Earlier this month, Judge Richard J. Leon granted, in part, a motion for preliminary injunction filed by individual subscribers and users of telecommunications against federal government agencies and executive officials. In the case of Klayman, et al., v. Obama, et al., Plaintiffs allege statutory and constitutional violations arising from the National Security Agency’s (NSA) Bulk Telephony Metadata Program.
Judge Leon decided Plaintiffs’ motions for preliminary injunction requesting that,
[D]uring the pendency of this suit, (i) [the Court] bar[] [d]efendants from collecting [p]laintiffs’ call records under the mass call surveillance program; (ii) require[] [d]efendants to destroy all of [p]laintiffs’ call records already collected under the program; and (iii) prohibit[] [d]efendants from querying metadata obtained through the program using any phone number or other identifier associated with [p]laintiffs . . . and other such relief as may be found just and proper.
Generally, the Court found: (1) that it lacked jurisdiction to hear Plaintiffs’ Administrative Procedure Act (APA) claim that the Government exceeded its Foreign Intelligence Surveillance Act (FISA) authority; (2) that it had authority to decide Plaintiffs’ constitutional challenges to the NSA’s conduct notwithstanding the fact that NSA action was taken pursuant to Foreign Intelligence Surveillance Court (FISC) orders (here are some examples from Judges Eagan and McLaughlin with links to the opinions); and, (3) finding that Plaintiffs’ had standing to challenge the constitutionality of the bulk metadata collection program, Plaintiffs also demonstrated a substantial likelihood of success on the merits of their Fourth Amendment claims and that they will suffer irreparable harm absent preliminary injunctive relief.
In today’s post, I will address only the Plaintiffs’ statutory claims and the Court’s finding that it lacked jurisdiction. Tomorrow I will address the standing argument and the comparison the D.C. District Court made to the Supreme Court case, Clapper v. Amnesty International, from earlier this year. Wednesday, this case will wrap up with a discussion of the Plaintiffs’ likelihood of success on the Fourth Amendment claim against the Government.
The Statutory Claims
Plaintiffs alleged that the Government’s program exceeded the statutory authority granted by FISA’s “tangible things” provision (hereinafter, “50 U.S.C. §1861” or “Section 1861”) and thereby violated the APA. In response, the Government argued, and the Court agreed, that Section 1861, at least impliedly, precluded the District Court from reviewing Plaintiffs’ APA claim.
According to the Court, under §1861:
Congress created a closed system of judicial review of the government’s domestic foreign intelligence-gathering, generally . . . and of Section 1861 production orders, specifically . . . . This closed system includes no role for third parties, such as [P]laintiffs here, nor courts besides the FISC, such as this District Court. Congress’s preclusive intent is therefore sufficiently clear.
In making this determination, the Court looked to the text and applicable provisions of FISA itself, the purpose and legislative history of Section 1861, and, viewing FISA as a whole, found that Congress did not intend for the interests of a particular class “to be relied upon to challenge agency disregard of the law.”
As previously mentioned, the very interesting issue of standing will be addressed in tomorrow’s post. Wednesday we will look at the Court’s discussion of Plaintiffs’ likelihood of success on the Fourth Amendment challenge that caused the Court to grant Plaintiffs’ motion for preliminary injunction.
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