Homeland Security Watch

News and analysis of critical issues in homeland security

December 19, 2013

Klayman v Obama

Filed under: Intelligence and Info-Sharing,Legal Issues,Privacy and Security,Terrorist Threats & Attacks — by Philip J. Palin on December 19, 2013

Many of the issues we have previously discussed in terms of balancing liberty and security are taken up in Monday’s decision by a federal district judge to grant a Motion for Preliminary Injunction regarding bulk collection of meta-data by the National Security Agency.

Among most legally-trained commentators, there seems to be a consensus the district court’s injunction will be overturned by the US Court of Appeals, based largely on the Supreme Court’s previous decision in Smith v Maryland where no reasonable expectation of privacy was extended to the telephone numbers we choose to dial.

Judge Richard Leon probably also expects his decision to be overturned at the appellate level.  His opinion is written, it seems to this non-lawyer, more for the benefit of the Supreme Court than as a matter of conforming with the details of current law.  Indeed, the Judge stayed his own order “in view of the national security interests at stake in this case and the novelty of the constitutional issues involved.” (My italics)

As regular readers might imagine, I am sorely tempted to opine on what the judge wrote.  I spent (too) much of Tuesday reading and re-reading the sixty -eight page decision.  I agree with most of what I read and while the government’s argument may still prevail I am grateful Judge Leon has teed-up the issues so well.

But in this instance I will exercise more restraint than usual and not share with you my favorite bits.  If you have cause to read Homeland Security Watch you really owe it to yourself — your life, fortune, sacred honor and posterity — to read the full opinion and order. Please find it here:  Klayman v Obama

Judge Leon has written the clearest non-technical description I have read of what the NSA has actually been doing.  His statement of facts places these actions in their full legal context. Some important operational judgments are offered.  His footnotes are especially insightful and trenchant.  Whatever your angle on this issue, this is an original text worth your time and careful attention.  Get it, read it, and reflect.

–+–

Almost a month earlier than previously promised (gosh, I wonder why?), Wednesday afternoon the White House released the Report and Recommendations of The President’s Review Group on Intelligence and Communications Technologies.   Including appendices the full report is 308 pages long.  I have not yet mastered the text.  Eventually we should try to compare and contrast Judge Leon’s text with this one.  It is entitled, “Liberty and Security in a Changing World.”

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5 Comments »

Comment by William R. Cumming

December 19, 2013 @ 1:22 am

Thanks Phil for post and links!

Comment by Donald Quixote

December 19, 2013 @ 9:53 am

Are we not riding the privacy pendulum back from the great 9-11 swing? I expect that we shall ride it back again in the other direction after the next failure to connect the dots (hopefully, no time soon). I am so glad I do not run a telecommunications enterprise if they are tasked to retain this momentous amount of information for future queries. This security verses privacy thing ain’t easy……………

Comment by William R. Cumming

December 20, 2013 @ 8:43 am

Note that Judge Leon stayed his decision pending review!

Pingback by Homeland Security Watch » ACLU v Clapper: More complementary than conflicting?

January 1, 2014 @ 12:11 am

[...] Before reading the actual text — and overly influenced by those headlines — I intended to post today on the divergence of Judge Pauley from Judge Leon’s Klayman v Obama decision (see prior post). [...]

Pingback by Homeland Security Watch » Klayman appeal

November 6, 2014 @ 12:12 am

[...] I cannot imagine a more “indiscriminate” and “arbitrary invasion” than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely such a program infringes on that “degree of privacy” that the Founders enshrined in the Fourth Amendment.  Indeed,  I have little doubt that the author of our Constitution, James Madison, who cautioned us to be beware “the abridgement of freedom of the people by gradual and silent encroachments by those in power,” would be aghast. (Prior attention by HLSWatch) [...]

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