Klayman v Obama at DC Court of Appeals

Tuesday was midterm election day, but the important event that got much less attention was the DC court of Appeals hearing regarding NSA's metadata collection in the case of Klayman v Obama.

The Oral Arguments are available here from the court's website and here from C-SPAN, with pictures showing who is talking which is nice.

Here is a recap/summary of the arguments.

After Snowden's revelations last year, many lawsuits were filed against the government fighting dragnet collection as unconstitutional under the 4th Amendment.  Larry Klayman is a DC lawyer and conservative activist famous for many controversial lawsuits against Presidents Clinton and Obama, (here he was during the government shutdown last year, he sued claiming Obama is not an American citizen, and is now in the news for his Ebola lawsuit more than the NSA case, let alone the Seal Team 6 helicopter crash case, which I find very interesting because as I wrote here it adds attorney-client privilege to the dangers of dragnet surveillance.

One recent morning, he and half a dozen clients attend a hearing in the Rayburn Building. His clients are parents of servicemen who were killed when a helicopter with the call sign Extortion 17 was shot down in Afghanistan on Aug. 6, 2011. Thirty Americans were killed, including some members of the Navy SEALs unit that had killed Osama bin Laden. The crash was the deadliest incident for U.S. forces in the war.

The Pentagon maintains that the tragedy was caused by a lucky shot with a rocket-propelled grenade. But these parents, and Klayman, think their sons may have been sold out by Afghan turncoats for a Taliban ambush. They base their suspicions on anomalies in the official explanation and partial evidence they have unearthed.

Michael was a Navy cryptologist who was working with SEAL Team 6 when he was killed shortly after the killing of Osama bin Laden.  

the military sent Michael to train for five months as a cryptologist in Pensacola, Florida, so he could learn how to decode encrypted messages between terrorist cells. “We didn’t know he was that smart,” Charlie says. “That’s some bad shit, you know?” After Florida, in 2005, the Navy sent Michael to its Naval Information Operations Command in Hawaii, which works closely with the 2,700 Hawaii employees of the National Security Agency. He deployed to Afghanistan for the first time later that year, and then to Iraq in 2006, where he spent nine months embedded with SEAL Team Two, providing crypto support. He’d go into battle with a kind of laptop that could pick up enemy signals and locate snipers and “squirters” — military lingo for people who flee a target area.

Michael eventually left Hawaii for a coveted spot in Virginia Beach, Virginia, home to the Naval Special Warfare Development Group, better known as SEAL Team Six.

continued 

Last June, after former NSA contractor Edward Snowden disclosed to the world that the U.S. government was gathering “metadata” on the phone calls of millions of Verizon customers, Klayman called Charlie and talked to him about it. Was Charlie a Verizon customer? Charlie said he was. Would he like to sue the government to stop this kind of data collection in the future? He said he would. “So we don’t become an Orwellian society,” Charlie says.

The suit was a long shot. Klayman made himself a plaintiff, along with Charlie and Mary. In his complaint, he listed the following as defendants: “Barack Hussein Obama II,” Attorney General Eric Holder, director of the NSA Keith Alexander, the CEO of Verizon, a judge on the Foreign Intelligence Surveillance Court, Verizon, the NSA and the Department of Justice. The complaint seemed more than a bit grandiose, especially given that no judge had ever rebuked the NSA the way Klayman and the Stranges were demanding. And Klayman’s style attracted some ridicule. In oral argument, he told the court about some unusual text messages the Stranges had gotten, texts from Michael’s old number that contained only ones and zeroes, and said he’d gotten some bizarre messages himself; he also talked about the disk that Charlie thought contained spyware. The government, Klayman said, was “messing with me.”

Dan Froomkin writes that Klayman nearly derailed the case

when the three-judge panel began peppering him to substantiate his claims of standing and harm, Klayman was unable to make a cogent argument. He accused the government of consistently lying and of getting “into people’s underwear.”

Luckily Cindy Cohn was there as a friend of the court from EFF and was able to respond to the judge's questions and explain to the court how

the crucial issue of how the information being collected by the NSA differs from the information being collected in the 1979 case of  Smith v. Maryland, Cohn provided the key answer that Klayman was incapable of summoning: Its size.

Smith was about one robbery suspect, whose calls were monitored for three days.  “This is the untargeted mass collection of the phone calls of millions of people over many years,” Cohn said.

Judge David Sentelle interrupted: “Does it become an invasion because there’s lots of it? Or is a million times nothing still nothing?”

