KLAYMAN v. OBAMA et al

Filing 47

Memorandum in opposition to re 46 MOTION for Leave to Supplement the Record filed by KEITH B. ALEXANDER, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II, U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order)(Gilligan, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________________
)
)
LARRY KLAYMAN, et al.,
)
)
Civil Action No.
Plaintiffs,
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1:13-cv-00851-RJL
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v.
)
)
BARACK OBAMA, President of the
)
United States, et al.,
)
)
Defendants.
_______________________________________)
)
)
LARRY KLAYMAN, et al.,
)
)
Civil Action No.
Plaintiffs,
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1:13-cv-00881-RJL
)
v.
)
)
BARACK OBAMA, President of the
)
United States, et al.,
)
)
Defendants.
_______________________________________)
GOVERNMENT DEFENDANTS’ OPPOSITION TO PLAINTIFFS’
MOTION FOR LEAVE TO SUPPLEMENT THE RECORD
Plaintiffs’ Motion for Leave To Supplement the Record (ECF No. 46, 13-851) (ECF
No. 38, 13-881) should be denied for three reasons.
First, the Court made clear at the November 18, 2013, hearing on Plaintiffs’ motions for
preliminary injunctions that it was not inviting further submissions from the parties beyond the
supplemental briefs that the Court authorized the parties to file on November 26, 2013.
Plaintiffs’ motion for leave to supplement is the latest in a series of unauthorized filings that they
have made since the November 18 hearing.
Second, the evidence Plaintiffs wish to submit, unsubstantiated reports from several
newsblogs, is an insufficient basis on which to issue extraordinary preliminary injunctive relief.

See In re Akers, 487 B.R. 326, 331 (D.D.C. 2012); Miniter v. Moon, 684 F. Supp. 2d 13, 16
(2010). The record should not be further burdened with such incompetent evidence.
Third, assuming purely for the sake of argument that there is any accuracy to the
newsblogs appended to Plaintiffs’ Motion for Leave, the materials Plaintiffs wish to submit are
irrelevant. According to the reports attached to Plaintiffs’ motion, the National Security Agency
gathered records of visits to sexually explicit websites by six individuals, all of whom it believed
resided outside the United States, and only one of whom was a U.S. person. Pls.’ Motion for
Leave, Exh. 1 at 1, 7. Even if accurate, these reports contain no evidence suggesting that any
records of Plaintiffs’ telephonic or electronic communications have ever been acquired or
reviewed in connection with the NSA intelligence-gathering activities at issue in these cases.
Hence, they lend no support to Plaintiffs’ standing to bring these suits.

Dated: December 4, 2013

Respectfully submitted,
STUART F. DELERY
Assistant Attorney General
JOSEPH H. HUNT
Director, Federal Programs Branch
ANTHONY J. COPPOLINO
Deputy Branch Director

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/s/ James J. Gilligan
JAMES J. GILLIGAN
Special Litigation Counsel
MARCIA BERMAN
Senior Trial Counsel
BRYAN DEARINGER
RODNEY PATTON
Trial Attorneys
U.S Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W., Room 6102
Washington, D.C. 20001
Phone: [phone]
Fax: [phone]
Counsel for the Government Defendants

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