The Eleventh Hour Litigation Over Section 215

By Benjamin Wittes
Tuesday, November 10, 2015, 11:11 AM

You might have thought the judicial wrangling over the Section 215 program would end now that Congress had passed the USA Freedom Act winding down the program and replacing it—particularly now that the new law is set to go into effect in just a few weeks.

You'd have been wrong on that.

Yesterday Judge Richard Leon of the U.S. District Court for the District of Columbia issued a preliminary injunction against the 215 program, a mere 20 days before it was to expire on its own. He declined to stay his opinion pending appeal, leaving the Justice Department scrambling to figure out whether it needs to stop a program weeks before its scheduled replacement is due to come online.

The opinion may have a clever aspect to it: Though it would likely be DOA at the DC Circuit, the brevity of the remaining period before the whole program turns into a pumpkin means it will probably be mooted out and therefore never reviewed—meaning that Judge Leon's pompous and bombastic and punctuation-filled opinion (One sentence reads simply: "Please!") may remain on the books as a precedent, if one that controls nothing.

In the meantime, however, the government's got a problem on its hands: What to do about the injunction that would require an immediate halt to the 215 program as pertains to these particular plaintiffs. Last night, it moved Judge Leon to stay his ruling. Termed an "Emergency Motion for Stay of the Court's Preliminary Injunction Pending Appeal and For an Immediate Administrative Stay," the motion might better have been called an Emergency Motion for Stay While the Clock Runs Down:

The Government Defendants . . . respectfully request a stay of the Court’s preliminary injunction pending appeal. Because of the immediate impact of the Court’s injunction on the Government’s intelligence-gathering capabilities, the Government also requests (1) an immediate administrative stay of the injunction pending the Court’s resolution of this motion, and (2) if the Court denies the motion, an administrative stay thereafter of at least 10 days so the Government Defendants can seek relief from the D.C. Circuit, if warranted. Also due to the urgency of the situation, the Government respectfully requests that the Court issue a stay by 12:00 p.m. on Tuesday, November 10, 2015. Absent a stay by that time the Government intends to file a motion for a stay pending appeal in the Court of Appeals.

That's less than an hour from now. Should be an interesting afternoon.