KLAYMAN v. OBAMA et al

Filing 83

ANSWER to 77 Amended Complaint, (Government Defendants' Answer to Plaintiffs' Third Amended Complaint) by KEITH B. ALEXANDER, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II, U.S. DEPARTMENT OF JUSTICE. Related document: 77 Amended Complaint, filed by LARRY E. KLAYMAN, MARY ANN STRANGE, CHARLES STRANGE.(Gilligan, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________________
)
LARRY KLAYMAN, et al.,
)
)
Plaintiffs,
)
)
Civil Action No.
v.
)
1:13-cv-0851(RJL)
)
BARACK OBAMA, President of the
)
United States, et al.,
)
)
Defendants.
)
_______________________________________)
GOVERNMENT DEFENDANTS’ ANSWER TO
PLAINTIFFS’ THIRD AMENDED COMPLAINT
Defendants Barack H. Obama, President of the United States, Eric H. Holder, Attorney
General of the United States, and General Keith B. Alexander, Director of the National Security
Agency (NSA), insofar as they are sued in their official capacities, together with Defendants U.S.
Department of Justice and the NSA (collectively, the “Government Defendants”), answer
Plaintiffs’ Third Amended Complaint (ECF No. 77) (the “Complaint”) as follows: 1
FIRST DEFENSE
The Court lacks subject matter jurisdiction over the claims asserted, inasmuch as
Plaintiffs have not established their standing to sue.
SECOND DEFENSE
The Complaint fails to state a claim on which relief can be granted.

1

This answer is not submitted on behalf of Defendants Obama, Holder, and Alexander
in their personal as opposed to their official capacities. They retain their rights, upon being
served, to plead separately and to raise any defenses available to them.

The Government Defendants answer below the numbered paragraphs of the Complaint.
The averments preceding the numbered paragraphs of the complaint constitute Plaintiffs’
characterization of the nature of this action, to which no answer is required.
1.

This paragraph constitutes Plaintiffs’ characterization of the nature of this action,

to which no response is required.
2.

The first sentence of this paragraph constitutes Plaintiffs’ characterization of the

nature of this action, to which no response is required. The second sentence constitutes
Plaintiffs’ characterization of a Secondary Order issued on April 25, 2013, by Judge Roger
Vinson of the Foreign Intelligence Surveillance Court (“FISC”), in In re Application of the FBI
for an Order Requiring the Production of Tangible Things [etc.], Dkt. No. BR 13-80 (F.I.S.C.
Apr. 25, 2013) (hereinafter, the “Secondary Order”), to which the Court is respectfully referred
for a complete and accurate statement of its contents. To the extent Plaintiffs’ characterization is
inconsistent with the terms of the Secondary Order, it is denied. Admit that The Guardian
posted a copy of the Secondary Order on its website on June 5, 2013.
3.

To the extent that the terms “[t]his” and “phone records” as used in the first

sentence of this paragraph refer to the production under the Secondary Order of call-detail
records containing telephony metadata, the Government Defendants can neither admit nor deny
allegations regarding the number of such records produced under the Secondary Order without
revealing or tending to reveal classified national security information that is subject to protection
from disclosure by law. The second sentence is denied, and the Court is respectfully referred to
the Secondary Order for a complete and accurate statement of the metadata required to be
produced thereunder. As to the third sentence, admit that the Secondary Order contains no
provisions “requiring the [G]overnment to destroy the records after a certain amount of time” or
“limiting who can see . . . the data,” but aver that provisions of that nature are contained in the
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declassified and publicly released version of the corresponding Primary Order issued by Judge
Vinson for the FISC in In re Application of the FBI for an Order Requiring the Production of
Tangible Things [etc.], Dkt. No. BR 13-80 (F.I.S.C. Apr. 25, 2013) (hereinafter, the “Primary
Order”). The Court is respectfully referred to the declassified version of the Primary Order for a
complete and accurate statement of its contents. Deny that the call-detail records collected
pursuant to the Primary and Secondary Orders include data that can be “hear[d].”
4.

Admit that the Secondary Order was signed by United States District Judge Roger

Vinson, in his capacity at the time as a judge of the FISC. Otherwise this paragraph states
conclusions of law to which no response is required, but to the extent a response may be deemed
necessary, they are denied.
5.

