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Birther lawyer gets injunction against Obama

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Attorney Larry Klayman, notable here for his legal attempts to prevent Barack Obama’s re-election, is also suing the President (and others) over what he feels is the unconstitutional invasion of his privacy by the National Security Agency’s program of massive collection of information about telephone calls and other electronic communications. A similarly directed lawsuit, ACLU v. Clapper, was filed last June and is currently awaiting an order on a motion to dismiss.

Klayman’s lawsuit is styled Klayman v. Obama which is where the “Obama” part of the article’s comes from. There are actually two Klayman lawsuits before Judge Richard Leon, one against Verizon and a list of federal defendants, and a second against those same defendants plus Facebook, Yahoo!, Google, Microsoft, YouTube, AOL, PalTalk, Skype, Sprint, AT&T, and Apple.

The ruling by Judge Richard Leon in the District of Columbia is rather narrow, granting an injunction against two defendants from collecting information about Klayman and one other plaintiff. Then the judge stayed his own order pending appeal.

Reading the memorandum order, I find it it notable that Judge Leon doesn’t seem to be agreeing with plaintiffs, but rather performing his own independent analysis of the government’s representations and the applicable law. One gets the impression that the injunction was granted not because of Klayman’s arguments but in spite of them. In the one rare instance where Judge Leon referenced Plaintiffs’ arguments, he said:

Likewise, I find that plaintiffs also have standing to challenge the NSA’s querying procedures, though not for the reasons they pressed at the preliminary injunction hearing.

As if to underscore this point, Judge Leon cites from the transcript:

… I specifically asked Mr. Klayman whether plaintiffs had any “basis to believe that the NSA has done any queries” involving their phone numbers. … Klayman responded: “I think they are messing with me” … then went on to explain that he and his clients had received inexplicable text messages and emails not to mention a disk containing a spyware program. … Unfortunately for plaintiffs, none of these unusual occurrences or instances of being “messed with” have anything to do with the question of whether the NSA has ever queried or analyzed their telephony metadata, so they do not confer standing on plaintiffs.

Judge Leon pointed out that the complaint fails to even allege that two of the plaintiffs are even Verizon customers, and so the injunction can’t include them. In language that reminds me of something a judge said to Orly Taitz, Judge Leon seems have to figure out figure what the plaintiff’s are asking for, saying:

In light of how plaintiffs have crafted their requested relief, the Court construes the motions as requesting a preliminary injunction.

I think that Judge Leon made a mistake in his argument on standing. His analysis is correct in saying that there is a high probability (almost a certainty) that Klayman’s records have been collected and stored–supporting the part of his order enjoining the government against collecting data, but he also argued that Klayman’s records are being regularly queried because every time a new phone number is searched, it must be compared to every record in the database to see if anyone called it. Databases are indexed and it would be extremely unlikely that any record not associated with the target phone number (or a number linked from it) would actually be queried. (As an analogy: one doesn’t have to read an entire book when searching for a topic that’s in the book’s index.) A reasonably-designed database would not require full-table scans to find records that are obvious identifiers such as a telephone number. That mistake removes the justification for the second part of the injunction, prohibiting the querying of Klayman’s records. I will throw in my opinion that a judge enters dangerous ground when he starts doing his own analysis on technical issues. When he judges the arguments from the parties, he can evaluate them, but when he makes his own analysis, he doesn’t have the benefit of experts from the two sides. If Klayman had raised the argument Judge Leon made, the government would have certainly explained why it was wrong, as I did. As it is, the government will no doubt raise the issue on appeal.

Klayman didn’t fare so well before Judge Leon in the earlier Farah v. Esquire Magazine defamation lawsuit, which was dismissed.

D.C. District Court NSA Opinion

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39 Responses to Birther lawyer gets injunction against Obama

  1. avatar
    donna December 16, 2013 at 5:47 pm #

    Lawyer Behind NSA Lawsuit Once Sued His Own Mother, Believes Obama Is Kenyan Socialist Muslim

    http://www.huffingtonpost.com/2013/12/16/lawyer-nsa-lawsuit_n_4454902.html?utm_hp_ref=politics

  2. avatar
    Slartibartfast December 16, 2013 at 5:49 pm #

    It will be interesting to see how this plays out. I have to say that if I were hoping for a ruling that limits the NSA, I would want the ACLU’s case to be the one that goes to the SCOTUS rather than Klayman’s… I don’t think he is competent to argue the issue even if his position has merit.

