Klayman v Obama(NSA) - Full w/Exhibits - Opposition To Motion For Stay Of Proceedings - 1/15/2014

8/13/2019 Klayman v Obama(NSA) - Full w/Exhibits - Opposition To Motion For Stay Of Proceedings - 1/15/2014

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IN UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

LARRY KLAYMAN, et. al

Plaintiffs,v.

BARACK HUSSEIN OBAMA II, et. al

Defendants.

Civil Action Nos. 13-CV-851

and

13-CV-881

PLAINTIFFS OPPOSITION TO MOTION FOR

STAY OF PROCEEDINGS AGAINSTTHE GOVERNMENT DEFENDANTS PENDING APPEAL OF PRELIMINARY

INJUNCTION AND REQUEST FOR APPROPRIATE SUA SPONTE SANCTIONS

I. INTRODUCTIONPlaintiffs, Larry Klayman, Charles Strange, and Mary Ann Strange, hereby strongly

oppose the Government Defendants (hereinafter the NSA Defendant) motion as yet another

attempt to delay adjudication of this case. Previously, during a status conference on October 31,

2013, the Court warned the NSA Defendant not to seek delays in this case as it is at the pinnacle

of public national interest. Specifically, the Court emphasized:

We work 24/7 around this courthouse, my friend. 24/7. I dont want to hear

anything about vacations, weddings, days off. Forget about it. This is a case at thepinnacle of public national interest, pinnacle. All hands 24/7. No excuses. You got

a team of lawyers. Mr. Klayman is alone apparently. You have litigated cases in

this courthouse when it is matters of this consequence and enormity. You know

how this Court operates.1

1Despite the Courts order granting a preliminary injunction on December 16, 2013, the NSA

Defendant did not file a notice of appeal until almost three (3) weeks later on January 3, 2014. Asimple notice of appeal could have been filed forthwith consistent with the Courts direction to

accelerate any appeals given the Courts stay of the preliminary injunction order. As set forth

below, this delay is consistent with the NSA Defendants and the Obama Justice Departments

goal to delay adjudication of these cases.

Case 1:13-cv-00851-RJL Document 70 Filed 01/15/14 Page 1 of 9


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Tr. of Status Conference on October 31, 2013 at pg. 7. Exhibit 1. Following the granting of a

preliminary injunction in Case No. 13-851, the NSA Defendant, having previously covered up

and then lied under oath to other courts, Congress, and the public over its secretive practice of

collecting metadata on and thus spying on over 300 million American citizens without regard to

there being probable cause of contacts with terrorists or terrorist groups overseas, predictably

seeks to slow down the adjudication of this case as well as a related case (No. 13-881) in an

attempt to throw a monkey wrench into this Courts judicial authority, hoping that appellate

courts will vitiate this Courts ruling that Defendant NSA has violated the Fourth Amendment to

the U.S. Constitution. Already, the NSA Defendant has sought to flout the authority of this Court

by going back, ex partein secretive star chamber proceedings, to the Foreign Intelligence

Surveillance Court (FISC), and had it rubber stamp another ninety (90) days for it to continue to

violate, in an almost-Orwellianfashion, the constitutional rights of all Americans, despite this

Courts ruling of December 16, 2013 declaring this conduct unconstitutional. Obviously, the

FISC was inclined to waste little time rolling over to the NSA Defendant and its enablers such as

Director of National Security James Clapper, who previously perjured himself before Congress,

to save face and thus to justify the FISCsprior secretive illegal rulings at the expense of

hundreds of millions of American citizens who are not under legitimate investigation and have

no connection to terrorism.

In this regard, this Court called the NSA Defendants technology almost-Orwellian and

ruled: 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 the

purposes of querying it and analyzing it without judicial approval.Memorandum Opinion of

December 16, 2013 at pg. 64. The Court continued, . . . [the public] interest looms larger in this



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case, given the significant privacy interests at stake and the unprecedented scope of the NSAs

collection and querying efforts, which likely violate the Fourth Amendment.Id. at 65.

II. STANDARD FOR STAY PENDING APPEALA stay is not a matter of right, even if irreparable injury might otherwise result. Nken v.

Holder, __ U.S. __ 129 S. Ct. 1749, 1761 (2009) (citing Virginian R. Co. v. United States, 272

U.S. 658, 672 (1926)). It is instead an exercise of judicial discretion, and [t]he propriety of its

issue is dependent upon the circumstances of the particular case.Id. The party requesting a stay

bears the burden of showing that the circumstances justify an exercise of that discretion.Id.

The standard for a stay pending appeal is a difficult threshold to satisfy. The four factors

that are traditionally considered when evaluating whether to issue a stay are: (1) whether the

stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether

the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will

substantially injure the other parties interested in the proceeding; and (4) where the public

interest lies.Nken v. Holder, __ U.S. __, 129 S. Ct. at 1761. Simply put, none of these factors

weigh in favor of a stay and therefore the Court must deny the NSA Defendants motion for stay.

III. ARGUMENTRespectfully, this Court must reject this effort of delay for the following straightforward

reasons: First, it is clear that the NSA Defendant, despite this Courts ruling of gross

unconstitutionality, is continuing to violate, in an egregious fashion, the Fourth Amendment

rights of over 300 million Americans, and this case must proceed to discovery and ultimately to

trial, as alluded to by the Court during the status conference of October 31, 2013.2Specifically,

2In any event, the First and Fifth Amendment claims have yet to be litigated as the Court

deferred on these issues. Accordingly, even consideration for a stay would be inappropriate with

regard to these counts of the Complaints, since the only issue on appeal is whether the NSA



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the Court stated: Now there is some other issues besides scheduling that . . . the Government is

uniquely positioned . . . I dont know to what extent the Governments position is going to be

based on classified information . . . but obviously if it is going to be in whole or in part based on

classified information, then we got to start figuring out people getting clearances.Tr. of Status

Conference at 5-6.

In this regard, contrary to the latest fabrications of the NSA Defendant, Plaintiffs have

never claimed to want to know the so-called sources and methods of the NSAindeed,

whistleblower Edward Snowden and various publications such as The Guardianand The

Washington Posthave already disclosed much of this. Rather, Plaintiffs want to engage in

reasonable fact-based discovery to determine the scope of the agencys surveillance and whether

their metadata has in fact been directly accessed and reviewed. To try to counter this reasonable

discovery, the NSA Defendant incredibly states that Plaintiffs may be the target of criminal anti-

terrorism investigations under the relevant statutes. Such an outrageous assertion, made

conveniently and transparently to try to thwart discovery, speaks volumes of the deceit if not

outright lawlessness of the NSA Defendant and the Obama Justice Department, which will grab

onto anything to avoid drowning in its own sea of dishonesty and corruption. In this regard, the

Obama Justice Departmentwhich has become the key tool of this administrations efforts to

blunt if not bury a raft of what the President himself has called phony scandals including but

not limited to the abuse of the IRS to audit and destroy perceived political adversaries

shamelessly proffers to this Court:

Defendant has violated the Fourth Amendment. Indeed, the order of December 16, 2013 only

relates to the Fourth Amendment to the U.S. Constitution. Thus, at a minimum, this case must

proceed expeditiously with regard to the other claims, notwithstanding the strength of Plaintiffs

arguments that no stay should be granted with regard to any issue.



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Further litigation of this issue could risk or require disclosure of classified

national security information, such as whether Plaintiffs were the targets of orsubject to NSA intelligence-gathering activities, confirmation or denial of theidentities of the telecommunications service providers from which NSA has

obtained information about individuals communications, and other classified

information details of the challenged programs.

