Judge Leon NSA Opinion: Klayman v. Obama

Larry Klayman

Larry Klayman


I’m normally not a fan of Larry Klayman. I was disappointed in Whores, his book about the political system. But even for me, his latest accomplishment is impressive. He’s the lead plaintiff in Klayman v. Obama, where US District Judge Leon just found the NSA’s extensive data collection unconstitutional. The full pdf of the decision is here: Klayman v. Obama.

I include some excerpts below. First up is Leon’s description of the NSA’s non-compliance with court orders and procedures. Thanks to Robert Banks, we now have easy access to the text of the decision.

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After reviewing the Government’s reports on its noncompliance, Judge Reggie Walton ofthe FISC concluded that the NSA had engaged in “systematic noncompliance” with FISC-ordered minimization procedures over the preceding three years, since the inception of the Bulk Telephony Metadata Program, and had also repeatedly made misrepresentations and inaccurate statements about the program to the FISC judges. As a consequence, Judge Walton concluded that he had no confidence that the Government was doing its utmost to comply with the court’s orders, and ordered the NSA to seek FISC approval on a case-by-case basis before conducting any further queries ofthe bulk telephony metadata collected pursuant to Section 1861 orders. This approval procedure remained in place from March 2009 to September 2009. Notwithstanding this six-month “sanction” imposed by Judge Walton, the Government apparently has had further compliance problems relating to its collection programs in subsequent years. In October 2011, the Presiding Judge ofthe FISC, Judge John Bates, found that the Government had misrepresented the scope of its targeting of certain internet communications.

Here’s a juicy bit regarding the issue of standing, where Judge Leon mocks the NSA (government) argument. The NSA on the one hand claims to have a comprehensive database for combating terrorism but on the other claims that plaintiffs haven’t shown they have Verizon Wireless data, the largest wireless carrier in the US.

Put simply, the Government wants it both ways. Virtually all of the Government’s briefs and arguments to this Court explain how the Government has acted in good faith to create a comprehensive metadata database that serves as a potentially valuable tool in combating terrorism-in which case, the NSA must have collected metadata from Verizon Wireless, the single largest wireless carrier in the United States, as well as AT&T and Sprint, the second and third-largest carriers. Yet in one footnote, the Government asks me to find that plaintiffs lack standing based on the theoretical possibility that the NSA has collected a universe of metadata so incomplete that the program could not possibly serve its putative function. Candor of this type defies common sense and does not exactly inspire confidence!

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Here’s a good bit distinguishing the NSA practices with the old US Supreme Court case Smith v. Maryland:
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In Smith, the Court considered a one-time, targeted request for data regarding an individual suspect in a criminal investigation, which in no way resembles the daily, all-encompassing, indiscriminate dump of phone metadata that the NSA now receives as part of its Bulk Telephony Metadata Program. It’s one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the Government.

And in this longer excerpt, Judge Leon shreds the statist lie that spying on us prevents terrorist attacks or protects us:

Yet, turning to the efficacy prong, the Government does not cite a single instance in which analysis ofthe NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time- sensitive in nature. In fact, none of the three “recent episodes” cited by the Government that supposedly “illustrate the role that telephony metadata analysis can play in preventing and protecting against terrorist attack” involved any apparent urgency. In the first example, the FBI learned of a terrorist plot still “in its early stages” and investigated that plot before turning to the metadata “to ensure that all potential connections were identified.” Assistant Director Holley does not say that the metadata revealed any new information – much less time-sensitive information – that had not already come to light in the investigation up to that point. In the second example, it appears that the metadata analysis was used only after the terrorist was arrested “to establish [his] foreign ties and put them in context with his U.S. based planning efforts.” And in the third, the metadata analysis “revealed a previously unknown number for [a] co-conspirator … and corroborated his connection to [the target of the investigation] as well as to other U.S.-based extremists.” Again, there is no indication that these revelations were immediately useful or that they prevented an impending attack. Assistant Director Holley even concedes that bulk metadata analysis only “sometimes provides information earlier than the FBI’s other investigative methods and techniques.” Given the limited record before me at this point in the litigation-most notably, the utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than other investigative tactics-! have serious doubts about the efficacy ofthe metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats ofterrorism.

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It will be interesting to see how this decision fares on appeal.

Campaign Photos

A friend alerted me to the Terry McAuliffe campaign for Governor of Virginia. Motivated in part by this National Review article, I decided to look more into his campaign.

Reading the McAuliffe campaign website (or at least the mobile version) I was struck by the campaign photos.

For example, here’s Terry’s Story:

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They say a picture is worth a thousand words but I’m not getting that here. I see a guy standing on a street in what might be a Virginia town. It’s obviously a professional photo because he’s in focus and the town isn’t. Which makes me wonder if its actually in Virginia.

But what really caught my eye on this page is the text. His story is told in two sentences. And the second sentence isn’t really about him.

For the rare Virginian who might be interested, there is more to Terry’s story than that, told in a bit more depth at Wikipedia.

The picture that grabbed me and inspired this post is on McAuliffe’s Issues page.

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Pander much? Here’s Terry watching a poor black child read.

See Terry watch a guy work.

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See Terry talk to a guy on a work break.

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What does the above picture have to do with transportation? Beats me. But I guess it shows that Terry understands the working Joe because he can pretend to have a conversation with one (or an actor pretending to be a worker) in a photo op.

Then we’ve got Terry next to the back of an ambulance.

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So we know he understands all of the important healthcare issues because he did a photo op next to a piece of equipment.

And of course Terry can talk to a guy wearing a hard hat.

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I’m not sure what the setting is for this photo. It looks like an industrial site that uses a lot of energy. I hope it’s not a power plant because that baby looks like its gonna blow up.

Next he has a photo with women, about women. Are they his wife and daughters? Actresses? We will probably never know. If it is family it’s an odd setup. And of course his commitment to family is legendary.

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Clicking on that photo takes you to his incredibly deep policy statement about women:

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A whole sentence? Seriously?
“I strongly believe that women should be able to make their own healthcare decisions without interference from Washington or Richmond.”

This is so vague it could be a Tea Party statement against Obamacare.

You might think there’s more depth in the boxes below but you’d be wrong. One box isn’t even about Terry’s positions – it’s a hit piece on his opponent.

And then there’s Terry with a guy wearing a Vietnam hat, and a McAuliffe campaign shirt at what appears to be a campaign event. Not a veteran’s event. The guy might be a veteran, probably. My favorite part of the pic is the girl looking at her phone in the background.

Of course veterans are primarily a federal issue. So Terry’s issue position about the VA is utterly empty. The Governor has no power to do anything about it.

And finally we have the funny moment. I decided to click the En Espa├▒ol button to see how his site looks in Spanish. Here’s what I got:

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Pr├│ximamente means shortly or soon. Don’t worry Spanish speaking Virginians. Terry will get to you soon. At least he cares enough about you to tell you, in Spanish, that he doesn’t care about you.

To be clear, I’m not endorsing his opponent. I haven’t bothered to look him up and I probably wouldn’t like him if I did. I was just so struck by the inauthenticity of this campaign site that I had to say something.