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US lawyer takes NSA case to appeal

Posted by: Laurence Simons 10/11/14

An activist lawyer has suffered a setback in his attempts to ban phone surveillance by the NSA - but is not giving up the fight.

Ever since the fugitive Edward Snowden started leaking details about its activities, the US National Security Agency (NSA) has been under continual fire - and one lawyer is clearly not prepared to take its practices lying down.

Conservative attorney Larry Klayman has made it his mission to have the NSA telephone surveillance programme made illegal and won the first round of the fight in December last year, when district judge Richard Leon ruled that such practices were likely to breach the ban on unreasonable searches enshrined in the constitution.

However, the federal government appealed and this week, three judges on the District of Columbia Circuit in Washington DC found in favour of the Department of Justice, in line with the bulk of their previous judgements on security controversies, including rulings on Guantanamo Bay during the Bush years.

The case centres on the use of case law from a Supreme Court Judgement on the Smith v Maryland case 35 years ago, which said the suspect being monitored for evidence linking him to a robbery had no reasonable expectation of privacy.

However, Mr Klayman argues, the Smith case was a limited one in comparison with current NSA activity, which tracks details on “every aspect of our lives”.

Mr Klayman told the appeal court judges: "This is the most outrageous abuse of power in our history. The American people look to you to protect them from a tyranny of the government." He even suggested that maintaining the law could lead to civil disobedience.

Department of Justice lawyer Thomas Byron argued that the NSA activity was "very limited" in its nature and therefore justified.

The problem with that notion, of course, is that while it was accepted by the judges on this occasion, it is widely disputed not just by Mr Klayman, but also through the testimonies by Edward Snowden that brought the NSA out from the shadows and into the intense spotlight in the first place.