Can Rand Paul Actually Sue the NSA?

Reporting on Politics and Policy.
June 13 2013 5:27 PM

Rand Paul Wants to Sue the NSA on Behalf of People Being Snooped On. But How?

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Sen. Rand Paul (R-KY) speaks during a news conference June 13, 2013 at the Capitol Hill Club in Washington, DC.

Photo by Alex Wong/Getty Images

Rand Paul walked behind the podium of the Capitol Hill Club press room and hoisted three phones in the air. Cameramen snap-snip-snapped away. "Americans are rightly concerned about having all of their phone records collected and monitored all of the time!" he said. He'd stop that, as he'd been saying all week, by launching a civil suit against the NSA. As he talked, five House Republicans—Mark Sanford, Mick Mulvaney, Justin Amash, Louie Gohmert, and Tom Massie—filed in to nod their heads.

Everyone agreed that something needed to be filed. But... what, exactly? That wasn't clear, despite assists from representatives of the ACLU and Electronic Freedom Foundation. Paul was going to collect names on his RAND PAC website from anyone who offered them, because "my suspicion is everyone who has a cell phone in America is having their data tracked." Then there would be a rallying around a lawsuit of some kind.

"The mechanics may not be completed at this point," said Paul. "To marry 250,000 people, and I hope millions of people, to a lawsuit, will take some work. We're going to see if it can be one of the existing lawsuits. I need help and assistance from attorneys to explain to me whether or not you can have a class action lawsuit with this many people. Part of it is also to let people know there's a groundswell of people."

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I asked Paul how his litigants would prove standing. Just a few months ago, in Clapper v. Amnesty International, the Supreme Court ruled 5-4 that people who are worried that they are being tracked don't have standing to sue; they "can only speculate as to how the Attorney General and the Director of National Intelligence will exercise their discretion in determining which communications to target." Why? The details are classified.

Paul handed the question to the ACLU's Laura Murphy. "We have greater standing than we ever have before because we have an actual copy of the FISA court's ruling," she said. "We don't have to say we think this data has been turned over to the government. We know this data has been turned over to the government."

David Weigel is a Slate political reporter.