Law Firm Surveillance Report Cited in Legal Challenge

, The National Law Journal


NSA headquarters
The National Security Agency headquarters.

The weekend’s disclosure that an allied foreign government monitored a U.S. law firm’s communications with a client has already been cited in a legal challenge to the National Security Agency’s surveillance practices.

The New York Times reported on Saturday that the Australian Signals Directorate, the NSA's counterpart, had informed the agency that it was monitoring communications between Indonesian government officials and their counsel at the law firm in question. The newspaper cited a top-secret document released by former NSA contractor Edward Snowden.

Attorney Larry Klayman, who heads the conservative watchdog group Freedom Watch, argued in court papers filed Monday that the Times report supported his claims that his attorney-client communications had been subject to government surveillance.

That, he said, would appear to eliminate a barrier to his challenge to the NSA’s procedures: whether Klayman and his fellow challengers could demonstrate "standing"—in other words, that they had been directly harmed.

"It is thus clear that standing exists," Klayman wrote in a motion to U.S. District Judge Richard Leon in Washington. Klayman is listed as a co-plaintiff in three lawsuits he has filed since June 2013 challenging U.S. government surveillance.

News reports since June 2013 about classified documents leaked by Snowden have been at the heart of Klayman's lawsuit and others challenging the constitutionality of U.S. surveillance programs.

Klayman filed his first complaint on June 6, 2013, one day after The Guardian newspaper in London published the initial news report detailing Snowden’s disclosures about the scope of U.S. surveillance. The American Civil Liberties Union filed a similar complaint less than a week later in the U.S. District Court for the Southern District of New York.

Unlike previous legal challenges to these programs, the Snowden leaks bolstered claims by Klayman and the ACLU that they were subject to government monitoring and, as a result, enjoyed standing to sue.

In February 2013, several months before Snowden went public, the U.S. Supreme Court tossed a surveillance challenge for lack of standing. In a 5-4 decision, the court found in Clapper v. Amnesty International USA that the challengers could demonstrate "no actual knowledge" of the scope of government surveillance.

In Klayman's case, however, Leon has ruled that Snowden's disclosures put the plaintiffs in a more favorable position. In a Dec. 16 opinion regarding Klayman’s constitutional claims, Leon concluded the plaintiffs could point to "strong evidence" that their phone records had been targeted, in large part based upon the leaked information.

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