  3. avatar
    Birther Weary December 16, 2013 at 6:27 pm #

    I thought the Shadow Government Larry set up last month would take care of these things for him. Just have the entire government indicted by your Citizens Grand Juriy then have your Constitutional Sheriffs arrest them all.

  4. avatar
    JPotter December 16, 2013 at 9:34 pm #

    Way to play the headline game, Doc! WND’s own lines about this were nowhere near as inspired, but I did like the title of KlayFace’s weekly column:

    LIFE WITH BIG BROTHER
    ENLIST IN THE WAR AGAINST POLICE STATE!
    Exclusive: Larry Klayman warns of ‘Obama henchmen’ using collected data against patriots

  5. avatar
    Dave December 16, 2013 at 11:17 pm #

    Gotta hand it to Klayman, he got headlines everywhere with this one. The headlines range from overstated to just plain false — but he got them.

    I am reminded of the frequent symbiosis between megalomaniacs, who wish to overstate their own significance, and journalists, who want to overstate the significance of their news stories.

  6. avatar
    Dr. Conspiracy December 17, 2013 at 12:56 am #

    I have updated my article with a discussion of Klayman’s competence in this action.

    Slartibartfast: I don’t think he is competent to argue the issue even if his position has merit.

  7. avatar
    Dr. Conspiracy December 17, 2013 at 8:56 am #

    This is, for me, a interesting self-experiment in confirmation bias. I go into the story with a general bias against Klayman. Just as Orly Taitz blames loses on a “corrupt judge” instead of her own incompetence as an attorney, I would tend to credit any success by Klayman to a sympathetic judge rather than his competence as an attorney.

    While not consciously looking for it, what I found while reading the memorandum and order was the lack of statements agreeing with Klayman, one criticism, and generally a judge justifying why he was doing his own analysis on the standing issue. While Judge Leon found the government’s arguments unpersuasive or not candid in places, I do not remember him (and that’s my weasel phrase) him finding Klayman’s argument persuasive.

    To be more objective, one would have to compare the order with Klayman’s complaints in the two cases considered to see what the judge used from them.

  8. avatar
    Dr. Conspiracy December 17, 2013 at 9:28 am #

    I added the following to the article:

    I think that Judge Leon made a mistake in his argument on standing. His analysis is correct in saying that there is a high probability (almost a certainty) that Klayman’s records have been collected and stored–supporting the part of his order enjoining the government against collecting data, but he also argued that Klayman’s records are being regularly queried because every time a new phone number is searched, it must be compared to every record in the database to see if anyone called it. Databases are indexed and it would be extremely unlikely that any record not associated with the target phone number (or a number linked from it) would actually be queried. (As an analogy: one doesn’t have to read an entire book when searching for a topic that’s in the book’s index.) A reasonably-designed database would not require full-table scans to find records that are obvious identifiers such as a telephone number. That mistake removes the justification for the second part of the injunction, prohibiting the querying of Klayman’s records. I will throw in my opinion that a judge enters dangerous ground when he starts doing his own analysis on technical issues. When he judges the arguments from the parties, he can evaluate them, but when he makes his own analysis, he doesn’t have the benefit of experts from the two sides. If Klayman had raised the argument Judge Leon made, the government would have certainly explained why it was wrong, as I did. As it is, the government will no doubt raise the issue on appeal.

    Unlike the birthers, I am extremely reluctant to say a judge is wrong; however, in this particular instance I think I am reasonably qualified as a subject matter expert on database design, whereas the judge is not.

  9. avatar
    Dr. Conspiracy December 17, 2013 at 9:50 am #

    I have added the following to the article:

    Judge Leon pointed out that the complaint fails to even allege that two of the plaintiffs are even Verizon customers, and so the injunction can’t include them. In language that reminds me of something a judge said to Orly Taitz, Judge Leon seems have to figure out figure what the plaintiff’s are asking for, saying:

    “In light of how plaintiffs have crafted their requested relief, the Court construes the motions as requesting a preliminary injunction.”

