KLAYMAN v. OBAMA et al

Filing 70

Memorandum in Opposition re 66 MOTION to Stay Proceedings Against the Government Defendants Pending Appeal of Preliminary Injunction filed by LARRY E. KLAYMAN, CHARLES STRANGE, MARY ANN STRANGE. (Attachments: # 1 Exhibit 1 - Transcript of Oct. 31, 2013, # 2 Exhibit 2 - Transcript of Nov. 18, 2013)(Klayman, Larry) Modified event title on 1/16/2014 (znmw, ).

IN UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LARRY KLAYMAN, et. al
Plaintiffs,
v.
BARACK HUSSEIN OBAMA II, et. al
Civil Action Nos. 13-CV-851
and
13-CV-881

Defendants.

PLAINTIFFS’ OPPOSITION TO MOTION FOR STAY OF PROCEEDINGS AGAINST
THE GOVERNMENT DEFENDANTS PENDING APPEAL OF PRELIMINARY
INJUNCTION AND REQUEST FOR APPROPRIATE SUA SPONTE SANCTIONS

I.

INTRODUCTION
Plaintiffs, Larry Klayman, Charles Strange, and Mary Ann Strange, hereby strongly

oppose the Government Defendant’s (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 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 24/7. 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
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Despite the Court’s 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. A
simple notice of appeal could have been filed forthwith consistent with the Court’s direction to
accelerate any appeals given the Court’s stay of the preliminary injunction order. As set forth
below, this delay is consistent with the NSA Defendant’s and the Obama Justice Department’s
goal to delay adjudication of these cases.
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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 Court’s judicial authority, hoping that appellate
courts will vitiate this Court’s 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 parte in 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-Orwellian” fashion, the constitutional rights of all Americans, despite this
Court’s 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 FISC’s prior 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 Defendant’s 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 NSA’s
collection and querying efforts, which likely violate the Fourth Amendment.” Id. at 65.
II.

STANDARD FOR STAY PENDING APPEAL
“A 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 Defendant’s motion for stay.
III.

ARGUMENT
Respectfully, this Court must reject this effort of delay for the following straightforward

reasons: First, it is clear that the NSA Defendant, despite this Court’s 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, 2013.2 Specifically,

2

In 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 don’t know to what extent the Government’s 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 NSA – indeed,
whistleblower Edward Snowden and various publications such as The Guardian and The
Washington Post have already disclosed much of this. Rather, Plaintiffs want to engage in
reasonable fact-based discovery to determine the scope of the agency’s 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 antiterrorism 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 Department – which has become the key tool of this administration’s 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 or
subject to NSA intelligence-gathering activities, confirmation or denial of the
identities 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 Plaintiffs – suggesting that they are now under
“criminal” investigation 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
Defendant’s 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
3

In 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 . . . willfully
attempts 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. See
also 18 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, Plaintiffs
Charles Strange and Mary Ann Strange are also witnesses and thus NSA Defendant and the
Obama Justice Department’s intimidation tactics and threats, if not outright illegal criminal
investigation of Plaintiffs for suggested ties to terrorists and terrorism, constitute criminal and
civil 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 Defendant’s 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 Government’s case must be disclosed to the individual so that he has an opportunity to
show that it is untrue. Id. at 496.
It has already been ruled here that the NSA Defendant’s massive spy program violates
the Fourth Amendment to the U.S. Constitution. And, if the Mills case, 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 Government’s 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 Court’s 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 Plaintiffs’ counsel, 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 conference – to 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 wellfinanced 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 Defendant’s illegal and unconstitutional conduct amounts to the
greatest violation of the constitutional rights of American citizens in the nation’s history and it 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 Department’s 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 Court continues by observing that
the “Government holds all the cards.” Transcript of Oral Argument on November 18, 2013 at pg.
34. Exhibit 2.4
IV.

CONCLUSION
For all of these reasons, the Court must respectfully see through NSA Defendant’s

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. 334581
2020 Pennsylvania Ave. NW #345
Washington, DC 20006
Tel: [phone]
Email: [e-mail]

4

Not 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-cv881) was submitted electronically to the District Court for the District of Columbia and served
via CM/ECF upon the following:

James J. Gilligan
Special Litigation Counsel
Civil Division, Federal Programs Branch
U.S. Department of Justice
P.O. Box 883
Washington, D.C. 20044
[phone]
Email: [e-mail]
Randolph D. Moss
WILMER CUTLER PICKERING HALE & DORR LLP
1875 Pennsylvania Avenue, NW
Washington, DC 20006
[phone]
Fax: [phone]
Email: [e-mail]
Attorneys for Defendants.
Respectfully submitted,
/s/ Larry Klayman
Larry Klayman, Esq.
D.C. Bar No. 334581
Klayman Law Firm
2020 Pennsylvania Ave. NW, Suite 345
Washington, DC 20006
Tel: [phone]

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