Defendants Motion for Stay of January 8, 2014 at pg. 7 (emphasis added). This outrageous

assertion in effect amounts to a threat against Plaintiffssuggesting that they are nowunder

criminalinvestigation in obvious retaliation for Plaintiffs having succeeded with their motion

for preliminary injunction. These threats are not only manufactured to try to shut down this case,

but they also amount to an obstruction of justice, as they are intended to scare and coerce

Plaintiffs into backing away from fully litigating these suits.3

Indeed, these principles have remained relatively immutable with regard to the NSA

Defendants tactics and others. In Greene, the petitioner, an aeronautical engineer and general

manager of a private corporation engaged in developing and producing for the Armed Forces

goods involving military secrets, was denied access to much of the information adverse to him

and any opportunity to confront witnesses against him. Greene v. McElroy, 360 U.S. 474, 496

3In fact, federal law criminalizes this type of obstruction (both obstructing the execution of a

court order and obstructing by attempting to influence an officer in a judicial proceeding or due

administration) of justice by NSA Defendant. Whoever, by threats or force . . . willfullyattempts to prevent, obstruct, impede, or interfere with, the due exercise of rights or the

performance of duties under any order, judgment, or decree of a court of the United States, shall

be fined under this title or imprisoned not more than one year, or both. 18 U.S.C. 1509. Seealso18 U.S.C. 1503 (Whoever corruptly, or by threats or force, or by any threatening letter or

communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer

in or of any court of the United States . . . shall be punished . . .).

Here, Plaintiffs counsel, Larry Klayman, is indeed an officer of the court, PlaintiffsCharles Strange and Mary Ann Strange are also witnesses and thus NSA Defendant and the

Obama Justice Departments intimidation tactics and threats, if not outright illegal criminal

investigation of Plaintiffs for suggested ties to terrorists and terrorism, constitute criminal andcivil obstruction of justice intended to thwart the due administration of justice in this case. The

Court should respectfully address this misconduct and issue appropriate remedial sanctions,

including but not limited to the summary denial of the NSA Defendants Motion for Stay.



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(1959). The Supreme Court ruled, . . . where a governmental action seriously injures an

individual, and the reasonableness of the action depends on fact findings, the evidence used to

prove the Governments case must be disclosed to the individual so that he has an opportunity to

show that it is untrue.Id. at 496.

It has alreadybeen ruled here that the NSA Defendants massive spy program violates

the Fourth Amendment to the U.S. Constitution. And, if theMillscase, which holds . . . the loss

of constitutional freedoms, for even minimal periods of time, unquestionably constitutes

irreparable injury,Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009) (quoting

Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion)) is accepted as binding law, as it

should be and as this Court relied on in its December 16, 2013 Memorandum Opinion, the

evidence used to prove the Governments case must be disclosed to Plaintiffs. This principle has

ancient roots and finds expression in the Sixth Amendment which provides that the accused

shall enjoy the right to be confronted with the witnesses against him.U.S. CONST. amend. XI.

Second, Plaintiffs counsel is entitled to a security clearance, as he is not a security risk

despite the newly minted, convenient, and outrageous suggestion that he and his clients are under

criminal investigation for ties to terrorists and terrorism. Indeed Plaintiffs counsel, Larry

Klayman, had a security clearance when he was a prosecutor for the U.S. Department of Justice

on the trial team which broke up AT&T. Should it refuse to grant one to Plaintiff Klayman, the

Obama administration would transparently be showing its hand at yet another attempt to

stonewall the adjudication of this case. In any event, this Court can not only review any such

denial under the abuse of discretion legal standard, but it also has the authority to itself review

discovery materials in camera with or without a security clearance being granted to Plaintiffs

counsel. At a minimum, discovery of classified information could proceed in this way. And,



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given the blatant lawlessness of the NSA Defendant, discovery would likely have a salutary

effect on future misconduct by the agency, as it would be under the Courts continuing scrutiny

and watch.

In short, it would be a gross abuse of discretion, if not an obstruction of justice, not to

grant a security clearance to Plaintiffscounsel, particularly since this Court can fashion

limitations and procedures to protect national security, which Plaintiffs all favor. Indeed, this was

one of the reasons Plaintiffs recently moved the Court for a status conferenceto discuss, with

judicial guidance, the best and most expeditious means to work out and fashion these limits and

procedures.

Third, the NSA Defendant and the Obama Justice Department, both huge and well-

financed and staffed government agencies, are hardly short on resources. That Plaintiffs are able

and more than willing to litigate this case fully as the preliminary injunction order is addressed

on appeal will also work no prejudice to these agencies, particularly given the safeguards that

can and will be put into effect to protect national security, which Plaintiffs endorse. Indeed, there

is no time to delay as the NSA Defendants illegal and unconstitutional conduct amounts to the

greatest violation of the constitutional rights of American citizens in the nations history andit is

incumbent upon all parties to litigate these cases with all due speed under these egregious and

exigent circumstances. As this Court has previously stated, there simply is no time to waste.

Finally, it is telling that while trying to throw a monkey wrench into and effectively shut

down Plaintiffs cases, the NSA Defendant has the audacity to argue that the Court should allow

these cases to go forward only as the NSA Defendant sees fit so the Court can rule on its motions

to dismiss to gut these cases in the interim by removing the non-government Defendants from

the litigation. How convenient. This is the Obama Justice Departments equivalent of heads I



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win tails you lose.Tellingly, this Court stated at oral argument on November 18, 2013 that,

The Department of Justice seems to like it both ways. The Courtcontinues by observing that

the Government holds all the cards.Transcript of Oral Argument on November 18, 2013 at pg.

34. Exhibit 2.4

IV. CONCLUSIONFor all of these reasons, the Court must respectfully see through NSA Defendants

motion and deny it. These cases should thus move forward in the ordinary course and with all

due speed as they are at the pinnacle of public importance and the stakes for Plaintiffs and the

American people are unprecedented in the history of this nation.

Dated: January 15, 2014

Respectfully submitted,

/s/Larry Klayman

Larry Klayman, Esq.

D.C. Bar No. 3345812020 Pennsylvania Ave. NW #345

Washington, DC 20006

Tel: (310) 595-0800Email: [email protected]

4Not granting a stay of this entire case will likely speed up the appellate process, as the NSA

Defendant and Obama Justice Department will have incentive to move expeditiously on appeal.

(See footnote 1).



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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 15th day of January a true and correct copy of the foregoing

Plaintiffs' Opposition to Defendants' Motion to Stay (Civil Action Nos. 13-cv- 851 and 13-cv-

881) was submitted electronically to the District Court for the District of Columbia and servedvia CM/ECF upon the following:

James J. Gilligan

Special Litigation Counsel

Civil Division, Federal Programs Branch

U.S. Department of JusticeP.O. Box 883

Washington, D.C. 20044

(202) 514-3358Email: [email protected]

Randolph D. Moss

WILMER CUTLER PICKERING HALE & DORR LLP1875 Pennsylvania Avenue, NW


(202) 663-6640Fax: (202) 663-6363

Email: [email protected]

Attorneys for Defendants.

Respectfully submitted,

/s/Larry KlaymanLarry Klayman, Esq.

D.C. Bar No. 334581

Klayman Law Firm2020 Pennsylvania Ave. NW, Suite 345


Tel: (310) 595-0800



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Exhibit 1

Case 1:13-cv-00851-RJL Document 70-1 Filed 01/15/14 Page 1 of 18


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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

LARRY E. KLAYMAN, ET AL.

Plaintiffs,

v.

BARACK HUSSEIN OBAMA, ET AL.

Defendants.. . . . . . . . . . . . . . . .

::::::::::

Docket Nos. CA13-851CA13-881 (RJL)

October 31, 2013

3:45 p.m.

