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 Mattie Fein, who described herself on Feb. 12, the day the suit was filed, as Fein’s ex-wife and spokeswoman.
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.
The complaint “was completely misrepresented as Cuccinelli’s. Bruce wrote the entire thing,” said Mattie Fein. Also, she said, “Bruce hasn’t been paid yet.”
“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 on Feb 12. “Additionally, Bruce was one of several attorneys involved in this lawsuit.”
Sergio Gor, a spokesman for RandPAC, arranged a telephone call yesterday with Bruce Fein, in which Fein said that while Mattie Fein has spoken for him in the past, she wasn’t authorized to speak for him about the Paul suit.
“I speak for myself,” he said.
Mattie Fein said in a phone interview yesterday that she stood by her comments and that she spoke Feb. 12 “with the full authority and consent of Bruce.”
As of that day, Bruce Fein had been paid $15,000 of $46,000 owed for his work on the lawsuit, she said.
Bruce Fein said, “I have been paid or will be soon.”
Bruce Fein acknowledged writing a Feb. 12 e-mail to Stafford, complaining about being frozen out of planning for the suit and having his name left off of it.
“There were a few missteps,” he said. “It was not a flawless exercise.”
Cuccinelli said in an e-mailed statement that Fein’s name wasn’t on the complaint because the required retainer agreement wasn’t in place in time.
In an e-mailed statement today, Bruce Fein said that “at present” he was satisfied that “that all material matters have been resolved” and “I look forward to litigating the exceptionally important Fourth Amendment claim.”
Mattie Fein’s “zeal for justice many may perceive as overzealous advocacy,” Bruce Fein said.
Last summer, 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.
He said Mattie Fein was his spokeswoman during that engagement.
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 his 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.
Paul, a Kentucky Republican, announced the filing of the suit at a briefing Feb. 12 outside U.S. District Court in Washington.
The controversy over authorship of the suit highlights a feud within the Republican Party between Tea Party favorites, like Paul and Cuccinelli, and other factions.
Bruce Fein was associate deputy attorney general and general counsel to the Federal Communications Commission under President Ronald Reagan.
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.