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.

2 Comments

  1. If you ever have PDF files like this, that you can not open, extract text, ect…. Please email me the file. I will fix it for you, and email it back, later the same day.

  2. Hi Robert,
    Greetings for 2014.
    I found your details at http://wredlich.com/ny/2013/12/judge-leon-nsa-opinion-klayman-v-obama/
    I am a retired British barrister invited to join the legal team of a British organization called Open Rights that is taking the Government to the European Court on Human Rights for breach of privacy.

    I spent a long day before Christmas trying about 6 pdf unlockers to get at the text of Clayman v Obama without success. All I could get was the header.
    I should be immensely grateful if you could let me have a copy in text or RTF format.
    Congratulations on an excellent job well done. How did you do it?
    With kind regards,
    Robert Good
    London, UK
    +44 (0)771 424 6735
    PS. In case you wonder at my email address, I spent some years in Robert Mugabe’s Zimbabwe as a human rights activist, and haven’t yet changed my ISP.

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