No Easy Answers
Tuesday, July 22, 2008
Government Declaration re: Bill Gertz's Reporter Privilege [Doc 757-2]
In the "Gertz must testify as to who his government sources were" case ...
The Bratt Declaration, which the government fought to maintain under seal.
See "Justice Dept. Balks in Case of Reporter" by Josh Gerstein of the New York Sun.
Obviously, an OCR Job.
Case 8:05-cr-00293-CJC Document 757-2 Filed 07/11/2008 Page 1 of 6
_.. . FILEO - SOUTHERN olvl lo_
. . CLERK, U.S. OISTAICT C URl
l 7AY I BRATT
seeclal Attorney to the Attorney General . .Rp | |_8
2 I linois Bar No. 6187361
National Security Division
3 950 Pennsylvania Avenue, NW CEN RAL ST | OFCAL ORNIA
Telephone: xxxxx
4 Facslmil� xxxxx
E-mail address: xxxxx
5
Attorney f y Plaintiff
u_t_4.st es of America .__
7 _ __ UNITED STATES DISTRICT COURT ?_. .. r_ _
8 _ __�_�_ F R THE CENTRAL DISTRICT OF CALIFORNIA _ ___'_` _ g
t ___ ___�i_. _ __
9 \__ SOUTHERN DIVISION __-. ,
_.'`.'_�o U_TE____ A ES O.F AMERICA, ) SA CR No. 05-293(B)- 7 ___ _(__
11 _ - '__ _ PlaintiEf, _ (UNDER SEAL) ___-: _ _
.-' ._ ) __ '_- _ bk
12 v. EX PARTE AND rN CANE __�.! _u v
DECLARATION OF 7AY I. i _
13 CHI MAK, et al., ) BRATT IN SUPPORT OF
. ) MOTION TO CONTINUE
14 DeEendants. ) HEARING DATE AND TO SET
NEW BRIEFING SCHEDULE
15
16 Pursuant to 28 u.s.c. Q 1746, Jay I. Bratt declares
17 as follows:
18 l. I am the ChieE of the Litigation Section of the
19 OfEice of Intelligence, NationaV Security Division,
20 United States Department of Justice ("DOI") . In
21 7anuary 2007, I was appointed a Special AttorneY to the
22 AttorneY General to investigate the possible leaks of
23 classiEied information and grand jurY inEormaCion in
24 certain publications written by wiVliam Gertz, which
25 included an article by Mr. Geytz that appeared in The
26 Wdshington Times on May 16, 2006, titled "New Charges
27 Expected in Defense Data Theft Ring." In thi.s___r_l_.___
28 reporC to the Attorney General throu�___.|________'!d._..______"v_q `
' _-. JUL. | i 2_08
Case 8:05-cr-00293-CJC Document 757-2 Filed 07/11/2008 Page 2 of 6
l States Attorney for the District of Columbia and the
2 Assistant Attorney General Eor the National SecuritY
3 Division. At the time of my appointment, I was an
4 Assistant United States AttorneY in the District of
5 Columbia, and I have maintained responsibility for this
6 matter in my current position. I am a member of good
7 standing oE the bar oE the State oE Illinois, and I
8 have been an attorney with DO7 since Iuly 1990.
9 2. I submit this declaration ex pdrte and in
10 cdmerd because it contains information pertaining to
11 matters that may occuy before the grand jurY in the
12 government's ongoing investigation oE the leaks,
13 because it references internal deliberations within
14 DO(7, and because it references prior communicaCions
15 with the Court that remain under seal. I do not
16 address anything related to the merits of the arguments
|7 that Mr. Gertz has advanced in support oE his motion to
18 quash the subpoena that the Court issued to him on
19 April 30, 2008.
20 3. Since assuming responsibility Eor this matter,
21 I have met with the Court on three occasions to provide
22 updates on the progress of the government's
23 investigation. These meetings occuyred on February 16,
24 2007, _uly 2q, 2007, and April 21, 2008. At each of the
2s meetings, one topic of discussion was the Court's
26 issuing a subpoena for Mr. Gertz to testifY in che
27
28 2
Case 8:05-cr-00293-CJC Document 757-2 Filed 07/11/2008 Page 3 of 6
l event that the government's investigation did not
2 reveal the souyce of the leak of the grand jurY
3 information in the May 16, 2006, article by Mr_ Gertz
4 and the government had not yet received authorization
s to subpoena Mr. Gertz to the grand jury to reveal his
6 source(s) for the inEormation. During the 7u1y 24,
7 2007, meeting, che Court inquired whether, if it issued
8 a subpoena for Mr. Gertz, the government would be able
. 9 to be a full participant in anY resulting proceedings.
10 I agreed to provide the Court with an answer to that
11 question.
12 4. In the fall of 2007, I began the process of
13 getting authorization for a grand jury subpoena for Mr.
14 Gert2. Pursuant to 28 C.F.R Q 50.10, any subpoena to a
ls membey of Che media requires the approval of the
l� AttorneY General. In mY submission to the component
17 within DOJ responsible for reviewing media subpoenas, I
18 requested authority both to subpoena Mr. Gertz to t.he
19 grand jury to question him about the source(s) of the
20 leaked information and to participate in any proceeding
21 that the Court initiated to subpoena Mr. Gertz. with
22 respect to the laCter reguest, the component advised me
23 that Attorney General approval was not necessary when
2q the court initiated the proceeding and sought to compel
25 a member of the media to testify. I asked for
26 clarification as to whether mY abilitY to participate
27
28 3
Case 8:05-cr-00293-CJC Document 757-2 Filed 07/11/2008 Page 4 of 6
l in the court proceeding would include questioning the
2 reporter at anY hearing, responding to a motion to
3 quash the subpoena, handling any resulting contempt
4 proceedings, and handling any appeaVs. I was informed
5 that I could participate to the extent described in the
6 preceding sentence. I advised the persons to whom I
7 report oE this decision. I was subsequentlY authorized
8 to inform the Court that the government could
9 participate Eully in any proceeding that resulted from
10 a subpoena thac the Court issued to Mr. Gertz. I so
11 informed the Court during our meeting on ApriV 21,
12 2008 .
13 5. On April 30, 2008, the Court issued its
14 subpoena to Mr. Gertz. On Iune 5, 2008, Mr. Gertz,
15 thyough counsel, Eiled a motion to quash the Court's
16 subpoena.
17 6. I and another DO7 attorney prepared a response
18 to Mr. Gertz's motion. In advance oE the oyiginal due
19 dace Eor the government's brief, we circulated the
20 response among our superiors and among persons within
21 DOlf who have an expertise in this area, in part to
22 ensure that the positions we were taking were
23 consistent with those advanced in oCher cases_ we were
24 advised that this matter raises a number oE issues that
25 reguire further consideration within DO7. These issues
26 incVude whether, both on legal and policY grounds, the
27
28 4
Case 8:05-cr-00293-CJC Document 757-2 Filed 07/11/2008 Page 5 of 6
l government can support an inves.tigaCory proceeding that
2 the Court has initiated and whether grand jury
3 subpoenas are a better alternative manner in which to
4 proceed. In addition, senior DO(T oEficials have
5 decided that, in light of the sensitivities of this
� case, the ACtorney General should approve the
7 government's continued payticipaCion in the Court-
8 initiated proceeding. The Attorney General will now
9 also consider whether the government can issue grand
10 jurY subpoenas to Mr. GerCz. In light of these
11 developments, we sought and obtained a stipulation from
12 Mr. Gertz's counsel extending che date of the
13 government's response to his motion to July 10, 2008.
14 At the time, we advised counsel for Mr. Gertz in verY
ls geneyal terms that there were some issues that the
16 government had to address, but we provided the counsel
17 with none oE Che details described above.
18 7. The government's believes that it will need 30
19 more days to resolve these issues within DOJ, which
20 would result in the government Eiling any response bY
21 August 11, 2008. If more time is needed, the
22 government will advise the CourC at least one week
23 before the new due date Eor the government's brief.
24 Because August 11 is aEter the currently scheduled
25 hearing date oE July 24, 2008, the government is also
26
27
28 5
Case 8:05-cr-00293-CJC Document 757-2 Filed 07/11/2008 Page 6 of 6
l seeking to continue the hearing date until September
2 23, 2008 .
3 I declare under penaltY of perjurY that the
4 foregoing is true and correct.
5
7a . att
6
Friday, July 18, 2008
Hamdan To be Tried in Military Court - Judge Robertson
Source:
https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2004cv1519-108
Excellent summary by Lyle Denniston at SCOTUSblog.
"Judge:
“World’s eyes on Guantanamo”; Lawyers: no appeal now
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SALIM AHMED HAMDAN, :
:
Plaintiff, :
:
v. : Civil Action No. 04-1519 (JR)
:
ROBERT GATES, :
:
Defendant. :
MEMORANDUM ORDER
Salim Ahmed Hamdan seeks a preliminary injunction that
would stop his trial by military commission pending federal court
review of the Military Commission's determination that he is an
unlawful enemy combatant and of his claims that the trial will
violate the Constitution and the Geneva Conventions.
I. Background
A. Procedural History
Hamdan is a Yemeni national. He was captured by
militia forces in Afghanistan in November 2001 and turned over to
the United States military. Since June 2002, he has been held at
the Defense Department's detention facility at Guantanamo Bay.
