Judge Kavanaugh, Dragnet Fan From Way Back, Shoots Down Section 215 Rehearing With Extraneous Surveillance Boosterism

from the NSA!-NSA!-NSA!-NSA!-[performs-'Wave'-by-himself] dept

Mon, Nov 23rd 2015 12:45pm — Tim Cushing

Once upon a time, a DC district court judge found the NSA's bulk phone metadata collection to be a violation of the Fourth Amendment. Wailing, gnashing of teeth and a round of appeals ensued.

Nearly two years later, this judge (Richard Leon) reiterated his position after the appeals court overturned his decision. Judge Leon again issued an injunction preventing the NSA from collecting the phone records of two of the plaintiffs. This too was almost immediately stayed following the government's swift appeal.

One of the plaintiffs not included in Leon's injunction was Larry Klayman. Klayman petitioned the appeals court for an en banc rehearing of its decision to stay Leon's order. The court has turned him down. But rather than simply turn Klayman down with a single paragraph noting the denial of his request, Judge Brett Kavanaugh took it upon himself to pen a full-throated defense of the NSA's bulk metadata collection.

I vote to deny plaintiffs’ emergency petition for rehearing en banc. I do so because, in my view, the Government’s metadata collection program is entirely consistent with the Fourth Amendment. Therefore, plaintiffs cannot show a likelihood of success on the merits of their claim, and this Court was right to stay the District Court’s injunction against the Government’s program.

The Government’s collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment, at least under the Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735 (1979). That precedent remains binding on lower courts in our hierarchical system of absolute vertical stare decisis.

Even if the bulk collection of telephony metadata constitutes a search, cf. United States v. Jones, 132 S. Ct. 945, 954-57 (2012) (Sotomayor, J., concurring), the Fourth Amendment does not bar all searches and seizures. It bars only unreasonable searches and seizures. And the Government’s metadata collection program readily qualifies as reasonable under the Supreme Court’s case law. The Fourth Amendment allows governmental searches and seizures without individualized suspicion when the Government demonstrates a sufficient “special need” – that is, a need beyond the normal need for law enforcement – that outweighs the intrusion on individual liberty. [...] The Government’s program for bulk collection of telephony metadata serves a critically important special need – preventing terrorist attacks on the United States. See THE 9/11 COMMISSION REPORT (2004). In my view, that critical national security need outweighs the impact on privacy occasioned by this program. The Government’s program does not capture the content of communications, but rather the time and duration of calls, and the numbers called. In short, the Government’s program fits comfortably within the Supreme Court precedents applying the special needs doctrine.

Kavanaugh makes these assertions about "special needs" and claims the government's metadata program is instrumental in preventing terrorist attacks, despite no intelligence official ever having presented evidence that supports this assertion.

While it isn't unusual to see judges align themselves with the government's "special needs" in cases where counterterrorism efforts are implicated, it's a bit strange to see a judge step up, unbidden, to tell a plaintiff that, in no uncertain terms, as long as he's wearing the robe, no one's going to be questioning the constitutionality of the NSA's national security efforts.

But why would Kavanaugh feel so compelled to defend dragnet surveillance efforts, especially one that's becoming much less of a dragnet in the near future? Marcy Wheeler has the answer:

Kavanaugh, of course, served as a White House lawyer and as Staff Secretary during the period when George Bush kept self-authorizing such a dragnet.

[...]

[A]s people cite from this language in the future, they should remember that of all the judges who reviewed this decision, only Kavanaugh had this kind of personal tie to the dragnet. And only Kavanaugh saw fit to weigh in.

Klayman, along with other plaintiffs and Judge Richard Leon, have questioned the asserted "cuteness" of Kavanaugh's baby. And Kavanaugh apparently is not about to let that slide. So, we get an en banc denial with several paragraphs of Kavanaugh's surveillance state boosterism needlessly attached.

Klayman Denial (PDF)Klayman Denial (Text)

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Filed Under: 215, 4th amendment, brett kavanaugh, bulk data, dc, larry klayman, nsa, surveillance, third party doctrine

27 Comments

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Anonymous Coward, 23 Nov 2015 @ 12:58pm

"The Government’s program for bulk collection of telephony metadata serves a critically important special need – preventing terrorist attacks on the United States. See THE 9/11 COMMISSION REPORT (2004)."

