Conservative activist and lawyer Larry Klayman is
petitioning a Washington appeals court to skip hearing an appeal from the government on his NSA case, and send the case directly to the Supreme Court. A federal district judge in Washington ruled last month in Klayman's case that the NSA bulk data collection was likely unconstitutional. But a few weeks later, a court in New York dismissed a similar challenge from the ACLU. Those conflicting cases could very likely lead to the Supreme Court considering the case, but that isn't a guarantee.
Legal experts caution that while the opposing lawyers are girding for a landmark Supreme Court decision, it is not certain the top court will intervene. They warn that the prospect of administration and congressional changes in the next few months could complicate the two appeals rulings that are still more than a year away. And several said the fact that the judges in both cases allowed challenges to the NSA programs to go forward could lead to a spate of new lawsuits questioning other government surveillance practices.
In the Washington case, U.S. District Judge Richard Leon ruled last month that the NSA phone surveillance was "almost Orwellian" and likely violated constitutional protections against unreasonable search and seizure. But in a similar lawsuit filed last month by the ACLU in New York, U.S. District Judge William H. Pauley III validated the NSA operation as an effective "counterpunch" to terrorist acts and spurned the legal group's challenge.
"It's not at all inevitable that the Supreme Court takes these cases," said Stewart A. Baker, a former NSA general counsel and specialist in national security law who has staunchly defended NSA surveillance programs. "If both appeals courts rule for the government, I'm skeptical we'd see the court get involved at all."
President Obama is preparing to announce reform proposals in the coming weeks. Early
reports say he'll accept the recommendation from his advisory committee on NSA reform to include a public advocate in Foreign Intelligence Surveillance Court arguments, continuing bulk collection but having the communications companies hold the data instead of the government, and possibly "a separate proposal to require a federal judge’s approval each time a national security letter is issued, except in emergencies."
Before he makes any announcements though, he's meeting with members of Congress from the intelligence committees, both the NSA boosters like Sen. Dianne Feinstein (D-CA) and critics like Sens. Ron Wyden (D-OR), Mark Udall (D-CO), and Rep. Jim Sensenbrenner (R-WI), the original author of the Patriot Act who says the NSA is flouting that law. The outcome of that meeting, and the reforms the president does end up embracing, will probably factor into whether the Supreme Court would take the case. It will also determine whether those congressional critics keep pushing for further reforms. For example, the legislation introduced by Sen. Patric Leahy and Sensenbrenner, backed by Wyden and Udall, would end bulk collection.