One year into his detention at Guantanamo, in July 2003, the
President declared him eligible for trial by military commission
on unspecified charges. In April 2004, Hamdan filed a petition
for mandamus or habeas corpus in the United States District Court
for the Western District of Washington. On July 13, 2004, two
years and eight months into his detention, Hamdan was formally
charged with single count of conspiracy "to commit . . . offenses
triable by military commission." In August 2004, his habeas
petition was transferred to the District of Columbia and randomly
assigned to me.
Around the same time, in July 2004, in compliance with
the Supreme Court's decision in Hamdi v. Rumsfeld, 542 U.S. 507
(2004), the Deputy Secretary of Defense established Combatant
Status Review Tribunals (CSRTs) to determine whether detainees at
Guantanamo are "enemy combatants." Hamdan was classified as a
enemy combatant by a CSRT on October 2, 2004, and designated for
trial before a military commission.
On November 8, 2004, I granted Hamdan's habeas
petition. Hamdan v. Rumsfeld, 344 F. Supp. 2d 152 (D.D.C.
2004). ^1 The Supreme Court generally sustained my decision, ^2
holding that Hamdan could not be lawfully tried by a military
tribunal convened only by executive order and that the structure
and procedures of the military commission then in place violated
both the Uniform Code of Military Justice and the Geneva
1
Contrary to the government's insistence that habeas is
solely concerned with release, Opp. Memo. at 16-17, this grant of
a petition for habeas corpus did not involve Hamdan's release.
2
The Court ignored my conclusion that Hamdan should be put
before a tribunal that would determine whether he was a prisoner
of war.
- 2 -
Conventions. Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2759 (2006).
Four justices, in a plurality opinion, also concluded that the
only offense Hamdan was then charged with � conspiracy � was not
a violation of the law of war and thus not triable by military
commission. Id. at 2780.
Four justices (not the same four) noted in Hamdan that
"[n]othing prevents the President from returning to Congress to
seek the authority he believes necessary" in order lawfully to
try enemy combatants before a military tribunal. Id. at 2799.
The President accepted that invitation and, in October 2006,
Congress enacted the Military Commissions Act, Pub. L. No.
109-366, 120 Stat. 2600. In Section 3(a)(1) of that Act,
codified at 10 U.S.C. � 948d(a), Congress gave military
commissions jurisdiction to try "alien unlawful enemy
combatant[s]."
Under the Act, a military commission is made up of at
least five officers, 10 U.S.C. �� 948i, 948m, and is presided
over by a military judge, 10 U.S.C. � 948j. Many of the
procedures for an MCA commission parallel those that had been
established by the President's order. Before and after passage
of the MCA, the applicable rules have required that the defendant
be represented by appointed military counsel and have the ability
to retain private counsel (as Hamdan has), that he be informed of
the charges against him, that he be presumed innocent until
- 3 -
proven guilty beyond a reasonable doubt, that he receive (with
important qualifications) the evidence that the prosecution
intends to produce at trial and any known exculpatory evidence,
that he not be required to testify at trial, and that he be
allowed to present evidence and cross-examine witnesses. 32
C.F.R. �� 9.3 - 9.6; 10 U.S.C. �� 948k, 949a, 949c, & 949l.
The procedures codified by the MCA also include
significant improvements. Previously, the accused could be
excluded from the proceedings, and evidence admitted against him
without his knowledge. 32 C.F.R. �� 9.6(b)(3), (d)(5). The MCA
repairs that problem by requiring the presence of the defendant
unless, after being warned, he persists in conduct that justifies
his exclusion in order to protect the safety of others or to
avoid disrupting the proceedings. 10 U.S.C. �� 949d(b), (e).
While the MCA adopts fairly permissive standards allowing for the
use of hearsay and requires the party opposing admission to prove
unreliability, whenever the government intends to use hearsay, it
must notify the defendant "sufficiently in advance to provide the
adverse party with a fair opportunity to meet the evidence" and
must explain "the particulars of the evidence (including
information on the general circumstances under which the evidence
was obtained)." 10 U.S.C. � 949a(b)(2)(E)(ii).
The curtailment of confrontation rights through the
broad allowance of hearsay is one of a number of ways in which
- 4 -
MCA commissions depart from standards that would be applied in
either U.S. criminal trials or courts-martial. Another
departure, and a startling one, is that under 10 U.S.C.
� 948r(c), evidence obtained by "coercion" may be used against
the defendant so long as the military judge decides that its
admission is in the interest of justice and that it has
"sufficient" probative value. Compare Chambers v. Florida, 309
U.S. 227 (1940) (reversing conviction and excluding evidence
obtained through five days of coercive interrogation).
That said, one of the most substantial improvements
under the MCA is in the structure for review of convictions.
Before the MCA, the President himself, or the Secretary of
Defense acting at his direction, was vested with final reviewing
authority. There was no provision for independent review outside
the military's chain of command. Under the MCA, defendants
convicted by military commission are afforded three levels of
appellate review. A defendant may first appeal his conviction to
a Court of Military Commission Review (CMCR), comprised of at
least three military judges or civilians with "comparable
qualifications" appointed by the Secretary of Defense. 10 U.S.C.
� 950f. After exhausting (or waiving) proceedings before the
CMCR, the defendant has an appeal of right to the D.C. Circuit,
which has "exclusive jurisdiction to determine the validity of a
final judgment rendered by a military commission." 10 U.S.C.
- 5 -
� 950g. The Court of Appeals has jurisdiction to review all
"matters of law" in order to consider "whether the final decision
was consistent with the standards and procedures specified" in
the MCA and with "the Constitution and laws of the United
States." 10 U.S.C. �� 950g(a)-(c). Finally, 10 U.S.C. � 950g(d)
provides that the Supreme Court may review the final judgment of
the Court of Appeals on a writ of certiorari, in accordance with
28 U.S.C. � 1257.
Except for its provision "channeling" appellate review
of final judgments to the D.C. Circuit, the MCA was clearly
designed to keep enemy combatants away from the federal courts:
section 7 of the MCA unambiguously stripped Article III courts of
their jurisdiction to consider habeas petitions filed by enemy
combatants. It was in compliance with Section 7 that I dismissed
Hamdan's petition for habeas corpus on December 13, 2006:
Congress had stripped federal courts of their statutory habeas
jurisdiction, and I thought that precedent required that I refuse
a "constitutional" writ of habeas corpus to an alien detained at
Guantanamo Bay. Hamdan v. Rumsfeld, 464 F. Supp. 2d 9 (D.D.C.
2006). That belief turned out to be incorrect. The Supreme
Court, in Boumediene v. Bush, 128 S. Ct. 2229 (2008), decided
last month that Section 7 was unconstitutional. The Court held
that the Suspension Clause, Art. I, � 9, cl. 2 of the
Constitution, "has full effect at Guantanamo Bay," and that the
- 6 -
Boumediene petitioners "are entitled to the privilege of habeas
corpus to challenge the legality of their detention." Id. at
2262.
While these developments were moving forward in
Congress and the courts, Hamdan's military commission moved
forward, as well, although not without difficulty. On April 5,
2007, the Convening Authority authorized two new charges against
Hamdan, both of which had recently been "codified" under the MCA.
Charge I was, and is, for conspiracy in violation of 10 U.S.C.
� 950v(b)(28); Charge II is for providing material support for
terrorism in violation of 10 U.S.C. � 950v(b)(25). On June 4,
2007, the military judge presiding over Hamdan's Commission
dismissed those charges, for lack of jurisdiction, because Hamdan
had been classified by CSRT only as an "enemy combatant" and not
as an "unlawful enemy combatant." The government moved for
reconsideration and for the military judge to hear evidence and
decide for himself whether Hamdan was lawfully triable under the
MCA. The motion was granted and, as a result of hearings held on
December 5 and 6, 2007, the military judge issued an opinion
finding Hamdan to be an unlawful enemy combatant. In that same
opinion, issued on December 19, 2007, the judge also rejected a
number of constitutional arguments � Hamdan's ex post facto, bill
of attainder and equal protection challenges � relying on the
D.C. Circuit's now-vacated opinion in Boumediene v. Bush, 476
- 7 -
F.3d 981 (D.C. Cir. 2007), which had held that detainees at
Guantanamo have no cognizable constitutional rights. Id. at 992.
Hamdan's trial by military commission is scheduled to
begin on July 21, 2008.
B. Hamdan's Motion for Preliminary Injunctive Relief
Hamdan argues that the Commission lacks personal
jurisdiction over him and lacks subject matter jurisdiction over
the crimes for which he has been charged.
As to personal jurisdiction, Hamdan begins with the
unassailable fact that the MCA limits trial by military
commission to those who have been determined to be unlawful enemy
combatants. Although he was so classified by the Commission in
December 2007, Hamdan argues that the Commission may not proceed
against him based on a status determination that has not been
reviewed by a federal court. Under Hamdan's reading of
Boumediene, detainees' now-recognized constitutional right to
challenge the legality of their detention in habeas means that
trial by military commission cannot proceed before there has been
a full habeas hearing in federal court to test a finding of
unlawful enemy combatancy, whether made by a CSRT or by a
military commission.
