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Path cleared for judge to block NSA phone surveillance program

A federal judge who seems keen on blocking the National Security Agency's phone records collection program has a clear path to doing so after a federal appeals court removed a potential obstacle Tuesday.

The U.S. Court of Appeals for the D.C. Circuit formally ended an appeal in the case Tuesday, effectively returning control over the underlying lawsuit to U.S. District Court Judge Richard Leon.

Leon could now act at any time to require the NSA to shut the program down, but such a move seems most likely after Thursday, when a hearing is scheduled on the suit filed by conservative activist Larry Klayman.

It's possible and perhaps likely that a federal appeals court or the Supreme Court could step in and stay a shutdown order if Leon issues it. A stay might run the clock out on the dispute since, as a result of a law Congress passed in June, the program is now set to expire on Nov. 29.

Nearly two years ago, Leon ruled that the NSA program--sometimes known as the Section 215 business records program--was likely unconstitutional and he ordered the program halted. That time he put his order on hold pending appeal, but at a hearing last month the judge sounded eager to issue a permanent injunction in the case before the program's scheduled end next month.

"The clock is running and there isn't much time between now and November 29," Leon told Klayman at the Sept. 2 session. "This court believes there are millions and millions of Americans whose constitutional rights have been and are being violated, but the window ... for action is very small ... It's time to move."

Several other legal challenges are pending to the phone records program, which involves collection of so-called metadata on billions of phone calls. Officials say the program is designed to help investigate terrorist threats and does not collect information on the contents of calls.

In May, the New York-based 2nd Circuit U.S. Court of Appeals ruled that the NSA phone metadata program was unlawful because the Patriot Act provision used to authorize it did not in fact provide authority for bulk collection of records largely unrelated to terrorism. The appeals court heard a new round of oral arguments on that case last month, focusing on the impact the law passed in June will have on the litigation.

Another challenge to the program is pending in the San Francisco-based 9th Circuit U.S. Court of Appeals, but that case is on hold pending a ruling by the 2nd Circuit.

A third challenge is pending before a federal district judge in Oakland, Calif. and has yet to be ruled on.

In August, the D.C. Circuit overturned Leon's self-stayed injunction in the case. The three-judge panel didn't get into the substance of the legality of the NSA program, but focused on whether Klayman and his clients had enough facts to reasonably allege that they were subject to the program.

Two judges said Klayman might be able to show standing. Leon appears to consider that issue resolved because Klayman recently added to the case a California law firm that used the only telecom provider which government lawyers concede took part in the program: Verizon Business Network Services.

The USA Freedom Act passed by Congress in June at President Barack Obama's urging mandates an end to the bulk collection of phone records and seeks to set up a system where the government can obtain the records from phone companies in an expedited manner upon request. The law also requires a court order in most instances, something the Obama Administration began seeking after the program was exposed by former NSA contractor Edward Snowden.