NSA’s Bid for a 6 Month Delay in Protecting Larry Klayman’s Phone Records

The White House has announced they’re going to release the recommendations of the Committee to Make You Love the Dragnet today. Given that the report recommends putting the dragnet into someone else’s hands, I suspect the White House changed plans (It was going to release the report in mid-January) as a way to stave off the Klayman and other suits.

Given that we expect that recommendation — and that the government claims it’d take years to effect — I want to point to a claim that NSA Director of Signals Intelligence Division Theresa Shea made in her declaration in the Klayman suit. She claimed it would be an onerous process to take Larry Klayman’s call records out of the dragnet.

Beyond harming national security and the Government’s counterterrorism capabilities, plaintiffs’ proposed preliminary injunction would seriously burden the Government. While plaintiffs seek an order barring the Government from collecting metadata reflecting their calls, the Government does not know plaintiffs’ phone numbers, and would need plaintiffs to identify all numbers they use to even attempt to implement such an injunction. Ironically, as explained above, these numbers are not currently visible to NSA intelligence analysts unless they are within a three hopes of a call chain of a number that based on RAS is associated with a foreign terrorist organization.

Even if plaintiffs’ phone numbers were available, extraordinarily burdensome technical and logistical hurdles to compliance with a preliminary injunction order would remain. Technical experts would have to develop a solution such as removing the numbers from the system upon receipt of each batch of metadata or developing a capability whereby plaintiffs’ numbers would be received by NSA but would not be visible in response to an authorized query. To identify, design, build, and test the best implementation solution would potentially require the creation of new full-time positions and could take six months or more to implement. Once implemented, any potential solution could undermine the results of any authorized query of a phone number that based on RAS is associated with one of the identified foreign terrorist organizations by eliminating, or cutting off potential call chains. If this Court were to grant a preliminary injunction and the defendants were to later prevail on the merits of this litigation, it could prove extremely difficult to develop a solution to reinsert any quarantined records and would likely take considerable resources and several months to build, test, and implement a reinsertion capability suited to this task.

Judge Richard Leon treated this complaint as the obvious bullpuckey it clearly is.

[T]he Government says that it will be burdensome to comply with any order that requires the NSA to remove plaintiffs from its database. Of course, the public has no interest in saving the Government from the budens of complying with the Constitution! Then, the Government frets such an order “could ultimately have a degrading effect on the utility of the program if an injunction in this case precipitated successful requests for such relief by other litigants.” For reasons already explained, I am not convinced at this point in the litigation that the NSA’s database has ever truly served the purpose of rapidly identifying terrorists in time-sensitive investigations, and so I am certainly not convinced that the removal of two individuals from the database will “degrade” the program in any meaningful sense.68


In [staying my order to destroy the plaintiffs’ metadata] I hereby give the Government fair notice that should my ruling be upheld, this order will go into effect forthwith. Accordingly, I fully expect that during the appellate process, which will consume at least the next six months, the Government will take whatever steps necessary to prepare itself to comply with this order when, and if, it is upheld. Suffice it to say, requesting further time to comply with this order months from now will not be well received and could result in collateral sanctions.

68 To the extent that removing plaintiffs from the database would create the risk of “eliminating, or cutting off potential call chains,” the Government concedes that the odds of this happening are miniscule. (“[O]nly a tiny fraction of the collected metadata is ever reviewed . . . .”) (“Only the tiny fraction of the telephony metadata records that are responsive to queries authorized under the RAS standard are extracted, reviewed, or disseminated. . . . “). [citations removed]

But the plea for time– when it’s crystal clear NSA could start treating Larry Klayman’s data like a high volume number they intentionally defeat on intake tomorrow — made me wonder what purpose this complaint was really meant to serve, especially given James Cole’s refusal the other day to answer whether the Leahy-Sensenbrenner bill would eliminate bulk collection, which Jennifer Granick likens to a coup.

Responding to a question at yesterday’s hearing on the bill, Cole said, “Right now the interpretation of the word ‘relevant’ is a broad interpretation. Adding ‘pertinent to a foreign agent’ or ‘somebody in contact with a foreign agent’ could be another way of talking about relevance as it is right now. We’d have to see how broadly the court interprets that or how narrowly.”  In other words, the FISA court might let us keep doing what we’re doing no matter what the law says and despite Congress’ intent.

All courts issue opinions about what the laws that legislatures pass mean. These opinions are called the “common law”. But common law interpretations of statutes are only legitimate if they are fair and reasonable interpretations.

