Government's Warrantless Surveillance

Washington (CNN) -- The scope and legality of the government's warrantless electronic surveillance programs was discussed Tuesday as a federal appeals court reviewed a lower U.S. court's injunction that would block collection of data from two plaintiffs who are suing.

Activist Larry Klayman, an attorney who heads the group "Freedom Watch," filed suit last year based on published reports of wrongdoing from whistleblower Edward Snowden. The former contractor with the National Security Agency accused authorities of misusing some of the capabilities he observed, and acting without a judicial or statutory basis.

Klayman, using himself as an aggrieved party from the surveillance, used the lawsuit to accuse the government of conducting "a secret and illegal government scheme to intercept and analyze vast quantities of domestic telephonic communications," along with communications "from the internet and electronic service providers."

Tuesday he said he has the standing to bring the suit as a customer of Verizon, one of the companies known to be cooperating with warrantless surveillance. But when the appeals panel asked him for documented proof he had been targeted, Klayman said only that the broad scope of the surveillance made it likely.

The other plaintiff is Charles Strange, whose son Michael was an NSA cryptologist and Navy SEAL in Afghanistan in 2011 when he was killed in the downing of his helicopter by insurgents. The father told reporters he has been the target of secret intelligence gathering because he's been asking questions about the circumstances surrounding his son's death.
Both men late last year won a preliminary injunction that would have barred the government from collecting data on them, and it ordered authorities to destroy any data already gathered.
But the District Court judge immediately stayed his order pending the appeal that was heard Tuesday, because of "significant national security interests" that could be affected.
Justice Department attorney Thomas Byron, defending the government, asked the appeals court judges to reverse the injunction, saying a phone company's business records are not protected by the Fourth Amendment against unreasonable searches.
Byron said there was no documentation that any records gathered were "intrusively acquired." He said Congress passes laws to protect privacy, such as for hospital records and banking, and that the government's surveillance is constrained by the provisions of the Foreign Intelligence Surveillance Act, with activities judged by the secret Foreign Intelligence Surveillance Court.
Klayman responded by pointing out the government's admission of as many as 2,000 errors in how NSA conducted warrantless surveillance. "It's false to say 'we don't get into peoples' underwear,'" Klayman said, asserting the indiscriminate collection alone is an intrusion he considers unconstitutional.
After the hearing, Klayman told reporters on the courthouse steps that he expects a ruling early next year, and that he expects the case to go the Supreme Court.
He called warrantless surveillance by the government a case of monumental importance.
"Just the inception of acquiring that information -- they're not entitled to it -- without any showing of probable cause, or reasonable suspicion of contact with terrorists, that's the problem. And that's a constitutional violation under our Fourth Amendment and our First Amendment."
Klayman acknowledged in court he's been a controversial figure over the years. A judge asked him if he feels he is being personally targeted. "I'd be surprised if I'm not," he replied.
Among his recent lawsuits is one filed in October accusing the Obama administration of supporting terrorism because of what he considers "reckless and grossly negligent" handling of the Ebola crisis.
Klayman, in that lawsuit, said the lack of travel restrictions from areas affected by the Ebola crisis provides an opportunity for terrorists to use the disease for germ warfare.