A legal challenge to the National Security Agency’s telephone data surveillance program by Senator Rand Paul was followed by a dispute between two high-profile Republican lawyers over authorship of the complaint.
Constitutional lawyer Bruce Fein wrote the complaint and was replaced as its author by Kenneth Cuccinelli, the former attorney general of Virginia, according to Fein’s spokeswoman.
The document “was completely misrepresented as Cuccinelli’s. Bruce wrote the entire thing,” said Mattie Fein, Bruce Fein’s representative and ex-wife.
Further, Mattie Fein said, “Bruce hasn’t been paid yet.”
Paul’s suit, which names President Barack Obama, Director of National Intelligence James Clapper and other top security officials, alleges that the government is collecting phone data about U.S. citizens “without any belief by defendants at the time of collection or retention or searches that any of the information is connected with international terrorism or an international terrorist organization,” in violation of the U.S. Constitution’s Fourth Amendment prohibition of unreasonable searches.
Bruce Fein represented Lon Snowden, the father of Edward Snowden, the NSA contractor who revealed the surveillance program involving the collection of the phone records of millions of Americans, at the heart of the lawsuit.
Fein was the elder Snowden’s attorney from June until September, Mattie Fein said.
Eleanor May, a spokeswoman for Paul’s senate office, declined to comment because she said he filed the case as a private citizen, not in an official capacity.
Michael Lewis, a second lawyer listed on the complaint declined to comment and referred a caller to Cuccinelli’s office in Fairfax, Virginia. Phone and e-mail messages seeking comment from Cuccinelli weren’t immediately responded to yesterday.
“Allegations that Bruce Fein was not paid are false, he was paid,” Doug Stafford, executive director of RandPAC, Paul’s political action committee, said in an e-mailed statement. “Additionally, Bruce was one of several attorneys involved in this lawsuit.”
Paul, a Kentucky Republican, announced the filing of the suit at a briefing yesterday outside U.S. District Court in Washington.
Fein had been working on the complaint with Paul for weeks and “had no idea that it was going to be filed” yesterday, according to Mattie Fein.
The controversy highlights a feud within the Republican Party between Tea Party favorites, like Paul and Cuccinelli, and other factions.
Mattie Fein described Bruce Fein, who was associate deputy attorney general and general counsel to the Federal Communications Commission under President Ronald Reagan, as an independent Republican. “You can’t really call him a Tea Party person,” she said.
Caitlin Hayden, a spokeswoman for the National Security Council, referred a request for comment on the lawsuit to the Justice Department. The council, a White House group, consists of administration advisers, mostly from the Cabinet and the military.
“We believe the program as it exists is lawful,” Hayden said in an e-mail, addressing the data collection generally. “It has been found to be lawful by multiple courts. And it receives oversight from all three branches of government.”
“We remain confident that the Section 215 telephone metadata program is legal, as at least 15 judges have previously found,” Peter Carr, a Justice Department spokesman, said in an e-mailed statement. White House spokesman Jay Carney declined to comment on the specific litigation. He repeated Obama’s position that the program is lawful and has been upheld by courts.
Paul’s suit follows rulings in two other challenges to the NSA data collection program.
One, by a federal judge in New York on Dec. 27, concluded that the program is legal. That ruling came less than two weeks after a federal court in Washington said it may be illegal. The two judges came to opposite conclusions about a landmark 1979 ruling on telephone data in the pre-Internet age.
A divided U.S. privacy-policy board last month concluded the NSA program is illegal and should be stopped.
The five-member Privacy and Civil Liberties Oversight Board, created by Congress under post-Sept. 11 anti-terrorism laws, said in a 238-page report that the program to collect and store the records has provided only “minimal” help in thwarting terrorist attacks.
The NSA receives phone records from U.S. telecommunications companies and stores them in a database that can be queried to determine who is in contact with suspected terrorist organizations.
The surveillance was authorized by President George W. Bush after the Sept. 11, 2001, terrorist attacks,. It has been defended as “critically important” to national security, according to records declassified this month by Clapper.
In the two court rulings, U.S. District Judge William H. Pauley III in Manhattan granted a government motion to dismiss a suit filed by groups led by the American Civil Liberties Union.
In Washington, Judge Richard Leon barred collection of metadata from the Verizon Wireless accounts of the two plaintiffs. Leon suspended the injunction for a government appeal.
The ACLU appealed Pauley’s ruling to the federal Court of Appeals in New York. If appeals courts uphold their respective lower courts, creating a split, the Supreme Court is more likely to take the case.
The information at issue in all three cases involves “metadata,” which includes the numbers used to make and receive calls and their duration.
It doesn’t include information about the content of the communications or the names, addresses or financial information of parties, according to government filings in the Washington case.