Cohn said American citizens have a reasonable expectation that the government isn’t logging all their phone calls all the time for no specific reason. “There are regular people making everyday phone calls, that are swept up in this.”

Judge Stephen Williams raised the example of drunk-driving checkpoints, where many innocent people are nevertheless subject to a traffic stop.

Cohn said there is some element of targeting in those checkpoints. “Here there’s no suspicion whatsoever,” she said. Drunk-driving checkpoints would “not be OK if they were everywhere and everybody.”

“The aggregation of all this information is like nothing we’ve seen before,” noted Judge Janice Rogers Brown. But, she said, “it seems like the implications” of an adverse ruling could “go in many directions.”

The three judges on the panel are all Republican-appointed conservatives. But each has occasional libertarian streaks that civil-libertarians were hoping might come into play.

Whatever the panel’s ruling, it will not be final. Arguments before the full Appellate Court are considered likely; a Supreme Court argument is considered inevitable.

Matthew Aid writes that

The three appeals judges in the Washington case have generally come down on the government’s side on national security issues.

Appeals judge David Sentelle permitted the George W. Bush administration to withhold names and other details about hundreds of foreigners detained in the months after the Sept. 11, 2001, terrorist attacks. Appeals judge Stephen Williams upheld the military tribunals set up by the Bush administration to try terrorism suspects for war crimes. Janice Rogers Brown ruled that four British citizens had no right to sue Pentagon officials over accusations that the detainees were tortured and their religious rights violated while held at the U.S. detention center at Guantanamo Bay, Cuba.

Marcy Wheeler explains that

because of the incomplete reporting of a bunch of NSA beat reporters — Klayman may be improperly thrown out on standing because he is only a Verizon cell customer, not a Verizon landline customer.

Marcy explains (I think this is what she is saying) that the distinction has to do with collection of cell tower location data, and a new order from FISC that later made location collection a violation, and whether Verizon responded by destroying records or just no longer handing them over.

It is certainly possible that Verizon stopped providing cell data once it ended its TCAU contact in 2009. If that’s the case, the government’s hasty destruction of call records in March would probably have eliminated the last of the data it had on Klayman (though not on ACLU, since ACLU is a landline customer as well as a wireless customer).

But if Verizon just stopped handing over cell records in 2013 after Claire Eagan made it impossible for the government to force Verizon to comply with such orders, then Klayman — and everyone else whose records transited Verizon’s backbone — should still have standing.

Marcy also writes here about the judges hearing Klayman and the Mosaic theory of the Fourth Amendment, where

an aggregation of non-searches and subsequent analysis of the collected data at some point becomes a Fourth Amendment search.

There's also another lawyer contesting the NSA dragnet, challenging not just the PATRIOT Act Section 215 and the FISA Amendment Act section 702, but also Executive Order 12333. Elliot Schuchardt's case was also dismissed due to lack of standing like Klayman's PRISM lawsuit (Klayman II), but he is already preparing 

his response to the government’s motion to dismiss. "I'm making an allegation that no one else is making: I'm contending that the government is collecting full content of e-mail," he said. "I'm contending that they're not doing it by PRISM but via 12333. I'm not saying that this is being done on a case by case basis but that they're grabbing it all.

I don't think Schuchardt would be as bad in court as Klayman was arguing his case.

In a declaration submitted to the court on Monday, Major General Gregg C. Potter, the military deputy director for signals intelligence at the NSA, he noted that "although there has been speculation that the NSA, under the bulk telephony metadata program, acquires metadata relating to all telephone calls to, from, or within the United States, that is not the case."

This caught Schuchardt’s attention: "They're not collecting all metadata, but they didn't deny that they're collecting all content, and they can't because they would lying."

Even if the case is heard, much of the surveillance is done outside of the court's jurisdiction

John Tye, a former State Department official, who has spoken publicly in recent months many times (including with Ars) about the dangers of Executive Order 12333, lauded Schuchardt's case.

"There should be more lawsuits like this. However, such lawsuits face an uphill battle, not on the facts but in getting a court to rule on the merits of the claim," he said by e-mail.

"Most Americans don't realize this, but there is ongoing illegal government activity that it is in effect impossible to stop through a lawsuit. The judicial branch has created a variety of procedural legal doctrines—like standing and state secrets—that make it very difficult for a plaintiff with even a legitimate complaint to have his or her case heard. Most likely this case will be thrown out on the basis of a procedural objection, before the court makes any ruling on whether NSA collection on US persons under 12333 is legal or not. And by deciding not to rule on the merits, the court will thereby permit illegal collection on US persons to continue."

