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Judge Says NSA Program Is Unconstitutional, 'It's Time to Move'

Steven Nelson

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A federal judge says he will tolerate no foot-dragging and tells Justice Department attorneys not to take vacation.

Sept. 2, 2015

A federal judge in the nation’s capital made clear Wednesday he would like to order the Obama administration to end its dragnet collection of U.S. call records as soon as possible.

U.S. District Judge Richard Leon, in fact, outlined for anti-surveillance attorney Larry Klayman how to hasten the process. When the attorney quibbled about specifics during a status hearing, Leon repeated himself emphatically, saying he believes the constitutional rights of millions of citizens are being violated.

“I’m prepared to lift the stay I issued,” Leon said, referring to the hold he placed on a preliminary injunction against the collection he issued to Klayman in December 2013. “It’s time to move, let’s get going.”

The judge outlined two specific things Klayman can do to make him able to rule more quickly.

[RELATED: NSA Whistleblowers Sue for $100 Million]

First, Leon said, Klayman can file a motion requesting that the appeals court panel, which on Friday said Klayman cannot prove Verizon Wireless records were affected, expedite the return of jurisdiction over the matter to District Court.

Klayman said he will file such a motion on Thursday. The delay in return of jurisdiction is to allow time to appeal decisions to a higher court. In the meantime, Leon said, his ability to act is constrained.

Separately, Leon said, Klayman can ask his permission to amend the case to add a plaintiff who is a customer of Verizon Business Network Services, which was named in a leaked document the government acknowledges is valid. Government attorneys refuse to acknowledge in court that any other provider is affected by the phone dragnet.

Klayman plans to do that, too, but he hasn’t announced the identity of the person or entity he will seek to add to the case.

[EARLIER: NSA Wins, Sort Of, at Appeals Court]

Amending the complaint would allow Leon to sidestep a legal brawl over discovery into whether Verizon Wireless is affected by the dragnet, as both he and Klayman suspect. Sidestepping that matter could allow Leon to order the cessation of collection before the program expires in late November pursuant to reforms in the USA Freedom Act.

“The window is very small in the view of law,” he said. “You need to be thinking about the fastest, most expeditious” way to move the case, he told Klayman. “I didn’t think it would take so long to get back here.”

With a knowing look, the judge cut off Klayman when he was about to share his explanation for why it took nearly two years for the appeals panel to rule. Klayman told U.S. News last week he believes the appeals panel was “kissing the behinds – the derrieres – of the people in the Washington, D.C., establishment who got them their jobs."

Leon is the first and thus far only District Court judge to rule against the NSA phone record program, which the Bush and Obama administrations conducted using a secret and expansive reading of Section 215 of the Patriot Act. In his 2013 ruling, he found the program likely violates Fourth Amendment rights.

[READ: DOJ Asks Congress to Reverse DOJ Opinion That Limits Oversight]

When he’s able to rule, Leon said, analysis of the constitutional question “has been written,” suggesting he’s prepared to reiterate the holdings of his previous ruling. "This court believes there are millions of Americans whose constitutional rights have been and are being violated," he said.

Leon at points farcically said he wasn’t suggesting Klayman do anything, and he expressed sympathy with Klayman’s desire for discovery to learn whether the NSA had, in fact, taken Verizon Wireless records, saying Department of Justice attorneys in the courtroom should be able to easily locate an NSA official and have them attest to the fact in court documents within a day.

“To this court, it is beyond even common sense that Verizon Wireless was involved,” Leon said, but he noted there’d be legal wrangling about whether the government could be forced to reveal such information.

The hearing in Leon’s courtroom began two hours before a federal judge in New York considered the American Civil Liberties Union’s case against the same program.

The ACLU, which is a Verizon Business Network Services customer, lost at the District Court level in late 2013, but the case was reinstated by a three-judge appeals panel that earlier this year said the program unlawfully exceeded authority granted by the Patriot Act. Those judges didn’t reach the constitutional questions.