As to subject matter jurisdiction, Hamdan argues that
the Commission lacks power to proceed because the charges filed
- 8 -
against him violate the Constitution's ex post facto, define and
punish, and bill of attainder clauses. He also asserts that the
MCA violates the equal protection component of Fifth Amendment
due process by subjecting only aliens to trial by military
commission, and that the Commission's potential allowance of
certain kinds of hearsay evidence and evidence obtained through
coercion will violate his Geneva Convention and due process
rights.
The government argues that as a result of a provision
in Section 3(a)(1) of the Military Commissions Act, codified at
10 U.S.C. � 950j(b), this Court lacks jurisdiction to decide
Hamdan's claims and that, even if jurisdiction does exist, "the
comity-based abstention doctrine recognized in [Schlesinger v.
Councilman, 420 U.S. 738 (1975)] . . . require[s] this Court to
stay its hand until the completion of the military commission
process." Opp. Memo. at 9. Aside from any claims based on the
Geneva Conventions, the government stresses that each claim that
Hamdan has raised is "fully cognizable on direct review [by the
D.C. Circuit] if he is convicted by military commission." ^3 Id.
at 22.
3
The MCA purports to bar defendants from asserting defenses
or invoking rights based on the Geneva Conventions. See 10 U.S.C.
� 948b(g). Should Hamdan be convicted, nothing in the MCA bars
him from asserting on appeal, as he does in this motion, that �
948b(g) violates the Supremacy Clause and the separation of
powers. See United States v. Klein, 80 U.S. 128 (1872).
- 9 -
II. Analysis
A. It is not necessary to decide Hamdan's claim that Section
3(a)(1) of the MCA is an unconstitutional suspension of habeas
corpus.
Except as otherwise provided in this chapter
and notwithstanding any other provision of law
(including section 2241 of title 28 or any
other habeas corpus provision), no court,
justice, or judge shall have jurisdiction to
hear or consider any claim or cause of action
whatsoever, including any action pending on or
filed after the date of the enactment of the
Military Commissions Act of 2006, relating to
the prosecution, trial, or judgment of a
military commission under this chapter,
including challenges to the lawfulness of
procedures of military commissions under this
chapter.
10 U.S.C. � 950j(b). Hamdan insists that this provision does not
bar challenges to the Commission's jurisdiction, even though on
its face it is plainly a jurisdiction-stripping provision. ^4
Instead, he argues, it "merely codifies, in the context of the
MCA, the prudential rule that civilian courts lack supervisory
jurisdiction over military tribunals." Pet.'s Memo. at 14.
Hamdan's strained reading of � 950j(b) cannot be squared with the
language that withdraws jurisdiction over "any claim or cause of
action whatsoever . . . relating to prosecution, trial or
judgment of a military commission," and it ignores the context of
the provision within the MCA, which was intended to deprive the
federal courts of all habeas jurisdiction over Guantanamo.
4
The government euphemistically calls this section a
"review channeling provision."
- 10 -
Hamdan next argues that, if and to the extent that
� 950j(b) does strip this Court of jurisdiction, either to
challenge the MCA tribunal's jurisdiction or to deal with his
other constitutional claims about the Commission, it "violate[s]
the Suspension Clause by precluding access to the Great Writ
without providing an adequate, alternative remedy." Pet.'s Memo.
at 15.
That argument presents important constitutional
questions that I need not, and therefore will not, attempt to
answer. "If there is one doctrine more deeply rooted than any
other in the process of constitutional adjudication it is that we
ought not to pass on questions of constitutionality . . . unless
such adjudication is unavoidable." Spector Motor Service, Inc.
v. McLaughlin, 323 U.S. 101, 105 (1944). The Supreme Court did
not abstain from the Suspension Clause issue in Boumediene, but
the Supreme Court is the Supreme Court. Moreover, the context in
which the issue is presented here is quite different.
First, the application of habeas corpus that Hamdan
wishes to advance here is different from the one recognized in
Boumediene. Boumediene dealt with a challenge to detention.
Hamdan insists in his reply brief that he also challenges his
detention, but the gist of the challenge presented in this motion
for preliminary injunction is to the jurisdiction of the Military
Commission, an issue farther removed from the "historical core"
- 11 -
of the Writ than was the case in Boumediene. See INS v. St. Cyr,
533 U.S. 289, 301 (2001)("At its historical core, the writ of
habeas corpus has served as a means of reviewing the legality of
executive detention, and it is in that context that its
protections have been strongest.") (emphasis added).
Second, unlike the petitioners in Boumediene, Hamdan
has had a CSRT and a two-day jurisdictional hearing before the
Commission, at which he was represented by counsel, and will now
have a fully adversarial trial that will provide a further test
of the premise of his detention. As Justice Kennedy observed in
Boumediene, "habeas corpus review may be more circumscribed if
the underlying detention proceedings are more thorough than they
were here." 128 S. Ct. at 2270. The Boumediene petitioners'
right to immediate habeas hearings was tied to the fact that
"there has been no trial by a military commission for violations
of the laws of war" nor had there been "a rigorous adversarial
process to test the legality of their detention." Id. at 2259-
60.
Unlike the detainees in Boumediene, Hamdan has been
informed of the charges against him and guaranteed the assistance
of counsel. He has been afforded discovery. He will be able to
call and cross-examine witnesses, to challenge the use of
hearsay, and to introduce his own exculpatory evidence. He is
entitled to the presumption of innocence. And, most importantly,
- 12 -
if Hamdan is convicted, he will be able to raise each of his
legal arguments before the D.C. Circuit, and, potentially, the
Supreme Court.
The question of whether section � 950j(b) violates the
Suspension Clause is both novel and complex. It is by no means
controlled by the four corners of Boumediene. What must be
considered is "whether there are suitable alternative processes
in place to protect against the arbitrary exercise of government
power." Id. at 2275. "What matters is the sum total of
procedural protections afforded to the detainee at all stages,
direct and collateral." Id. at 2269.
As an example of the complexity of the question
presented by Hamdan's Suspension Clause challenge, and the
inadvisability of attempting to decide it now, consider that a
traditional function of a habeas court is to "allow[] prisoners
to introduce exculpatory evidence that was either unknown or
previously unavailable to the prisoner" at the time that the
Executive made the decision to detain. Id. at 2267. Because the
MCA provides that the D.C. Circuit's jurisdiction on direct
review is limited to "matters of law," it appears that the Court
of Appeals would be barred from considering a claim of innocence
based on previously unavailable evidence. Whether the
constitution entitles Hamdan to raise such a claim collaterally,
in habeas, is an entirely speculative question at this point,
- 13 -
first, because such claims may not actually arise, and, second,
because the question cannot be answered without accessing how
much procedure Hamdan did, in fact, actually receive. Compare
Boumediene, 128 S. Ct. at 2272 ("an opportunity for the detainee
to present relevant exculpatory evidence that was not made part
of the record in the earlier proceedings" is "constitutionally
required in this context" where "the underlying detention
proceeding lack[s] the necessary adversarial character") with In
re Yamashita, 327 U.S. 1, 8 (1946) ("[O]n application for habeas
corpus we are not concerned with the guilt or innocence of the
petitioners. We consider here only the lawful power of the
commission to try the petitioner for the offense charged.").
B. Abstention is appropriate � or required � as to the merits of
Hamdan's claims.
Hamdan's focus now is not on post-trial habeas, of
course. What he seeks is pre-trial relief to avoid being
subjected to a trial that, in his submission, will be unlawful.
His claims of unlawfulness, however, are all claims that should
or must be decided in the first instance by the Military
Commission, and then raised before the D.C. Circuit, as
necessary, on appeal. The Supreme Court's decision in Councilman
requires federal courts to give "due respect to the autonomous
military judicial system created by Congress." New v. Cohen, 129
F.3d 639, 643 (D.C. Cir. 1997). Councilman involved court-
- 14 -
martial proceedings against a U.S. service member, to be sure,
and not a military commission, but its central rationale is
applicable here. Councilman requires the courts to respect the
balance that Congress has struck in creating a military justice
system, "a critical element of which is the Court of Military
Appeals consisting of civilian judges completely removed from all
military influence or persuasion." 420 U.S. at 758.
Considerations of comity were inapplicable when Hamdan's petition
was first before me in 2004 because, as I said then, "whatever
can be said about the Military Commission established under the
President's Military Order, it is not autonomous, and it was not
created by Congress." Hamdan, 344 F. Supp. 2d at 157. With the
enactment of the MCA, that is no longer the case: "Hamdan is to
face a military commission . . . designed . . . by a Congress
that . . . act[ed] according to guidelines laid down by the
Supreme Court." Hamdan, 464 F. Supp. 2d at 18. Additionally,
because the MCA gives Hamdan an appeal of right to an Article III
court, direct review will be even more "removed from all military
influence or persuasion" than in Councilman.