First sentence: The Government Defendants understand the term “surveillance

program,” as used in the first sentence, to refer to the bulk telephony metadata program carried
out under authority of Section 215 of the USA-PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272
(2001) (Section 215), codified at 50 U.S.C. § 1861. Admit that the bulk telephony metadata
program is carried out with the approval of the President, under authority of the FISC, but deny
that it is a “surveillance program.” Admit further that, in accordance with FISC orders obtained
on application by the FBI, the metadata are collected and stored by the NSA, queried by the
NSA, and the query results—a tiny fraction of the metadata collected—are analyzed by the NSA
for purposes of obtaining foreign intelligence. Otherwise the first sentence is denied, except that
the Government Defendants can neither admit nor deny allegations regarding the number of
communications as to which the NSA collects, stores, queries, and analyzes telephony metadata
under the program without revealing or tending to reveal classified national security information
that is subject to protection from disclosure by law.

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Second sentence: The second sentence of this paragraph states conclusions of law to
which no response is required, but so far as a response may be deemed necessary, they are
denied, except to admit that the existence of the bulk telephony metadata program was classified
until June 6, 2013.
6.

This paragraph, and in particular the use of the term “Verizon,” without further

specification, is too vague and ambiguous, and the Government Defendants lack sufficient
knowledge or information, for the Government Defendants to form a belief as to its truth or
falsity.
7.

This allegations of this paragraph, and in particular the use of the term “Verizon,”

without further specification, are too vague and ambiguous for the Government Defendants to
form a belief as to their truth or falsity. In addition, the Government Defendants can neither
admit nor deny Plaintiffs’ allegations regarding assistance provided by private parties in
Government intelligence programs without revealing or tending to reveal classified national
security information that is subject to protection from disclosure by law.
8.

This paragraph constitutes Plaintiffs’ characterization of the nature of this action,

to which no response is required, but to the extent a response may be deemed necessary, it is
denied.
9.

The first four sentences of this paragraph are too vague and ambiguous, and the

Government Defendants lack sufficient knowledge or information, for the Government
Defendants to form a belief as to their truth or falsity, except to admit that Plaintiff Larry
Klayman has filed lawsuits naming President Obama as a defendant. So far as sentence five is
intended to allege that the NSA, pursuant to the Secondary Order or otherwise, has collected the
content of or metadata pertaining to communications to which Plaintiff Klayman was a party, the
Government Defendants can neither admit nor deny whether particular individuals have been
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targets of or subject to intelligence collection activities as alleged in this paragraph without
revealing or tending to reveal classified national security information that is subject to protection
from disclosure by law. So far as the phrase “in addition to accessing his telephone
conversations” as used in sentence five is also intended to allege that the NSA has collected the
content of communications to which Plaintiff Klayman was a party pursuant to the Secondary
Order, the Government Defendants deny that the NSA collected the content of Plaintiff
Klayman’s or anyone else’s communications pursuant to the Secondary Order. 2
10.

This paragraph is too vague and ambiguous, and the Government Defendants lack

sufficient knowledge or information, for the Government Defendants to form a belief as to its
truth or falsity.
11.

The Government Defendants can neither admit nor deny whether particular

individuals have been targets of or subject to intelligence collection activities, as alleged in this
paragraph, without revealing or tending to reveal classified national security information that is
subject to protection from disclosure by law.
12.

As to the first sentence, admit that Plaintiffs Charles and Mary Ann Strange are

the father and step-mother of Michael Strange, a U.S. Navy Seal who died in Afghanistan on
August 6, 2011, of wounds suffered when the U.S. military helicopter in which he was riding
was shot down. Sentences two, four, five, and six are too vague and ambiguous, and the
Government Defendants lack sufficient knowledge or information, for the Government
Defendants to form a belief as to their truth or falsity. The Government Defendants can neither
admit nor deny whether particular individuals have been targets of or subject to intelligence
collection activities, as alleged in sentence three, without revealing or tending to reveal classified
2

The term “content,” as used herein in connection with communications, refers to
the substance, purport, or meaning of a communication, as the term “content” is defined in
18 U.S.C. § 2510(8).
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national security information that is subject to protection from disclosure by law. The
Government Defendants deny, however, the implication that the alleged “vocal” criticism by
Plaintiffs Charles and Mary Ann Strange of “President Obama as commander-in-chief, his
administration, and the U.S. military” regarding the circumstances of Michael Strange’s death
would have any bearing on whether the NSA would have collected or reviewed the contents of or
metadata pertaining to the Stranges’ communications.
13.

Admit.

14.

