KLAYMAN v. OBAMA et al

Filing 88

Memorandum in opposition to re 85 MOTION For Entry Of Default And To Strike Government Defendants Answer To Plaintiffs Third Amended Complaint re 83 Answer to Amended Complaint, filed by KEITH B. ALEXANDER, ERIC H. HOLDER, JR, BARACK HUSSEIN OBAMA, II, ROGER VINSON. (Attachments: # 1 Exhibit Transcript of proceedings)(Whitman, James)

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EXHIBIT 1 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA LARRY E. KLAYMAN, ET AL. Plaintiffs, v. BARACK HUSSEIN OBAMA, ET AL. Defendants. . . . . . . . . . . . . . . . . : : : : : : : : : : Docket Nos. CA13-851 CA13-881 (RJL) October 31, 2013 3:45 p.m. TRANSCRIPT OF STATUS CONFERENCE BEFORE THE HONORABLE RICHARD J. LEON UNITED STATES DISTRICT JUDGE APPEARANCES: For the Plaintiff Pro Se: LARRY E. KLAYMAN Law Office of Larry E. Klayman 2020 Pennsylvania Avenue, NW Washington, DC 20006 For the Defendants: JAMES J. GILLIGAN RODNEY PATTON MARCIA BERMAN BRYAN DEARINGER U.S. Department of Justice 20 Massachusetts Avenue, NW Washington, DC 20001 For the Defendant Verizon Communications: RANDOLPH D. MOSS Wilmer Cutler Pickering Hale & Dorr, LLP 1875 Pennsylvania Avenue, NW Washington, DC 20006 2 For the Defendant National Security Agency: Court Reporter: JAMES R. WHITMAN U.S. Department of Justice PO Box 7146 Washington, DC 20044 PATTY ARTRIP GELS, RMR Official Court Reporter Room 4700-A, U.S. Courthouse Washington, D.C. 20001 (202) 962-0200 Proceedings reported by machine shorthand, transcript produced by computer-aided transcription. 3 1 P R O C E E D I N G S 2 COURTROOM DEPUTY: Your Honor, we have Civil Action 3 13-851 and Civil Action 13-881 Larry Klayman et al. versus 4 Barack Hussein Obama, et al. 5 Plaintiff is not present. 6 For the record, counsel for the I will ask the defense counsel and all counsel to 7 please approach the lectern and identify yourself for the 8 record. 9 MR. GILLIGAN: James Gilligan, your Honor, with the 10 Department of Justice representing the Government Defendants as 11 specified in our papers. 12 Berman, Rodney Patton and Bryan Dearinger. 13 14 THE COURT: With me at counsel table are Marcia Welcome back, Mr. Gilligan. It has been a few years. 15 MR. GILLIGAN: 16 THE COURT: Boumedian as I recall it. 17 MR. GILLIGAN: 18 THE COURT: 19 MR. WHITMAN: It has been a few years. It was one of the Guantanamo cases, yes. Welcome back. About Jim Whitman with the Department of 20 Justice. 21 have not been served, but I am still appearing today. I represent the individual Federal Defendants who 22 THE COURT: Oh, you have an interest. 23 MR. WHITMAN: Yes. 24 THE COURT: Welcome back, 25 MR. MOSS: Randolph Moss on behalf of the Verizon Mr. Moss. 4 1 Defendants. 2 THE COURT: Welcome back. 3 MR. MOSS: Thank you. 4 THE COURT: Well, for reasons which I can't understand, 5 Mr. Klayman is neither here nor has made arrangements to have 6 anyone else here in his stead so I will make arrangements to 7 have a transcript of this hearing sent to him so he will have 8 the benefit of whatever is discussed today. 9 The purpose of today's hearing is obviously scheduling. 10 Under the local rules, the Court must have a hearing within 11 21 days of being filed which by my calculation would be 12 November 18th -- excuse me -- 19th. 13 19th. The Defendants have seven days to respond to a 14 Preliminary Injunction Motion which seems a little much, I mean 15 a little penal, penal in this case, typed. 16 So I think some accommodations need to be made under 17 the circumstances. 18 structured I do not believe it is directed at the private 19 companies or the individuals. 20 they have to respond at all frankly and, if it should come to 21 pass that that becomes an issue, then I will give you an 22 opportunity at an appropriate time, Mr. Moss, to respond; but at 23 this point, these are directed at the Government of the United 24 States. 25 Now, I mean I don't -- the way this PI is So I don't see any reason why And so I think the Government should have more time 5 1 than seven days. 2 more because I got to build in a little time for his reply. 3 That's for sure. I can't give you too much So what I am thinking of is giving you until 4 November -- Monday, November 11th and then I will give Mr. 5 Klayman until -- I will give him three days, Thursday the 14th 6 and then we will have the oral argument on Monday, the 18th of 7 November at 11:30 in the morning. 8 himself for that hearing either, but he is getting a lot more 9 notice this time than he did before. 10 He did file Hopefully he won't absent Motions For Continuances which I denied. 11 He wanted to do it by telephone which it is not my practice to 12 permit that and, frankly, it is surprising to me that he thinks 13 he is going to litigate this alone without other counsel to help 14 him. 15 start the process of reevaluating how he is going to do this 16 because obviously this is a case that has lots of parts to it 17 and where it is going, I don't know, all I know is there is a 18 lot of potential moving parts to this case. 19 So hopefully when he reviews this transcript, he will Now, there is some other issues besides scheduling that 20 are -- that the Government is uniquely positioned. 