  10. avatar
    Yoda December 17, 2013 at 9:54 am #

    It is possible that breadth of the actions of the NSA’s action is what will allow it to pass constitutional muster. I am reminded of the challenge to the road blocks set up to test drivers for DUI. As I recall, the Courts ultimately concluded that as long as the police were not targeting specific drivers then they did not need a reason to give the test. So either they had to do it randomly or do it to everyone. Klaymann’s argument might be correct if he can show that HE was personally targeted without cause.

  11. avatar
    Dr. Conspiracy December 17, 2013 at 10:47 am #

    In granting the preliminary injunction, Judge Leon had to arrive at the conclusion that Klayman was likely to succeed on the merits.

    Klayman was “targeted” in that his personal records were recorded and given to the government. And whatever one might say about Klayman, I don’t think he qualifies as a domestic terrorist.

    I understand the analogy to a DUI roadblock, but to me a public highway implies a government interest in enforcing laws regarding the use of the highway. A phone call is something that can be done in ones own home and the probability that any particular person is plotting terrorism is vanishingly small compared to the number of people who are DUI.

    Yoda: Klaymann’s argument might be correct if he can show that HE was personally targeted without cause.

  12. avatar
    Dr. Conspiracy December 17, 2013 at 10:55 am #

    Yesterday, I got a randomly dialed telephone solicitation for some sort of credit card scam. That means that through that autodialer, I am linked in the NSA database to everyone else called by that number, which is probably in the tens of thousands. Multiply that by the hundreds of scam phone calls I’ve gotten in the past 5 years (the length of time the NSA supposedly retains phone metadata). Then add to that my local pharmacy that phones me to remind me that a prescription is due, the alumni association of my college, every office and government agency I ever called (like the IRS). If ANY of those also called a terrorist, then I would come up on the query results.

    NSA searches go three deep. So if a terrorist called Domino’s Pizza, and someone else who called Domino’s called the IRS for tax help, then I show up as linked to a terrorist since I called the IRS too.

    I HOPE that the NSA has built into their system some sort of flag to exclude frequent public numbers from their linking, but I don’t see anything that forces them to do that.

  13. avatar
    donna December 17, 2013 at 11:05 am #

    some stats on klayman and the NSA lawsuits:

    Larry Klayman crows on NSA win: ‘We hit the mother lode’

    Read more: http://www.politico.com/story/2013/12/larry-klayman-national-security-agency-101233.html#ixzz2nkTu4YpQ

  14. avatar
    CCB December 17, 2013 at 11:06 am #

    Here is a portion of an article about Klayman in today’s New York Times:

    “’ It’s a little like a MIRV nuking a missile,’ he said in an interview on Monday night, referring to the use of a weapon with several warheads to take down an incoming threat. ‘If only one in 10 gets through, you’ve accomplished something. You’ve got to keep punching.
    ’”
    Klayman and the reporter are confused. MIRV stands for multiple independent RE-ENTRY vehicles. To MIRV an ICBM (intercontinental ballistic missile) means to arm one rocket with several warheads which can be independently aimed at different targets the land or sea..

    An ABM (anti-ballistic missile) has only one warhead and relies on the blast from the explosion of this warhead to destroy, damage or deflect an ICBM.

    While I hesitate to try to make sense out of what Klayman is saying, it seems that he thinks if he files enough lawsuits, he is bound to win one. Of course, it is also true that a stopped clock tells the correct time twice a day.

  15. avatar
    donna December 17, 2013 at 11:13 am #

    it will be interesting to see what the FISA court says since EVERY judge on that court has been appointed by Chief Justice Roberts:

    The 11 FISA judges, chosen from throughout the federal bench for seven-year terms, are all appointed by the chief justice. In fact, every FISA judge currently serving was appointed by Chief Justice John Roberts, who will continue making such appointments until he retires or dies. FISA judges don’t need confirmation — by Congress or anyone else.

    http://www.bloomberg.com/news/2013-07-02/chief-justice-roberts-is-awesome-power-behind-fisa-court.html

  16. avatar
    JPotter December 17, 2013 at 11:37 am #

    Dr. Conspiracy: a domestic terrorist.

    nah, just a wannbe inspiration of domestic terrorists.