TRANSCRIPT OF STATUS CONFERENCEBEFORE THE HONORABLE RICHARD J. LEON

UNITED STATES DISTRICT JUDGE

APPEARANCES:

For the Plaintiff Pro Se: LARRY E. KLAYMANLaw Office of Larry E. Klayman2020 Pennsylvania Avenue, NWWashington, DC 20006

For the Defendants: JAMES J. GILLIGANRODNEY PATTONMARCIA BERMANBRYAN DEARINGERU.S. Department of Justice20 Massachusetts Avenue, NW


For the DefendantVerizon Communications: RANDOLPH D. MOSS

Wilmer Cutler Pickering Hale &Dorr, LLP

1875 Pennsylvania Avenue, NWWashington, DC 20006



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For the DefendantNational Security Agency: JAMES R. WHITMAN

U.S. Department of JusticePO Box 7146Washington, DC 20044

Court Reporter: PATTY ARTRIP GELS, RMROfficial Court ReporterRoom 4700-A, U.S. CourthouseWashington, D.C. 20001(202) 962-0200

Proceedings reported by machine shorthand, transcript producedby computer-aided transcription.



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P R O C E E D I N G S

COURTROOM DEPUTY: Your Honor, we have Civil Action

13-851 and Civil Action 13-881 Larry Klayman et al. versus

Barack Hussein Obama, et al. For the record, counsel for the

Plaintiff is not present.

I will ask the defense counsel and all counsel to

please approach the lectern and identify yourself for the

record.

MR. GILLIGAN: James Gilligan, your Honor, with the

Department of Justice representing the Government Defendants a

specified in our papers. With me at counsel table are Marcia

Berman, Rodney Patton and Bryan Dearinger.

THE COURT: Welcome back, Mr. Gilligan. It has been

few years.

MR. GILLIGAN: It has been a few years.

THE COURT: Boumedian as I recall it.

MR. GILLIGAN: It was one of the Guantanamo cases, ye

THE COURT: Welcome back.

MR. WHITMAN: About Jim Whitman with the Department o

Justice. I represent the individual Federal Defendants who

have not been served, but I am still appearing today.

THE COURT: Oh, you have an interest.

MR. WHITMAN: Yes.

THE COURT: Welcome back, Mr. Moss.

MR. MOSS: Randolph Moss on behalf of the Verizon



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Defendants.

THE COURT: Welcome back.

MR. MOSS: Thank you.

THE COURT: Well, for reasons which I can't understan

Mr. Klayman is neither here nor has made arrangements to have

anyone else here in his stead so I will make arrangements to

have a transcript of this hearing sent to him so he will have

the benefit of whatever is discussed today.

The purpose of today's hearing is obviously schedulin

Under the local rules, the Court must have a hearing within

21 days of being filed which by my calculation would be

November 18th -- excuse me -- 19th. 19th.

The Defendants have seven days to respond to a

Preliminary Injunction Motion which seems a little much, I mea

a little penal, penal in this case, typed.

So I think some accommodations need to be made under

the circumstances. Now, I mean I don't -- the way this PI is

structured I do not believe it is directed at the private

companies or the individuals. So I don't see any reason why

they have to respond at all frankly and, if it should come to

pass that that becomes an issue, then I will give you an

opportunity at an appropriate time, Mr. Moss, to respond; but

this point, these are directed at the Government of the United

States.

And so I think the Government should have more time



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than seven days. That's for sure. I can't give you too much

more because I got to build in a little time for his reply.

So what I am thinking of is giving you until

November -- Monday, November 11th and then I will give Mr.

Klayman until -- I will give him three days, Thursday the 14th

and then we will have the oral argument on Monday, the 18th of

November at 11:30 in the morning. Hopefully he won't absent

himself for that hearing either, but he is getting a lot more

notice this time than he did before.

He did file Motions For Continuances which I denied.

He wanted to do it by telephone which it is not my practice to

permit that and, frankly, it is surprising to me that he think

he is going to litigate this alone without other counsel to he

him. So hopefully when he reviews this transcript, he will

start the process of reevaluating how he is going to do this

because obviously this is a case that has lots of parts to it

and where it is going, I don't know, all I know is there is a

lot of potential moving parts to this case.

Now, there is some other issues besides scheduling th

are -- that the Government is uniquely positioned. Mr. Gillig

I will start with you since I assume you are kind of the leade

of the team here. I don't know to what extent the Government'

position is going to be based on classified information, I hav

no idea, but obviously if it is going to be in whole or in par

based on classified information, then we got to start figuring



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out people getting clearances. The Court has clearance, but I

have at least one law clerk working with me on this who I

believe has clearance up to a certain level, but I don't know

what level this is going to go up to.

If this is TSSCI, then I need to start immediately

taking steps to try to get my law clerk up to the TSSCI level

which gets us to the obvious question: What about Mr. Klayma

Because if the Government's position is that its

defense turns on TSSCI information, and I might add in that

context, that might include opinions of the FISC that are

currently categorized as TSSCI or Mr. Klayman doesn't have

access -- can't have access to it as the lawyer for himself an

these other individuals, then we got another problem. It is a

pretty fundamental one.

So I am in the dark right now as to what the

Government's thinking is on this subject. Maybe the Governmen

is going to be able to respond to this PI without reference to

any classified information, but that may not be the case. Do

you have any sense?

MR. GILLIGAN: May I respond, your Honor?

THE COURT: Do you have any sense, Mr. Gilligan, wher

you are likely to be headed in terms of your response to this

PI?

MR. GILLIGAN: Well, your Honor, as you say, this PI

has a lot of moving parts to it.



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THE COURT: Potentially.

MR. GILLIGAN: There are a number of claims that we

have not addressed yet in other cases challenging the NSA

intelligence activities, and there are a number of alleged

activities that are challenged in this case that we have not h

to address before so we are starting from scratch here.

And while I appreciate the Court's efforts to provide

us with additional time to figure out how we are going to

address all the moving parts in these Motions, I would ask the

Court's -- if the Court would be willing to consider providing

us with some additional time beyond November 11th which I also

hasten to point out is Veterans Day.

THE COURT: We work 24/7 around this courthouse, my

friend. 24/7. I don't want to hear anything about vacations,

weddings, days off. Forget about it. This is a case at the

pinnacle of public national interest, pinnacle. All hands 24/

No excuses. You got a team of lawyers. Mr. Klayman is alone

apparently. You have litigated cases in this courthouse when

it is matters of this consequence and enormity. You know how

this Court operates.

MR. GILLIGAN: I understand the Court's willingness a

preparation to address this Court with all the speed necessary

your Honor, but precisely because of its consequence, we feel

that informed decision-making on the part of this Court will

best be served if we have an opportunity to address the variou



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issues that are raised in appropriate depth.

THE COURT: Now, Mr. Gilligan, when was this lawsuit

filed?

MR. GILLIGAN: This lawsuit was filed over four month

ago, your Honor.

THE COURT: You have had, not you personally, the

Department of Justice, the NSA and the allied Government

agencies that have an interest in this have had four months to

think through its position. That's a lot of time, Mr. Gilliga

I am sad to say I don't believe or assume that they worked sev

days a week for four months. I wish it were true, but I am su

it isn't.

But I am not asking you to tell me, but the point is

my judgment, you have got four months. That's a long time. I

might add you have got a case going on with Judge Pauly up in

the Southern District of New York. Now, it is a little bit

different in the sense that Klayman 2 deals with, you know, a

different aspect of the NSA's program than Klayman 1. Klayman

is telephonic. Klayman 2is internet traffic as you well know.

MR. GILLIGAN: Yes.

THE COURT: The cases have not been joined yet which

kind of begs the next question: Have you had any discussions

with Mr. Klayman to join any of these or whether his intention

is to join them or not? I don't know. We have two separate

PI's.



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For the purpose of briefing, you can do one set of

briefs. You don't need to do two sets of briefs, but we have

got two PIs here and I am giving you extra time. I am giving

you a week extra.

MR. GILLIGAN: Understood, your Honor. I would just

point out, the last word on this subject at least for me, that

regarding the four months, it says something that the Plaintif

waited four months to bring these Motions. It says something

about what level of urgency there is actually to immediate

consideration of these Preliminary Injunction Motions.

