“What Else Haven’t You Let Us Know?” 2nd Circuit Asks DOJ

Well into today’s argument over ACLU v. Clapper, the ACLU’s challenge to the government’s phone dragnet, one of the judges — Robert Sack — pointed out the discussion we’re having all stems from documents the government was forced to release after the Edward Snowden leaks.

It was itself telling — not least because DOJ Civil Division AAG Stuart Delery at times proclaimed not to know the answers to the questions the judges posed, questions I know the answer to. For example, Delery claimed, at first, not to know of instances when the FISA Court ruled more harshly than the government; and when he ultimately did admit to those instances, he didn’t admit that some of them involved systematic abuses. He also dodged questions about whether the government could get financial records, which we know they do (and James Cole has testified they could).

It was all the more telling, however, given that two of the judges on the panel — Gerard Lynch and Sack — had ruled against the government in Amnesty v. Clapper, ACLU’s challenge to the Section 702 program. As you’ll recall, to get SCOTUS to overturn that ruling, DOJ lied to the Supreme Court about what kind of notice it gave to defendants under Section 702. Snowden’s leaks led to a change in DOJ’s notice policy to actually come closer — but not actually match –what DOJ had claimed before SCOTUS (they’re still not giving notice to all defendants). At one point, Lynch said something like, “We weren’t as familiar [with 702] as the Supreme Court thought we should have been.”

These judges have reason to be skeptical about DOJ’s claims about their own surveillance programs. Which is probably why Sack asked (after 1:36), “That’s what you’ve let us know. What else haven’t you let us know?”

Much of the hearing went like I expected. ACLU’s Alex Abdo argued both that the court has the authority to overturn the dragnet based on statutory grounds, but also that it’s not reasonable and therefore constitutional. He used Obama’s decision to change the program to argue that the Administration recognizes that the program, as currently constituted, is not reasonable. To support an argument the program is reasonable, DOJ’s Delery claimed Congress had ratified it by reauthorizing it twice. On rebuttal, Abdo noted that Congress had never seen the legal basis (because there was none, until 2013) before they allegedly “ratified” the program.

Delery’s arguments were even weaker than I had expected. He argued that the courts can’t intrude here because the political branches had worked out reasonable limits for this program, pointing to the minimization procedures required by the statute. Except that — as he admitted later — the FISA Court had largely influenced the minimization procedures for the program. If a Court set the minimization procedures that make it reasonable, then can’t a court rule on whether that’s a proper balance?

Not to mention, the statute only requires FBI have minimization procedures, not NSA, so the minimization procedures in the statute are proof the government is actually using the statute with an agency Congress did not envision using it.

Abdo returned to the centrality of minimization procedures in his closing words. He noted that if, as the government claims, Section 215 is authorized by Smith v. Maryland, then, minimization procedures are constitutionally superfluous.

The minimization procedures that the government relies on would be constitutionally superfluous if Smith governed this case. They could collect the records without any of those protections in place. They could store all of them indefinitely. They could query them for any reason or no reason at all. And they could build the dossiers that they disclaim building in this case with no constitutional restrictions. A final point is that the government tries to explain why it’s only asking for a narrow ruling from this court. But the legal theories that it advances are a roadmap to a world in which the government routinely collects vast quantities of information about Americans who have done absolutely nothing wrong. I don’t think that’s the world that Congress envisioned when it enacted Section 215. And it’s certainly not the world that the framers envisioned when they crafted the Fourth Amendment.

But that would bring us to the scenario laid out by Judge Lynch (see from 59:00 to 1:06:50), in which the government could get anything held by a third party about everyone just because it could. The same argument applies to bank records and credit card records, Lynch walked Delery through the implications patiently.

… You can collect everything there is to know about everybody and have it all in one big government cloud.


I just don’t understand an argument as to what’s so special about telephone records that makes them so valuable, so uniquely interactive or whatever, that the same arguments you’re making don’t apply to every record in the hands of a third party business entity of every American’s everything.

As far as we know, the government has already done this with financial records, in part under Section 215, which is one of the reasons Obama won’t back off this challenge; even under USA Freedom, the government can continue to obtain Western Union’s records. Add in the EO 12333 collections, and the government is well on its way to the nightmarish scenario both Lynch and Abdo laid out.

In any case, Judge Lynch (more likely his clerks) seems to have done his homework. He seems to have a sense not only where this could go, but where it already has. And while he repeatedly talked about narrow rulings — if I had to guess, I think he might prefer to rule the “relevant” interpretation Bates-stamped by the FISA Court unconstitutional than ruling the entire program so — he gets that this program is a constitutional atrocity.

The question is whether he can write a ruling that will withstand SCOTUS review, this time.

14 replies
  1. bloopie2 says:

    “Delery’s arguments were even weaker than I had expected.” Was he a weak presenter of the best available arguments? Or are there arguments he could have made, that would have been stronger? (devil’s advocate) (rarely does a phrase better fit the occasion!)

  2. masaccio says:

    When judges are this prepared, it’s because they were willing to put in the work. The clerks help, but all their work is pointless if the Judge doesn’t care. I’d expect a harsh ruling, based on your description of Judge Lynch’s lines of questioning.

    That’s not to take anything away from the clerks. I’ve seen the kind of work good clerks can do with complex cases where the judge gives strong marching orders.