  17. avatar
    JPotter December 17, 2013 at 11:40 am #

    CCB: it seems that he thinks if he files enough lawsuits, he is bound to win one.

    Exactly, keep flingin’ poo at the wall, see if any sticks. The eternal hope of desperate, muck-raking cranks everywhere.

    Much more efficient to focus on worthy causes …. like cases with merit.

  18. avatar
    Dr. Conspiracy December 17, 2013 at 12:20 pm #

    Maybe I should start calling him “Leisure Suit Larry” or “Leisure Lawsuit Larry.”

    CCB: While I hesitate to try to make sense out of what Klayman is saying, it seems that he thinks if he files enough lawsuits, he is bound to win one.

  19. avatar
    Bernard Sussman December 17, 2013 at 1:01 pm #

    The NSA spying was, to begin with, revealed only because of Snowden’s leaks. Snowden probably no longer has any connections that will tell him the current or future state of the NSA spying.

    This of course begs the question: How will we (or the court or anyone) know if the NSA complies with this court order, or even an order from the Supreme Court, or even a new legal restriction placed by an Act of Congress??

  20. avatar
    Dave December 17, 2013 at 2:17 pm #

    About Dr. C’s comment about Klayman’s incompetence and confirmation bias — it’s certainly true that you can’t help thinking that a guy who such a substantial history of really stupid statements can’t win a case. But still, if he wins, he wins.

    But although we generally expect lawsuits to be won by competent lawyering or a sympathetic judge or jury, we need to remember that that is a cynical view. In theory, lawsuits are supposed to be won by having justice and the law on your side.

    Here Klayman has chosen an issue that has merit. Arguably, what the NSA is doing is an illegal search. So it’s not surprising that his injunction has been granted.

    But it is also arguably not a search at all, and I have no doubt that the government will be vigorously arguing that. I have difficulty seeing Klayman countering those arguments, even with the judge’s help.

  21. avatar
    Keith December 17, 2013 at 2:35 pm #

    Dr. Conspiracy: I HOPE that the NSA has built into their system some sort of flag to exclude frequent public numbers from their linking, but I don’t see anything that forces them to do that.

    Of course they would have such a filter. Otherwise, everyone on the planet would show up as linked to terrorists. Which is, of course, exactly the opposite of the goal they are trying to reach.

    Now if a suspected terrorist worked at Domino’s, and another suspected terrorist worked at the IRS, and some purported customer called them both 10 times a day, then maybe they would have a reason to look more closely at the other customers as well.

    I have no particular insight into the methodology of a spook beyond noting that if you are looking for a particular book, the first task is not to gather every book on the planet into one great big pile.

  22. avatar
    dunstvangeet December 17, 2013 at 3:05 pm #

    Bernard Sussman:
    The NSA spying was, to begin with, revealed only because of Snowden’s leaks.Snowden probably no longer has any connections that will tell him the current or future state of the NSA spying.

    This of course begs the question:How will we (or the court or anyone) know if the NSA complies with this court order, or even an order from the Supreme Court, or even a new legal restriction placed by an Act of Congress??

    I knew about the NSA Spying 6 years before the leaks of Edward Snowden. I had figured the extent of what was going on. Edward Snowden just confirmed it. He didn’t actually reveal anything new, as far as I can tell.

  23. avatar
    roadburner December 17, 2013 at 3:13 pm #

    hell, ECHELON was well known about and working in the UK since back in the late 80s!

  24. avatar
    Dr. Conspiracy December 17, 2013 at 6:20 pm #

    I didn’t meant to suggest that Judge Leon bent the law. I was just noting that he went beyond the pleadings to find justification for his ruling. He also makes the case that he is supposed to do that.

    Dave: But although we generally expect lawsuits to be won by competent lawyering or a sympathetic judge or jury, we need to remember that that is a cynical view. In theory, lawsuits are supposed to be won by having justice and the law on your side.