THE COURT: Your answer to the Complaint is not due -

you got an extension from the Court to the first week of

December, right?

MR. GILLIGAN: No, actually I believe -- the Verizon

Defendants got an extension, but December 2nd is in fact the

60th day of service of the Complaint on the Government by the

U.S. Attorney's Office.

THE COURT: Okay. So your answer is technically due t

first week of December?

MR. GILLIGAN: That's correct, your Honor. That's

three weeks, nearly a month following the November 11th date.

THE COURT: So Mr. Klayman is not here, unfortunately

and he can't share with us why he believed circumstances exist

that required him, compelled him to feel like he needed to fil

a PI. But whatever the reason is that they have done it, they



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have done it; and the reality is I have the to deal with it.

And from where I am sitting at least, the Government

has had four months to figure out its position as to these

cases. So it is now time to get going.

MR. GILLIGAN: Very well, your Honor.

THE COURT: You get your briefs in on that Monday, th

11th and you can have until close of business on the 11th unle

you want to do it on Friday. I assume you wanted the weekend

have the benefit of that extra time. I could make it that

preceding Friday at close of business, but I thought you would

want the extra time.

MR. GILLIGAN: No, your Honor. Harking back to your

point earlier, we work plenty of weekends.

THE COURT: Good. Keep your sleeves rolled up.

MR. GILLIGAN: November 11 by close of business did I

hear your Honor say?

THE COURT: Well, we won't be open for business

technically. I will be here. I would love to start reading

them that early, but if you don't have them ready until

midnight, you have got to midnight technically.

MR. GILLIGAN: Very well, your Honor. Thank you.

Regarding then your Honor's inquiry about reliance on classifi

information --

THE COURT: Yes. How does that stand?

MR. GILLIGAN: We have, as your Honor may be aware in



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the litigation in the Southern District of New York with Judge

Pauly, the ACLU case, we have thus far not found it necessary

to rely on classified information to present our arguments. W

believe that that will be the case here.

THE COURT: Good.

MR. GILLIGAN: If anything, it may be the Plaintiffs

ultimately who may have to rely on classified information in

order to make their case and that will raise issues that perha

we will need to grapple with at a later time.

THE COURT: Okay. That's encouraging to hear that

that's where you come out at the moment anyway because that

would add amazing complexities to things over the next 3,

4 weeks. That's for sure.

MR. GILLIGAN: A number of complexities, your Honor.

Speaking of complexities, there is the matter still of the

Plaintiff's Motion For Leave to Take a 30(b)(6) deposition. M

I assume based on the schedule your Honor has set that that

Motion will not be granted?

THE COURT: I haven't ruled on it yet, but I think yo

have got some sense of how I am inclined. I will wait to issu

the ruling, but I don't think I would have set this kind of

schedule if I was inclined to grant it.

MR. GILLIGAN: Very well.

THE COURT: I think you should focus on the briefs.

Don't focus on depositions.



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THE COURT: Very good. Mr. Moss, do you have anythin

you need to add for the good of the order or are you okay?

MR. MOSS: I am okay, your Honor. I think from our

perspective this is something that we can deal with in our

Motion To Dismiss in a fairly straightforward manner. The

Plaintiff's allegations with respect to Verizon are simply tha

it allegedly complied with a Court Order; and under the law,

that doesn't -- there is no cause of action or basis for

bringing the suit under those circumstances. That's our

principal intention to dispose of the case on that basis.

THE COURT: I am going to be very curious to hear the

arguments about the authority this Court has to review or

overrule a decision by another Court. I don't know what Mr.

Klayman's theory is going to be just yet, but we will see.

MR. MOSS: We will be interested as well, your Honor

In addition, there are other defenses relating to personal

jurisdiction that we will raise, but I think they are all fair

garden variety.

THE COURT: Anything else, counsel? All right. We wi

have a copy of the transcript sent to Mr. Klayman's address as

it appears on the record. We will stand in recess.

(Whereupon, at 4:10 p.m., the proceedings were

concluded.)



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CERTIFICATE OF REPORTER

I, Patty A. Gels, certify that the foregoing is a

correct transcript from the record of proceedings in the

above-entitled matter.