21 I will start with you since I assume you are kind of the leader 22 of the team here. 23 position is going to be based on classified information, I have 24 no idea, but obviously if it is going to be in whole or in part 25 based on classified information, then we got to start figuring Mr. Gilligan I don't know to what extent the Government's 6 1 out people getting clearances. 2 have at least one law clerk working with me on this who I 3 believe has clearance up to a certain level, but I don't know 4 what level this is going to go up to. 5 The Court has clearance, but I If this is TSSCI, then I need to start immediately 6 taking steps to try to get my law clerk up to the TSSCI level 7 which gets us to the obvious question: 8 9 What about Mr. Klayman? Because if the Government's position is that its defense turns on TSSCI information, and I might add in that 10 context, that might include opinions of the FISC that are 11 currently categorized as TSSCI or Mr. Klayman doesn't have 12 access -- can't have access to it as the lawyer for himself and 13 these other individuals, then we got another problem. 14 pretty fundamental one. 15 It is a So I am in the dark right now as to what the 16 Government's thinking is on this subject. 17 is going to be able to respond to this PI without reference to 18 any classified information, but that may not be the case. 19 you have any sense? 20 MR. GILLIGAN: 21 THE COURT: Maybe the Government Do May I respond, your Honor? Do you have any sense, Mr. Gilligan, where 22 you are likely to be headed in terms of your response to this 23 PI? 24 MR. GILLIGAN: Well, your Honor, as you say, this PI 25 has a lot of moving parts to it. 7 1 THE COURT: Potentially. 2 MR. GILLIGAN: There are a number of claims that we 3 have not addressed yet in other cases challenging the NSA 4 intelligence activities, and there are a number of alleged 5 activities that are challenged in this case that we have not had 6 to address before so we are starting from scratch here. 7 And while I appreciate the Court's efforts to provide 8 us with additional time to figure out how we are going to 9 address all the moving parts in these Motions, I would ask the 10 Court's -- if the Court would be willing to consider providing 11 us with some additional time beyond November 11th which I also 12 hasten to point out is Veterans Day. 13 THE COURT: We work 24/7 around this courthouse, my 14 friend. 15 weddings, days off. 16 pinnacle of public national interest, pinnacle. 17 No excuses. You got a team of lawyers. 18 apparently. You have litigated cases in this courthouse 19 it is matters of this consequence and enormity. 20 this Court operates. 21 24/7. I don't want to hear anything about vacations, Forget about it. MR. GILLIGAN: This is a case at the All hands 24/7. Mr. Klayman is alone when You know how I understand the Court's willingness and 22 preparation to address this Court with all the speed necessary, 23 your Honor, but precisely because of its consequence, we feel 24 that informed decision-making on the part of this Court will 25 best be served if we have an opportunity to address the various 8 1 issues that are raised in appropriate depth. 2 3 THE COURT: filed? 4 5 Now, Mr. Gilligan, when was this lawsuit MR. GILLIGAN: This lawsuit was filed over four months ago, your Honor. 6 THE COURT: You have had, not you personally, the 7 Department of Justice, the NSA and the allied Government 8 agencies that have an interest in this have had four months to 9 think through its position. That's a lot of time, Mr. Gilligan. 10 I am sad to say I don't believe or assume that they worked seven 11 days a week for four months. 12 it isn't. 13 I wish it were true, but I am sure But I am not asking you to tell me, but the point is in 14 my judgment, you have got four months. 15 might add you have got a case going on with Judge Pauly up in 16 the Southern District of New York. Now, it is a little bit 17 different in the sense that Klayman 2 deals with, you know, a 18 different aspect of the NSA's program than Klayman 1. 19 is telephonic. That's a long time. I Klayman 1 Klayman 2is internet traffic as you well know. 20 MR. GILLIGAN: 21 THE COURT: Yes. The cases have not been joined yet which 22 kind of begs the next question: 23 with Mr. Klayman to join any of these or whether his intention 24 is to join them or not? 25 PI's. Have you had any discussions I don't know. We have two separate 9 1 For the purpose of briefing, you can do one set of 2 briefs. 3 got two PIs here and I am giving you extra time. 4 you a week extra. 5 You don't need to do two sets of briefs, but we have MR. GILLIGAN: Understood, your Honor. I am giving I would just 6 point out, the last word on this subject at least for me, that 7 regarding the four months, it says something that the Plaintiffs 8 waited four months to bring these Motions. It says something 9 about what level of urgency there is actually to immediate 10 consideration of these Preliminary Injunction Motions. 11 THE COURT: Your answer to the Complaint is not due -- 12 you got an extension from the Court to the first week of 13 December, right? 