  25. avatar
    Arthur December 18, 2013 at 8:30 am #

    In this video from CCN, Larry Klayman engages in a hostile interview.

    http://www.cnn.com/video/data/2.0/video/us/2013/12/17/erin-panel-klayman-toobin-nsa-plaintiff-argues-with-lemon.cnn.html

  26. avatar
    donna December 18, 2013 at 10:09 am #

    from CNN:

    Lemon brought on Toobin, CNN’s legal analyst, who slammed Klayman as a “lunatic.”

    “This case is based on Larry Klayman’s tin-foil hat paranoia about the NSA being after him. He had some fantasy that the NSA was after him. This case is not about Larry Klayman, it’s about the metadata program that affects everybody, but the idea that Larry Klayman is the representative is simply outrageous,” Toobin said. “He is a professional litigant and lunatic who should not be a representative of the very important issues of this case.”

    http://www.politico.com/story/2013/12/larry-klayman-don-lemon-jeffrey-toobin-cnn-national-security-agency-101271.html

  27. avatar
    Dave December 18, 2013 at 10:32 am #

    Yeah, I just meant to point out that it is entirely possible for a completely incompetent lawyer to win a case.

    Dr. Conspiracy:
    I didn’t meant to suggest that Judge Leon bent the law. I was just noting that he went beyond the pleadings to find justification for his ruling. He also makes the case that he is supposed to do that.

  28. avatar
    y_p_w December 18, 2013 at 10:39 am #

    I was listening to a BBC Newsday interview of Klayman. They did it as a straight interview and nothing of his birther background came up.

  29. avatar
    Arthur December 18, 2013 at 11:01 am #

    y_p_w: I was listening to a BBC Newsday interview of Klayman.

    Yeah, I was driving through several states on Monday/Tuesday, and Klayman was in heavy rotation on the BBC, straight no chaser.

  30. avatar
    JPotter December 18, 2013 at 11:34 am #

    y_p_w:
    I was listening to a BBC Newsday interview of Klayman.They did it as a straight interview and nothing of his birther background came up.

    The BBC also cites The American Thinker as a reliable source.

    Makes me wonder if they’re all in on the joke, and having a go at the silly Americans, or not doing very deep research.

    Unfortunately, it must be admitted that rightwingnuttery does reflect the brainspace of a significant chunk of the American populace.

    On this particular Klayman case, NSA spying is a hot meme internationally, and Klayman is on the side that people want to hear about. Someone championing privacy v. Big Brother. If the story wasn’t confined, isolated from his wingnuttery, he wouldn’t come off as identifiable to their audience, and the story wouldn’t “work”

  31. avatar
    Suranis December 18, 2013 at 7:57 pm #

    Not only that, he got what he did reveal completely wrong.

    dunstvangeet: I knew about the NSA Spying 6 years before the leaks of Edward Snowden.I had figured the extent of what was going on.Edward Snowden just confirmed it.He didn’t actually reveal anything new, as far as I can tell.

  32. avatar
    donna December 18, 2013 at 7:57 pm #

    Judge’s Ruling Could Jeopardize NSA Surveillance

    my fave part: Next, he focuses on the advance of technology since Smith was decided. “The almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979,” he writes, before turning to what he calls the most important reason why he believes the precedent is outdated.

    Put simply, people in 2013 have an entirely different relationship with phones than they did thirty-four years ago …. Records that once would have revealed a few scattered tiles of information about a person now reveal an entire mosaic—a vibrant and constantly updating picture of the person’s life.

    I can see the steam coming out of Scalia’s ears when he reads that passage.

    http://www.theatlantic.com/national/archive/2013/12/judges-ruling-could-jeopardize-nsa-surveillance/282409/

  33. avatar
    GLaB December 19, 2013 at 10:50 pm #

    donna:
    from CNN:

    Lemon brought on Toobin, CNN’s legal analyst, who slammed Klayman as a “lunatic.”

    It’s all part of the conspiracy:

    “… the Tea Party leader said that the interview was the culmination of a plot against him by formidable forces.

