Could Rand Paul win his lawsuit against the NSA?
It certainly is ambitious...
Continuing his long-running critique of the federal government's spy operations, Sen. Rand Paul (R-Ky.) on Wednesday filed suit against President Obama and other top administration officials over the National Security Agency's bulk collection of phone metadata.
Paul, who was joined in filing the suit by FreedomWorks President Matt Kibbe and former Virginia Attorney General Ken Cuccinelli (R), said in a press release that the records collection was "a clear and continuing violation of the 4th Amendment."
"The Bill of Rights protects all citizens from general warrants," he added. "I expect this case to go all the way to the Supreme Court and I predict the American people will win."
Paul isn't just suing on behalf of himself. Rather, he's launched a class-action suit that has attracted, by his estimate, some 380,000 signatories, and which "could conceivably represent hundreds of millions of people" who have phones.
So, could Paul conceivably win?
The early prediction is: no. The lawsuit will certainly help raise Paul's profile ahead of 2016 — he originally sent class-action signers to RandPaul2016.com, until critics dinged him for the opaque self-interest — but it probably won't have much practical value.
For one, similar lawsuits have proven especially tricky to win. The big problem with cases against the NSA is that, since the agency's records are under wraps, it's basically impossible to prove whether a given person was affected. In the 2013 case Clapper v. Amnesty International USA, the Supreme Court ruled that to establish standing in such cases "an injury must be concrete, particularized and actual or imminent" and "fairly traceable to the challenged action."
Last December, a Washington judge delivered the first ruling against the NSA's phone metadata collection, saying it was "likely" unconstitutional. But the ruling, in favor of plaintiff Larry Klayman, hinged on the crucial determination that there was "strong evidence" to support Klayman's claim the NSA scooped up his personal records — not just that the NSA collected phone records, period.
So, Paul will likely have to prove that all 380,000 or so signatories were directly affected by the NSA. In other words, the number of people Paul has wooed to his lawsuit make it more suited to winning support in the public forum than in a court of law. And Paul didn't exactly help his legal case when he basically took himself out of the equation, admitting last month, when asked if he believed his phone records had been pulled, "I don't really think so, but I think the potential for the abuse exists."
Further complicating matters, Paul's case is hardy the first one against the NSA. Several similar lawsuits, including a separate class-action suit brought by Klayman earlier this month, have a head start and are already working their way through the courts. Rulings on them have been particularly mixed, increasing the chances that one of them — and not Paul's — will likely make it to the Supreme Court.
Paul has been a consistent and vocal critic of the nation's dubious spying practices and the threat they pose to civil liberties — but his lawsuit probably doesn't have a shot.