Against NSA Spying: We Must All Hang Together or Hang Separately

“We must all hang together, or assuredly we shall all hang separately.”

– Benjamin Franklin

Last June, on behalf all Americans, I filed two class action lawsuits against President Barack Hussein Obama, Attorney General Eric Holder, NSA Director Keith Alexander, the National Security Agency (NSA), the Department of Justice (DOJ) and federal Judge Roger Vinson of the secret Foreign Intelligence Surveillance Court (FISC), who authorized and issued an illegal order allowing the NSA to intercept and collect so-called telephonic and Internet metadata on nearly the entire U.S. citizenry. Metadata allows the government to access and track the most intimate details of a person’s private and professional life.

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After our filings and service of the complaints, I moved for preliminary injunctions, which is the means to have a court – in this case the U.S. District Court for the District of Columbia and not the FISC – to order the NSA spying to cease immediately during the pendency of the case. (To view the pleadings, go to Obviously, I wanted to stop this criminal and illegal unconstitutional outrage as soon as possible. Never before in our nation’s 237-year-old history have We the People been subjected to such government tyranny.

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To prevail on a preliminary injunction motion, a litigant must, among other factors, prove that there is a likelihood of success at the ultimate trial. In our cases, our arguments that Obama and the other NSA defendants had outrageously violated the constitutional rights of all Americans, not just the plaintiffs who were named immediately in my class action filings, were based on the Fourth, First and Fifth Amendments. The Fourth Amendment protects citizens from unreasonable searches and seizures, the First Amendment from an abridgment of freedom of speech and of association, and the Fifth guarantees due process rights, that is, in this instance, the right to be heard by a non-secretive court of law if the government takes adverse action, as is the case with NSA spying.

After my preliminary injunction motions were filed and Obama and company had a chance to respond, the judge who is presiding over the case, the Honorable Richard J. Leon, ordered an oral argument. I appeared opposite six Obama Justice Department lawyers. In the words of Batman, it was six of them against one of us: “Odds in our favor, Robin,” given the strength of our cases.

At this hearing, I passionately urged Judge Leon to rule in favor of all of the American people, as he was in the effect the last line of defense against the tyranny not just of Obama and his NSA, but government in general. I emphasized that indeed the government birthed and conceived by our Founding Fathers was no longer the one in power; that instead it had been hijacked by tyrants in both political parties – particularly since Republicans like Reps. Peter King and Mike Rogers not only supported Obama and his NSA in this spying, but were threatening whistleblower Edward Snowden with criminal prosecution for revealing the NSA’s illegal conduct to the public. King’s and Roger’s condemnation of Snowden were so vicious that a listener could conclude that these two so-called House leaders were calling for someone to kill him to cover their own derrieres, as they had gone along with Obama and the NSA.

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After the oral argument, Judge Leon asked for additional legal briefing, and on Dec. 16, 2013, he issued his order that enjoined Obama, the NSA and the other defendants from continuing to violate the Fourth Amendment rights of the citizenry. Obviously, to reach a quick decision, the judge decided not to reach and rule on the First and Fifth Amendment issues at that time. In his ruling, the court unequivocally and strongly ruled:

The “almost-Orwellian technology” that allows government to collect, store and analyze phone metadata is “unlike anything that could have been conceived in 1979″ and “at best, the stuff of science fiction.”

It was thus clear that Judge Leon had agreed with my arguments that Obama, the NSA, the other defendants and their enablers had conceived of and implemented what is in effect a police state, ironically terrorizing We the People by chilling our constitutional rights and having us all believe that if we criticize our government, we will be smeared and destroyed with NSA-collected metadata about the most intimate details of our lives.

It is not an overstatement, even given my role in our class action cases, to say that this was the biggest legal defeat Obama and the government in general have ever suffered in a court of law.

After Judge Leon had ruled, I immediately streamlined our initial cases and filed a new all-encompassing class action suit for all Americans to join. I also petitioned the U.S. Supreme Court to bypass intermediate appellate courts, as Obama, the NSA and the other defendants had appealed Judge Leon’s ruling, to quickly and ultimately decide the Fourth Amendment constitutional issues once and for all, as a New York federal court had ruled differently in a case brought by the American Civil Liberties Union.

During the time between our filing of class actions last June and today, seeing our success, Sen. Rand Paul repeatedly boasted in the conservative media in particular that he was planning to file a class action as well. Hearing this, I welcomed Paul to the fight and tried to reach out to him. I never heard back from him or his staff, despite many attempts. This week, however, Paul finally filed a class action, which was patterned after the ones we filed eight months ago. I applauded this, saying that imitation is the sincerest form of flattery, and welcomed him and all “newcomers” into the fight.

Paul’s case was filed in the same court as Judge Leon’s and thus will be designated as a related case to my own. And, contrary to what his lawyer, former Virginia Attorney General Ken Cuccinelli has been inaccurately telling the media, it will likely be consolidated, that is, joined with my previously filed class action suit. While Cuccinelli and Paul want to have the public believe that their case is unique and that they were the first to file a class action, and thus that only they represent all of the American people, this is simply not true.

While Cuccinelli and Paul should have been forthright with the media, I do hope and pray that we all can now work together on behalf of the American people and not use these cases for political purposes and positioning for the next presidential election. For as Benjamin Franklin wisely told his fellow colonial patriots, either we all hang together against “royal” tyranny, or we will be hanged separately.

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