    • emptywheel says:

      I’m not so sure. After all, he was JUST reversed with precisely these parties. He’s going to want to avoid being reversed again, even while sending this wrapped up in a bow for Scalia.

      That’s a tough row to hoe. Plus, he seems anxious for Congress to make things easier for him. Which all the versions of USAF would not really do.

      • Peterr says:

        Pointing out that the government lied to get SCOTUS to rule in their favor in the past might be an easy way to overcome any fears of pissing off SCOTUS this time around. Indeed, it might make an interesting opening for Lynch et al. to exploit in crafting their decision.

        “The government is asking for broad powers and saying ‘trust us’ is sufficient oversight. In looking at the trial court record and the history of appellate arguments and briefing, however, the government seems intent on proving that ‘trust us’ is no way to run a country, as time and again they have misled judges and justices of the federal courts in presenting their case. For example . . .”

        • emptywheel says:

          All the more so given that, while Riley v. CA didn’t come up, it could have come up 100 times because of the way both sides focused on minimization procedures (AKA government agency protocols).

          • jacktiggs says:

            I agree, I hope Riley is mentioned much more in the opinion (especially if they strike it down through the Fourth Amendment!) Then it seems like it would be harder for the Supreme Court to contradict what they said only last term. If anything, I really want there to be a Roberts “not what the Framers fought for” zinger in there.

  3. What Constitution? says:

    Pardon me for not being surprised that a Federal appellate judge is almost as up to speed on the facts and law here as is our esteemed okra-eating Michigan hippie. Indeed, that’s what we, as Americans, hire Federal appellate judges for — to protect and defend our Constitution — and that’s why the best and brightest law students vie for the opportunity to serve as law clerks to these jurists. It’s great to have them call the DOJ’s bluff because, god damn it, this is IMPORTANT and maybe it’s finally getting the kind of attention the DOJ has been so afraid of receiving.

    There’s a reason we have a Constitution, there’s a reason it provides for courts, for separation of powers, for due process, for publicly known law that governs even the elite and the executive. I hope the DOJ lawyers, and the miscreants whose activities the DOJ lawyers are trying to hide, are sweating, losing sleep and reading up on countries without extradition agreements. There should be costs associated with the indefensible conduct they have been defending by obfuscation, avoidance and chicanery — including “gee I dunno”.

  4. wallace says:

    I watched the whole thing. Astounding. The very fact that WE THE PEOPLE, have to challenge another usurpation of the Constitution by virtue of Congressional scumbags that think they can write insidious laws by virtue of their very powers as one of the branches of Constitutional separation, will go down in the annuls of Great Moments in Totalitarianism of the 21st century.

    Notwithstanding the first statement out of Judge Lynch’s mouth regarding the in-camera documentation of the proceedings, which appeared to be an affront to his way of thinking by virtue of his dismissal of said video by making a joke by way of an insinuation, he didn’t think any citizen would take the time to watch such boring and mundane proceedings in furtherance of their interest in their own governance, I see now why We the People have not prevailed in previous challenges to the Surveillance State.

    Fuck him. I watched. I am a citizen, and his bizarre inference is an affront to my own responsibility to understanding of the Constitution. PERIOD. I came,…I saw. And what I saw was so preposterous, so plain, so simple, that I have come to the conclusion We The People are on the verge of being sold down the river of Judicial acquiescence to the word relevant.

    I applaud the ACLU attorney, who in my opinion, stated the statutorily and Constitutional right to CHALLENGE the very nature of the statute at hand, which is the absolute crux of ACLU vs. Clapper. Should We the People fail in this challenge to the power of Legal Imperialism, you might as well kiss off the very foundations that the Constitution are supported by. I have lots more to think about now. But I’ll reserve my views until such time as this case is decided.

    • wallace says:

      Correction. The last word of this statement:
      “…. what I saw was so preposterous, so plain, so simple, that I have come to the conclusion We The People are on the verge of being sold down the river of Judicial acquiescence to the word relevant.”…

      should have read REASONABLE.

  5. Simplify says:

    Thanks for the heads-up on Twitter. I tuned in just in time to catch the whole thing.

    Can the ACLU not argue explicitly that all bulk collection of confidential information is unconstitutional? (Or did they, and I just didn’t hear it?) It’s not as though people commonly post their call logs and financial records publicly. The language of the 4th Amendment is pretty damn clear: collection is seizure.

  6. seedeevee says:

    “ACLU’s Alex Abdo argued both that the court has the authority to overturn the dragnet based on statutory grounds, but also that it’s not reasonable and therefore constitutional.”

    not reasonable = constitutional ???

    or the “overturning” is constitutional?

    Sounds funny.

    • emptywheel says:

      Sorry. The “not” was meant to be transitive.

      The debate is whether, if this constitutes a search, it is a reasonable one. If it’s not then it is not constitutional.

  7. Jim White says:


    ACLU tweeted a picture of their team arguing this case and it got quite a bit of play. I had to bite my tongue, though, not to ask them why they didn’t let any girlz onto their team…

    • emptywheel says:

      It did look like a sausage fest, didn’t it? Looked even worse in the court room, where all 3 DOJ lawyers and all 3 appellate judges were also men.

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