Federal Judge Displays Skepticism Over NSA Spying, Considers Injunction

Judge Richard Leon suggests legal justification for surveillance is outdated.

Protesters urge asylum for National Security Agency whistle-blower Edward Snowden on Nov. 18, 2013, in Berlin, Germany. Two American courts are considering preliminary injunction requests against NSA programs.
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"King George [III] had judges too," Klayman said. "You, your honor, are the last bastion of protection for the American people. [We are] going into the only court we can be in."

Klayman argued that because the law doesn't explicitly prohibit a U.S. District Court from reviewing FISC decisions, it's possible to do so. "The fact that it's not in there does not preclude another option for relief," he said.

[READ: Hackers Attack NASA's Website to Protest NSA]

Gilligan disagreed, pointing to a special appeals court for FISC and the possibility of Supreme Court review.

Throughout his arguments Klayman denounced the FISC as a "star chamber" where decisions are made secretly and without adequate debate.

FISC decisions authorizing the collection of all phone records from major phone carriers were classified and unknown to the public until the Snowden leaks.

Klayman argues the NSA lacks authority under Section 215 of the Patriot Act to collect the phone records – which are held for 5-year periods – and lacks authority under Section 702 of the Foreign Intelligence Surveillance Act to conduct its PRISM program. The ACLU is making the same claim in its phone record case.

"Simply hold the government to the letter of the law," Klayman said. At one point during the hearing, Leon pondered, "Is it really that simple?"

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