Larry Klayman
August 31, 2015
NSA decision explains Trump phenomenon
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By Larry Klayman

Today, almost two years since U.S. District Court for the District of Columbia Judge Richard Leon issued his historic decision preliminarily enjoining the National Security Agency (NSA) and other government defendants, including President Barack Hussein Obama, from spying on nearly all Americans through their access to the telephonic metadata of U.S. citizens, the federal appeals court, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit), which was encharged to review the lower court's injunction, ruled that I and two other plaintiffs had not yet sufficiently proved standing and injury to pursue our claims. The claims included our alleging that the NSA had violated the Fourth Amendment of the Constitution, which prevents unreasonable searches and seizures.

The three-judge panel that issued its tardy decision, going on two years after the preliminary injunction, which Judge Leon stayed pending appeal, is comprised of three Republican establishment judges: Judge David Sentelle, Judge Janice Rogers Brown, and Judge Steven Williams. Instead of affirming Judge Leon's ruling, they sent the case back to him for discovery to uncover whether the NSA had actually accessed Verizon cell phone telephonic records and whether we had sued the correct Verizon company, the one that controls cell phone communications. Judge Leon's original order had found standing based on sound factual reasoning and logic:

"The NSA has collected and analyzed [plaintiffs'] telephony metadata and will continue to operate the program consistent with FISC opinions and orders." The D.C, Circuit opinion says that Leon "infers from the government's efforts to 'create a comprehensive metadata database' that 'the NSA must have collected metadata from Verizon Wireless, the single largest wireless carrier in the United States, as well as AT&T, and Sprint, the second[-] and third-largest carriers.'"

That this three-judge panel of establishment, Republican-appointed judges waited this long to issue its decision, which was exceedingly short in length, and allowed our Constitution to be trashed for nearly two years is not only an outrage, but dishonest. An ill-informed first-year law student could have written as much in one day two years ago. Indeed, in the landmark case of United States v. Mills, 571 F.3d 1304, 1312 (D.C. Cir. 2009), the D.C. Circuit itself found that one day of a constitutional violation, such as one occurring under the Fourth Amendment, was one day too much. As importantly, private parties such as myself and the other two plaintiffs, Charlie and Mary Ann Strange, the courageous parents of a fallen support personnel for Navy SEAL Team VI son, Michael Strange, who died in the tragic Chinook Helicopter attack by the Taliban just three months after Osama bin Laden was killed, is presumed to show a likelihood of success and thus the requisite injury necessary for standing just from the simple fact that constitutional rights have been violated. No more need be shown for a case to proceed.

What, then, helps explain today's decision of the D.C. Circuit's Republican panel? The only explanation for this bizarre and illegal ruling is that these judges, like the majority of federal judges these days when hot-potato, politically related issues are before them, weigh the political winds. Any judge who wishes to be considered for higher appointment likely considers the implications of bucking the establishment by ruling against its wishes. In the case of the NSA's wholesale surveillance of American citizens, the Republican establishment likes of Senate Majority Leader Mitch McConnell, Sens. John McCain and Lindsey Graham, Republican presidential candidate Sen. Marco Rubio and Gov. Chris Christie have publicly and proudly stated their view that the NSA's illegal conduct is just "peachy keen." Thus, these Republican judges have a proclivity, like many of their colleagues, save for the likes of Judge Leon and his colleague on the D.C. federal court, Royce C. Lamberth, to bend over to the Republican benefactors who got them their jobs.

But the issue is not whether we need government surveillance to fight terrorism, but how we do it. Judge Leon had rightly found that the NSA could not cite one instance where this wholesale violation of our privacy rights had stopped one terrorist attack. Instead, the NSA's own inspector general was forced to reveal, as whistleblowers like Edward Snowden and several of my clients have done, that the intelligence agencies routinely use their spy programs to spy on innocent Americans and presumably coerce them into doing what the government wants. This may help explain some of the aberrant decisions of the chief justice of the Supreme Court, John Roberts, who my client Dennis Montgomery claims had his confidential information harvested by the intelligence agencies. Was Roberts blackmailed by President Obama and his comrades into his illegal Obamacare decisions? This is the grave risk Americans are presented with over this unconstitutional surveillance.

While I am confident that the Stranges and I will prevail when this case is sent back to Judge Leon, as the three-judge panel ordered – and Leon has already set a status conference for Sept. 2 at 12 p.m. to address the D.C. Circuit's ruling and how to proceed from here – the moral to the story is that our judiciary no longer serves as our protector. Its bending over to the establishment is analogous to the days leading up to the American Revolution, when King George III usurped and reclaimed to the British crown the colonies' legal rights and system. Coupled with the breakaway tyranny of the executive and legislative branches of government, the citizenry is no longer represented in Washington, D.C., by even the courts. To the contrary, most of our judges, representatives, and the president himself represent their own proper interests.

And, this is why presidential candidate Donald Trump is rising so rapidly in the polls of so-called Republican voters. The country is in a revolutionary mode, and Trump for them may represent the last hope of working inside our system of government to stem the growing tyranny, be it with illegal immigration, or unconstitutional government surveillance, designed to keep We the People enslaved to the establishment of both political parties. This bipartisan establishment, composed of criminally minded "leaders" like President Barack Hussein Obama and Majority Leader Mitch McConnell, as well as a number of presidential candidates such as Hillary Clinton, Marco Rubio and Chris Christie, who have no problem with wholesale NSA spying on all of us, must be shown the door and legally eliminated from our body politic for our nation to survive.

© Larry Klayman

 

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Larry Klayman

Larry Klayman, founder of Judicial Watch and Freedom Watch, is known for his strong public interest advocacy in furtherance of ethics in government and individual freedoms and liberties... (more)

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