No Easy Answers


Friday, August 10, 2007

Proposed Supplemental Complaint - Consolidated NSA Cases [Doc 347]

This is a proposed supplemental complaint, proffered to Judge Walker as an attachment to a Motion for Leave to File Supplemental Complaint.

A few hours after I obtained this from PACER, ScotusBlog published First test of new wiretap law's constitutionality, including links to the motion for leave to file, and the supplemental complaint.

http://www.scotusblog.com/movabletype/archives/new%20CCR%20complaint%208-10-07.pdf

http://www.scotusblog.com/movabletype/archives/CCR%20motion%20to%20file%208-10-07.pdf



Shayana Kadidal
Michael Ratner
CENTER FOR CONSTITUTIONAL RIGHTS
666 Broadway, 7th Floor
New York, NY 10012-2317
Phone: (212) 614-6438
Fax: (212) 614-6499
Email: kadidal@ccr-ny.org

David Cole
c/o Georgetown University Law Center
600 New Jersey Avenue, N.W.
Washington, D.C. 20001
Phone: (202) 662-9078

Michael Avery
J. Ashlee Albies
NATIONAL LAWYERS GUILD
c/o Suffolk Law School
120 Tremont Street
Boston, MA 02108
Phone: (617) 573-8551
Attorneys for Plaintiffs

                           UNITED STATES DISTRICT COURT
                        NORTHERN DISTRICT OF CALIFORNIA
                                SAN FRANCISCO DIVISION
____________________________________
                                    |      No. M:06-cv-01791-VRW
IN RE NATIONAL SECURITY AGENCY      |
                                    |      PLAINTIFFS' [PROPOSED]
TELECOMMUNICATIONS RECORDS          |      SUPPLEMENTAL COMPLAINT
LITIGATION                          |
____________________________________|

This Document Relates Only to:
Center for Constitutional Rights v. Bush, Case No. 07-1115


                               JURISDICTION AND VENUE

       1.     This action arises under the United States Constitution, 50 U.S.C. 1801 et. Seq..

The Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1361.

                                        INTRODUCTION

       2.      This supplemental complaint sets forth several developments subsequent to the

filing of the initial complaint in this case. In particular, plaintiffs seek to file this supplemental

complaint now in order to challenge the constitutionality of new legislation authorizing

electronic surveillance of their attorney-client communications with overseas clients and

witnesses. Plaintiffs maintain that the statute is unconstitutional as applied to their conversations

under the First and Fourth Amendments, and seek injunctive relief to protect their ability to

consult their clients with assurances of confidentiality essential to their communications.

       3.      On August 5, 2007, Defendant President Bush signed into law the Protect

America Act of 2007, which amended the Foreign Intelligence Surveillance Act (FISA). The

amendments substantially expand the government's ability to conduct warrantless surveillance of

U.S. citizens' phone conversations with persons overseas, without probable cause of any

criminal activity.

       4.      Plaintiffs therefore seek additional injunctive and declaratory relief, finding the

Protect America Act in violation of their First and Fourth Amendment rights

                                              FACTS

NEW STATUTORY SCHEME

       5.      On August 5, 2007, the President signed into law the Protect America Act of

2007. Pub. L. No. 110-055, 121 Stat. 522. The Act amends FISA, and substantially expands the

statutory authority of the government to wiretap communications without warrants or any similar

meaningful judicial oversight, and without probable cause of criminal activity.

       6.      Under the new law, the Attorney General and the Director of National

Intelligence have the authority to establish procedures and to authorize, for periods up to one


                                                  2

year and without judicial oversight, "the acquisition of foreign intelligence information

concerning people reasonably believed to be outside the United States." 50 U.S.C. §§ 1805A,

1805B. The term "foreign intelligence information" was previously defined by FISA, and

includes "information with respect to a foreign power or foreign territory that relates to, and if

concerning a United States person is necessary to[,] the national defense or the security of the

United States; or [] the conduct of the foreign affairs of the United States." 50 U.S.C. § 1801(e).

       7.      To authorize such acquisition, the DNI and AG must "determine" that the

surveillance is "directed at a person reasonably believed to be outside the United States" (or

otherwise does not constitute "electronic surveillance" under FISA) and that "a significant

purpose of the acquisition is to obtain foreign intelligence information." The DNI and the AG

must also establish what they "determine" to be "reasonable procedures" to ensure that such

acquisition "concerns persons reasonably believed to be located outside the United States." 50

U.S.C. §§ 1805B(a), 1805A. This "determination" is to be reduced to a written certification,

supported by affidavit of "appropriate officials in the national security field," but is "not required

to identify any specific facilities, places, premises, or property at which the acquisition of foreign

intelligence information will be directed." 50 U.S.C. § 1805B(a),(b). The DNI and the AG need

not find probable cause that the target of the surveillance is a "foreign agent" as defined in FISA

or is involved in any criminal activities whatsoever.        A copy of this certification is then

transmitted to the FISA court, where it is to remain sealed, hidden away from judicial review,

unless the certification is "necessary to determine the legality of the acquisition." 50 U.S.C. §

1805B(c).