14 MR. GILLIGAN: No, actually I believe -- the Verizon 15 Defendants got an extension, but December 2nd is in fact the 16 60th day of service of the Complaint on the Government by the 17 U.S. Attorney's Office. 18 19 THE COURT: first week of December? 20 21 Okay. So your answer is technically due the MR. GILLIGAN: That's correct, your Honor. That's three weeks, nearly a month following the November 11th date. 22 THE COURT: So Mr. Klayman is not here, unfortunately, 23 and he can't share with us why he believed circumstances exist 24 that required him, compelled him to feel like he needed to file 25 a PI. But whatever the reason is that they have done it, they 10 1 have done it; and 2 the reality is I have the to deal with it. And from where I am sitting at least, the Government 3 has had four months to figure out its position as to these 4 cases. So it is now time to get going. 5 MR. GILLIGAN: 6 THE COURT: Very well, your Honor. You get your briefs in on that Monday, the 7 11th and you can have until close of business on the 11th unless 8 you want to do it on Friday. 9 have the benefit of that extra time. I assume you wanted the weekend to I could make it that 10 preceding Friday at close of business, but I thought you would 11 want the extra time. 12 13 MR. GILLIGAN: No, your Honor. Harking back to your point earlier, we work plenty of weekends. 14 THE COURT: 15 MR. GILLIGAN: November 11 by close of business did I 16 17 Good. Keep your sleeves rolled up. hear your Honor say? THE COURT: Well, we won't be open for business 18 technically. 19 them that early, but if you don't have them ready until 20 midnight, you have got to midnight technically. 21 I will be here. MR. GILLIGAN: I would love to start reading Very well, your Honor. Thank you. 22 Regarding then your Honor's inquiry about reliance on classified 23 information -- 24 THE COURT: Yes. 25 MR. GILLIGAN: How does that stand? We have, as your Honor may be aware in 11 1 the litigation in the Southern District of New York with Judge 2 Pauly, 3 to rely on classified information to present our arguments. 4 believe that that will be the case here. the ACLU case, we have thus far not found it necessary 5 THE COURT: 6 MR. GILLIGAN: We Good. If anything, it may be the Plaintiffs 7 ultimately who may have to rely on classified information in 8 order to make their case and that will raise issues that perhaps 9 we will need to grapple with at a later time. 10 THE COURT: Okay. That's encouraging to hear that 11 that's where you come out at the moment anyway because that 12 would add amazing complexities to things over the next 3, 13 4 weeks. 14 That's for sure. MR. GILLIGAN: A number of complexities, your Honor. 15 Speaking of complexities, there is the matter still of the 16 Plaintiff's Motion For Leave to Take a 30(b)(6) deposition. 17 I assume based on the schedule your Honor has set that that 18 Motion will not be granted? 19 THE COURT: I haven't ruled on it yet, but I think you 20 have got some sense of how I am inclined. 21 the ruling, but I don't think I would have set this kind of 22 schedule if I was inclined to grant it. 23 MR. GILLIGAN: 24 THE COURT: 25 May I will wait to issue Very well. I think you should focus on the briefs. Don't focus on depositions. 12 1 MR. GILLIGAN: 2 THE COURT: 3 4 Very well, your Honor. Very good. Thank you. Mr. Moss, do you have anything 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 5 perspective this is something that we can deal with in our 6 Motion To Dismiss in a fairly straightforward manner. 7 Plaintiff's allegations with respect to Verizon are simply that 8 it allegedly complied with a Court Order; and under the law, 9 that doesn't -- there is no cause of action or basis for The 10 bringing the suit under those circumstances. 11 principal intention to dispose of the case on that basis. 12 THE COURT: That's our I am going to be very curious to hear the 13 arguments about the authority this Court has to review or 14 overrule a decision by another Court. 15 Klayman's theory is going to be just yet, but we will see. 16 MR. MOSS: I don't know what Mr. We will be interested as well, your Honor. 17 In addition, there are other defenses relating to personal 18 jurisdiction that we will raise, but I think they are all fairly 19 garden variety. 20 THE COURT: Anything else, counsel? All right. We will 21 have a copy of the transcript sent to Mr. Klayman's address as 22 it appears on the record. 23 24 25 We will stand in recess. (Whereupon, at 4:10 p.m., the proceedings were concluded.) 13 1 CERTIFICATE OF REPORTER 2 3 I, Patty A. Gels, certify that the foregoing is a 4 correct transcript from the record of proceedings in the 5 above-entitled matter. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 _________________________ 1 1 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] - 3:3 14th [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 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] - 7:3 agencies [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] - 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