A preliminary injunction seeks a court order requiring someone to do something, or not do something, in the period between the commencement of a lawsuit and the final ruling in the lawsuit. Under the law applicable in the NSA case, an injunction is only available where a party can prove that they are likely to win at trial, and that they will suffer irreparable harm prior to trial if the order is not granted. Irreparable harm is generally considered to be harm that can not be compensated with monetary damages. The court also must consider the balance between the harm that will be done to the person seeking the injunction, and the harm that may be suffered by the party against whom the injunction is sought, as there is the possibility that the party seeking the injunction could ultimately lose at trial. Finally, the court must consider the broader public interest.
In this case, the two plaintiffs asked for a court order removing their information from the NSA database, and requiring the NSA to stop collecting metadata with respect to their phone numbers.
Much has been written about the court's finding on the first part of the test: that the NSA program likely violates the constitution. However, there are some other bits of the decision on the harm that I found interesting.
Judge Leon found that if in fact the program did violate the Constitution, it was prima facie causing irreparable harm. When he then considered the harm that may be caused to the government if he granted the injunction, he wrote:
The Government responds that the public's interest in combating terrorism is of paramount importance … - a proposition that I accept without question. But the Government offers no real explanation as to how granting relief to these plaintiffs would be detrimental to that interest. Instead, the 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 burdens of complying with the Constitution! Then, the Government frets that 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. I will leave it to other judges to decide how to handle any future litigation in their courts.
The judge granted the injunction, but stayed the operation of his order until the appeals process can be completed. I have some trouble reconciling the judge finding that the plaintiffs will suffer "irreparable harm" if the order is not granted, and then deciding that the enforcement of the order can wait. However, the judge concluded by telling the government to immediately begin preparing to remove the plaintiffs from the database. He told them that if they were not successful on appeal, his order would go into effect immediately. He warned them that if they came back after a failed appeal seeking time to implement his order, he would be very unhappy:
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.
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