The long-standing exception to Councilman abstention is
that defendants may raise, pre-trial, "substantial arguments that
a military tribunal lacks personal jurisdiction over them,"
Hamdan, 126 S. Ct. at 2772 n.20, but I find no "substantial
argument" about jurisdiction in this case. Hamdan urges that the
- 15 -
military judge "made a finding of unlawful enemy combatancy in
December 2007 based on a misapplication of relevant law," by
failing to address the merits of his constitutional arguments, by
misapplying the Geneva Conventions, and by denying him the
ability to call certain exculpatory witnesses. Pet.'s Memo. at
24. But Hamdan's summary assertion of these claims does not
automatically make his jurisdictional challenge a substantial
one. Hamdan does not explain how the applicable jurisdictional
standards contained in 10 U.S.C. � 948a(1) were violated by the
military judge's application of law to the facts adduced at the
December 2007 jurisdictional hearing. The absence of a full-
scale habeas hearing as to Hamdan's classification as an unlawful
enemy combatant does not, by itself, raise a substantial question
about the Commission's jurisdiction to proceed. Moreover, under
the D.C. Circuit's recent decision in Khadr v. United States, No.
07-1405, 2008 U.S. App. LEXIS 13285 (June 20, 2008), all of
Hamdan's jurisdictional arguments can be addressed, if necessary,
following final judgment in accordance with � 950g. Where both
Congress and the President have expressly decided when Article
III review is to occur, the courts should be wary of disturbing
their judgment.
- 16 -
Conclusion
I find that Hamdan's chances of prevailing on the
merits of his prayer for injunctive relief are uncertain; that he
has shown no public interest reason for an injunction, see Khadr,
2008 U.S. App. LEXIS at *15; that the disruption that would be
caused by a last-minute delay of his trial would be significant;
and that the irreparable injuries he asserts do not outweigh the
other preliminary injunction factors.
The eyes of the world are on Guantanamo Bay. Justice
must be done there, and must be seen to be done there, fairly and
impartially. But Article III judges do not have a monopoly on
justice, or on constitutional learning. A real judge is
presiding over the pretrial proceedings in Hamdan's case and will
preside over the trial. He will have difficult decisions to
make, as judges do in nearly all trials. The questions of
whether Hamdan is being tried ex post facto for new offenses,
whether and for what purposes coerced testimony will be received
in evidence, and whether and for what purpose hearsay evidence
will be received, are of particular sensitivity. If the Military
Commission judge gets it wrong, his error may be corrected by the
CMCR. If the CMCR gets it wrong, it may be corrected by the D.C.
Circuit. And if the D.C. Circuit gets it wrong, the Supreme
Court may grant a writ of certiorari.
- 17 -
The motion for preliminary injunction, [Dkt. # 92], is
denied.
JAMES ROBERTSON
United States District Judge
- 18 -
Thursday, July 03, 2008
Al-Haramain v. Bush - Judge Walker Opinion on FISA [Doc 453]
Source:
http://www.eff.org/files/Al-HaraFISA-order.pdf
Article: New NSA Spying Decision Undermines Arguments for Telecom Immunity
Case M:06-cv-01791-VRW Document 453 Filed 07/02/2008 Page 1 of 56
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
IN RE: MDL Docket No 06-1791 VRW
NATIONAL SECURITY AGENCY ORDER
TELECOMMUNICATIONS RECORDS
LITIGATION
This order pertains to:
Al-Haramain Islamic Foundation et
al v Bush et al (C-07-0109 VRW),
/
The court of appeals has remanded the above case for this
court "to consider whether FISA preempts the state secrets
privilege and for any proceedings collateral to that
determination." Al-Haramain Islamic Foundation, Inc v Bush, 507
F3d 1190, 1206 (9th Cir 2007).
Plaintiffs' complaint alleges six causes of action of
which the first is under the Foreign Intelligence Surveillance Act,
50 USC �� 1801-71 ("FISA"). In that claim, plaintiffs allege in
pertinent part:
Defendants' engagement in electronic surveillance to
monitor conversations between and among plaintiffs as
targeted persons without obtaining prior court
authorization, and defendants' subsequent use of the
information obtained against plaintiffs, is in
violation of the civil and criminal provisions of
Case M:06-cv-01791-VRW Document 453 Filed 07/02/2008 Page 2 of 56
FISA. As a result, all evidence obtained by this
illegal surveillance must be suppressed pursuant to
50 USC � 1806(g). Further, plaintiffs are entitled
to liquidated and punitive damages pursuant to 50 USC
� 1810.
Complaint, Al-Haramain Islamic Foundation, Inc v Bush, No C 06-0274
KI Doc # 1 � 27, United States District Court for the District of
Oregon, filed February 28, 2006.
Plaintiffs' other causes of action are for alleged
violations of the "separation of powers" principle in the
Constitution, the First, Fourth and Sixth amendments and the
International Covenant on Civil and Political Rights. But it is to
plaintiffs' FISA claims that the parties have directed their
arguments and the court of appeals its attention. All of
plaintiffs' claims would appear to depend on FISA. This order,
therefore, devotes itself exclusively to FISA and the question
posed by the court of appeals remand.
For the reasons stated herein, the court has determined
that: (1) FISA preempts the state secrets privilege in connection
with electronic surveillance for intelligence purposes and would
appear to displace the state secrets privilege for purposes of
plaintiffs' claims; and (2) FISA nonetheless does not appear to
provide plaintiffs a viable remedy unless they can show that they
are "aggrieved persons" within the meaning of FISA. The lack of
precedents interpreting the remedial provisions of FISA, the
failure of the parties to consider the import of FISA preemption
and the undeveloped factual record in this case warrant allowing
plaintiffs to attempt to make that showing and, therefore, support
dismissal of the FISA claim with leave to amend.
\\
2
Case M:06-cv-01791-VRW Document 453 Filed 07/02/2008 Page 3 of 56
I
Plaintiffs are the Al-Haramain Islamic Foundation, Inc, an
Oregon non-profit corporation, and two of its individual attorneys,
Wendell Belew and Asim Ghafoor, both United States citizens
("plaintiffs"). Plaintiffs brought suit in the United States
District Court for the District of Oregon against "George W Bush,
President of the United States, National Security Agency, Keith B
Alexander, its Director, Office of Foreign Assets Control, an office
of the United States Treasury, Robert W Werner, its Director,
Federal Bureau of Investigation, Robert S Mueller, III, its
Director" ("defendants"). Complaint at 1.
Along with their complaint, plaintiffs filed under seal a
copy of a classified document that had inadvertently been disclosed
by defendant Office of Foreign Assets Control ("OFAC") to counsel
for Al-Haramain as part of a production of unclassified documents
relating to Al-Haramain's potential status as a "specially
designated global terrorist." Al-Haramain Islamic Foundation, Inc
v Bush, 451 F Supp 2d 1215, 1218 (D Or 2006).1 This document,
which has proven central to all phases of this litigation including
the issues now before this court, will be referred to herein as the
"Sealed Document."
The complaint alleges that the National Security Agency
("NSA") conducted warrantless electronic surveillance of
communications between a director or directors of Al-Haramain and
1
On June 19, 2008, the United States Department of the Treasury
designated "the entirety" of the Al-Haramain Islamic Foundation including
its headquarters in Saudi Arabia, having previously designated branch
offices in thirteen individual countries, including the United States.
See http://www.treasury.gov/press/releases/hp1043.htm.
3
Case M:06-cv-01791-VRW Document 453 Filed 07/02/2008 Page 4 of 56
the two attorney plaintiffs without regard to the procedures
required by FISA, that the NSA turned over logs from this
surveillance to OFAC and that OFAC then consequently froze
Al-Haramain's assets. Id.
The Oregon district court entertained motions by the
Oregonian Publishing Company to intervene in the suit and unseal
records, by plaintiffs to compel discovery of information about the
electronic surveillance of plaintiffs and regarding the reasons for
classifying the Sealed Document and by defendants to prevent
plaintiffs' access to the Sealed Document and to dismiss or, in the
alternative, for summary judgment based on the state secrets
privilege.
On September 7, 2006, the Oregon district court issued a
lengthy opinion and order. Several points in that order remain
salient to the matter now before this court. The court held that
"plaintiffs need some information in the Sealed Document to
establish their standing and a prima facie case, and they have no
other available source for this information." Id at 1221. It also
held that given defendants' many public acknowledgments of the
warrantless electronic surveillance program beginning in 2005, the
program was not a secret. Id at 1221-23. It rejected defendants'
contention that litigation concerning the program would necessarily
compromise national security and held that, contrary to defendants'
contention, "the very subject matter of the case" was not a state
secret. It ordered plaintiffs to deliver to the court all copies
of the Sealed Document in their possession or under their control,
to be deposited in the sealed compartmentalized information
facility ("SCIF") provided by the Portland FBI office for the
4
Case M:06-cv-01791-VRW Document 453 Filed 07/02/2008 Page 5 of 56
storage of classified documents. Id at 1229. It denied without
prejudice plaintiffs' request for discovery and denied the
Oregonian's motion to unseal records. Id at 1232.
The Oregon district court ruled that there was "no
reasonable danger that the national security would be harmed if it
is confirmed or denied that plaintiffs were subject to
surveillance, but only as to the surveillance event or events
disclosed in the Sealed Document" while also ruling that
"disclosing whether plaintiffs were subject to any other
surveillance efforts could harm the national security." Id at 1224
(emphasis added). On the rationale that plaintiffs should be
allowed to proceed based on the surveillance already disclosed to
them, substantiated by evidence in a form yet to be determined, the
court denied defendants' motion to dismiss: "plaintiffs should have
an opportunity to establish standing and make a prima facie case,
even if they must do so in camera." Id at 1226-27.
