A federal judge could grant a preliminary injunction blocking some National Security Agency surveillance programs as early as Monday.
U.S. District Court Judge Richard Leon will consider oral arguments for and against a broad preliminary injunction request Nov. 18 in Washington, D.C., during a hearing that pits Department of Justice lawyers against Larry Klayman, a former Reagan administration prosecutor who leads the advocacy group Freedom Watch.
Leon expressed a sense of urgency in scheduling the hearing and made comments that could be construed as favorable to opponents of NSA surveillance.
Klayman filed two class-action lawsuits in June after documents leaked by Edward Snowden revealed the NSA collects the phone records of millions of Americans using secret court orders and vast quantities of Web data with its PRISM program.
During an Oct. 31 status conference Leon told government lawyers: "I don't want to hear anything about vacations, weddings, days off. Forget about it. This is a case at the pinnacle of public national interest, pinnacle. All hands 24/7. No excuses."
He brushed off an apparent government bid to slow the case, saying: "the Department of Justice, the NSA and the allied government agencies that have an interest in this have had four months to think through its position. That's a lot of time."
But there are also signs Leon may not grant an injunction.
Klayman was unable to travel from California to D.C. in time for the Oct. 31 status conference and a transcript of the hearing makes clear Leon's annoyance with his solo preparation. Leon noted he had denied requests by Klayman for continuances.
The American Civil Liberties Union is also suing to stop the NSA phone-record collection.
Leon scheduled the Nov. 18 hearing after U.S. District Court Judge William Pauley scheduled Nov. 22 oral arguments for the ACLU's preliminary injunction request.
The ACLU case, which is being heard in New York, is more tailored. That lawsuit objects to the collection of Verizon phone metadata by the NSA.
Both the ACLU and Klayman argue the NSA is exceeding its authority under the law. Section 215 of the Patriot Act is used by the government to justify its collection of all Americans' phone records. Section 702 of the Foreign Intelligence Surveillance Act is cited to justify the PRISM program.
NSA surveillance programs are already reviewed by the Foreign Intelligence Surveillance Court, but all relevant case documents and rulings were secret until the Snowden leaks. Many remain classified.
A common criticism of FISC is that it produces secret legal interpretations that are not even available to lawmakers who wrote the legislation decisions are based on. Patriot Act author Rep. Jim Sensenbrenner, R-Wisc., for example, says the NSA lacks authority under his 2001 law to collect the phone records of all Americans and he's sponsoring legislation to explicitly forbid it.
"I am going to be very curious to hear the arguments about the authority this court has to review or overrule a decision by another court," Leon said Oct. 31. "I don't know what Mr. Klayman's theory is going to be just yet, but we will see."
Nick Dranias, director of the Goldwater Institute's Center for Constitutional Government, says Leon likely does have the power to review FISC cases.
"I don't think the court should have any problem taking jurisdiction over this," Dranias said. "I would think you could make a pretty plausible argument that a genuine full-fledged Article III court would have primary jurisdiction over constitutional issues, particularly when you have real litigation going on, as opposed to a more administrative judicial role."
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."