellants,” Klayman wrote.
“Without any proof provided by the government appellants-cross-appellees, the lower court and this court are being asked to take the government appellants-cross-appellees boldfaced and unsubstantiated assertions on face value. These assertions are demonstratively false based upon what the National Security Agency’ own inspector general has uncovered, which document the systematic, widespread violation of minimization procedures, namely the NSA has routinely accessed individuals identities and metadata without probable cause to do so. The government appellants-cross-appellees were only forced to come clean with this pattern of illegal and unconstitutional conduct after whistleblower Edward Snowden revealed their ongoing criminal activity. ”
Klayman also quoted from the FISC court, which stated: “The court is troubled that the government’s revelations regarding NSA’s acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.”
And the court continued: “The government has compounded its non-compliance with the court’s orders by repeatedly submitting inaccurate descriptions of the alert list process to the FISC. Due to the volume of U.S. person data being collected pursuant to the court’s orders, the FISC’s orders have all required that any renewal application include a report on the implementation of the court’s prior orders, including a description of the manner in which the NSA applied the minimization procedures set forth therein.
“Regardless of what factors contributed to making these misrepresentations, the court finds that the government’s failure to ensure that responsible officials adequately understood the NSA’s alert list process, and to accurately report its implementation to the court, has prevented, for more than two years, both the government and the FISC from taking steps to remedy daily violations of the minimization procedures set forth in FISC orders and designed to protect [redacted] call detail records pertaining to telephone communications of U.S. persons located within the United States who are not the subject of any FBI investigation and whose call detail information could not otherwise have been legally captured in bulk.”
The government, wrote Klayman, claims that metadata “does not contain and its agents do not access without probable cause information about peoples’ identities.”
But, he explained, “This has been shown to be a complete lie.”
He cited the NSA report that said since 2003, there have been “12 substantiated instances of intentional misuse” of “surveillance authorities.”
Nearly all of those cases “involved an NSA employee spying on a girlfriend, boyfriend, or some kind of love interests,” he wrote.
“Even more, as The Washington Post has reported, an internal audit[says] the National Security Agency has broken privacy rules or overstepped its legal authority thousands of times each year since 2008,” he continued.
“Further, it is black letter law that a pattern of illegal conduct will give rise to a strong evidentiary inference that unconstitutional behavior is occurring against appellees/cross-appellants, particularly in the absence of any concrete direct evidence submitted by the government appellants-cross-appellees,” Klayman said.
Read more at http://www.wnd.com/2014/11/nsa-slayer-to-judges-the-government-is-lying/#vedegK1gQeWDdKiW.99