The NSA has a great track record getting FISC judges to interpret even obviously narrow phrases in surprisingly broad ways.


Time and again, the FISC accepts the Administration’s shockingly flimsy arguments. As a set, the few public FISC opinions we’ve seen suggest that the Executive Branch—in cahoots with a few selected judges—has replaced legitimate public statutes with secret, illegitimate common law.

The rule of law is a basic democratic principle meaning that all members of a society—individuals, organizations, and government officials—must obey publicly disclosed legal codes and processes. If Cole is right that, try as it might, Congress cannot end bulk collection because the secret FISA court may defer to the NSA’s interpretation of the rules, there is no rule of law.  The NSA is in charge, the FISA court process is just a fig leaf, and this is no longer a democracy. There’s been a coup d’etat.

But it appears that not even the FISC judges are always in on the game. After all, at the moment when Judges Walton and Bates started reining in the Internet dragnet in the US, NSA started rolling out an expanded Internet dragnet program — which made it easier to pick up US person data and presumably easier to disseminate it — overseas. With that 6 month delay, would NSA just be figuring out how to maintain the dragnet function, but beyond the reach of meddling judges like Richard Leon?

The NSA suggested it would need 6 months notice to take just two people out of the dragnet. I can imagine no feasible technical reason that’s true.

So why were they implying they’d need that 6 months?

9 replies
  1. joanneleon says:

    It sounds like an absurd claim, similar to the way that Wall Street fights all laws and regulations they don’t like, claiming that it creates a hardship or undue cost.

    As for the high volume numbers and the data massagers who tag specific numbers or identifiers as high volume or whatever other reasons they might have to keep them out of the queries, it sounds like they still collect all those calls but they get ignored in the query results. I can think of a simple way to achieve that by setting up a flag in the data base table, indicating whether this is a high volume number or not and then in the query, querying only the records where high_volume_number_flag = “No” (oversimplification to illustrate a point).

    But the idea that an organization like the NSA with tens of thousands of employees, hundreds of thousands of contractors (I think I read that) and many billions of dollars in budget, to screen out a few numbers seems absurd. Didn’t they claim that they don’t collect on members of Congress? Not that I believe that, but I’ve seen that claim somewhere. Do they collect on Pres. Obama’s and his family’s personal cell phones? Do they collect on Supreme Court justices?

    And the argument that they don’t know Klayman’s phone numbers… I don’t even know where to begin mocking that one.

  2. What Constitution? says:

    $52 Billion a year for these programs, and part of that is paid to government lawyers to waste the time of a Federal Court pleading “burdensome” over the concept of knowing what they are doing and exercising an ability to control themselves?

  3. P J Evans says:

    That’s really crappy BS that NSA is using these days. You would think, after Snowden’s revelations, that they’d get a better grade for use in courtrooms, at least.

  4. Arbusto says:

    As joanneleon stated in #1, how hard is it to construct a concatenated query (I assume in SQL) for “X” telephone numbers. If NSA system administrators are unable to extract that return, I’m even more aghast at our government than I’ve been since Bush v Gore.

  5. orionATL says:

    if it would take large amounts of time to find and remove an american citizen who has been the subject of a lawsuit against nsa,

    how long would it take them to find the name of a terrorist not already known to be connected to other known terrorists?

    the primary question would seem to be: can nsa do anything other than collect and store data unless they somehow mark/connect the records when they are first acquired?

    follow up observation: no wonder the nsa talks so much about network “analysis”. might it be that the nsa are blind to any person not connected (or not connectable) by existing social connections nsa has created.

    if so, no damn wonder they miss bombings. they can only start analyzing after having created, ex post the tertorist event, the necessary relevant social network from some name that pops up ex post.

  6. bloodypitchfork says:

    quote:” If Cole is right that, try as it might, Congress cannot end bulk collection because the secret FISA court may defer to the NSA’s interpretation of the rules, there is no rule of law. The NSA is in charge, the FISA court process is just a fig leaf, and this is no longer a democracy. There’s been a coup d’etat.”unquote

    BINGO! Senator Church thanks you for confirming his hypothetical prediction’s accuracy. We have arrived. The debate will fail, NSA will continue and if you or any agent of the USG cares to argue further, the coup will escalate. In essence, sooner or later, the mask of the tyrant will come off, and won’t even ask for you to surrender your weapons.
    After all, DHS didn’t purchase almost 2 BILLION rounds of hollow point ammo, 7 THOUSAND machine guns, and a shitload of MRP’s for nothing, militarizing to the hilt, every two bit law enforcement in the entire nation. Only question left is when. That is..if Cole is right.