       8.      The Act remains in effect for only 180 days from the date of passage. The AG has

up to 120 days after the effective date of the act to submit the procedures established under 105B


                                                  3

to the Foreign Intelligence Surveillance Court (FISC). The FISC shall then review them to assess

whether the AG and DNI's determination that those procedures are "reasonably designed" to

avoid acquisitions constituting electronic surveillance is "clearly erroneous." Id. § 1805C(b). As

a practical matter, no meaningful judicial review of the "reasonable procedures" exists. Even if

the FISC were to act promptly and reject the government's procedures, the government has

another 30 days to respond with new procedures.

          9.    As noted in paragraph 6, the surveillance may be authorized for up to one year.

Any authorizations in effect at the time the law expires in 180 days will not be affected by the

termination of the law. Pub. L. No. 110-055, 121 Stat. 522, Section 6(d). This allows the

government to engage in warrantless surveillance under the law not only for the 180 days that it

is in effect, but for another year for authorizations put in place shortly before the Act is about to

expire.

          10.   Thus, the content of private communications of people within the U.S. may be

monitored without a warrant, so long as that person in the U.S. is not the target (even if the target

outside the U.S. is a U.S. citizen). Warrantless surveillance is authorized without any showing of

probable cause of illegal activity or that the target is an agent of a foreign power. No procedures

exist to safeguard confidential attorney-client communications, nor any other privileged

communications. (While minimization procedures are alluded to, see 50 U.S.C. § 1805B(5),

there is no requirement that such procedures be judicially supervised, and the adequacy of the

minimization procedures is outside the purview of the limited judicial review provided for by

§ 1805C(b).)


                                                 4

EFFECT OF NEW STATUTORY SCHEME ON PLAINTIFFS

       11.     Plaintiffs' professional obligations require them to engage in telephonic and email

communications with individuals outside the U.S., including attorneys who are U.S. citizens.

Plaintiffs have a reasonable expectation of privacy in such conversations.

       12.     The newly enacted statutory scheme permits Defendants to conduct electronic

surveillance of plaintiffs' attorney-client conversations without a showing of probable cause that

plaintiffs or their clients are engaged in criminal activity, without a warrant, and without any

meaningful judicial oversight..

       13.     The new law directly interferes with plaintiffs' ability to carry out their

professional ethical duties of confidentiality and advocacy for their clients.

                                     CLAIMS FOR RELIEF

                                   FIFTH CLAIM FOR RELIEF
                                  (Fourth Amendment violations)

       13.     Plaintiffs incorporate each and every allegation contained in the preceding

paragraphs and in the original Complaint as if set forth fully herein.

       14.     The Protect America Act of 2007 violates the Fourth Amendment by authorizing

Defendants to carry out unreasonable surveillance of Plaintiffs' private telephone and email

communications with their clients and witnesses without probable cause or a warrant.


                                  SIXTH CLAIM FOR RELIEF
                                  (First Amendment Violations)

       15.     Plaintiffs incorporate by reference each and every allegation contained in the

preceding paragraphs and the original Complaint as if set forth fully herein.

       16.     The Protect America Act of 2007 violates the First Amendment by authorizing

Defendants to carry out warrantless surveillance of Plaintiff's attorney-client communications,

                                                  5

thereby impairing Plaintiffs' ability to freely provide legal advice, to join together in an

association for the purpose of legal advocacy, to freely form attorney-client relationships, to

vigorously advocate for clients and to petition the government for redress of grievances all of

which are modes of expression and association protected under the First Amendment to the

United States Constitution.

                                     PRAYER FOR RELIEF

Plaintiffs respectfully request that the Court:

(a.)   Declare the newly enacted amendments to the FISA that allow Defendants to engage in

       warrantless surveillance without probable cause unconstitutional as applied to Plaintiffs'

       attorney-client and professional communications, and enjoin any further such warrantless

       surveillance;

(b.)   Order that all Defendants turn over to Plaintiffs all information and records in their

       possession relating to Plaintiffs that were acquired through warrantless surveillance or

       were the fruit of any warrantless surveillance, and subsequently destroy any such

       information and records in Defendants' possession;

(c.)   Award costs, including an award of attorneys' fees under the Equal Access to Justice Act,

       28 U.S.C. § 2412(d)(1)(A);

(d.)   Award such other relief as the Court may deem just and proper.

                                                  Respectfully submitted,

                                                  _____/s/Shayana Kadidal______________
                                                  Shayana Kadidal
                                                  Michael Ratner
                                                  CENTER FOR CONSTITUTIONAL RIGHTS
                                                  666 Broadway, 7th Floor
                                                  New York, NY 10012-2317
                                                  (212) 614-6438




                                                     6

                         CCR Cooperating Counsel:
                         David Cole
                         c/o Georgetown University Law Center
                         600 New Jersey Avenue, N.W.
                         Washington, D.C. 20001
                         (202) 662-9078

                         Michael Avery
                         J. Ashlee Albies
                         NATIONAL LAWYERS GUILD
                         c/o Suffolk Law School
                         120 Tremont Street
                         Boston, MA 92108
                         (617) 573-8551

                         counsel for Plaintiffs
Dated: August 10, 2007




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