Admit that Defendants Eric H. Holder is the Attorney General of the United

States, and aver that his principal place of business is in Washington, D.C. Otherwise deny.
15.

Admit that the NSA is an agency of the United States Department of Defense, and

aver that its principal place of business is in Fort Meade, Maryland. Otherwise deny.
16.

As to sentences one and two, admit that Defendant General Keith B. Alexander is

the Director of the NSA and Commander of the U.S. Cyber Command. The remainder of
sentence two, and sentence three, are too vague and ambiguous for the Government Defendants
to form a belief as to their truth or falsity. As to sentence four, aver that General Alexander’s
principal place of business is at Fort Meade, Maryland. Otherwise deny.
17.

Admit that Defendant U.S. Department of Justice is a department of the Executive

Branch of the U.S. Government, and aver that its mission is to enforce the law and defend the
interests of the United States according to the law; to ensure public safety against threats foreign
and domestic; to provide federal leadership in preventing and controlling crime; to seek just
punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration
of justice for all Americans. Admit that the Department of Justice is headquartered in
Washington, D.C., but the allegation that it “conducts most of its activities and business” there is

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too vague and ambiguous for the Government Defendants to form a belief as to its truth or
falsity. Otherwise deny.
18.

Admit that Defendant the Honorable Roger Vinson was a member of the Foreign

Intelligence Surveillance Court when he issued the Primary and Secondary Orders on April 25,
2013, but aver on information and belief that Judge Vinson’s term on the FISC expired in May
2013.
19.

This paragraph states conclusions of law to which no response is required, but to

the extent a response is deemed necessary, they are denied.
20.

This paragraph states a conclusion of law to which no response is required, but to

the extent a response is deemed necessary, it is denied.
21.

The first sentence of this paragraph states a conclusion of law to which no

response is required, but to the extent a response is deemed necessary, deny that the Court has
subject matter jurisdiction over the claims asserted in this case; the Government Defendants do
not contest, however, that venue is proper in this district as to them. The second sentence of this
paragraph constitutes Plaintiffs’ characterization of the nature of this action, to which no
response is required, but to the extent a response is deemed necessary, it is denied.
22.

This paragraph states a conclusion of law to which no response is required, but to

the extent a response is deemed necessary, it is denied.
23.

The allegations contained in this paragraph are vague and ambiguous, and the

Government Defendants therefore lack sufficient knowledge or information to admit or deny the
allegations, except to admit that Defendants Obama, Holder, and the Department of Justice
conduct official business in this district.
24.

The first sentence of this paragraph constitutes Plaintiffs’ statement of their

reasons for bringing this action, regarding which the Government Defendants lack sufficient
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knowledge or information to form a belief as to sentence one’s truth or falsity. The Government
Defendants deny, however, that Plaintiffs have been “severely damaged” as a result of alleged
conduct by the Government Defendants. In addition, the allegations that Plaintiffs have been
“directly affected” and “victimized” by the Government Defendants’ alleged conduct are too
vague and ambiguous for the Government Defendants to form a belief as to their truth or falsity.
The second sentence states conclusions of law to which no response is required, but to the extent
a response is deemed necessary, they are denied.
25.

As to the first sentence, admit that since May 2006 the NSA has conducted the

bulk telephony metadata program pursuant to orders of the FISC, that the existence of the
program was classified until June 6, 2013, and that the program is ongoing. Otherwise the first
sentence of this paragraph is denied. As to the second sentence, admit that the Secondary Order
was obtained pursuant to an application to the FISC submitted by the FBI acting at the direction
of the President and the Attorney General. The Court is respectfully referred to the Secondary
Order for a complete and accurate statement of its contents. The Government Defendants can
neither admit nor deny allegations regarding the number of communications as to which the NSA
collected telephony metadata under the Secondary Order without revealing or tending to reveal
classified national security information that is subject to protection from disclosure by law.
Otherwise, the second sentence is denied, particularly insofar as its characterization of the
Secondary Order is inconsistent with the terms of the Order.
26.

Admit that Judge Vinson issued the Secondary Order on April 25, 2013, to which

the Court is respectfully referred for a complete and accurate statement of its contents. To the
extent that Plaintiffs’ characterization of the Secondary Order in this paragraph is inconsistent
with the terms of the Order, Plaintiffs’ characterization is denied. Deny also that Judge Vinson

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acted in his personal capacity or “under authority of Defendant Obama, his Attorney General and
the DOJ.”
27.

