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Policy: Law

Justice Department asks judge to dismiss Rand Paul's NSA lawsuit

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Beltway Confidential,Opinion,Joel Gehrke,National Security,Rand Paul,NSA,Justice Department,Law,FreedomWorks

Justice Department lawyers asked a federal judge to dismiss a class-action lawsuit filed by Sen. Rand Paul, R-Ky., against the National Security Agency, arguing that Paul didn't deserve to have the case heard because he can't prove that his phone records were collected by the agency.

Because Paul can't prove that, the Justice Department argued, he doesn't have standing to sue. "[T]he government has not declassified or otherwise acknowledged the identities of the carriers participating in the program, either now, or at any time in the past," the government's motion to dismiss says. "The consequences of that gap in the record must befall Plaintiffs, as it is their 'burden to prove their standing by pointing to specific facts, not the Government’s burden to disprove standing by revealing details' of its intelligence programs."

Citing the Fourth Amendment, Paul asked the court "purge from their possession, custody, and control all of the telephone metadata collected, stored, retained, and searched" pertaining to American citizens in a February filing. In December, the same court ruled that the NSA must destroy any Verizon phone records it had collected on two individuals, Larry Klayman and Charlie Strange, who also argued that the NSA program violated their Fourth Amendment rights.

“I cannot imagine a more ‘indiscriminate' and ‘arbitrary' invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval,” Judge Richard Leon, of the U.S. District Court for the District of Columbia, wrote in his ruling on the Klayman case, as the New York Times noted. “Surely, such a program infringes on ‘that degree of privacy' that the founders enshrined in the Fourth Amendment,” which prohibits unreasonable searches and seizures."

The Justice Department cited legal precedents that contradicted that decision. "[T]elephone subscribers voluntarily convey dialing information to the telephone company and therefore assume the risk that the telephone company will reveal that information to the government," the motion says. "Defendants respectfully submit that the court should not follow the decision in Klayman v. Obama in this matter, and the complaint should be dismissed."

FreedomWorks president Matt Kibbe, whose organization is a co-plaintiff in the lawsuit, denounced what he called the "political arrogance" of the motion to dismiss.

“It should really be called a motion to censor civilians," Kibbe said. "It wasn't enough that the Obama administration authorized the single largest warrantless gathering of citizens' private information in the history of the United States. They don’t even believe citizens deserve an opportunity to plead their case after their rights have been violated."

Paul said that he would keep pushing the lawsuit. "The American people deserve better than warrantless surveillance and domestic spying," he said.

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