Surveillance: NSA Warrantless Wiretapping

Klayman v. Obama: Government Moves for More Time, Appellees Oppose

By Jane Chong
Saturday, February 22, 2014, 4:00 PM

District court proceedings in Klayman v. Obama ended with a bang back in December, with D.C. District Court Judge Richard Leon ruling that bulk metadata collection under Section 215 of the Patriot Act is unconstitutional. And it looks like the expected drama at the appellate court level has already begun. The government has asked for more time on its briefings to assimilate the major changes in policy on 215 matters that President Obama has now announced---and Larry Klayman is, for his part, giving no quarter.

By way of background, here is a timeline of recent developments.

  • On December 16, Judge Leon partially granted plaintiffs' motion for a preliminary injunction against Section 215 metadata collection.
  • On January 3, the government filed a notice of appeal; plaintiffs have cross-appealed. The same day, the FISC reaentered an order authorizing Section 215 collection.
  • On January 17,  in his January 17 speech on signals intelligence reform, the President announced the "end" of its Section 215 bulk metadata collection program in its current form, and two changes, effective immediately: (1) bulk metadata would be queried only after a judicial finding of "reasonable, articulable suspicion" and (2) query results would be limited to metadata within two hops of the query term, rather than three.
  • On February 5, the government filed a motion with the FISC to implement the changes, and the FISC granted the motion.
  • On February 12,  the DNI declassified and released on its website three documents, including the DOJ's motion to implement President Obama's changes and the FISC's order granting the motion to amend.
Yesterday the government filed a fairly prosaic motion for an extension of time on the appeal, seeking to reassess its dispositive motions in light of the recent changes to the Section 215 collection program. The motion reads:

The government respectfully submits that extension of the deadline for filing dispositive motions is warranted here in order to give the government an opportunity to determine whether it would be appropriate to file such a motion in light of the recent announcement of changes to the program. In addition, plaintiffs have informed the district court that they are no longer pursuing the statutory claims under FISA addressed by the court in the order under review, and they have filed an amended complaint . . . reflecting those changes.

But the appellees-cross-appellants aren't having any of it. In their motion "strongly oppos[ing]" the government's request,  the appellees write:

This is a matter at the “pinnacle” of national importance, as observed by the court below. It was in this context that the trial judge, the Honorable Richard J. Leon, has at every stage of the proceedings below pushed the Justice Department to move quickly in defending the litigation and warned it against further delay . . . . This Justice Department, which represents the National Security Agency (NSA) and the other Defendants, has attempted to “slow pedal” these cases for strategic advantage.

Oh, and by the way, in the view of the Klayman litigants, the government is lying:
Finally, as has been true in submissions to the Foreign Intelligence Surveillance Court (FISC) and before Congress, Appellees have lied. In their motion for extension of time, the Justice Department puts forth another lie on behalf the of NSA. Specifically, Appellees state at page 5, “[i]n addition, plaintiffs have informed the district court that they are no longer pursuing the statutory claims under FISA addressed by the court in the order under review, and they have filed an amended complaint (and in a related case, 13-cv-881 have moved to amend their complaint) reflecting those changes." A simple review of the record below will show this to be blatantly false.
Not that these fighting words are a first for Klayman et al. Ten days ago, in a motion for leave to file a surreply in that "related case," they urged the district court to reject the government's assertion that it had ceased its internet metadata collection program back in 2011, given the government's "pattern of lying is continuous and documented." Indeed, Larry "NSA Slayer" Klayman has kept busy in all his related cases: just two days ago, Klayman filed a motion for default judgment in his Bivens suit against a number of high-ranking officials for their part in the surveillance regime, and last month, Klayman also refiled a class action against President Obama and NSA on behalf of---well, America.