_________________________



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1 [2]- 8:18

11 [1]- 10:15

11:30 [1]- 5:7

11th [5]- 5:4, 7:11, 9:21, 10:7

13-851 [1]- 3:3

13-881 [1]- 3:314th [1]- 5:5

1875 [1]- 1:25

18th [2]- 4:12, 5:6

19th [2]- 4:12

2

2 [1]- 8:17

20 [1]- 1:21

20001 [2]- 1:21, 2:9

20006 [2]- 1:17, 1:25

20044 [1]- 2:4

2013 [1]- 1:6

202 [1]- 2:9

2020 [1]- 1:17

21 [1]- 4:11

24/7 [3]- 7:13, 7:14, 7:16

2is [1]- 8:19

2nd [1]- 9:15

3

3 [1]- 11:12

30(b)(6 [1]- 11:16

31 [1]- 1:6

3:45 [1]- 1:7

4

4 [1]- 11:13

4700-A [1]- 2:8

4:10 [1]- 12:23

6

60th [1]- 9:16

7

7146 [1]- 2:4

9

962-0200 [1]- 2:9

A

able [1]- 6:17

above-entitled [1]- 13:5

absent [1]- 5:7

access [2]- 6:12

accommodations [1]- 4:16

ACLU [1]- 11:2

Action [2]- 3:2, 3:3

action [1]- 12:9

activities [2]- 7:4, 7:5

add [4]- 6:9, 8:15, 11:12, 12:3

addition [1]- 12:17

additional [2]- 7:8, 7:11

address [5]- 7:6, 7:9, 7:22, 7:25,

12:21

addressed [1]- 7:3agencies [1]- 8:8

Agency [1]- 2:3

ago [1]- 8:5

aided [1]- 2:11

AL [2]- 1:4, 1:8

al [2]- 3:3, 3:4

allegations [1]- 12:7

alleged [1]- 7:4

allegedly [1]- 12:8

allied [1]- 8:7

alone [2]- 5:13, 7:17

amazing [1]- 11:12

answer[2]- 9:11, 9:18

anyway [1]- 11:11APPEARANCES [1]- 1:14

appearing [1]- 3:21

appreciate [1]- 7:7

approach [1]- 3:7

appropriate [2]- 4:22, 8:1

argument [1]- 5:6

arguments [2]- 11:3, 12:13

arrangements [2]- 4:5, 4:6

ARTRIP [1]- 2:7

aspect [1]- 8:18

assume [4]- 5:21, 8:10, 10:8, 11:17

Attorney's [1]- 9:17

authority [1]- 12:13

Avenue [3]- 1:17, 1:21, 1:25aware [1]- 10:25

B

BARACK [1]- 1:8

Barack [1]- 3:4

based [3]- 5:23, 5:25, 11:17

basis [2]- 12:9, 12:11

becomes [1]- 4:21

BEFORE [1]- 1:12

begs [1]- 8:22

behalf[1]- 3:25

benefit [2]- 4:8, 10:9

BERMAN [1]- 1:19

Berman [1]- 3:12

best [1]- 7:25

beyond [1]- 7:11

bit [1]- 8:16

Boumedian [1]- 3:16

Box [1]- 2:4

briefing [1]- 9:1

briefs [4]- 9:2, 10:6, 11:24

bring [1]- 9:8

1

bringing [1]- 12:10

Bryan [1]- 3:12

BRYAN [1]- 1:20

build [1]- 5:2

business [4]- 10:7, 10:10, 10:15,

10:17

CCA13-851 [1]- 1:4

CA13-881 [1]- 1:5

calculation [1]- 4:11

case [11]- 4:15, 5:16, 5:18, 6:18, 7:5,

7:15, 8:15, 11:2, 11:4, 11:8, 12:11

cases [5]- 3:17, 7:3, 7:18, 8:21, 10:4

categorized [1]- 6:11

certain [1]- 6:3

CERTIFICATE [1]- 13:1

certify [1]- 13:3

challenged [1]- 7:5

challenging [1]- 7:3

circumstances [3]- 4:17, 9:23, 12:10

Civil [2]- 3:2, 3:3

claims [1]- 7:2

classified [6]- 5:23, 5:25, 6:18, 10:22,

11:3, 11:7

clearance [2]- 6:1, 6:3

clearances [1]- 6:1

clerk [2]- 6:2, 6:6

close [3]- 10:7, 10:10, 10:15

COLUMBIA [1]- 1:2

Communications [1]- 1:23

companies [1]- 4:19

compelled [1]- 9:24

complaint [2]- 9:11, 9:16

complexities [3]- 11:12, 11:14, 11:15

complied [1]- 12:8

computer[1]- 2:11

computer-aided [1]- 2:11

concluded [1]- 12:24

CONFERENCE [1]- 1:11

consequence [2]- 7:19, 7:23

consider[1]- 7:10

consideration [1]- 9:10

context [1]- 6:10

continuances [1]- 5:10

copy [1]- 12:21

correct [2]- 9:20, 13:4

counsel [6]- 3:4, 3:6, 3:11, 5:13,

12:20

COURT [28] - 1:1, 3:13, 3:16, 3:18,

3:22, 3:24, 4:2, 4:4, 6:21, 7:1, 7:13, 8:2,

8:6, 8:21, 9:11, 9:18, 9:22, 10:6, 10:14,

10:17, 10:24, 11:5, 11:10, 11:19, 11:24,

12:2, 12:12, 12:20

Court [12]- 2:7, 2:8, 4:10, 6:1, 7:10,

7:20, 7:22, 7:24, 9:12, 12:8, 12:13,

12:14

Court's [3]- 7:7, 7:10, 7:21

courthouse [2]- 7:13, 7:18



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ruled [1]- 11:19

rules [1]- 4:10

ruling [1]- 11:21

S

sad [1]- 8:10

schedule[2]

- 11:17, 11:22scheduling [2]- 4:9, 5:19

scratch [1]- 7:6

Se [1]- 1:16

Security [1]- 2:3

see [2]- 4:19, 12:15

sense [4]- 6:19, 6:21, 8:17, 11:20

sent [2]- 4:7, 12:21

separate [1]- 8:24

served [2]- 3:21, 7:25

service [1]- 9:16

set [3]- 9:1, 11:17, 11:21

sets [1]- 9:2

seven [3]- 4:13, 5:1, 8:10

share[1]- 9:23

shorthand [1]- 2:11

simply [1]- 12:7

sitting [1]- 10:2

sleeves [1]- 10:14

Southern [2]- 8:16, 11:1

speaking [1]- 11:15

specified [1]- 3:11

speed [1]- 7:22

stand [2]- 10:24, 12:22

start [5]- 5:15, 5:21, 5:25, 6:5, 10:18

starting [1]- 7:6

STATES [2]- 1:1, 1:12

States [1]- 4:24

STATUS [1]- 1:11

stead [1]- 4:6

steps [1]- 6:6

still [2]- 3:21, 11:15

straightforward [1]- 12:6

structured [1]- 4:18

subject [2]- 6:16, 9:6

suit [1]- 12:10

surprising [1]- 5:12

T

table [1]- 3:11

team [2]- 5:22, 7:17

technically [3]- 9:18, 10:18, 10:20

telephone [1]- 5:11telephonic [1]- 8:19

terms [1]- 6:22

THE [29]- 1:2, 1:12, 3:13, 3:16, 3:18,

3:22, 3:24, 4:2, 4:4, 6:21, 7:1, 7:13, 8:2,

8:6, 8:21, 9:11, 9:18, 9:22, 10:6, 10:14,

10:17, 10:24, 11:5, 11:10, 11:19, 11:24,

12:2, 12:12, 12:20

theory [1]- 12:15

thinking [2]- 5:3, 6:16

thinks [1]- 5:12

three [2]- 5:5, 9:21

Thursday [1]- 5:5

today [2]- 3:21, 4:8

today's [1]- 4:9

traffic [1]- 8:19

TRANSCRIPT [1]- 1:11

transcript [5]- 2:11, 4:7, 5:14, 12:21,13:4

transcription [1]- 2:11

true [1]- 8:11

try [1]- 6:6

TSSCI [4]- 6:5, 6:6, 6:9, 6:11

turns [1]- 6:9

two [3]- 8:24, 9:2, 9:3

typed [1]- 4:15

U

U.S [4]- 1:20, 2:3, 2:8, 9:17

ultimately [1]- 11:7

Under[1]- 4:10

under[3]- 4:16, 12:8, 12:10

understood [1]- 9:5

unfortunately [1]- 9:22

uniquely [1]- 5:20

UNITED [2]- 1:1, 1:12

United [1]- 4:23

unless [1]- 10:7

up [5]- 6:3, 6:4, 6:6, 8:15, 10:14

urgency [1]- 9:9

V

vacations [1]- 7:14

variety [1]- 12:19

various [1]- 7:25Verizon [4]- 1:23, 3:25, 9:14, 12:7

versus [1]- 3:3

Veterans [1]- 7:12

W

wait [1]- 11:20

waited [1]- 9:8

Washington [5]- 1:17, 1:21, 1:25, 2:4,

2:9

weddings [1]- 7:15

week [4]- 8:11, 9:4, 9:12, 9:19

weekend [1]- 10:8

weekends [1]- 10:13weeks [2]- 9:21, 11:13

welcome [4]- 3:13, 3:18, 3:24, 4:2

WHITMAN [3]- 2:3, 3:19, 3:23

Whitman [1]- 3:19

whole [1]- 5:24

willing [1]- 7:10

willingness [1]- 7:21

Wilmer [1]- 1:24

wish [1]- 8:11

4

word [1]- 9:6

Y

years [2]- 3:14, 3:15

ork [2]- 8:16, 11:1

yourself [1]- 3:7



28/95

Exhibit 2



29/95

UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

LARRY E. KLAYMAN, ET AL.

Plaintiffs,

v.

BARACK HUSSEIN OBAMA, ET AL.

Defendants.. . . . . . . . . . . . . . . .

::::::::::

Docket Nos. CA13-851CA13-881 (RJL)

November 18, 2013

11:30 a.m.

TRANSCRIPT OF PRELIMINARY INJUNCTION HEARINGBEFORE THE HONORABLE RICHARD J. LEON

UNITED STATES DISTRICT JUDGE

APPEARANCES:

For the Plaintiff Pro Se: LARRY E. KLAYMANLaw Office of Larry E. Klayman2020 Pennsylvania Avenue, NWWashington, DC 20006

For the Defendants: JAMES J. GILLIGANRODNEY PATTONMARCIA BERMANBRYAN DEARINGERU.S. Department of Justice20 Massachusetts Avenue, NW


For the DefendantVerizon Communications: RANDOLPH D. MOSS

Wilmer Cutler Pickering Hale &Dorr, LLP

1875 Pennsylvania Avenue, NWWashington, DC 20006



30/95

For the DefendantNational Security Agency: JAMES R. WHITMAN

U.S. Department of JusticePO Box 7146Washington, DC 20044

Also Present: Naveed MuboobianMona FalahCharles and Mary Ann Strange

Court Reporter: PATTY ARTRIP GELS, RMROfficial Court ReporterRoom 4700-A, U.S. CourthouseWashington, D.C. 20001(202) 962-0200

Proceedings reported by machine shorthand, transcript producedby computer-aided transcription.