This paragraph constitutes Plaintiffs’ characterization of Judge Vinson’s

Secondary Order, to which the Court is respectfully referred for a complete and accurate
statement of its contents. To the extent Plaintiffs’ characterization is inconsistent with the terms
of the Secondary Order, it is denied.
28.

This paragraph constitutes Plaintiffs’ characterization of Judge Vinson’s

Secondary Order, to which the Court is respectfully referred for a complete and accurate
statement of its contents. The Government Defendants can neither admit nor deny Plaintiffs’
allegation regarding the number of records collected pursuant to the Secondary Order without
revealing or tending to reveal classified national security information that is subject to protection
from disclosure by law. Otherwise, to the extent Plaintiffs’ characterization is inconsistent with
the terms of the Secondary Order, it is denied.
29.

Admit that Judge Vinson’s Secondary Order contained a provision, in accordance

with Section 215, 50 U.S.C. § 1861(d), directing “that no person shall disclose to any other
person that the FBI or NSA has sought or obtained tangible things under [the] Order,” except as
otherwise stated therein. The Court is respectfully referred to this provision and the Secondary
Order generally for a complete and accurate statement of their contents. Otherwise, this
paragraph is denied.
30.

This paragraph constitutes Plaintiffs’ characterization of the Secondary Order, to

which the Court is respectfully referred for a complete and accurate statement of its contents.
To the extent Plaintiffs’ characterization is inconsistent with the terms of the Secondary Order, it
is denied, including but not limited to Plaintiffs’ characterization of the Secondary Order as a
“surveillance” order.
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31.

This paragraph constitutes Plaintiffs’ characterization of Judge Vinson’s

Secondary Order, to which the Court is respectfully referred for a complete and accurate
statement of its contents. The Government Defendants can neither admit nor deny Plaintiffs’
allegation regarding the number of records collected pursuant to the Secondary Order without
revealing or tending to reveal classified national security information that is subject to protection
from disclosure by law. Otherwise, to the extent Plaintiffs’ characterization is inconsistent with
the terms of the Secondary Order, it is denied.
32.

Admit that The Guardian published the article referred to in this paragraph.

33.

The allegations of this paragraph are vague and ambiguous, and the Government

Defendants therefore lack sufficient knowledge or information to admit or deny the allegations.
34.

Admit that on June 6, 2013, Senator Rand Paul issued a statement that “[t]he

National Security Agency’s seizure and surveillance of virtually all of Verizon’s phone
customers is an astounding assault on the Constitution.” The Court is respectfully referred to
Senator Paul’s statement for a complete and accurate statement of its contents. The remaining
allegations in this paragraph are vague and ambiguous, and the Government Defendants
therefore lack sufficient knowledge or information to admit or deny the allegations.
35.

As to the first sentence of this paragraph, admit that Judge Vinson’s Secondary

Order became public on June 5, 2013, as the result of an unauthorized disclosure. The first
sentence otherwise constitutes Plaintiffs’ argumentative characterization of events unrelated to
their claims for relief, to which no response is required. Deny the second sentence.
36.

Deny the first sentence. As to the second sentence, admit that Jameel Jaffer,

Deputy Legal Director of the American Civil Liberties Union (ACLU), was reported to have
made the statement alleged in sentence two in an ACLU press release issued on June 5, 2013.

10

The Court is respectfully referred to the ACLU’s press release for a complete and accurate
statement of its contents.
37.

The first sentence is vague and ambiguous, and the Government Defendants

therefore lack sufficient knowledge or information to admit or deny the allegations, but to the
extent the phrase “what has occurred” as used in the first sentence is intended as a reference to
intelligence programs whose existence has been officially declassified since June 5, 2013, it is
denied. As to the second sentence, admit that on June 14, 2013, the United States filed a
criminal complaint in the United States District Court for the Eastern District of Virginia
charging Edward J. Snowden with theft of government property, unauthorized communication of
national defense information, and willful communication of classified communications
intelligence information to an unauthorized person, under 18 U.S.C. §§ 641, 793(d), and
798(a)(3). The Court is respectfully referred to the Criminal Complaint, No. 1:13 CR 265
(CMH) (E.D. Va.), for a complete and accurate statement of its contents. Otherwise, deny the
second sentence.
38.

The Government Defendants incorporate herein by reference their responses to

paragraphs 1-37 of the Complaint.
39.

This paragraph states conclusions of law to which no response is required, but to

the extent a response is deemed necessary, the Court is respectfully referred to the Fifth
Amendment to the U.S. Constitution for a complete and accurate statement of its contents.
40.