    ““What CNN did to me yesterday was a hit piece orchestrated against me by the Obama White House with the direct involvement of the Democratic National Committee in an attempt to discredit me and to turn the public against Judge Leon’s court decision that the NSA is violating Fourth Amendment rights,” Klayman said to Corsi.”

    http://www.rawstory.com/rs/2013/12/19/tea-party-revolutionary-larry-klayman-blames-obama-for-disastrous-cnn-interview/

  34. avatar
    JPotter December 19, 2013 at 11:13 pm #

    GLaB: “… the Tea Party leader said that the interview was the culmination of a plot against him by formidable forces.

    Wonkette’s take is hilarious:

    THIS WHOLE NETWORK’S OUT OF ORDER 5:34 PM DECEMBER 19, 2013
    GET EXCITED! LARRY KLAYMAN WILL NOW SUE CNN AND THEN BECOME GANDHI AND LEAD AMERICA TO FREEDOM … OR SOMETHING.

    :D

    donna: Put simply, people in 2013 have an entirely different relationship with phones than they did thirty-four years ago ….

    There’s a simple defense ….. just don’t call people. Works for me! Free bonus: less drama!

  35. avatar
    The Magic M December 20, 2013 at 5:39 am #

    GLaB: ““What CNN did to me yesterday was a hit piece orchestrated against me by the Obama White House with the direct involvement of the Democratic National Committee in an attempt to discredit me and to turn the public against Judge Leon’s court decision that the NSA is violating Fourth Amendment rights,” Klayman said to Corsi.”

    He forgot the International Jewish Conspiracy [tm], the Knights of Malta and the Conflotteracy of the Boogerburgers.

  36. avatar
    JPotter December 20, 2013 at 8:41 am #

    After watching the full clip, it’s pretty bizarre. Don Lemon led off with a quote alleging that Klayman had neither the legal nor intellectual chops to see this case through on the behalf of the American people, in response to which Klayman attacked Lemon personally, making allegations about his politics, and then Toobin jumped in, highlighting excerpts from the proceeding that highlighted how Klayman was not fighting on behalf of the American people, but rather pursuing a Quixotic, paranoid, personal crusade vs. the NSA.

    It seems that CNN’s motivation for having Klayman on was that the privacy concerns of the American people need to be advocated, and that Klayman is not doing so, despite pretentions otherwise. Not surprisingly, this stimulated Klayman into making their case for them.

  37. avatar
    y_p_w December 20, 2013 at 10:39 am #

    JPotter: The BBC also cites The American Thinker as a reliable source.

    Makes me wonder if they’re all in on the joke, and having a go at the silly Americans, or not doing very deep research.

    Unfortunately, it must be admitted that rightwingnuttery does reflect the brainspace of a significant chunk of the American populace.

    On this particular Klayman case, NSA spying is a hot meme internationally, and Klayman is on the side that people want to hear about. Someone championing privacy v. Big Brother. If the story wasn’t confined, isolated from his wingnuttery, he wouldn’t come off as identifiable to their audience, and the story wouldn’t “work”

    I’ve listened a lot to Newsday, and it was a started as a combination of two cancelled programs – a general program (The World Today) and one targeted towards an African audience (Network Africa). Many of the hosts are of African ancestry, and they make a big deal about African sports and politics. They often get two-bit African dictators (or at least their spokesmen) on and you can easily sense their wry sarcasm when they get lied to or where it’s obvious that the host thinks poorly of the interviewee.

  38. avatar
    Dave December 20, 2013 at 11:04 am #

    ORYR has an article about another Klayman interview at ABC. It is interesting because they got Klayman to embark on a deranged rant about birther stuff. I think it’s fair to say he totally trashed his credibility with anyone who saw this.

    On the other hand, it bugs me when the MSM says stuff like this: “… the man who challenged in court the legality of the NSA’s authority to keep and store the metadata of American citizens — and won.” He hasn’t won. He got a stayed injunction against the NSA collecting metadata of two individuals — an injunction he didn’t exactly ask for. Far more significantly, he got a statement from the judge that he was likely to win, but still, likelihood is not winning.

  39. avatar
    JPotter December 20, 2013 at 1:27 pm #

    Dave: ORYR has an article about another Klayman interview at ABC.

    http://abcnews.go.com/Politics/meet-larry-klayman-man-nsa-lawsuit/story?id=21278998

    ABC identified Klayman as a “World New Daily” columnist. Heh.