The Oregon district court declined to reach one further
issue presented to it by the parties----the issue this court is
charged to decide on remand from the court of appeals:
Plaintiffs argue * * * that FISA preempts the
state secrets privilege. Specifically, plaintiffs
argue that FISA vests the courts with control over
materials relating to electronic surveillance,
subject to "appropriate security procedures and
protective orders." 50 USC �1806(f). As a
result, plaintiffs contend that Section 1806(f)
renders the state secrets privilege superfluous in
FISA litigation.
Id at 1229.
The Oregon district court summarized defendants' argument
to be that section 1806(f) only benefits the government----that it
exists, in essence, for the sole purpose of providing for in camera
5
Case M:06-cv-01791-VRW Document 453 Filed 07/02/2008 Page 6 of 56
review of documents and information the government intends to use
against a criminal defendant. The Oregon district court quoted
section 1810, FISA's civil liability provision, together with
FISA's definition of an "aggrieved person" entitled to sue under
section 1810 (see infra Part III) and observed: "[t]o accept the
government's argument that Section 1806(f) is only applicable when
the government intends to use information against a party would
nullify FISA's private remedy and would be contrary to the plain
language of Section 1806(f)." Id at 1231 (emphasis added).
Concluding that "[t]he question becomes then whether
Section 1806(f) preempts the state secrets privilege," the Oregon
district court wrote, "I decline to reach this very difficult
question at this time, which involves whether Congress preempted
what the government asserts is a constitutionally-based privilege."
Id. The Oregon district court certified its other rulings for
immediate appeal. Defendants appealed and, during the pendency of
the appeal, this case was reassigned by the Judicial Panel on
Multidistrict Litigation ("MDL") to the undersigned.
The court of appeals granted interlocutory review and
consolidated the appeal in this matter with the interlocutory
appeal from an order by the undersigned concerning the state
secrets privilege and related issues in Hepting v AT&T Corp, 439 F
Supp 2d 974 (N D Cal 2006). The cases were argued on the same day
before the same panel, but the court of appeals later determined
that "the claimed facts and circumstances of each case are
distinct" and entered an order concurrently with the opinion in the
instant matter stating that "the cases are no longer consolidated
for any purpose." 507 F3d at 1196 n 3. The court of appeals
6
Case M:06-cv-01791-VRW Document 453 Filed 07/02/2008 Page 7 of 56
subsequently issued an order withdrawing the submission of the
Hepting appeal; that matter remains on appeal. Order, Hepting v
AT&T Corporation, Inc, No 06-17137 Doc #128, United States Court of
Appeals for the Ninth Circuit, filed November 16, 2007.
In its opinion in this case, the court of appeals
determined that review of a district court's rulings on the state
secrets privilege should be de novo, having previously only
"intimated" as much. 507 F3d at 1196. After considering the
history of the state secrets privilege, the court of appeals
considered three contentions by the government on appeal: (1) the
very subject matter of the litigation is a state secret; (2)
Al-Haramain cannot establish standing to bring suit, absent the
Sealed Document; and (3) Al-Haramain cannot establish a prima facie
case, and the government cannot defend against Al-Haramain's
assertions, without resorting to state secrets. In a footnote, the
court of appeals observed that the third issue had not been
addressed by the district court. 507 F3d at 1197 & n 4.
As to the first issue, the court of appeals made note of
the government's extensive, intentional public disclosures by
President George W Bush, Attorney General Alberto Gonzales and
especially General Michael V Hayden, which had "provided to the
American public a wealth of information about the [Terrorist
Surveillance Program]," and declined to follow either Kasza v
Browner, 133 F3d 1159 (9th Cir 1998) or El-Masri v United States,
479 F3d 296 (4th Cir 2007), both cases in which dismissals based on
the state secrets privilege were affirmed on appeal. The court
held that while Al-Haramain's case involved privileged information,
"that fact alone does not render the very subject matter of the
7
Case M:06-cv-01791-VRW Document 453 Filed 07/02/2008 Page 8 of 56
action a state secret" and affirmed the district court's denial of
dismissal on that basis. 507 F3d at 1201.
Before turning to the second issue on appeal, the court of
appeals next considered whether the state secrets privilege had been
properly invoked and determined that it had. Based on that
determination, the court of appeals concluded that Al-Haramain's
"showing of necessity" or "admittedly substantial need for the
document to establish its case," United States v Reynolds, 345 US 1,
10 (1953), required an in camera review of the Sealed Document. 507
F3d at 1203. After describing in general terms the nature of the in
camera review, the court wrote: "We are satisfied that the basis
for the privilege is exceptionally well documented" and that
disclosure of "information concerning the Sealed Document and the
means, sources and methods of intelligence gathering in the context
of this case would undermine the government's intelligence
capabilities and compromise national security." 507 F3d at 1204.
The court of appeals then held that the Oregon district court's
compromise allowing plaintiffs to submit sealed affidavits attesting
to the contents of the document from their memories was "contrary to
established Supreme Court precedent"---- specifically Reynolds, 345 US
at 11----and wrote that "the state secrets privilege * * * does not
lend itself to a compromise solution in this case." Id.
Regarding use of the Sealed Document in this litigation,
the court of appeals held: "The Sealed Document, its contents, and
any individuals' memories of its contents, even well-reasoned
speculation as to its contents, are completely barred from further
disclosure in this litigation by the common law state secrets
privilege." Id.
8
Case M:06-cv-01791-VRW Document 453 Filed 07/02/2008 Page 9 of 56
Having thus dealt with the first issue, the court of
appeals turned to the government's second issue on appeal----Al-
Haramain's standing----and held that plaintiffs could not establish
standing to proceed with their lawsuit without the Sealed Document
because they could not establish a "concrete and particularized"
injury-in-fact under the principles of Lujan v Defenders of
Wildlife, 504 US 555 (1992): "Al-Haramain cannot establish that it
has standing, and its claims must be dismissed, unless FISA
preempts the state secrets privilege." 507 F3d 1205.
Citing Singleton v Wulff, 428 US 106 (1976), that a court
of appeals should not ordinarily consider an issue not ruled on in
the district court, the court of appeals declined to decide whether
FISA preempts the state secrets privilege. Instead, writing that
"the FISA issue remains central to Al-Haramain's ability to proceed
with this lawsuit," it remanded the case to this court to consider
that question "and for any proceedings collateral to that
determination." 507 F3d at 1206. The court of appeals did not
consider the consequences of FISA preempting the state secrets
privilege and the implications of such a determination for possible
use in this litigation of the Sealed Document.
In accordance with orders entered at a status conference
in this matter on February 7, 2008, defendants filed a second motion
to dismiss plaintiffs' claims on the grounds that FISA does not
preempt the state secrets privilege and that plaintiffs lack
standing to seek prospective relief and are barred from seeking
relief under FISA by the doctrine of sovereign immunity. Doc
\\
\\
9
Case M:06-cv-01791-VRW Document 453 Filed 07/02/2008 Page 10 of 56
#432/17.2 Plaintiffs filed an opposition (Doc #435/20) and the
court accepted two amicus briefs, one by plaintiffs in other MDL
cases and the other by certain telecommunications defendants in the
MDL cases (Doc ##440/23 & 442/25).
II
A
The enactment of FISA was the fruition of a period of
intense public and Congressional interest in the problem of
unchecked domestic surveillance by the executive branch. In 1975,
Congress formed the Senate Select Committee to Study Governmental
Operations with Respect to Intelligence Activities known as the
"Church Committee" for its chairman, Senator Frank Church, to
investigate alleged intelligence-gathering abuses in the domestic
sphere by the various executive branch agencies with intelligence-
gathering authority. The Church Committee's two-volume final report
was transmitted to Congress in 1976; the following passage from
among the report's conclusions and recommendations illustrates the
tone and substance of the findings:
Our findings and the detailed reports which
supplement this volume set forth a massive record of
intelligence abuses over the years. Through the use
of a vast network of informants, and through the
uncontrolled or illegal use of intrusive
techniques----ranging from simple theft to
sophisticated electronic surveillance----the Government
has collected, and then used improperly, huge amounts
of information about the private lives, political
beliefs and associations of numerous Americans.
2
Citations to documents in the docket of this case will be cited both
to the MDL docket (No M 06-1791 VRW) and to the individual docket (No C 07-
0109) in the following format: Doc #xxx/yy.
10
Case M:06-cv-01791-VRW Document 453 Filed 07/02/2008 Page 11 of 56
Senate Select Committee to Study Governmental Operations with
Respect to Intelligence Activities ("Church Committee Report") Book
II: Intelligence Activities and the Rights of Americans, S Rep No
94-755, 290 (1976).
The Church Committee Report further concluded that
"intelligence activities have undermined the constitutional rights
of citizens and that they have done so primarily because checks and
balances designed by the framers of the Constitution to assure
accountability have not been applied." Id at 289. The Church
Committee Report set the stage for Congress to begin the effort to
enact comprehensive legislation to address the intelligence-related
abuses identified therein. That effort began in the very next
Congress.