This paragraph states a conclusion of law to which no response is required, but to

the extent a response is deemed necessary, the Court is respectfully referred to the Fifth
Amendment to the U.S. Constitution for a complete and accurate statement of its contents.
41.

This paragraph states a conclusion of law to which no response is required, but to

the extent a response is deemed necessary, it is denied.
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42.

To the extent this paragraph alleges “wrongful conduct” on the part of the

Government Defendants, it states a conclusion of law to which no response is required, but to the
extent a response is deemed necessary, it is denied. The Government Defendants lack sufficient
knowledge or information to form a belief as to the truth or falsity of the remaining allegations of
this paragraph
43.

This first sentence of this paragraph states a conclusion of law to which no

response is required, but to the extent a response is deemed necessary, it is denied. The second
and third sentences constitute Plaintiffs’ demand for judgment, to which no response is required,
but to the extent a response is deemed necessary, the Government Defendants deny that Plaintiffs
are entitled to the relief demanded, or to any relief whatsoever.
44.

The Government Defendants incorporate herein by reference their responses to

paragraphs 1-43 of the Complaint.
45.

This paragraph states a conclusion of law to which no response is required, but to

the extent a response is deemed necessary, it is denied.
46.

Deny.

47.

This paragraph states a conclusion of law to which no response is required, but to

the extent a response is deemed necessary, it is denied.
48.

To the extent this paragraph alleges “wrongful conduct” on the part of the

Government Defendants, it states a conclusion of law to which no response is required, but to the
extent a response is deemed necessary, it is denied. The Government Defendants lack sufficient
knowledge or information to form a belief as to the truth or falsity of the remaining allegations of
this paragraph.
49.

This paragraph states a conclusion of law to which no response is required, but to

the extent a response is deemed necessary, it is denied.
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50.

This paragraph constitutes Plaintiffs’ demand for judgment, to which no response

is required, but to the extent a response is deemed necessary, the Government Defendants deny
that Plaintiffs are entitled to the relief demanded, or to any relief whatsoever.
51.

The Government Defendants incorporate herein by reference their responses to

paragraphs 1-50 of the Complaint.
52.

This paragraph states a conclusion of law to which no response is required, but to

the extent a response is deemed necessary, the Court is respectfully referred to the Fourth
Amendment to the U.S. Constitution for a complete and accurate statement of its contents.
53.

This paragraph states a conclusion of law to which no response is required, but to

the extent a response is deemed necessary, it is denied.
54.

This paragraph states a conclusion of law to which no response is required, but to

the extent a response is deemed necessary, it is denied.
55.

This paragraph constitutes Plaintiffs’ characterization of the Secondary Order, to

which the Court is respectfully referred for a complete and accurate statement of its contents. To
the extent Plaintiffs’ characterization is inconsistent with the terms of the Secondary Order, it is
denied.
56.

Deny.

57.

To the extent this paragraph alleges “wrongful conduct” on the part of the

Government Defendants, it states a conclusion of law to which no response is required, but to the
extent a response is deemed necessary, it is denied. The Government Defendants lack sufficient
knowledge or information to form a belief as to the truth or falsity of the remaining allegations of
this paragraph.
58.

The first sentence of this paragraph states a conclusion of law to which no

response is required, but to the extent a response is deemed necessary, it is denied. The second
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sentence constitutes Plaintiffs’ demand for judgment, to which no response is required, but to the
extent a response is deemed necessary, the Government Defendants deny that Plaintiffs are
entitled to the relief demanded, or to any relief whatsoever.
59-60. Paragraphs 59-60 constitute Plaintiffs’ prayer for relief, to which no response is
required, but to the extent a response is deemed necessary, the Government Defendants deny that
Plaintiffs are entitled to the relief prayed for, or to any relief whatsoever.

Plaintiffs’ jury demand requires no response, but to the extent a response is deemed
necessary, the Government Defendants deny that Plaintiffs are entitled to a trial by jury of the
claims asserted in the Complaint.

WHEREFORE, having fully answered, the Government Defendants respectfully request
that Plaintiffs’ claims against the Government Defendants be dismissed, with prejudice, and that
the Court award the Government Defendants such other and further relief as this Court may
deem just and proper.

Dated: February 14, 2014

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
BRYAN DEARINGER
Trial Attorney
RODNEY PATTON
Trial Attorney
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]
Email: [e-mail]
Counsel for the Government Defendants

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