District Court Grants Plaintiffs’ Motion for Preliminary Injunction Against NSA Surveillance Activities: Part I of III

Earlier this month, Judge Richard J. Leon granted, in part, a motion for preliminary injunction filed by individual subscribers and users of telecommunications against federal government agencies and executive officials. In the case of Klayman, et al., v. Obama, et al., Plaintiffs allege statutory and constitutional violations arising from the National Security Agency’s (NSA) Bulk Telephony Metadata Program.

Judge Leon decided Plaintiffs’ motions for preliminary injunction requesting that,

[D]uring the pendency of this suit, (i) [the Court] bar[] [d]efendants from collecting [p]laintiffs’ call records under the mass call surveillance program; (ii) require[] [d]efendants to destroy all of [p]laintiffs’ call records already collected under the program; and (iii) prohibit[] [d]efendants from querying metadata obtained through the program using any phone number or other identifier associated with [p]laintiffs . . . and other such relief as may be found just and proper.

Generally, the Court found: (1) that it lacked jurisdiction to hear Plaintiffs’ Administrative Procedure Act (APA) claim that the Government exceeded its Foreign Intelligence Surveillance Act (FISA) authority; (2) that it had authority to decide Plaintiffs’ constitutional challenges to the NSA’s conduct notwithstanding the fact that NSA action was taken pursuant to Foreign Intelligence Surveillance Court (FISC) orders (here are some examples from Judges Eagan and McLaughlin with links to the opinions); and, (3) finding that Plaintiffs’ had standing to challenge the constitutionality of the bulk metadata collection program, Plaintiffs also demonstrated a substantial likelihood of success on the merits of their Fourth Amendment claims and that they will suffer irreparable harm absent preliminary injunctive relief.

In today’s post, I will address only the Plaintiffs’ statutory claims and the Court’s finding that it lacked jurisdiction.  Tomorrow I will address the standing argument and the comparison the D.C. District Court made to the Supreme Court case, Clapper v. Amnesty International, from earlier this year.  Wednesday, this case will wrap up with a discussion of the Plaintiffs’ likelihood of success on the Fourth Amendment claim against the Government.

The Statutory Claims

Plaintiffs alleged that the Government’s program exceeded the statutory authority granted by FISA’s “tangible things” provision (hereinafter, “50 U.S.C. §1861” or “Section 1861”) and thereby violated the APA.  In response, the Government argued, and the Court agreed, that Section 1861, at least impliedly, precluded the District Court from reviewing Plaintiffs’ APA claim.

According to the Court, under §1861:

Congress created a closed system of judicial review of the government’s domestic foreign intelligence-gathering, generally . . . and of Section 1861 production orders, specifically . . . .  This closed system includes no role for third parties, such as [P]laintiffs here, nor courts besides the FISC, such as this District Court.  Congress’s preclusive intent is therefore sufficiently clear.

In making this determination, the Court looked to the text and applicable provisions of FISA itself, the purpose and legislative history of Section 1861, and, viewing FISA as a whole, found that Congress did not intend for the interests of a particular class “to be relied upon to challenge agency disregard of the law.”

As previously mentioned, the very interesting issue of standing will be addressed in tomorrow’s post.  Wednesday we will look at the Court’s discussion of Plaintiffs’ likelihood of success on the Fourth Amendment challenge that caused the Court to grant Plaintiffs’ motion for preliminary injunction.

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3 Responses to “District Court Grants Plaintiffs’ Motion for Preliminary Injunction Against NSA Surveillance Activities: Part I of III”

  1. […] Yesterday I looked at Plaintiffs’ statutory claims against the Government in Kayman, et al., v. Obama, et al., specifically, the Court’s finding that it lacked jurisdiction to decide those claims.  Today, I am looking at the issue of standing in light of the opinion earlier this year Clapper v. Amnesty International.  As a reminder, tomorrow I’m taking a look at the Court’s decision to grant Plaintiffs’ motion for preliminary injunction, in part, finding a likelihood of success on Plaintiffs’ Fourth Amendment claims. […]

  2. […] Grants Plaintiffs’ Motion for Preliminary Injunction Against NSA Surveillance Activities:” Part I, Part II, and Part III; “FISA Court Permits Controversial NSA Surveillance to Continue:” Part […]

  3. […] as Clapper v. Amnesty International (see also here), and to a lesser extent, ACLU v. Clapper and Klayman v. Obama to review the legal issues presented by these […]

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Professor William Snyder

Professor William C. Snyderis a member of the faculty of the Institute for National Security and Counter-terrorism at Syracuse University after fifteen years with the United States Department of Justice.

Ryan D. White

Ryan D. WhiteRyan is currently a third year law student at Syracuse University College of Law, and is also pursuing a Master of Public Administration degree from Syracuse’s Maxwell School of Citizenship and Public Affairs. Ryan spent time with Homeland Security Investigations while pursuing his undergraduate degree at Wesleyan University, and spent his first summer of law school as clerk for the U.S. Attorney’s Office in the Western District of New York. He is a member of Syracuse Law Review, the Journal on Terrorism and Security Analysis, and participates in the Veteran’s Legal Clinic. Full biography

Shelby E. Mann

Ryan D. WhiteShelby is a second year law student at the Syracuse University College of Law. She is the 2018-9 Editor in Chief of the Syracuse Law Review, as well as a member of the Journal on Terrorism and Security Analysis, and the senior editor for the Syrian Accountability Project. During her final year at the University of Missouri, she served as a full-time news producer for ABC 17 News. Shelby spent her first summer of law school at the Shelby County District Attorney General's Office in Memphis, Tenn., in the Public Corruption and Economic Crimes Unit. Full biography

Christopher w. FolkChristopher W. Folk

is a 2017 graduate of SU College of Law. A non-traditional student, Christopher returned to academia after spending nearly twenty years in the high tech industry. Christopher served in the Marine Corps, graduated from Cornell University with a B.S. In Applied Economics and Business Management, attended Northeastern University’s High-Tech MBA Program and received a M.S. In Computer Information Systems. Christopher previously worked in Software Engineering. Christopher is currently serving his second term as Town Justice for the Town of Waterloo. Christopher externed with a Cybersecurity firm in the Washington, D.C. area between his first and second year at SU College of Law. Full biography

Anna Maria Castillo

Anna Maria Castillois 2016 graduate of Syracuse College of Law. She also holds a Master of Arts in International Relations from Syracuse University's Maxwell School of Citizenship and Public Affairs. She has interned at a London-based think-tank that specializes in transnational terrorism and global security and at the legal department of a defense contractor. She served as an executive editor in the Syracuse Law Review. Full biography

Jennifer A. CamilloJennifer A. Camillo

is a 2015 graduate of Syracuse College of Law and is a prosecutor. She has served as a law clerk in the United States Attorney’s Office for the Northern District of New York and the Cayuga County District Attorney’s Office and as an extern in the Oneida County District Attorney’s Office. She was a member of the Syracuse National Trial Team and was awarded the Tiffany Cup by the New York Bar Association for her trial advocacy achievements.

Tara J. PistoreseTara J. Pistorese

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Benjamin Zaiser

is both a scholar and a Federal Agent of the Federal Criminal Police Office of Germany. (Opinions expressed here are his own and not any part of official duty.) Full biography


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