The National Security Agency headquarters. (Photo: National Security Agency)
The weekend’s disclosure that an allied foreign government monitored a U.S. law firm’s communications with a client has already been cited in a legal challenge to the National Security Agency’s surveillance practices.
The New York Times reported on Saturday that the Australian Signals Directorate, the NSA’s counterpart, had informed the agency that it was monitoring communications between Indonesian government officials and their counsel at the law firm in question. The newspaper cited a top-secret document released by former NSA contractor Edward Snowden.
Attorney Larry Klayman, who heads the conservative watchdog group Freedom Watch, argued in court papers filed Monday that the Times report supported his claims that his attorney-client communications had been subject to government surveillance.
That, he said, would appear to eliminate a barrier to his challenge to the NSA’s procedures: whether Klayman and his fellow challengers could demonstrate “standing”—in other words, that they had been directly harmed.
“It is thus clear that standing exists,” Klayman wrote in a motion to U.S. District Judge Richard Leon in Washington. Klayman is listed as a co-plaintiff in three lawsuits he has filed since June 2013 challenging U.S. government surveillance.
News reports since June 2013 about classified documents leaked by Snowden have been at the heart of Klayman’s lawsuit and others challenging the constitutionality of U.S. surveillance programs.
Klayman filed his first complaint on June 6, 2013, one day after The Guardian newspaper in London published the initial news report detailing Snowden’s disclosures about the scope of U.S. surveillance. The American Civil Liberties Union filed a similar complaint less than a week later in the U.S. District Court for the Southern District of New York.
Unlike previous legal challenges to these programs, the Snowden leaks bolstered claims by Klayman and the ACLU that they were subject to government monitoring and, as a result, enjoyed standing to sue.
In February 2013, several months before Snowden went public, the U.S. Supreme Court tossed a surveillance challenge for lack of standing. In a 5-4 decision, the court found in Clapper v. Amnesty International USA that the challengers could demonstrate “no actual knowledge” of the scope of government surveillance.
In Klayman’s case, however, Leon has ruled that Snowden’s disclosures put the plaintiffs in a more favorable position. In a Dec. 16 opinion regarding Klayman’s constitutional claims, Leon concluded the plaintiffs could point to “strong evidence” that their phone records had been targeted, in large part based upon the leaked information.
Leon concluded that the government’s bulk collection of phone records “almost certainly” violated Americans’ constitutional privacy rights. The U.S. Department of Justice appealed the decision to the U.S. Court of Appeals for the D.C. Circuit, where it is being briefed.
Mark Zaid, a solo practitioner who specializes in national security law, said news articles “can be very helpful” at the motion-to-dismiss stage, when the court assumes the facts alleged in a lawsuit are true. News reports are “certainly at least some evidence,” Zaid said.
Still, he warned, they’re “not necessarily proof of something, because you don’t know if something’s been misquoted or misunderstood, and leaked documents you can’t accept at face value.”
Alexander Abdo, a staff attorney for the ACLU’s National Security Project, said Snowden’s leaks made the new lawsuits possible in the post-Clapper environment. But although news articles may help resolve standing, he said, their role would grow complicated later in a case, when the courts hold parties to higher standards. That Snowden’s leaks prompted U.S. officials to confirm certain details about surveillance efforts was important, he said.
The ACLU has appealed U.S. District Judge William Pauley III’s Dec. 27 ruling upholding the constitutionality of the government’s bulk collection of telephone records. That case is being briefed before the U.S. Court of Appeals for the Second Circuit.
Abdo doesn’t expect the latest Times report to affect the case, since the monitoring described was different from the program the ACLU is challenging. The case is limited to the bulk collection of telephone records. Klayman has lodged broader claims.
As Klayman’s Fourth Amendment claim goes before the D.C. Circuit, the Justice Department has asked Leon to dismiss other elements of the case, including a challenge to the government’s alleged collection of Internet data. Klayman has said he wants to proceed with discovery.
Klayman argued the Times report was relevant because he had engaged in the type of attorney-client relationships with foreign governments detailed in the article. He said he has represented Argentina, Italy, Portugal and Thailand in international trade cases, and “routinely communicates via telephone, email and otherwise with the government of Israel” and other foreign governments.
“As the Court has observed, the Government Defendants’ unsupported statements that there is no such surveillance on Plaintiffs cannot be accepted at this stage, as they, and only they, hold the cards prior to discovery,” he wrote.
Mark Eckenwiler, senior counsel to Perkins Coie’s privacy and security practice, doubted the Times report would affect Klayman’s case. “As I am reading the reporting on this, the allegation is not that the NSA itself engaged in the particular surveillance that’s described,” he said.
Even if the NSA were involved, Eckenwiler added, there was no evidence of any direct effect on Klayman—and no suggestion the surveillance was so widespread it would support class action claims.
Zaid called the Times article a “nonstory” and said nothing in it would back up claims against the U.S. government. “There’s absolutely no evidence that we know of yet that the NSA even received any of the attorney-client communications,” he said. “All we know is that the Australians identified that there were communications with a law firm and that they sought guidance from the general counsel’s office of the NSA.”
The document the Times cited did not name the U.S. law firm, but Mayer Brown was advising the Indonesian government at the time concerning trade. As previously reported by the NLJ, a firm spokesman said there had been no “indication … the alleged surveillance occurred at the firm. Nor has there been any suggestion that Mayer Brown was in any the subject of the alleged scrutiny.
“Mayer Brown takes data protection and privacy very seriously, and we invest significant resources to keep client information secure,” the spokesman said.