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P R O C E E D I N G S

COURTROOM DEPUTY: I Honor, we have Civil Action 13-8

and Civil Action 13-881 Larry Klayman et al. versus Barack

Hussein Obama, et al. I would ask that counsel please approach

the lectern and identify yourself and those at your respective

tables.

MR. KLAYMAN: Thank you, your Honor. Larry Klayman.

Pleasure to be here.

THE COURT: Welcome.

MR. KLAYMAN: May I ask permission for my associates

sit at counsel table? They are members of the California Bar?

They came with me.

THE COURT: Are they counsel of record in the case?

MR. KLAYMAN: They are not counsel of record. I am

counsel of record.

THE COURT: What are the Courts are they members of?

MR. KLAYMAN: In California. Mr. Muboobian.

MR. MUBOOBIAN: California Supreme Court and Central

District of California.

THE COURT: And who else?

MR. KLAYMAN: Miss Mona Falah.

THE COURT: What Courts?

MR. KLAYMAN: California Supreme Court.

THE COURT: All right. They can sit there.

MR. KLAYMAN: Thank you.



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The COURT: Hold on now. We are just introducing

ourselves. You can have a seat.

MR. KLAYMAN: Okay. Thank you.

THE COURT: Mr. Gilligan.

MR. GILLIGAN: Thank you, your Honor. James Gilligan

with the Department of Justice for the Government Defendants.

With me at counsel table are Marcia Berman, Bryan Dearinger,

Rodney Patton, Tony Coppalino and also joining us today is

Elizabeth Shapiro.

THE COURT: Don't forget Mr. Moss.

MR. GILLIGAN: I thought he would introduce himself.

MR. MOSS: Good morning, your Honor, Randolph Moss on

behalf of the Verizon Defendants.

THE COURT: Welcome. All right. Very good. Mr.

Klayman.

MR. KLAYMAN: Thank you, your Honor. If I may addres

some preliminary matters with the Court.

THE COURT: Sure.

MR. KLAYMAN: I would like to approach the bench with

binder that we prepared about relevant documents that we

referred to in our briefs and also with two requests that we

made to the NSA through the Justice Department to authenticate

those documents for purposes of any use that your Honor may

decide to employ them for in this case.

It is our understanding from Mr. Gilligan, we got an



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e-mail that they would not produce anyone to authenticate the

documents, nor would they deny or admit the authenticity of th

documents. So we do have a tutor request pending. It is at

Section 21 of this binder which I would like to provide to you

Honor with it.

THE COURT: You can hold off on providing anything

right now.

MR. KLAYMAN: Okay.

THE COURT: Let's see where this goes.

MR. KLAYMAN: The second matter is that we filed a

Motion To Amend the Complaint, both of the different complaint

Within the original complaint, it was either implicit or

otherwise that we were going under the APA by virtue of the

nature are the of the relief we were requesting, but we though

we should make it clearer. So yesterday evening we filed a

Motion For Leave To Amend the Complaints to add the APA remedy

In addition, it sets forth the relief that we request

in the Preliminary Injunction Motions. Your Honor should have

that on the Court's PACER system, but I have do have a hard co

if you would like to have it.

THE COURT: That's fine. Obviously the Government

hasn't had a chance to respond yet so we will and see what the

Government's response is.

MR. KLAYMAN: Yes. In addition, yesterday as we were

preparing, we learned of additional information that bears on



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our clients who are sitting at counsel table with us.

THE COURT: Welcome.

MR. KLAYMAN: Charles and May Ann Strange.

THE COURT: Welcome.

MR. KLAYMAN: Which bears on the Government intruding

into their private communications with regard to computers and

we filed a Motion For Leave to file this affidavit. It is th

affidavit of David M. Syler. He is the computer expert who

inspected that computer. We ask for leave to file that. I ha

a copy of that if your Honor would like a copy of that.

THE COURT: Any objection? Come on up, Mr. Gilligan.

MR. GILLIGAN: Regarding the Amended Complaints, your

Honor, we would like to reserve judgment on those since we jus

received them last night, and we do object to the attempts to

introduce new evidence that was only provided to us last night

the evening before the argument in this matter.

THE COURT: Why don't we do this. You can have until

the end of the week to file any objection you have to it and

then I will take it under advisement.


MR. KLAYMAN: I think that does it for the preliminar

matters your Honor. Thank you.

THE COURT: All right. You don't have to leave.

MR. KLAYMAN: Okay.

MR. KLAYMAN: I will get my binder. Now we will do t



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argument.

THE COURT: You can stay.

MR. KLAYMAN: Okay. Does your Honor have any time

limitation?

THE COURT: Yes. What I was thinking, as you will se

in a minute, my focus is going to be essentially today two par

and I think a half an hour each side. I give you chance to

split yours with a rebuttal, because you are the moving party

But the Government can have a half hour total and you can have

half hour total, but you can split it 20/10, however you want

split it. It is your choice.

But my focus today is really two part. First is the

authority of this Court to handle this case by what authority

and, secondly, what if any standing has been demonstrated on t

part of the Plaintiffs to, if this Court has authority, to hea

this case, what standing if any has been demonstrated by the

Plaintiffs that would enable this Court to go forward in

evaluating this case? So that's kind of where my focus is.

The problem, frankly, Mr. Klayman, is on the first

issue, the briefs are very thin on both sides. Judge Pauly

apparently in New York specifically asked for briefing on this

issue and based on what my clerks could find, there wasn't a

whole heck of a lot that was filed; and, to me, this is the

overarching question: By what authority can this Court, Artic

III Court involve itself in evaluating decisions of a separate



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Article III Court set by Congress with the very specific

statutory framework that does not in any way, shape or form

provide for jurisdiction in this Court?

By what authority can this Court do that? Statutory o

constitutional and if you have got some analogies, that would

helpful because frankly I have been searching for it.

MR. KLAYMAN: Let me get right to it, your Honor.

THE COURT: Please.

MR. KLAYMAN: Because we thought you would ask that

question. You raised that at the status conference.

THE COURT: Good.

MR. KLAYMAN: We prepared a bench brief on that. May

provide that to you? A very short brief bench brief but --

THE COURT: Make sure Mr. Gilligan gets that.

MR. GILLIGAN: Reserving my right to object, your

Honor.

THE COURT: All right. That's fine.

MR. KLAYMAN: Okay. And a copy for your Clerk?

THE COURT: I can't listen and read at the same time

I will give them a copy. How is that? You go ahead.

MR. KLAYMAN: Let me just emphasize that there are tw

lawsuits here. One was a lawsuit filed with regard to Verizon

where you have Judge Vincent's order which is at issue and tha

was the order of April 25, 2013. And in that order, as your

Honor knows, it is incredibly overly broad. It allows for the



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collection of any telephone records, metadata, et cetera on

every Verizon customer of which I am one and of which all of o

Plaintiffs are one as well.

THE COURT: The Government is prepared to concede tha

apparently based on their briefs.

MR. KLAYMAN: All right.

THE COURT: They make a distinction between different

Verizon accounts.

MR. KLAYMAN: We are users and, of course, as users a

subscribers, we are subject to having our telephone calls rout

through Verizon. So we are affected with or without any kind

subscription with Verizon, but that is the case --

THE COURT: Okay.

MR. KLAYMAN: -- here and that's not in dispute and

Verizon is here and they can confirm in fact that we are

subscribers if they would like to.

Interestingly enough, that order was renewed later,

okay, by Judge McLaughlin and that -- from our reading of that

order, it is virtually the same order. Okay. It is overly

broad. There is some redactions. We don't exactly what she h

in there because it hasn't been released, but let us presume i

is the same order.

That order will go out of effect on January 3, 2014.

So there will be no order. So whatever I argue today as of

January 3, 2014, there will be no Court Order unless it is



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renewed; and your Honor could step in immediately at that time

However, you can step in now and here is why.

