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.
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.
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.
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.