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US senator sues Obama over NSA surveillance

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17:45 13/02/2014

MOSCOW, February 13 (RAPSI, Ingrid Burke) – Kentucky Senator Rand Paul filed a class action lawsuit Wednesday against US President Barrack Obama and various other high-ranking officials over the National Security Agency’s (NSA) mass surveillance activities.

Paul stated: “I am filing a lawsuit against President Barack Obama because he has publicly refused to stop a clear and continuing violation of the 4th Amendment. The Bill of Rights protects all citizens from general warrants. I expect this case to go all the way to the Supreme Court and I predict the American people will win,” as quoted by a press release on the Rand Paul 2016 website.

The Fourth Amendment guarantees protection the expectation of privacy and prohibits unreasonable search and seizure, providing: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

A copy of the complaint made available online by conservative advocacy group and co-plaintiff FreedomWorks asserts a violation of the Fourth Amendment to the US Constitution arising from “Defendants’ mass, suspicionless, non-particularized collection, storage, retention, and search of telephone metadata related to every domestic or international phone call made or received by Plaintiffs and class members.” The program is referred to throughout the story as Mass Associational Tracking Program (MATP).

The suit seeks a declaration of the unconstitutionality of the MATP and the imposition of an injunction prohibiting the government from continuing the program, as well as an order compelling the defendants to purge all telephone metadata connected with the communications of plaintiffs and class members.

Snowden disclosures

Though the complaint makes no explicit mention of former NSA contractor and whistleblower Edward Snowden, who is currently wanted in the US on espionage charges, the charges levied against the government closely parallel some of Snowden’s disclosures.

In early June, The Guardian reported on the first of a number of leaks for which Snowden would ultimately claim responsibility.

This first story featured a leaked order by the FISC ordering Verizon Business Network Services to provide the NSA on “an ongoing daily basis… all call detail records or ‘telephony metadata’ created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.”

The heavy-on-the-tongue, but recently ubiquitous term “telephony metadata” refers to “comprehensive communications routing information, including but not limited to session identifying information…, trunk identifier, telephone calling card numbers, and time and duration of call,” according to the leaked FISC order. Notably, the following items fall outside of the term’s scope: “the substantive content of any communications…, or the name, address, or financial information of a subscriber or customer.”

Paul’s lawsuit

“Upon information and belief, all major telecommunications companies operating in the United States provide NSA on an ongoing daily basis telephone metadata for all domestic and international telephone calls on their networks,” the lawsuit asserts, adding that the metadata is collected, maintained, and periodically searched “without any belief by Defendants at the time… that any of the information is connected with international terrorism or an international terrorist organization.”

The lawsuit asserts that since 2006, the defendants have conducted the MATP pursuant to a series of FISC orders issued under the authority of Section 215 of the Patriot Act, which was enacted after the 9/11 terrorist attacks.

The complaint notes that the Patriot Act empowered the FBI to apply for FISC orders seeking the production of such “tangible things” as records and documents for certain limited purposes relating to terrorism and foreign espionage investigations, but adds that a post-9/11 narrowing of the law in 2006 imposed a requirement that the FBI should include a statement of relevant facts illustrating the legitimate relevance of tangible things sought.

The complaint notes that during a March 2013 Senate hearing, Director of National Intelligence James Clapper stated falsely that the NSA had not collected “any type of data at all on millions, or hundreds of millions, of Americans.”

The following July, when asked during a House of Representatives hearing whether he thought “a program of this magnitude, gathering information involving a large number of people involved with telephone companies and so on, could be indefinitely kept secret from the American people,” General Counsel Robert Litt of the Office of the Director of National Intelligence responded: “Well, we tried.”

The parties

The list of defendants includes Obama, Clapper, Director of the National Security Agency Keith Alexander, and Director of the Federal Bureau of Investigation James Comey Jr., each in his official capacity.

Explaining the role of each defendant, the complaint notes: Obama enjoys ultimate authority over each of the federal agencies involved in the case; as Director of National Intelligence, Clapper has ultimate authority over the activities of the US intelligence community, including MATP; as NSA Director, Alexander has ultimate authority to supervise and implement all NSA functions and operations, and direct personal authority over MATP; and as FBI Director, Comey is responsible for applications filed with the Foreign Intelligence Surveillance Court (FISC) demanding the production of “tangible things,” a MATP cornerstone.

Paul is a Republican senator who is widely expected to run for the US presidency in 2016. The complaint states Paul’s position as follows: “Plaintiff Paul has standing to bring this suit because Defendants have, without legitimate legal basis, collected, stored, retained, and periodically searched telephone metadata concerning every domestic or international phone call he made or received since at least May 2006, and Defendants continue to do so… [Paul] has a subjective expectation of privacy from Defendants about his telephone metadata that society views as reasonable.”

The class action was filed on behalf of all US citizens and permanent residents who have patronized, used, or subscribed to phone services in the US since 2006.

Potential scandal

The announcement of the filing of the class action was quickly marred by allegations of plagiarism. Attorney Bruce Fein, who formerly worked with the presidential administration of the late Ronald Reagan, told the Washington Post that he and Rand had been working together since December to draft the complaint. However when the action was filed, Fein’s name had reportedly been replaced with that of former attorney general for the state of Virgina Kenneth Cuccinelli.

Fein told the Post through a spokesperson, “I am aghast and shocked by Ken Cuccinelli’s behavior and his absolute knowledge that this entire complaint was the work product, intellectual property and legal genius of Bruce Fein… Ken Cuccinelli stole the suit.” Cuccinelli reportedly told the Post that Fein would be “brought in later.”

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US senator sues Obama over NSA surveillance

17:45 13/02/2014 Kentucky Senator Rand Paul filed a class action lawsuit Wednesday against US President Barrack Obama and various other high-ranking officials over the National Security Agency’s (NSA) mass surveillance activities.
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