By Jody Godoy
Law360, New York (November 19, 2015, 8:49 PM ET) – A lawyer and his firm fighting to have their information erased from the National Security Agency‘s mass phone data collection program asked the D.C. Circuit on Wednesday for an emergency en banc rehearing of an order staying the case, suggesting the judges involved were swayed by the Paris attacks.
A three-judge panel for the court granted a stay of an order compelling the government to delete the information on Monday, just weeks ahead of a deadline for terminating the program. Attorney J.J. Little and J.J. Little & Associates PC argued the appellate judges could have been swayed to do so by renewed public debate around the value of the program in the wake of the terrorist attacks that killed at least 129 people in Paris.
“The recent heinous terrorist attacks in Paris may have influenced the three-judge panel based on false excuses publicly that the reason these attacks went undetected was because the NSA’s surveillance had been curtailed thanks to this underlying case and recent executive branch policies,” Little and three other objectors to the program said.
On Monday, the D.C. Circuit panel froze U.S. District Judge Richard J. Leon’s order that would have pulled the plug on the government’s bulk collection of call records to give the government a shot at appeal – an appeal that is unlikely to wrap up before the Nov. 29 deadline set by Congress in the USA Freedom Act that will end the program and replace it with one in which intelligence agents must have a reason to suspect the numbers they want to monitor.
In their filing on Wednesday, Little and co-plaintiffs Larry Klayman, Charles Strange and Mary Ann Strange railed against the “hapless and dishonest” NSA, which they said was probably lying when it told the court that taking their phone call data out of the database immediately would require shutting down the program completely.
The group argued that “one would have to be swayed by the politics of the day” after the attacks to accept the government’s argument that it did not have the technical capacity to exclude two targets from its bulk data collection.
They did not point to specific government statements after the terrorist attacks that may have swayed the judges.
However, the attacks have resurrected a debate around the program that gathers massive amounts of data on call recipients and durations.
On Tuesday, Sen. Tom Cotton, R-Ark., proposed legislation to extend the bulk telephone data collection program beyond the Freedom Act deadline through January 2017 while re-evaluating the effectiveness of the newer, more targeted program.
Klayman sued in 2013 to force the government to end the program. Those efforts hit a roadblock in August when an appeals court said he could not prove his phone records including call recipients and times had been collected. Klayman did not subscribe to Verizon Wireless Business Network, the only wireless company the government has acknowledged participated in the controversial phone data collection program, the appeals court said at the time.
A fourth amended complaint fixed the problem in September by adding Little and his firm, who did subscribe to VWBN.
Klayman, who represents himself and the other NSA program objectors, told Law360 that “if the DC Circuit does not affirm Judge Leon and stand up not just for plaintiffs but by extension the American people by respecting the 4th Amendment to the Constitution … we are back to 1776.” Klayman noted that U.S. Chief Justice John Roberts expressed a similar sentiment in a landmark ruling last year banning warrantless cellphone searches.
A representative for the government did not immediately reply to requests for comment Thursday.
Circuit Judges David S. Tatel, Thomas B. Griffith and Patricia A. Millett sat on the panel for the D.C. Circuit.
Klayman represents himself and the other plaintiffs.
The government is represented by Benjamin C. Mizer, Channing D. Phillips, Douglas N. Letter, H. Thomas Byron III and Catherine H. Dorsey of the U.S. Department of Justice.
The case is Klayman v. Obama et al., case number 1:13-cv-00851, in the U.S. District Court for the District of Columbia. The appeal is Klayman v. Obama et al., case number 15-5307, in the U.S. Court of Appeals for the District of Columbia Circuit.
– Editing by Brian Baresch.