Executive Branch Intelligence Surveillance & Privacy

Appellees File Supplemental Brief in Klayman v. Obama

Jane Chong
Monday, November 10, 2014, 5:55 PM
A few days after oral argument before a three-judge panel of the D.C.

Published by The Lawfare Institute
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A few days after oral argument before a three-judge panel of the D.C. Circuit last week, Larry Klayman and company filed a supplemental brief, citing a desire to more fully address questions as to how their Fourth Amendment rights were being violated in light of the government's contention that it had not accessed their calls for reasons beyond metadata collection. In their new filing and in the accompanying affidavits, the appellees/cross-appellants argue that they have made a prima facie showing that the government has targeted their communications for surveillance and manipulation. Specifically, Klayman, Charles Strange and a computer expert named David Siler accuse the government of a comprehensive spying and intimidation scheme, one that includes sending hoax messages to and from their phones and email accounts and installing viruses and malware on Strange's computer. As in oral argument, for evidence that the government’s assertions of good faith cannot be trusted, the appellees marshal 2013 media reports of numerous instances where individual NSA employees violated minimization procedures. The (corrected) brief itself is 21 pages long, with 167 pages of exhibits appended. The numbering of the exhibits is confusing, so we provide a roadmap below. Exhibit 1 comprises affidavits by Larry Klayman and Charles Strange attesting to, among other things, evidence that the government has been intercepting and manipulating their email and phone communications. Exhibit 1: an email that Strange describes as a hoax designed to appear as though it were from his son, an NSA crytologist technician who was killed in Afghanistan in August 6, 2011 Exhibit 2: a screenshot of Strange's phone displaying text messages sent from “indiscriminate numbers.” Exhibit 3: a snapshot of a copyright violation message and accompanying photo captured of Strange's wife; affidavit of David Siler, a network administrator who describes his work removing from Strange's computer viruses and spyware that Siler contends the government used for spying. Exhibit 2: a redacted 2009 Inspector General memorandum on improper NSA practices released by NSA on October 21, 2014. Exhibit 3: a November 6, 2014 FISA Court opinion granting in part and denying in part the government's petition for approval of certain metadata collection Exhibit 4: the accompanying order for production of tangible things. Exhibit 5: a September 2013 Fox News article on individual NSA employees' misuse of agency tools to spy on love interests. Exhibit 6: four August 2013 media articles on Snowden's disclosure of an internal agency audit revealing 2,776 privacy violations committed by NSA employees over the course of a year. Oral argument took place last Tuesday before Judge Janice Rogers Brown and Senior Judges Stephen Williams and David Sentelle (audio here). The court has yet to grant the appellees leave to file the brief.

Jane Chong is former deputy managing editor of Lawfare. She served as a law clerk on the U.S. Court of Appeals for the Third Circuit and is a graduate of Yale Law School and Duke University.

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