Judge Could Torpedo NSA Surveillance Programs Monday

Bold legal record, pre-hearing statements by judge may hint at outcome

By STEVEN NELSON

Dranias, who has argued before the Supreme Court, said "my argument would be that the FISA court would not be a full and fair litigation of the underlying constitutional issues because you don't have an adversarial process" and also that "the Constitution directly vests Article III courts with the power to decide constitutional issues."

Another bid for judicial review of the FISC's approval of phone record collection is being pursued by the Electronic Privacy Information Center. The U.S. Supreme Court is considering during a Friday conference meeting a request for direct intervention from EPIC that would bypass lower courts.

The preliminary injunction hearing on Monday will address both the Internet and phone-related lawsuits filed by Klayman. Although the two cases have not been joined, attorneys are filing one set of briefs in advance. Leon set a Nov. 11 deadline for the government to submit its arguments.

The preliminary injunction is sought pending final resolution of the cases, which demand a permanent end to the programs and steep financial penalties.

In addition to his pre-hearing comments, Leon's resume may also be seen by NSA opponents as a reason to be hopeful.

Several of Leon's well-known rulings have proscribed federal authority. In 2012 he ruled grisly Food and Drug Administration labels on cigarette packs would violate the First Amendment. In the first ruling of its kind Leon ordered in 2008 the release of five Algerian men held at Guantanamo Bay since 2002 after finding a lack of evidence they were terrorists. He dismissed the government's reliance on a classified document attributed to an unnamed source.

Leon was appointed to the U.S. District Court for the District of Columbia in 2001 by President George W. Bush, and took office in 2002. He previously served as a top Justice Department official and as an attorney advising congressional probes into the Iran Contra scandal of the 1980s and the Whitewater controversy of the 1990s.

"We are hopeful that the court will preliminarily enjoin the government from continuing to perpetrate massive violations of the Constitution," Klayman told U.S. News. The NSA programs, he said, are "not focused solely on spying on terrorists and terrorist groups, but instead all of the citizenry."

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