In 1978, after the introduction of several competing bills
and extensive deliberation and debate, Congress enacted FISA. To
summarize FISA's provisions in a brief and general manner, FISA set
out in detail roles for all three branches of government, providing
judicial and congressional oversight of the covert surveillance
activities by the executive branch combined with measures to
safeguard secrecy necessary to protect national security. FISA set
out procedures by which the executive branch could undertake
electronic surveillance and physical searches for foreign
intelligence purposes in the domestic sphere. Any application for
electronic surveillance was required, among other things, to
establish probable cause justifying the surveillance, describe the
information being sought and aver that the information could not be
obtained through normal investigative techniques. 50 USC � 1804(a).
\\
11
Case M:06-cv-01791-VRW Document 453 Filed 07/02/2008 Page 12 of 56
FISA also provided for the creation of two courts staffed
by federal judges to conduct sealed proceedings to consider requests
by the government for warrants to conduct foreign intelligence
surveillance. 50 USC �� 1803(a),(b). The Foreign Intelligence
Surveillance Court ("FISC") was established to consider applications
in the first instance, with the Court of Review reviewing denials of
applications by the FISC and the Supreme Court acting as the final
appellate court. Id. FISA allowed the United States attorney
general to authorize electronic surveillances in emergency
situations without FISC approval if the appropriate judge was
informed and an application made within twenty-four hours after
authorization. 50 USC �� 1802, 1805(f).
FISA provided for continuing oversight of the government's
foreign intelligence surveillance activities by Congress, requiring
regular, highly detailed reports to Congress of all actions taken
under FISA. E g, 50 USC �� 1808, 1826. The reporting requirements
are discussed in more detail in Part III A below.
Of special relevance to the court's present inquiry,
Congress included in the FISA bill a declaration that the FISA
regime, together with the Omnibus Crime Control and Safe Streets Act
of 1968 codified at chapter 119 of Title 18 of the United States
Code, 18 USC �� 2510-22 ("Title III"), were to be the "exclusive
means" by which domestic electronic surveillance for national
security purposes could be conducted:
procedures in this chapter or chapter 121 and the
Foreign Intelligence Surveillance Act of 1978 shall be
the exclusive means by which electronic surveillance,
as defined in section 101 of such Act, and the
interception of domestic wire, oral, and electronic
communications may be conducted.
12
Case M:06-cv-01791-VRW Document 453 Filed 07/02/2008 Page 13 of 56
18 USC � 2511(2)(f). This provision and its legislative history
left no doubt that Congress intended to displace entirely the
various warrantless wiretapping and surveillance programs undertaken
by the executive branch and to leave no room for the president to
undertake warrantless surveillance in the domestic sphere in the
future.
The Report of the Senate Select Committee on Intelligence
stated that the FISA bill's "exclusive means" statement "puts to
rest the notion that Congress recognizes an inherent Presidential
power to conduct such surveillances in the United States outside of
the procedures contained in chapters 119 and 120." Foreign
Intelligence Surveillance Act, S Rep No 95-701, 95th Cong 2d Sess
71, reprinted in 1978 USCCAN 3973, 4040. That report cited
Congress's authority over FISA's subject matter in Article I
section 8 of the Constitution and the power to "make all laws which
shall be necessary and proper for carrying into execution the
foregoing powers." US Const cl 1, 18. The report also both
discussed Justice Jackson's concurring opinion in Youngstown Sheet
and Tube Co v Sawyer, 343 US 579, 635 (1952) and included the
following passage from the opinion:
When the President takes measures incompatible with the
expressed or implied will of Congress, his power is at
its lowest ebb, for then he can rely only upon his own
constitutional powers minus any constitutional power of
Congress over the matter.
See also Foreign Intelligence Surveillance Act, H Conf Rep No 95-
1720, 95th Cong 2d Sess 35, reprinted in 1978 USCCAN 4048, 4064.
("The intent of the conferees is to apply the standard set forth in
Justice Jackson's concurring opinion in [Youngstown Sheet & Tube].")
A lesser-known provision of FISA also expressly limited
13
Case M:06-cv-01791-VRW Document 453 Filed 07/02/2008 Page 14 of 56
presidential power to conduct foreign intelligence surveillance by
repealing 18 USC section 2511(3) which had provided:
Nothing in this chapter * * * shall limit the
constitutional power of the President to take such
measures as he deems necessary to protect the nation
against actual or potential attack * * * or to protect
national security against foreign intelligence
activities. * * * The contents of any wire or oral
communication intercepted by authority of the President
in the exercise of the foregoing powers may be received
in evidence in any trial hearing [sic], or other
proceeding only where such interception was reasonable,
and shall not be otherwise used or disclosed except as
is necessary to implement that power.
18 USC � 2511(3)(1976). The Report of the Senate Select Committee
on Intelligence explained that the repeal of this section
"eliminat[ed] any congressional recognition or suggestion of
inherent Presidential power with respect to electronic
surveillance." S Rep 95-701, 72.
In the floor debate on Senate Bill 1566, Senator Gaylord
Nelson related the history of the Senate's efforts to enact a
foreign intelligence surveillance law to curb the abuses reported by
the Church Committee; he noted that a "principal issue" with prior,
unsuccessful legislative proposals was the reservation or reference
to "inherent Presidential power," but that Senate Bill 1566 had no
such reservation or reference: "Once enacted, it would represent
the sole authority for national security electronic surveillance in
the United States." Foreign Intelligence Surveillance Act, S 1566,
95th Cong, 2d Sess, in 124 Cong Rec S 10903 (April 30, 2978).
Senator Nelson further stated: "Along with the existing statute
dealing with criminal wiretaps, this legislation blankets the field.
If enacted, the threat of warrantless electronic surveillance will
be laid to rest." Id.
14
Case M:06-cv-01791-VRW Document 453 Filed 07/02/2008 Page 15 of 56
B
"Preemption" usually refers to Congress asserting its
authority under the Supremacy Clause to override state law that
interferes with federal interests. In the present context,
"preemption" refers to Congress overriding or replacing the
interstitial lawmaking that judges create through federal common
law. In Milwaukee v Illinois, 451 US 304, 314 (1980) the Supreme
Court explained the latter type of preemption: "Federal common law
is a `necessary expedient' and when Congress addresses a question
previously governed by a decision rested on federal common law the
need for such an unusual exercise of lawmaking by federal courts
disappears." The Court further explained that federal courts need
not find a "clear and manifest purpose" to replace or displace
federal common law as would be required for a determination that
Congress had pre-empted state law because there are no corresponding
concerns for "our embracing federal system, including the principle
of diffusion of power * * * as a promoter of democracy." Id at 316-
17. On the contrary, the Court noted that federal courts are not
general common-law courts and do not possess "a general power to
develop and apply their own rules of decision." Id at 312, citing
Erie R Co v Tompkins, 304 US 64, 78 (1934). Federal common law
applies "[u]ntil the field has been made the subject of
comprehensive legislation." 451 US at 314.
In Milwaukee v Illinois, the Court held that the 1972
amendments to the Federal Water Pollution Control Act preempted the
application of the common law of nuisance by federal courts in
disputes over water pollution. In so holding, the Court looked to
the legislative history, making special note of remarks by the Act's
15
Case M:06-cv-01791-VRW Document 453 Filed 07/02/2008 Page 16 of 56
sponsors, in determining that Congress's purpose was to establish an
"all-encompassing program of water pollution regulation" 451 US at
318. The Court noted that "[n]o Congressman's remarks were complete
without reference to the `comprehensive' nature of the Amendments."
Id. "The establishment of such a self-consciously comprehensive
program by Congress * * * strongly suggests that there was no room
for courts to attempt to improve on that program with federal common
law." Id at 319.
Both the plain text and the legislative history make clear
that Congress intended FISA to "occupy the field through the
establishment of a comprehensive regulatory program supervised by an
expert administrative agency." Id at 317. Congress through FISA
established a comprehensive, detailed program to regulate foreign
intelligence surveillance in the domestic context. The
establishment of the specialized FISA courts specifically dedicated
to considering requests for foreign intelligence surveillance by the
executive branch paralleled the "expert administrative agency"
referred to with approval in Milwaukee v Illinois.
The present preemption analysis departs from that in
Milwaukee v Illinois with respect to the scope and nature of what is
being displaced. The court is charged with determining whether FISA
preempts or displaces not a common-law set of rules for conducting
foreign intelligence surveillance, but rather a privilege asserted
by the government to avoid public and judicial scrutiny of its
activities related to national security. In this case, those
activities include foreign intelligence surveillance, the subject
matter that Congress through FISA sought comprehensively to
regulate. This imperfect overlap between the preempting statute and
16
Case M:06-cv-01791-VRW Document 453 Filed 07/02/2008 Page 17 of 56
the common-law rule being preempted does not, however, create
serious problems with finding the state secrets privilege preempted
or displaced by FISA in the context of matters within FISA's
purview. FISA does not preempt the state secrets privilege as to
matters that are not within FISA's purview; for such matters, the
lack of comprehensive federal legislation leaves an appropriate role
for this judge-made federal common law privilege.
"The state secrets privilege is a common law evidentiary
privilege that protects information from discovery when disclosure
would be inimical to the national security. [It] has its modern
roots in United States v Reynolds." In re United States, 872 F2d
472, 474 (DC Cir 1989). "The state secrets privilege is a common
law evidentiary privilege that permits the government to bar the
disclosure of information if `there is a reasonable danger' that
disclosure will `expose military matters which, in the interest of
national security, should not be divulged.'" Al-Haramain Islamic
Foundation v Bush, 507 F3d at 1196, citing Reynolds, 345 US at 10.
