Kavanaugh on Klayman

Kavanaugh on Klayman

Gary Hunt
Outpost of Freedom
October 7, 2018

Many have complained that now Associate Justice Brett Kavanaugh is an enemy of the 4th Amendment, barring unreasonable searches and seizures. Among those are a respected patriot attorney and a well-known ex-judge. However, I have to wonder if either of them has read the decision they have referred to.

The 4 page decision that Kavanaugh made is available at Klayman v Obama.

From the Kavanaugh decision in Klayman v. Obama, Filed: November 20, 2015,

No. 15-5307 – On Emergency Petition for Rehearing En Banc Review of this Circuit’s Order of November 16, 2015.

Note: This was in response to a previous decision of which Kavanaugh was not involved. It was decided by Brown, Circuit Judge, and Williams and Sentelle, Senior Circuit Judges. The Case only about the collection ” the time and duration of calls, and the numbers called”, and concerned when those calls are made to know terrorist foreigners.

Note, also, that Kavanaugh refers to Smith, where he  state that “That precedent remains binding on lower courts in our hierarchical system of absolute vertical stare decisis.” And, in Jones and that “the Government’s metadata collection program readily qualifies as reasonable under the Supreme Court’s case law”. Unlike Circuit judges, as an appellate judge, Kavanaugh follows precedents of the Supreme Court.

From the Klayman decison:

“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…”

“… 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.”

“To be sure, sincere and passionate concerns have been raised about the Government’s program. Those policy arguments may be addressed by Congress and the Executive. Those institutions possess authority to scale back or put more checks on this program, as they have done to some extent by enacting the USA Freedom Act.”

“In sum, the Fourth Amendment does not bar the Government’s bulk collection of telephony metadata under this program. I therefore agree with this Court’s decision to stay the District Court’s injunction.”

 

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