US District Court Judge William H. Pauley is at the center of the debate over whether or not Americans can request that the National Security Agency (NSA) halt their surveillance programs.
Lawyers for the government stated to Pauley that “ordinary Americans cannot legally challenge it.”
Stuart Delery, attorney for the Department of Justice (DoJ) explained that based on Smith v. Maryland (SvM), “ordinary Americans have no standing to challenge the collection of their call records. Americans have no reasonable expectation of privacy for those records, and that only phone companies can challenge their collection.”
Because of this legal standing, government attorneys are moving for a dismissal of the case.
Delery told the court that the NSA surveillance program was “carefully calibrated to the purpose for which it is being used.”
House Representative James Sensenbrenner, author of the Patriot Act of 2001, wrote an amicus curiae brief to the court.
Sensenbrenner said that he never expected for the federal government to use his legislation for such over-reaching Big Brother surveillance state activities.
Delery suggested that Pauley consult “national security experts” and step down from deciding on whether or not the NSA should continue their spying operations.
The DoJ argued that phone metadata is covered as searchable as stated in the Patriot Act and asserted that access to phone records of customers and siphoning the information “is not a search” and therefore not a violation of the 4th Amendment.
Jameel Jaffer, deputy director and lawyer for the American Civil Liberties Union (ACLU) who initiated the legal battle, commented : “If Pauley were to let the policy — revealed earlier this year by leaker extraordinaire Edward Snowden — remain in place, it could open the door for more intrusive actions by the government. If you accept the government’s theory here, you are creating a dramatic expansion of the government’s investigative power.”
In 2007, the ACLU filed a suit against the NSA that resulted in the decision that the ACLU did not have standing to bring the suit against the NSA, because they could not present evidence that they were the targets of the Terrorist Surveillance Program (TSP).
The DoJ argued that the suit be dismissed due to state secrets privilege (SSP) compounded with the plaintiff’s lack of legal standing.
The TSP collected information from intercepted international phone conversations and internet communications without warrants. Targets were considered suspected terrorists and therefore outside of the jurisdiction of the Foreign Intelligence Surveillance Act of 1978 (FISA).
Whistleblower Russell Tice has warned about the NSA and their surveillance programs.
Tice said: “If you picked the word ‘jihad’ out of a conversation, the technology exists that you focus in on that conversation, and you pull it out of the system for processing. That would mean for most Americans that if they conducted, or you know, placed an overseas communication, more than likely they were sucked into that vacuum.”