The undersigned discussed the history and operation of the state
secrets privilege at some length in Hepting v AT&T Corp, 439 F Supp
2d 974 at 980-85 (N D Cal 2006).
Reynolds largely demarcated the state secrets privilege as
it is understood today, that is: it belongs to the government; it
must be properly invoked by means of a "formal claim of privilege,
lodged by the head of the department which has control over the
matter" after "actual consideration"; the court must then "determine
whether the circumstances are appropriate for the claim of
privilege, and yet do so without forcing a disclosure of the very
thing the privilege is designed to protect"; the precise nature,
17
Case M:06-cv-01791-VRW Document 453 Filed 07/02/2008 Page 18 of 56
extent and manner of this inquiry depends in part on the extent of a
party's need for the information sought tested against the strength
of the government's claim of privilege; and in camera review might
be appropriate in some cases, but not all. "When compulsion of the
evidence will expose military matters which, in the interest of
national security, should not be divulged, * * * the court should
not jeopardize the security which the privilege is meant to protect
by insisting upon an examination of the evidence, even by the judge
alone, in chambers." 345 US at 7-10.
Plaintiffs argue that the in camera procedure described in
FISA's section 1806(f) applies to preempt the protocol described in
Reynolds in this case. Doc # 435/20 at 11-14. The court agrees.
Section 1806(f), which is quoted in full and discussed at greater
length in Part III B below, provides that in cases in federal courts
in which "aggrieved persons" seek to discover materials relating to,
or information derived from, electronic surveillance, the United
States attorney general may file "an affidavit under oath that
disclosure or an adversary hearing would harm the national security
of the United States." In that event, the court "shall" conduct an
in camera, ex parte review of such materials relating to the
surveillance "as may be necessary to determine whether the
surveillance * * * was lawfully authorized and conducted." The
procedure described in section 1806(f), while not identical to the
procedure described in Reynolds, has important characteristics in
common with it----enough, certainly, to establish that it preempts the
state secrets privilege as to matters to which it relates. Section
1806(f) is Congress's specific and detailed prescription for how
courts should handle claims by the government that the disclosure of
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material relating to or derived from electronic surveillance would
harm national security; it leaves no room in a case to which section
1806(f) applies for a Reynolds-type process. Moreover, its
similarities are striking enough to suggest that section 1806(f),
which addresses a range of circumstances in which information
derived from electronic surveillance might become relevant to
judicial proceedings, is in effect a codification of the state
secrets privilege for purposes of relevant cases under FISA, as
modified to reflect Congress's precise directive to the federal
courts for the handling of materials and information with purported
national security implications. In either event, the Reynolds
protocol has no role where section 1806(f) applies. For that
reason, the court of appeals' reliance on Reynolds in connection
with the Sealed Document, while perhaps instructive, would not
appear to govern the treatment of that document under FISA.
The legislative history, moreover, buttresses the court's
reading of the statutory text as intending that FISA replace judge-
made federal common law rules:
[T]he development of the law regulating electronic
surveillance for national security purposes has been
uneven and inconclusive. This is to be expected
where the development is left to the judicial branch
in an area where cases do not regularly come before
it. Moreover, the development of standards and
restrictions by the judiciary with respect to
electronic surveillance for foreign intelligence
purposes accomplished through case law threatens both
civil liberties and the national security because
that development occurs generally in ignorance of the
facts, circumstances, and techniques of foreign
intelligence electronic surveillance not present in
the particular case before the court. * * * [T]he
tiny window to this area which a particular case
affords provides inadequate light by which judges may
be relied upon to develop case law which adequately
balances the rights of privacy and national security.
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Foreign Intelligence Surveillance Act of 1978, HR Rep No 95-1283
Part I at 21. This legislative history is evidence of Congressional
intent that FISA should displace federal common law rules such as
the state secrets privilege with regard to matters within FISA's
purview.
Defendants advance essentially three points in support of
their contention that "nothing in FISA indicates any intention by
Congress * * * to abrogate the state secrets privilege" in the case
of intelligence-driven electronic surveillance. Doc #432/17 at 13.
First, defendants argue that the privilege derives, not only from
the common law, but also from the president's Article II powers, so
that a "clear expression" of congressional intent is required to
abrogate that privilege; furthermore, abrogation would raise
fundamental constitutional problems which should be avoided. Doc
#432/17 at 13-14. Second, defendants note the common law origins of
the state secrets privilege and advert to the principle that
abrogation of common law requires a "clear and direct" legislative
expression of intent, which they contend is absent. Id at 14-15.
Finally, defendants contend that section 1806(f) serves a
fundamentally different purpose from the state secrets privilege and
that the former cannot therefore "preempt" the latter because
section 1806(f) governs disclosure by the government of intelligence
derived from electronic surveillance whereas the state secrets
privilege is fundamentally a rule of non-disclosure. Id at 15-22.
The court disagrees with all three of these contentions, the second
and third of which have been fully addressed in the paragraphs
above.
\\
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The weakness of defendants' first argument----that the
Constitution grants the executive branch the power to control the
state secrets privilege----is evident in the authorities they marshal
for it. Defendants rely on United States v Nixon, 418 US 683
(1974), in which the Supreme Court rejected President Nixon's
efforts to quash subpoenas under Federal Rule of Criminal Procedure
17(c) seeking tape recordings and documents pertaining to the
Watergate break-in and ensuing events. The Court rejected the
president's "undifferentiated claim of public interest in the
confidentiality of [White House] conversations" between the
president and his advisors, contrasting the need for confidentiality
of these conversations with "a claim of need to protect military,
diplomatic or sensitive national security secrets." Id at 706. In
the course of making this comparison, the Court observed that
privileges against forced disclosure find their sources in the
Constitution, statutes or common law. At bottom, however, Nixon
stands for the proposition that in the case of a common law
privilege such as that asserted by President Nixon, it is the
judiciary that defines the metes and bounds of that privilege and
even the confidential communications of the president must yield to
the needs of the criminal justice system. This hardly counts as
authority that the president's duties under Article II create a
shield against disclosure.
Even the Court's comparative weighing of the imperatives
of confidentiality for "undifferentiated" presidential discussions
and "military, diplomatic or sensitive national security secrets"
affords defendants little help in this case. Department of the Navy
v Egan, 484 US 518 (1988), upon which defendants rely, confirms that
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power over national security information does not rest solely with
the president. Egan recognized the president's constitutional power
to "control access to information bearing on national security,"
stating that this power "falls on the President as head of the
Executive Branch and as Commander in Chief" and "exists quite apart
from any explicit congressional grant." Id at 527. But Egan also
discussed the other side of the coin, stating that "unless Congress
specifically has provided otherwise, courts traditionally have been
reluctant to intrude upon the authority of the Executive in military
and national security affairs." Id at 530 (emphasis added). Egan
recognizes that the authority to protect national security
information is neither exclusive nor absolute in the executive
branch. When Congress acts to contravene the president's authority,
federal courts must give effect to what Congress has required.
Egan's formulation is, therefore, a specific application of Justice
Jackson's more general statement in Youngstown Sheet & Tube.
It is not entirely clear whether defendants acknowledge
Congress's authority to enact FISA as the exclusive means by which
the executive branch may undertake foreign intelligence surveillance
in the domestic context. While their papers do not explicitly
assert otherwise, defendants' attorney in this matter stated in open
court during the hearing herein held on April 23, 2008 that, while
he conceded that "Congress sought to take over the field" of foreign
intelligence surveillance (Doc #452 at 29:2-3), whether the
president actually had constitutional authority under Article II to
order such surveillance in disregard of FISA remained an open
question: "[D]oes the president have constitutional authority under
Article II to authorize foreign intelligence surveillance? Several
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courts said that he did. Congress passed the FISA, and the issue
has never really been resolved. That goes to the issue of the
authority to authorize surveillance." Id at 33:7-12. Counsel
repeatedly asserted that this issue was entirely separate from the
preemption inquiry relevant to the state secrets privilege and urged
the court not to "conflate" the two inquiries. E g, id at 32:8-10.
To the contrary, the court believes that the two areas of
executive branch activity pertaining to foreign intelligence
surveillance are not distinct for purposes of this analysis as
defendants' counsel asserts. Congress appears clearly to have
intended to----and did----establish the exclusive means for foreign
intelligence surveillance activities to be conducted. Whatever
power the executive may otherwise have had in this regard, FISA
limits the power of the executive branch to conduct such activities
and it limits the executive branch's authority to assert the state
secrets privilege in response to challenges to the legality of its
foreign intelligence surveillance activities.
Of note, many Congressional enactments regulate the use of
classified materials by the executive branch, putting FISA in good
company. Title 50 chapter 15 of the United States Code relates to
national security generally and national security information in
particular. Some of its provisions restrict disclosure and impose
minimum security requirements on the executive branch. Fifty USC
section 435 requires the president to "establish procedures to
govern access to classified information," such as background checks.