Yes, see The 9/11 Commission Report, which does not indicate that the meta data program is necessary, or even useful. It would be nice if judges would only quote sources as supporting them when they actually do.
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DannyB (profile), 23 Nov 2015 @ 1:05pm

Dear Judge Brett Kavanaugh . . .
I do so because, in my view, the Government’s metadata collection program is entirely consistent with the Fourth Amendment.
Dear Judge Brett Kavanaugh,

Woe unto them that call evil good, and good evil; that put darkness for light, and light for darkness; that put bitter for sweet, and sweet for bitter!
Isaiah 5:20
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Anonymous Coward, 23 Nov 2015 @ 1:08pm

Defending a third parties action in informing the government of evidence of a possible crime that they stumbled on was the reason for the third party doctrine. That is it protected a reasonable act by a third party. The US government has twisted this doctrine into a mandatory requirement for third parties to hand over any and all information on demand. This is just a way to the spirit of the law into a means of oppression.
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Quiet Lurcker, 23 Nov 2015 @ 1:22pm

Re: Dear Judge Brett Kavanaugh . . .
Isaiah presumed a level of intelligence on the part of their listeners and readers.

Judge Kavanaugh's opinion reveals a profound lack of anything close to critical thinking skills or intelligence on his part. He is, not to put too fine a point on it, 'dumb as a box of rocks'.

For better analogy, may I invite your attention Bizarro.
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Uriel-238 (profile), 23 Nov 2015 @ 1:30pm

"Special needs" is that like Special Pleading?
Normally we'd regard the rights of people important, but terrorism.

Normally we'd regard the rights of people important, but fuzzy bunnies.
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Anonymous Coward, 23 Nov 2015 @ 1:42pm

Re: "Special needs" is that like Special Pleading?
Special pleading is a favorite for excusing away rights. Normally freedom of speech but obscenity and community standards mean we can pull excuses out of our asshole because bad words and naughty pictures!
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MadAsASnake (profile), 23 Nov 2015 @ 1:58pm

Re: "Special needs" is that like Special Pleading?
Where I come from, "Special Needs" is that classroom reserved for the kids that have learning difficulties. Funny how it remains oddly relevant in this context.
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Anonymous Coward, 23 Nov 2015 @ 2:00pm

Re: Re: Dear Judge Brett Kavanaugh . . .
As a former White House legal adviser who's tenure occurred while these programs were being instituted, it sounds like he is covering his legal advising ass.
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Anonymous Coward, 23 Nov 2015 @ 2:18pm

It's not Special
I'm no lawyer, but I think Kavanaugh needs to go back and read the 'special need' cases.

The court cases about 'special needs' talk about very specific cases (i.e. school lockers, drug tests of government employees, people on probation, etc.) outside the scope of normal law enforcement. "Special needs" isn't supposed to be used to find criminals or evidence of a crime. The court has said, "The special needs cases we have decided do not sustain the active use of law enforcement, including arrest and prosecutions "). Preventing terrorist attacks, on the other hand, is all about law enforcement (Note that it's the DOJ that's making the FISA requests).

The court has also pointed out that there has been consent in every special needs case ("An essential, distinguishing feature of the special needs cases is that the person searched has consented [though there may be adverse effects of refusing (like getting kicked off the football team or losing your job)]."). There's no consent whatsoever in this domestic spying program.
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Personanongrata, 23 Nov 2015 @ 2:19pm

Lions and Tigers and Larry Elliot Klayman's Oh MY!
Isn't that special?

Federal court jester Larry Elliot Klayman of the US Court of Appeals for the District of Columbia Circuit has decided to grace us (the great unwashed) with his royal presence and has descended from his heavenly tax-payer funded ivory tower of jurisprudence vacuum chamber to further shred what remains of the US Constitution by hiding his cowardice behind the specious claim of third party doctrine (If cowardice is good enough for the (notso) Supreme Court in Smith v. Maryland, 442 U.S. 735 (1979) it's good enough for federal court jester Larry Elliot Klayman).

Third party doctrine, standing, national security doctrine and special needs are where cowards masquerading as judges hide and the US Constitution dies.
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Anonymous Coward, 23 Nov 2015 @ 2:19pm

Special needs don't justify searching everyone
Protecting against the very real threat of American Revolution may have been a 'special need' of the British Government, but that didn't make their General Warrants OK.

