Former Justice Department prosecutor Larry Klayman amended an existing lawsuit against Verizon and a slew of Obama administration officials Monday to make it the first class-action lawsuit in response to the publication of a secret court order instructing Verizon to hand over the phone records of millions of American customers on an "ongoing, daily basis.The newest complaint is embedded in an article update here. (You may find it easier to read if you choose the download option, unless the trouble I'm experiencing scrolling on-screen is only a function of the nearby thunderstorm today.) The lawsuit is a class action brought by a self-described public advocate who runs an organization called Freedom Watch in D.C.; he's also a Verizon customer. His co-plaintiffs are Verizon customers who also happen to be the parents of a Navy Seal Team VI member who was killed when his helicopter was shot down in Afghanistan in 2011. All three claim to be targets of hostile government attention as a result of their sharp criticism of the current administration.
The suit names President Obama, Attorney General Eric Holder, NSA director Keith Alexander, and federal judge Roger Vinson (the FISA court judge who approved the NSA surveillance order recently leaked by Edward Snowden and The Guardian), as well as the communications companies who divulged the data. It alleges violations of the First, Fourth, and Fifth Amendments as well as a couple of federal statutes restricting communications companies from revealing data about customers. It's framed as a "Bivens" suit, which refers to a 1971 Supreme Court case acknowledging a private right of action for damages against the federal government for the violation of constitutional rights by federal agents. The starting bid is $20 billion.
This case is of special interest to me just now, because I've spent the last few weeks boning up on how to sue a federal agency: very tricky business in light of the government's sovereign immunity, to which the exceptions are quite limited. There is a maze of law addressing the differences between federal agents, federal agencies, and the Unites States itself, as well as the "discretionary function" exemption that shields the government even when there is a specific waiver of sovereign immunity. So by taking time off to look into this lawsuit, I don't feel I'm entirely playing hooky today. "Bivens" was on my list of subjects to master this week anyway.
I read the complaint closely to see whether it mentioned the issue raised by MikeD's recent post, about the illegality of NSA domestic surveillance, but there's nothing in it on that subject.
5 comments:
On what basis would Vinson's continuation as a defendant last very long at all, unless the case charges him in particular with a violation of his oath of office stemming from his FISC ruling?
And the same with Holder and Obama?
Plaintiff's allege that the surveillance violated several parts of the Constitution; these three's statements that no it doesn't doesn't strike me as a violation of their oaths.
And a technical question: I don't see Vinson listed as a defendant anywhere in the complaint other than once, quasi-obliquely, in para 51. Is he really a defendant?
As to the suit itself, it seems ill-prepared and premature. It may be wrong factually--NSA was granted direct access to the servers? Listened in on the telephone calls? There's growing evidence that that part is not true. The Fourth and Fifth Claims for Relief strikes me as overwrought and worthy of a bad potboiler.
These weaknesses seem to me to detract, sharply, from the credibility of the whole suit.
Eric Hines
I read the complaint closely to see whether it mentioned the issue raised by MikeD's recent post, about the illegality of NSA domestic surveillance, but there's nothing in it on that subject.
No, and please forgive me if I left you with the impression it did. As I said, I noted that I've not seen anyone else bring up the fact that NSA is actively forbidden, both by its charter and USSID 18 from doing the very thing the government is admitting it's doing. That would include this lawsuit.
Why I brought up the lawsuit is because Grim was postulating that such may now be possible as previous lawsuits ran afoul of standing. Because the previous suits were brought by people who merely speculated that they MIGHT be affected by such surveillance, this suit alleges they now can prove standing as they are Verizon customers, and we now know Verizon turned over ALL customer records.
MikeD: I didn't mean that you suggested it was there, only that I wondered if this lawyer had thought about that interesting argument, so I had my eyes peeled for it.
EricH: the judge was a defendant in the first complaint. I didn't notice that he was dropped from the second one, when I switched the links to match the article update -- careless of me! Dropping him was probably wise: I should think it would be nearly impossible to state a cognizable claim against him on these facts. It's not so clear that a claim can't be sustained against the Pres. & A.G. It's not a question of proving that they violated their oaths, but of naming them as the responsible agents in a government action that allegedly violates Constitutional rights, which is how a Bivens claim is pleaded.
the judge was a defendant in the first complaint. I didn't notice that he was dropped from the second one
Well, the judge is still identified as a defendant in that para 51 in the updated complaint. That strikes me as a bit of carelessness that ought not be expected in that crowd's lawyers.
Another argument for the premature and sloppy nature of this suit?
Eric Hines
There's no way there's anything to worry about. Obama and his henchies are too stupid, lazy, and incompetent to do harm.
Everything will blow over if only people just sit down. Just sit back down. Only by standing down, will peace and prosperity return.
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