Larry Klayman
High court smacks down establishment
By Larry Klayman
June 30, 2014

This was a historic week. The Supreme Court, after many years of running interference for President Barack Hussein Obama and his Democratic and Republican establishment enablers, finally smacked down our so-called government and specifically its executive branch on two separate occasions.

First, writing for the majority, Chief Justice Roberts penned an epic decision that bodes well for the cases I filed against Obama's National Security Agency and other government and individual-related interests – Klayman v. Obama, 13-cv-851, 13-cv-881, 13-cv-00092. One of these cases, the first one I filed, gave rise to a preliminary injunction ordering the NSA to stop collecting telephonic metadata, that is, spying on American citizens. The ruling, issued Dec. 16, 2013, is currently on appeal and winding its way through the courts to the Supreme Court. This massive and unconstitutional intrusion into the privacy of Americans was held to be "almost Orwellian" by Judge Richard J. Leon of the U.S. District Court for the District of Columbia.

So it is no wonder that the cases decided this week over government-police intrusion into cell phones, which occurred in the context of warrantless searches of two alleged criminals who were stopped by law enforcement authorities, drew much attention. Chief Justice Roberts, finding that warrantless searches of cell phones were generally unconstitutional under the Fourth Amendment, emphasized how cell phones in effect contain much of the same information the NSA has access to as well under its metadata spying. He wrote:

"But the possible intrusion on privacy is not physically limited in the same way when it comes to cell phones. The current top-selling smart phone has a standard capacity of 16 gigabytes (and is available with up to 64 gigabytes). Sixteen gigabytes translates to millions of pages of text, thousands of pictures, or hundreds of videos. See Kerr, supra, at 404; Brief for Center for Democracy & Technology et al. as Amici Curiae 7–8. Cell phones couple that capacity with the ability to store many different types of information: Even the most basic phones that sell for less than $20 might hold photographs, picture messages, text messages, Internet browsing history, a calendar, a thousand-entry phone book, and so on. ...

"In 1926, Learned Hand observed (in an opinion later quoted in Chimel) that it is 'a totally different thing to search a man's pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.' United States v. Kirschenblatt, 16 F. 2d 202, 203 (CA2). If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form – unless the phone is."

This ruling, joined by the other eight justices of the Court, presages a similar result for our NSA lawsuits and reasserts the power of the judicial branch in serving as a check and balance to the other two branches of government. It is clear that in issuing this decision, the Court was looking over its shoulder to the even bigger issue of widespread government warrantless surveillance, which has intruded not into just so-called smart cell phones, but all of our email and social-media communications. And, it is not just the NSA and its enablers whose heads are on the chopping block, but the Central Intelligence Agency as well, which we also sued for violations of not just Fourth Amendment rights, but also First and Fifth Amendment ones. These two intelligence agencies, presently under the alleged control of President Obama and his minions, represent an existential threat to the freedoms our Founding Fathers fought for. Indeed, at the close of Chief Justice Robert's majority opinion he observes rightly:

"Our cases have recognized that the Fourth Amendment was the founding generation's response to the reviled 'general warrants' and 'writs of assistance' of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces behind the Revolution itself. In 1761, the patriot James Otis delivered a speech in Boston denouncing the use of writs of assistance. A young John Adams was there, and he would later write that '[e]very man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance.' 10 Works of John Adams 247–248 (C. Adams ed. 1856). According to Adams, Otis's speech was 'the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.' Id., at 248 (quoted in Boyd v. United States, 116 U. S. 616, 625 (1886)).

"Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans 'the privacies of life,' Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant.

"We reverse the judgment of the California Court of Appeal in No. 13–132 and remand the case for further proceedings not inconsistent with this opinion. We affirm the judgment of the First Circuit in No. 13–212.

"It is so ordered."

In short, the proverbial handwriting is on the wall for the judicial knockout of the NSA/CIA's unconstitutional surveillance, which not only chills the free speech of the citizenry but also is designed to coerce those who challenge the ruling establishment into submission.

Indeed, with the power of these spy agencies to destroy all of us with their outrageous and dangerous surveillance capabilities, one has to wonder if even the "Mullah in Chief" is truly in charge. With all the dirt hanging over Obama's head, they have the capability to blackmail him into submission, too. This is what is at stake with our battle against the NSA and CIA, who now "rule the school" over our lives.

Finally, in yet another important decision curtailing the power of the executive branch of government, the Supreme Court also struck down Obama's recent appointments to the National Labor Relations Board (NLRB), as an unbridled use of presidential authority and an abrogation of congressional authority.

Even for a jaded cynic like me, it was a good week for freedom and liberty.

© Larry Klayman


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Larry Klayman

Larry Klayman, founder of Judicial Watch and Freedom Watch, is known for his strong public interest advocacy in furtherance of ethics in government and individual freedoms and liberties... (more)


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