If it spans all people, all places, and all time, that's the opposite of special. It's general.
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Anonymous Coward, 23 Nov 2015 @ 2:55pm

0% of dragnet programs are consistent with the 4th amendment.
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sorrykb (profile), 23 Nov 2015 @ 3:42pm

Shorter version of Judge Kavanaugh's ruling
"Because terrorism. Forever."
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art guerrilla (profile), 23 Nov 2015 @ 4:49pm

Re: Re: Re: Dear Judge Brett Kavanaugh . . .
it's foxes guarding the henhouses all the way down...
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That One Guy (profile), 23 Nov 2015 @ 6:43pm

'Conflict of interest', clearly only a concern for /lesser/ judges
Kavanaugh, of course, served as a White House lawyer and as Staff Secretary during the period when George Bush kept self-authorizing such a dragnet.

[...]

[A]s people cite from this language in the future, they should remember that of all the judges who reviewed this decision, only Kavanaugh had this kind of personal tie to the dragnet. And only Kavanaugh saw fit to weigh in.

It's a good thing there's no laws or rules regarding judges who have personal interest in the cases that come before them, as if there were, given the massive conflict of interest there, a more honest judge would have recused themself on the grounds of conflict of interest.

A judge with shares in an automobile manufacturing company shouldn't be judging laws related to it.

A judge that was instrumental in getting a specific law passed shouldn't be the one presiding over a case that's challenging it.

And a judge that was involved in the creation of a mass surveillance program should absolutely not be one of those involved in ruling on it's legality.
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Anonymous Coward, 23 Nov 2015 @ 9:45pm

another name for the list. when the corruption is finally stamped out and trials begin for the traitors
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Anonymous Coward, 24 Nov 2015 @ 7:17am

Re: Re: Dear Judge Brett Kavanaugh . . .
Judge Brett Kavanaugh is helping, he's helping, he's helping, he's helping you. He's helping. He loves you.

Now, someone give him a peanut.
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Anonymous Coward, 24 Nov 2015 @ 7:26am

Re:
exactly what I was thinking. getting long now.
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jimb, 24 Nov 2015 @ 9:43am

redefining reasonable?
So he's effectively redefining what is reasonable.

A reasonable search is one where a Judge signed a warrant. It is not a warrant signed by a secret court to search and seize every American information.

The Judge should not withstand scrutiny after this as he clearly is biased and not fulfilling his role to protect and defend the constitution.
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JoeCool (profile), 24 Nov 2015 @ 10:45am

Re: Re: Re: Dear Judge Brett Kavanaugh . . .
But he's allergic to peanuts!
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Anonymous Coward, 24 Nov 2015 @ 1:01pm

Re: Re: Re: Re: Dear Judge Brett Kavanaugh . . .
Don't you mean... Bizarro-allergic?
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Anonymous Coward, 24 Nov 2015 @ 2:11pm

"government's metadata program is instrumental in preventing terrorist attacks,"

An overbearing government is instrumental in CREATING opposition whether they be peaceful or criminal

An overbearing government is instrumental in limiting the rights of the individual

A government is not inherrently good, infact, i'd go as far as to say its very very fucking rare.........its the nature of government that ignores the laws bound on THEM
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Anonymous Coward, 24 Nov 2015 @ 2:12pm

Ignore AND circumvent
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Wyrm (profile), 24 Nov 2015 @ 6:09pm

I vote to deny plaintiffs’ emergency petition for rehearing en banc. I do so because, in my view, the Government’s metadata collection program is entirely consistent with the Fourth Amendment.

Translation: "I have expressed my opinion on this matter, hence there is no need to ask others what they think."
Translated again: "I am the law."
Oh wait... Wrong judge.
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That One Guy (profile), 24 Nov 2015 @ 7:14pm

Re:
Funny thing, but I'd trust Dredd over this judge and a great many other judges any day.

Sure Dredd can kill on the spot if he feels you've broken a serious enough law, but he's not going to make up a law, or put himself through mental gymnastics twisting a law just so he can do so.
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Wendy Cockcroft, 26 Nov 2015 @ 6:14am

Re: Re:
So... are we waiting for someone else to come along and sort this out? A bandwagon to join? There are many such things around but there's always something wrong with them, isn't there? Too left wing, too right wing, wrong ideology, etc.

Personally I'd get onboard with anything that could effect change and worry about the politics later.
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Anonymous Coward, 3 Dec 2015 @ 2:55pm

the doctor should have slapped the parents as well.
Well, the judge's baby stinks and I smell a conflict of interest happening here.
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