(Washington, D.C., November 20, 2015). Today, the U.S. Court of Appeals for the District of Columbia Circuit denied an emergency petition for en banc full court review of a decision by a three judge panel earlier this week staying the implementation of a lower court ruling by the Honorable Richard J. Leon that the NSA’s mass surveillance of the telephone metadata of nearly all Americans is unconstitutional under the Fourth Amendment. Judge Leon’s grant of a preliminary injunction to plaintiffs on November 9, 2015, in a case styled Klayman et. al v. Obama et. al (DC Circuit Case No. 15-5307) was the second one he issued. Almost two years earlier he had issued a nearly identical preliminary injunction on December 16, 2013, and as a courtesy to the Obama administration and its Justice Department, he stayed his own order to allow them to appeal to the DC Circuit. Given the gravity of the ongoing constitutional violations, Judge Leon anticipated as stated in his earlier order that the DC Circuit would rule and dispose of the appeal in short order. However, the DC Circuit, thanks in part to delay tactics by the Obama Justice Department, sat on the case for nearly two years – violating their own case law under Mills v. United States, 571 F. 3rd 1304 (DC Cir. 2009), that even one day of a constitutional violation is one day too much, as irreparable injury is presumed under these circumstances.
When Judge Leon issued his most recent order, the Obama Justice Department immediately asked Leon to stay his order, and he rightly refused given the already two year delay. However, the DC Circuit, again shirking its responsibility to timely protect plaintiffs and the American people, then issued a stay on the enforcement of Leon’s latest ruling enjoining the NSA from continued Fourth Amendment violations. In response, Larry Klayman, the founder of Judicial Watch and now Freedom Watch, and a former federal prosecutor, filed an emergency petition to have the entire “en banc” panel of the DC Circuit immediately lift the stay in effect pending a full appeal.
Today, an 11-judge panel, comprised mainly of Obama and Clinton appointees and an establishment Republican, Brett M. Kavenaugh, denied Klayman’s petition en banc without even taking a vote and without any factual and legal findings. Judge Kavenaugh, without any legal authority to do so, then gratuitously issued a non-legally binding statement, claiming that the NSA’s mass surveillance is constitutional.
Klayman then issued this statement:
“It is disgraceful that the DC Circuit, obviously influenced by recent political rhetoric mostly from CIA Director John Brennan and politicians on the right, such as Republican presidential candidate Senator Marco Rubio, blaming Judge Leon and others such as myself over the recent terrorist attacks in Paris – as they effectively claim that enforcing the Constitution weakens national security – would fail to allow Judge Leon’s injunction to go into effect without even taking a vote. It is even more disgraceful that Judge Kavenaugh, before even considering the merits during a full appeal, would make a gratuitous statement running interference for the Washington DC intelligence establishment. Regrettably, this underscores the broken state of not just the executive and legislative branches, but many in the judiciary – who no longer protect the citizenry from government tyranny. As in the days leading up to the first American revolution, when the legal system was hijacked and taken over by the monarchy and no longer represented the people, the time has come, as our Founding Fathers concluded in 1776, to take action. In a last ditch effort to try to stave off revolt, however, I intend to take an immediate appeal to the Supreme Court. Not just Judge Leon but the U.S. Court of Appeals for the Second Circuit has ruled that the mass NSA surveillance is unconstitutional and illegal and the matter is now ripe for expeditious Supreme Court review. Hopefully the High Court will not bend over to the Washington political and intelligence establishment.”
For more information, contact (424) 274-2579 or email@example.com. See www.freedomwatchusa.org.
On Emergency Petition for Rehearing En Banc Review of this Circuit’s Order of November 16, 2015