  7. Examinator says:

    I think this is a BS claim base on arrogance, management incompetence, and/or down right deceit( ass covering and fighting to hold power).

    Has anyone not heard of risk assessment that all competent corporations go through ? i.e. measuring the possible risk or pay out claimants,
    (which was bigger aka bean counting) or even reversing polices and plan b?

    In every program I ever oversaw (as an exec) being written and where there was a reasonable chance of significant litigation,( more so a need for specific identifiers), there was always an “undo Program” specified in the program design specs.

    I find it incredible ( unbelievable that program(s) of this significance handling of this volume of meta data was written without specific search identifiers. Much less the ability to patch in exclusions! Then again the mindset for such invasive (paranoid)collection necessitates a raft of flawed reasoning. Primarily that their (almost messianic) belief that their personal rectitude/judgement is absolute beyond questionably static.(inconceivable that the society/ politics and meta circumstances can’t/wont change) They failed to learn from history (McCarthy, Edgar J Hoover eras excesses).

    Failure to fully understand the shortcoming of binary logic and the implication for non binary people(i.e. just because someone talks to known terrorists does not automatically even remotely involved in terrorist activities. e.g. I as a 2nd tier exec in his organisation and socially associated with an evil SOB, who eventually did time…. that doesn’t automatically make me the same. Computer logic would suggest I might have been so.

    What wasn’t in the decision making criteria of the NSA program are the skewed motives of those who stand to benefit as opposed to the interests of the society as a whole.
    Piss poor planning and decision making based on politics(that benefits sectional interests as opposed to objectivity for the long term benefit of the nation (The majority of people).

  8. Stephen says:

    Re Jennifer Granick comments, the points she makes are all arguably a consequence of the FISA court’s secrecy. Secret courts which produce secret rulings are an open invitation to the sort of abuses she refers to.

    Lower courts are generally kept in line via the appeal process. A court whose judgments are (for whatever reason) rarely or even never appealed will eventually become a law-unto-itself, both figuratively and literally. For even in cases where the court makes an actual error in one of its ruling, if that ruling is never appealed against then in all likelihood that same error will be perpetuated in subsequent rulings due attempts to preserve precedent and consistency. This becomes all the more likely if the less like an error a particular erroneous element of a ruling becomes.

    Eg the fate of the word “relevant” at the hands of the FISC.

    Simply having some kind of “Public Interest Advocate (PIA) may not be enough to deal with that particular problem. One danger with having such an advocate in the particular circumstances of the FISA court is that you could eventually wind up with at least some of the advocates exhibiting some variant of the Stockholm Syndrome; and all the more so the smaller and more “isolated” the PIA group is. (“Isolated” here being in the sense of the FISC secrecy laws preventing:

    1) advocates discussing particular FISC cases with anyone other than fellow advocates, the FISC judges, and or other insiders (eg the DOJ)

    2) non-insiders being allowed to read (and so comment upon) FISCC rulings which the advocates can then read, whether in law journals or Net blogs, and evaluate.

    Both limit the input advocates will have with respect to particular cases and to the FISA court rulings in general. I would note that a similar isolation and lack of input from outsiders ia arguably at least a contributing factor to Stockholm Syndrome cases in hostages; and you could even argue the FISC judges are themselves exhibiting symptoms of it.)

  9. orionATL says:


    very informative comment.

    i, too, believe that any “public advocate” attempt to mitigate the fisa court debacle will be unhelpful and unproductive. for one, we will have little control over the appointment, so a fake public advocate is a likely possibility for an administration that wants to circumvent this “improvement”.

    for another, the advocate’s arguments and those arguments made in rebuttal will presumably still be secret documents.

    for another, secret courts can entirely ignore even the most compelling p.a. arguments with impunity (leaving aside leaks).

    all-in-all the public advocate seems like a trojan horse where fisa court public acvountability is concerned.

    while the obama administration’s offer of a public advocate may have been made with sincerity,

    given the extraordinary, and extraordinarily tenacious, deviousness of the nsa/doj when it comes to protecting nsa lawlessness, it seems only sensible to consider the offer as having been made cynically and with intent to deceive the public.

    the obama boys “public advocate” proposal is likely just an effort to put lipstick on a pig of a proposal in preparation for its teevee news appearances.

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