This case was about Verizon metadata, but Klayman filed two lawsuits, one contesting Verizon metadata collection under Section 215 of the PATRIOT Act (Klayman I or Klayman v Obama et al) and one contesting PRISM collection under FISA Amendement Act Section 702 (Klayman II or Klayman et al v Obama et al).  Klayman's PRISM lawsuit was dismissed because of standing, since it was argued that he couldn't prove his online communications were being monitored.

The NSA lawsuits were last in the news in December 2013 when metadata collection was ruled unconstitutional by one judge and constitutional by another, the ACLU's lawsuit was dismissed (the dismissal was appealed) and the Supreme Court declined to hear a case (for various reasons), and in yet another case (before Snowden's revelations) the Supreme Court argued that the plaintiffs couldn't prove they were spied on.

Despite these legal setbacks, hope still appears to come from the courts as Congress is slowly debating several bills and

despite a promise from President Obama and efforts in Congress to rein in the NSA, few reforms have been enacted, even despite findings by a presidential review board and the government's independent privacy watchdog that concluded that bulk phone surveillance was illegal and yields little to no national security benefit.

In response to inaction elsewhere, anti-surveillance activists believe the courts may ultimately provide the best way forward to reforming the government's surveillance state.

continued

In September, the Court of Appeals for the 2nd Circuit heard another suit, ACLU v. Clapper,challenging the NSA's phone spying on similar constitutional grounds. Unlike Klayman's suit, the lower court in that case defended NSA spying as a necessary and effective response to terrorist threats such as al-Qaida.

A third case challenging the program, Smith v. Obama, is set to undergo review in December by the Court of Appeals for the 9th Circuit. The San Francisco-based court is commonly regarded as one of the most left-leaning and sympathetic to the concerns of the tech industry. That court also recently reviewed whether the FBI can compel companies to hand over communications data or financial records of users for national-security investigations in conjunction with a gag order.

The flurry of judicial action suddenly lurching forward contrasts with slow-burning efforts in Congress to curtail NSA spying, where negotiations have repeatedly been slowed despite efforts by members in both chambers to pass a bill this year. President Obama in January pledged to reform the government's surveillance programs, but said he had to wait until lawmakers put a suitable bill on his desk to do so.

continued

any action in Congress could dictate how courts ultimately go forward with their reviews of NSA spying. A sudden dismantling of the Patriot Act, or a significant change, could render judicial reviews essentially moot, according to legal observers.

"It's a very likely scenario that the Supreme Court will review this," said Patrick Toomey, a lawyer with the American Civil Liberties Union. "But it depends on what Congress does."

The Electronic Frontier Foundation, representing itself and the ACLU, will also argue before the court Tuesday on behalf of Klayman. Additionally, the Center for National Securities Studies will present an argument challenging the government's statutory interpretation of the Patriot Act.

A decision by the D.C. Appeals Court is not expected until at least early next year.

Whether the Supreme Court will take the case depends on who you ask

Depending on the judges, [Harvard Law professor Mark] Tushnet says his gut prediction is the court will say maintaining the database is constitutionally permissible. He expects the case would be reviewed by the Supreme Court of the United States if the government loses, but not if they win on appeal and the program remains. As for digital privacy rights, Tushnet says the Supreme Court hasn’t said very much about their existence, but it’s assumed there is an argument for digital privacy in the Constitution. “Exactly where would be controversial,” he says.

Journalists and commentators have come down on both sides with their crystal balls. Benjamin Wittes, editor in chief of the blog Lawfare and senior fellow in governance studies at the Brookings Institution, predicts that should the case get to the top court, he “can’t count five votes” that could bear “responsibility for the next bad thing that might happen” and shut down a major intelligence program.

Writing in Slate, Emily Bazelon sees things differently. “If Judge Leon didn’t buy the government’s argument about why it needs to collect and keep all this metadata, other judges—and many of the rest of us—may see it the same way.”

Dan Froomkin writes

The three judges on the panel are all Republican-appointed conservatives. But each has occasional libertarian streaks that civil-libertarians were hoping might come into play.

Whatever the panel’s ruling, it will not be final. Arguments before the full Appellate Court are considered likely; a Supreme Court argument is considered inevitable.