Number one, what happened at the FISA Court was all

ex parte. We as Plaintiffs did not have the opportunity to

participate in that proceeding. It was done ex parte.

Information was provided to the Judge, Judge Vincent. There w

a long history as we set forward in the briefs and as we

documented in various Court Orders of the NSA lying to the FIS

Court and lying to the U.S. Government about what's going on

with regard to their metadata program.

In addition, there was an audit done just in 2012 whi

showed that were 2,712 approximately violations of Section 215

and Section 702 of the Privacy Act. 2,712.

On top of that the Inspector General found 12

instances where individuals at the NSA accessed actual

conversations and other types of information to spy on their

boyfriends, girlfriends, husbands and wives thinking that the

were cheating on them at the time.

Now, if that can go on with the lower level employees

just think what the potential is with regard to upper level

employees and big interests that are challenging this

administration. I will let your Honor be the judge of whether

we are a big interest or not. But, you know, we are quite

adversarial towards the administration, and so is Mr. Strange

whose son was an NSA cryptologist assigned to Navy Seal Team



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Six. He went down tragically in a cash on August 6, 2011, in

raid where the mission was termed Extortion 17. It was

retaliation by the Taliban because Seal Team Six had taken out

Osama bin Ladin. He has lawsuits which I filed on his behalf.

We are in front of Congress in a Congressional inquir

and one of the issues there is is the administration and did t

military, are they culpable for the deaths of these individual

either through negligence or otherwise?

So I am kind of answering the question combining it.

There you have the standing and we have set forth in detail

affidavits our standing. I will get to that.

THE COURT: Let's look at the question directly.

MR. KLAYMAN: Let's look at the first one.

THE COURT: Directly.

MR. KLAYMAN: Right.

THE COURT: Is there any doubt in your mind, any that

when Congress devised the scheme it devised creating the FISA

Court and providing within it for review by the review Court a

then possible review by the U.S. Supreme Court that Congress

intended in any way, shape or form for other Article III Court

to have a jurisdictional basis to review the decisions of thos

FISA orders? Is there any doubt in your mind about that?

MR. KLAYMAN: I have no doubt that you have the

authority to review that order.

THE COURT: Hold on. If the answer to my question is



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you have no doubt, I will see what Mr. Gilligan says.

MR. KLAYMAN: And I have more to add.

THE COURT: I know. No. I will see what Mr. Gilliga

says, but assuming, and he can correct me if I am assuming

incorrectly, that the Government's position will be no other

Article III Court has any authority to second guess those

decisions and to review those decisions of the FISA Court. I

assuming that's going to be his position. He might tell me

otherwise.

If I go to the next step and start evaluating the

jurisdictional question with regard to the Preliminary

Injunction you are seeking, I can't do it without first decidi

that I have the authority. I have to decide that first, Mr.

Klayman. I have to make that decision and I have to make it

unfortunately in a situation where Congress has made it pretty

clear that they don't think I have that authority.

MR. KLAYMAN: Well, what's key about Congress' acts

whether Section 215 or 702 or the entire panoply of the Patrio

Act is that it does not exclude Article III Courts from

reviewing issues with regard to individual litigants. Obvious

that had to be intended because we don't live in a totalitaria

state where the Government and the Courts don't give due proce

rights to the American people.

How is it that I would have no rights or Mr. Strange

and his wife would have no rights and the other two Defendants



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Michael Ferrari and Matt Garrison would have no rights. So,

consequently, Congress not writing out any other review by an

Article III Court which says that you can reach issues of

constitutionality, that's right in the Constitution in Article

III; and it is also in 1331, 18 USC 1331: The District Courts

have the authority to rule upon constitutional matters.

We are challenging not just a violation --

THE COURT: Is it really that simple?

MR. KLAYMAN: It is that simple.

THE COURT: Is it really that simple? So, for example

let me give a hypothetical.

MR. KLAYMAN: Combined with other things I am going t

add.

THE COURT: Let me give you a hypothetical, Mr.

Klayman. If a Court, let's say a Tax Court Judge or a Claims

Court Judge were to issue a subpoena that called for the

production of records, a person of whose records would claim

that it would violate their constitutional rights for those to

be produced by the record holder. If in a Tax Court Judge or

Claims Court Judge were to permit the production of those

records in the face of a claim of a violation of their

constitutional rights, do you think I could review that

decision? Would I have the jurisdictional authority the review

that decision?

MR. KLAYMAN: Here is the distinction. It was the fi



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I am making initially. If an individual who is having their

records subpoenaed by the IRS has the right to intervene in th

proceeding of the Tax Court and oppose that subpoena.

THE COURT: Not the IRS. If there is a Motion To Qua

the subpoena in the litigation, the litigation in the Tax Cour

or the Claims Court, if there was a Motion To Quash the subpoe

by the person whose records they were, not the person who was

holding the records, the person whose records they were, coul

the Article III Court, this Court, U.S. District Court in D.C.

would we have jurisdiction to either issue such an order or to

review a denial of such a request that was made in the Tax Cou

or the Claims Court?

MR. KLAYMAN: Well, your Honor, I don't think that

analogy in all due respect applies here.

THE COURT: Why not?

MR. KLAYMAN: It doesn't apply because, as I was

saying, the individual whose records are being obtained has a

right to intervene in the Tax Court action. I have no right,

Mr. Strange and his wife have no right to intervene before the

FISA Court, plus it is secret. No one even knows it is going

on. It is a Star Chamber proceeding.

If you look at the statistics that are out there, the

FISA Court, no lack of respect, rubber stamps what the

Government wants. They have only ever turned down any request

.03 percent of the time.



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THE COURT: So if you are right and the Government is

wrong, again I am assuming the Government is going to take the

opposite position, we will find out in a few minutes --

MR. KLAYMAN: Well, I know they will.

THE COURT: If that's --

MR. KLAYMAN: I have been litigating with Mr. Gilliga

for 20 some years.

THE COURT: If that's the Government's position, in

effect you are asking me to find that the statutory framework

that was designed for FISC review is unconstitutional.

MR. KLAYMAN: You are not overruling what FISC did.

this case, in the confines of this case, you can rule

independently as to whether or not obtaining those records,

which are ongoing by the way -- these aren't past records. Th

is going on today. As of today, records of myself and others,

metadata records with regard to Verizon, and we are just talki

about Verizon now, are in fact being acquired by the NSA and

they have total ability to get into to them to determine who I

associate with and who I deal with.

THE COURT: They are being produced pursuant to an

order by a Federal Court, an Article III Judge who has found

that doing so is consistent with the statute and constitutiona

What you are in essence asking me to do is to at a minimum

review, but you want me to more than review, you want me to

overrule it effectively, superimpose this Court's authority in



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the work of the FISA Court. That's what you are asking me to

do.

MR. KLAYMAN: That's only with regard to lawsuit numb

one, but you can make a ruling here with regard to myself and

the other Plaintiffs that pertain to what's going on with rega

to us at a minimum. You can reach the constitutional issues.

This is -- we did not have -- Judge Vincent's order is not

entitled to collateral estoppel or res judicata effect. We ha

no ability to participate in that.

It is in no force and effect with regard to us, the

Plaintiffs. And in this day and age, not to get too

philosophical, as Jefferson said, our third President: When t

people fear the Government, there is tyranny. The people are

frightened to death. This is an issue that unites left, right

and center. ACLU, liberal. Freedom Watch, conservative. We

agree on these things.

You, your Honor, are the last step, the last bastion

protection for the American people and, if a Judge does

something with regard to the original order which impacts us,

have a right to exercise our due process rights by going into

the only Court that we can be in, and that's this Court.

And Congress did not say we can't be in this Court.

fact, Congress explicitly in the Constitution at Section 1331

says you can reach the constitutional issues; and what we are

effectively going to ask to you do in a Preliminary Injunction



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is simply hold the Government to the letter of the law. Just

follow the law.

