Administration denies playing ‘shell game’ with spy programs

The Obama administration on Friday attempted to bat down charges that it is playing a “shell game” with various intelligence powers.

In the course of a court hearing on a long-running lawsuit over the National Security Agency’s (NSA) collection powers, conservative legal gadfly Larry Klayman accused the government of switching up the legal justifications it uses to gather Americans’ data.

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The NSA “played a shell game,” Klayman said. As soon as scrutiny mounted on one program to collect Americans’ phone records, he alleged, it quickly switched to an alternate surveillance mechanism to stay one step ahead.

Given the government’s past of “lying to the American people,” the verbacious lawyer said, “we cannot expect that with [one portion of the Patriot Act] allegedly being modified ... [government officials] are going to obey it.”

Lawyers for the administration shot back.

“There is no shell game,” Justice Department lawyer Rodney Patton said.

Klayman’s partially successful lawsuit against the Obama administration over the NSA in 2013 helped lead to congressional reforms ending its controversial bulk collection of Americans’ phone records last year.

District court Judge Richard Leon called the program “almost Orwellian” in 2013, though a federal appeals court later overturned that ruling after Congress acted.

Now the case has stalled at the lower court level. Klayman has asked the government to pay damages for its past spying.

He has also expanded the case to cover the NSA’s controversial “PRISM” surveillance program, through which the government nabs data from major Internet companies such as Facebook and Google. The program is meant to solely target foreigners, who have fewer privacy rights than Americans under U.S. law.

But on Friday, Klayman pointed to a 2014 letter in which the nation’s top intelligence official, James Clapper, acknowledged that it used the program to collect data about Americans.

Klayman’s case has also evolved into a class-action lawsuit against the Obama administration over the NSA’s spying.

During Friday’s arguments, Justice Department lawyers appeared quick to dismiss his attempts to expand the case.

“There simply are no” damages owed to Klayman “at all,” Patton said.

He urged Leon, who is still presiding over the case, to “trim” Klayman’s allegations to focus solely on the NSA’s past collection of phone records under the Patriot Act.

Expanding the case to include a class-action aspect is “claim splitting,” Patton said, “and it’s prohibited.”

Klayman’s suit personally names President Obama, former NSA Director Keith Alexander and other government officials. However, he has failed to properly serve them notice, Justice Department lawyer Jim Whitman claimed.

"There’s been no attempt to properly serve them” in two and a half years, Whitman claimed, urging Leon to dismiss the attempt.

Klayman retorted that he had tried, but that the government was making “misrepresentations” about the case.

“Are they asking me to go to the White House and get arrested as I try to jump over the gate?” he asked.

Leon on Friday declined to issue any orders about how the case should proceed.