FISA: 215 Collection

Three Unrelated Tidbits on the NSA and Klayman v. Obama

By Steve Vladeck
Wednesday, December 18, 2013, 12:46 PM

Obviously, there's a lot to say about Monday's decision by Judge Leon granting a preliminary injunction against the NSA's telephone metadata program and then staying that decision pending appeal. Much of it's already been said here, so I just wanted to flag three quick points of potential interest not already covered via Lawfare:

  1. Over at Just Security, I have a fairly long post explaining why I think Judge Leon's constitutional analysis and holding, whatever their merits, were unnecessary; and a shorter one explaining why the plaintiffs should therefore cross-appeal if when the government takes the case to the D.C. Circuit. As I explain, it's quite possible, if not likely, that the constitutional issue will disappear from the case altogether...
  2. As a brief reply to Paul's post from earlier today, which questioned the apparent inconsistency between Judge Leon's decision that a preliminary injunction was justified partly because of the irreparable harm that would befall plaintiffs without it, and his decision to stay that ruling in light of the irreparable harm to the government, I'd respectfully refer interested readers to pages 428-32 of Chief Justice Roberts's opinion for the Court in Nken v. Holder (pp. 8-12 of the linked slip opinion), which explains the myriad-if-subtle differences between injunctions and stays, even if their standards overlap. [Full disclosure: I was co-counsel to the Petitioner.] To my mind, and contra Paul, I don't think there's anything odd about concluding that a plaintiff is sufficiently harmed by a government national security program to warrant an injunction if there's a substantial likelihood of success on the merits, but that, at the same time, an interim stay is warranted to preserve the government's authority just in case they prevail on appeal given the potential harm to the government from suspending a potentially lawful program. Again, the key is understanding the subtle differences between the purpose of injunctions and the purpose of stays, per Nken.
  3. Finally, on a lighter note, and as part of the broader focus on the NSA on the blog this week, folks might find interesting my reflections on my field trip last week to Fort Meade, for which I owe deep thanks to Bobby and his colleagues at the Strauss Center. As the piece suggests, I still have concerns about the authorities at issue in these conversations, but one can't deny the earnestness, intelligence, and conscientiousness of the dedicated men and women of the "Silent Service."