That doesn't contravene Judge Vincent's order if you

enter a Preliminary Injunction following Section 215 of the

Privacy Act and Section 702, start obeying the law. It doesn'

presume anything with regard to Vincent, but in fact allows us

to exercise our rights.

Now, with regard to case number two, there is no

Vincent order there. They are doing what they want. This is

like the Wild West but worse. We have never seen in the histo

of this country this kind of violation of the privacy rights o

the American citizens. We live in an Orwellian state. Every

time everyone picks up the phone, they believe they are being

listened to. Every time someone calls their boyfriend or

girlfriend or your girlfriend goes to the doctor or you go to

the doctor, all these associational facts can be picked up

through the metadata. You saw the expert Ed Felton's affidavi

here, and the Government has the audacity to come back and say

we can't do anything to correct that within six months when an

expert says you can do it like that.

The Government has a history of lying here, and it ha

been confirmed by judges that sit on both courts, this Court a

the FISA Court.

So, your Honor, you do have that authority and all yo

are, basically if you enjoin the Government and we respectfull



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request that you do, is to enjoin them to follow the law. Tha

doesn't contravene any Court Order.

THE COURT: Well, let's take Judge Vincent and Judge

McLaughlin, they have issued orders that they believe are

lawful, consistent with the Constitution and consistent with t

statutory framework that Congress enacted 215. Now, if this

Court were to issue an order to prohibit any further collectio

the Court would effectively be countermanding their order.

MR. KLAYMAN: You know --

THE COURT: How can they look at it in any other way?

The order is prospective in nature. It is for 90 days. It onl

lasts for 90 days and, of course, in that 90-day period right

now at least for the most recent order. And I think it is 15

separate Article III Judges on the FISA Court have issued thes

orders every 90 days for the last seven years roughly, 6,

7 years.

So the point is that under the framework that was

designed by Congress, Article III Judges have been consistentl

finding for a lengthy period of time every 90 days that the

order being sought by the FBI with regard to the NSA's capacit

is consistent with 215 and consistent with the Constitution.

MR. KLAYMAN: Your Honor, no disrespect to Judges of

which I founded a group called Judicial Watch to honor judges

and I gave awards to judges who did a good job and criticized

those who did not, but the reality is King George had judges t



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back in 1776 and those judges were ruling against the

colonialists caused them to rise up and wage a revolution.

You are the safety valve to that happening. The

potential for this is so extreme, no outrageous, so totalitari

that if there is no other way to have this reviewed, the

American people will rise up because they are upset at what's

going on; and that's why you -- and we thank you for giving us

an opportunity to be heard and to do this timely, we appreciat

that, but you cannot be in any way enslaved by the decisions o

other judges in a Court where we had no right to make an

argument, we have no right to make an appeal, it is done in

secret, secret, Star Chamber and then on top of that --

THE COURT: Is it your position that that framework i

unconstitutional?

MR. KLAYMAN: Yes, but I am not asking you to reach i

at the Preliminary Injunction stage. It is my position.

THE COURT: Well --

MR. KLAYMAN: Not with regard, not with regard if

there is some kind of nexus between an investigation -- there

no investigation here of any of the hundreds of millions of

Americans or tens of millions of Americans that use Verizon,

certainly not with regard to the 300 million that are affected

by the Prizm program. There is no investigation.

There is no showing of a reasonable suspicion of any

connection to terrorism or crime. It is not -- it is open



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ended. It is not definite as to time which you have to have t

satisfy the Fourth Amendment. You just can't have an open end

collection of records now and into the future and there is no

predicate facts here that people have done anything wrong, tha

I have done anything wrong or Mr. Strange or the other

Plaintiffs.

So Congress not having closed the door, if they had

intended to cut off all of our rights, which they can't do, th

would have said so in the legislation. They did not. And the

fact that it is not in there does not preclude an alternative

avenue for relief, and you are the person that the American

people are depending on to protect us.

And that's why the only alternative is for the people

to take matters into their own hands. That's why I respect th

Courts. That's why I became a lawyer. That's why I am here a

I am an idealist. Yes, I fight against Government corruption

and tyranny, but I actually believe in the system. That's

because -- that's why I do what I do.

So a Judge like you or a Judge like Royce Lamberth on

this Court, okay, who made many decisions which were against t

flow, he went upstream, who protects the American people,

sometimes even against members of his own original political

party like Gale Norton.

You guys are our only protection. We have no other

protection, and that's why it is so important because the



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American people need to know that you are here for us.

THE COURT: Well, if the statutory framework does not

permit other courts to get involved in reviewing and evaluatin

or even posing itself in these orders, then it would seem to m

the only way the Court could actually get to that is to rule i

as unconstitutional. Do you see any other alternative?

MR. KLAYMAN: We are not challenging the Patriot Act

it is applied properly at this stage. What we are saying is i

has to be relevant. The people that are being surveyed, there

has to be an actual investigation --

THE COURT: Well, the relevance --

MR. KLAYMAN: -- based on predicate facts.

THE COURT: -- relevance decisions are decisions unde

the framework made by an Article III Judge. There is nothing

the statutory framework that permits other Article III Courts

second guess that decision. These judges all made relevant

findings.

MR. KLAYMAN: That decision -- those decisions if the

apply to the way the statute is written, the Patriot Act, and

it is some nexus between the individual who is having their

information gathered and reviewed by the Government and

terrorism or committing a crime, okay; but when other people a

being subjected to this as we now know is the case by the

admissions, forced admissions of the NSA after the director of

NSA lied to Congress. Frankly, he should --



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THE COURT: Let me ask you this. What is your basis

believe that the NSA has done any queries relating to either y

or your client?

MR. KLAYMAN: Well, in our affidavits we submitted,

that gets to the standing issue. My colleagues have received

text messages that I never sent. I think they are messing wit

me. They are saying, Mr. Klayman, we have the ability to

destroy you if we want to.

THE COURT: Text messages from whom?

MR. KLAYMAN: From me. From me to colleagues. Mr.

Strange the affidavit set forth that he got text messages also

that were inexplicable. He got e-mails from his dead son

Michael that were sent to him, and this latest affidavit shows

that a disk that was given to him that supposedly had a report

dealing with the circumstances of Extortion 17's being shot

down, that that was infected with spyware which now allows the

Government to go into his computer.

It is not inconceivable, your Honor, it is not part o

the record. As Mr. Gilligan knows, I objected during the year

that we were fighting the Clinton's at Judicial Watch. I had

people following me home. My staff. I had somebody come into

the office and read -- bounce stuff off of my windows for

wiretaps and things like that. This goes on in the Government

and, unfortunately, we have to then turn to someone like

yourself who has integrity who can step in and who has the



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courage to protect the American people.

And that's why I am not one of those conservatives th

thinks the judicial branch is a lesser branch of the other two

I think it is more important because you are the last guard, y

are the last sentry to the tyranny in this country and, if you

can't step in, then the alternatives are far worse.

And right now we live in what is in effect a police

state because you can't pick the phone up without fear that it

is going to be used against you. They can access your

accountant. They can access your lawyer. They can access you

Ed Snowden said when he gave his interview, he could access yo

e-mail records. They could access your proctologist.

So we can't live in a country like that, and you have

to be able to make a ruling at least with regard to us, and wh

we are saying here for purposes of the Preliminary Injunction

will make it simple for you. Just enjoin them to follow the

laws that exist. You can deliberate further on the

constitutional issues. Follow the Patriot Act. The Patriot A

does not provide that you can get all domestic calls, e-mails,

social media, youtube, Skype, it doesn't provide for that, onl

if there is some connection to a foreign person and only if

there is an issue of terrorism.

Admittedly by their own admissions

Documents

Klayman v Obama(NSA) - Full w/Exhibits - Opposition To Motion For Stay Of Proceedings - 1/15/2014