Others authorize disclosure. Fifty USC section 403-5d, part of the
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USA PATRIOT Act3, permits federal law enforcement officials to share
foreign intelligence information obtained as part of a criminal
investigation. Other provisions allocate control of classified
material among executive branch agencies. For instance, 50
USC section 435a(d) gives the director of the Central Intelligence
Agency the power to control the State Department's use of classified
information. Congress elsewhere requires the executive branch to
disclose national security information to Congressional intelligence
committees. 50 USC �� 413(a), 413b(c). Congress left the executive
branch no "authority to withhold information from the intelligence
committees on the grounds that providing the information to the
intelligence committees would constitute the unauthorized disclosure
of classified information or information relating to intelligence
sources and methods." 50 USC � 413(e). See also 50 USC � 425
("Nothing" in subchapter IV, which pertains to "Protection of
Certain National Security Information," "may be construed as
authority to withhold information from the Congress or from a
committee of either House of Congress.") And 50 USC section 413(b)
requires that "[t]he President shall ensure that any illegal
intelligence activity is reported promptly to the intelligence
committees * * *." Congressional regulation of the use of
classified information by the executive branch through FISA and
other statutes is therefore well-established.
As part of their argument that the state secrets privilege
has a constitutional basis in Article II, defendants contend that a
3
Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism ("USA PATRIOT") Act of 2001,
Pub L No 107-56, � 215, 115 Stat 287, amended by USA Patriot Improvement and
Reauthorization Act of 2005, Pub L 109-178, 120 Stat 282 (2006).
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"clear statement of congressional intent" to abrogate the privilege
is required, citing Franklin v Massachusetts, 505 US 788, 800-01
(1992). Franklin held that the office of the president was not an
executive "agency" whose actions were subject to judicial review
under the Administrative Procedures Act. The APA broadly described
its scope to include "each authority of the Government of the United
States" except Congress, the courts, the governments of United
States territories and the government of Washington, DC. The Court
nonetheless held that, when the APA did not explicitly include the
president and the legislative history did not suggest that Congress
intended for courts to review the president's actions under the APA,
the APA's "textual silence" was insufficient to infer that Congress
intended to subject the president to lawsuits under the APA: "We
would require an express statement by Congress before assuming it
intended the President's performance of his statutory duties to be
reviewed for abuse of discretion." See also Nixon v Fitzgerald, 457
US 731, 748, n27 (1982) (Court would require an explicit statement
by Congress before assuming Congress had created a damages action
against the president)." Franklin, 505 US at 800-01.
Franklin is readily distinguishable. The impetus for the
enactment of FISA was Congressional concern about warrantless
wiretapping of United States citizens conducted under a
justification of inherent presidential authority under Article II.
Congress squarely challenged and explicitly sought to prohibit
warrantless wiretapping by the executive branch by means of FISA,
as FISA's legislative history amply documented. This was a
different situation from Franklin, in which the Court required
certainty about Congressional intent to regulate the office of the
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president that was absent on the record before it.
In the case of FISA, Congress attempted not only to put a
stop to warrantless wiretapping by the executive branch but also to
establish checks and balances involving other branches of
government in anticipation of efforts by future administrations to
undertake warrantless surveillance in some other manner:
In the past several years, abuses of domestic
national security surveillances have been
disclosed. This evidence alone should demonstrate
the inappropriateness of relying solely on
executive branch discretion to safeguard civil
liberties. This committee is well aware of the
substantial safeguards respecting foreign
intelligence electronic surveillance currently
embodied in classified Attorney General procedures,
but this committee is also aware that over the past
thirty years there have been significant changes in
internal executive branch procedures, and there is
ample precedent for later administrations or even
the same administration loosening previous
standards.
H R Rep No 95-1283(I) at 21. Given the possibility that the
executive branch might again engage in warrantless surveillance and
then assert national security secrecy in order to mask its conduct,
Congress intended for the executive branch to relinquish its near-
total control over whether the fact of unlawful surveillance could
be protected as a secret.
Reynolds itself, holding that the state secrets privilege
is part of the federal common law, leaves little room for
defendants' argument that the state secrets privilege is actually
rooted in the constitution. Reynolds stated that the state secrets
privilege was "well-established in the law of evidence." 345 US at
6-7. At the time, Congress had not yet approved the Federal Rules
of Evidence, and therefore the only "law of evidence" to apply in
federal court was an amalgam of common law, local practice and
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statutory provisions with indefinite contours. John Henry Wigmore
(revised by Peter Tillers), I Evidence �6.1 at 384-85 (Little,
Brown & Co 1983). The Court declined to address the constitutional
question whether Congress could limit executive branch authority to
withhold sensitive documents, but merely interpreted and applied
federal common law. See Reynolds, 345 US at 6 & n9.
Defendants' attempt to establish a strict dichotomy
between federal common law and constitutional interpretation is,
moreover, misconceived because all rules of federal common law have
some grounding in the Constitution. "Federal common law implements
the federal Constitution and statutes, and is conditioned by them.
Within these limits, federal courts are free to apply the
traditional common-law technique of decision and to draw upon all
the sources of the common law in cases such as the present."
D'Oench, Duhme & Co v FDIC, 315 US 447, 472 (1942) (Jackson
concurring). The rules of federal common law on money and banking,
for instance, all derive from the Constitution. See Clearfield
Trust Co v United States, 318 US 363, 366 (1943) (in disbursements
of funds and payment of debts, United States exercises a
constitutional function or power). The federal common law
pertaining to tort suits brought by United States soldiers against
private tortfeasors flows from Congress's powers under Article I
section 8. United States v Standard Oil Co, 332 US 301, 306 n7
(1947). Accordingly, all rules of federal common law perform a
function of constitutional significance.
In the specific context of the state secrets privilege,
it would be unremarkable for the privilege to have a constitutional
"core" or constitutional "overtones." See Robert M Chesney, State
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Secrets and the Limits of National Security Litigation, 75 George
Wash L Rev 1249, 1309-10 (2007). Article II might be nothing more
than the source of federal policy that courts look to when applying
the common law state secrets privilege. But constitutionally-
inspired deference to the executive branch is not the same as
constitutional law.
In any event, the parties' disagreement over the origins
of the state secrets privilege is of little practical significance.
Whether a "clear statement," a comprehensive legislative scheme or
something less embracing is required, Congress has provided what is
necessary for this court to determine that FISA preempts or
displaces the state secrets privilege, but only in cases within the
reach of its provisions. This is such a case.
C
In addition to their more substantial arguments,
defendants advance two arguments why the court should not even take
up the issue remanded by the court of appeals. Defendants' first
such argument in this regard may be easily dispatched. Defendants
argue that the court may not reach the question remanded for
consideration by the court of appeals because the court lacks
jurisdiction over plaintiffs' claims. Wholly apart from the
disregard for the court of appeals----whose decisions bind this
court, after all----that acceptance of defendants' argument would
entail, defendants' argument lacks merit.
Defendants premise their argument on plaintiffs' lack of
standing to obtain prospective relief; that is, because plaintiffs
cannot show that they have been injured or face a "real and
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immediate threat" of harm in the future, defendants conclude that
Article III standing is absent. Doc # 432/17 at 7-8. Plaintiff
cannot show injury, contend defendants, because the state secrets
privilege prevents the government from confirming or denying that
plaintiffs have been subjected to unlawful surveillance.
The circularity of defendants' argument to one side,
defendants conflate the state secrets privilege with the "aggrieved
person" requirement of section 1810, discussed in Part III infra.
If plaintiffs can show that they are "aggrieved" as section 1810
contemplates, then plaintiffs have adequately demonstrated injury
for purposes of establishing Article III standing.
Somewhat more substantially, defendants argue that
plaintiffs cannot pursue their claims because section 1810 does not
waive the United States' sovereign immunity against suits naming
the government or individuals acting in their official capacity.
Employing a variety of arguments, defendants assert that civil
liability under section 1810 is "linked to intentional misconduct
by individual federal employees and officials." Doc # 446/29 at 7.
They also assert that "[t]he Complaint does not name any of the
individual defendants in their individual capacity." Doc # 432 at
9. And they point out that plaintiffs have not served defendants
in their individual capacities, an assertion that plaintiffs do not
dispute. Doc # 450/31 at 2.
Plaintiffs counter that defendants made similar arguments
before the court of appeals but that the court of appeals did not
address those points in its disposition of defendants' appeal. Doc
# 435/20 at 24. Plaintiffs also contend that for the court to take
up this issue and, especially, to entertain defendants' assertion
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that governmental immunity bars adjudication of the other issues
before the court, would violate the court of appeals' instructions
to this court in its order remanding the case. Id.
It is, of course, true that section 1810 does not contain
a waiver of sovereign immunity analogous to that in 18 USC section
2712(a) which expressly provides that aggrieved persons may sue the
United States for unlawful surveillance in violation of Title III.
But FISA directs its prohibitions to "Federal officers and
employees" (see, e g, 50 USC �� 1806, 1825, 1845) and it is only
such officers and employees acting in their official capacities
that would engage in surveillance of the type contemplated by FISA.
The remedial provision of FISA in section 1810 would afford scant,
if any, relief if it did not lie against such "Federal officers and
employees" carrying out their official functions. Implicit in the
remedy that section 1810 provides is a waiver of sovereign
immunity.
Of no small moment to this court's consideration of
defendants' sovereign immunity contention, it appears that
defendants asserted the same argument in the court of appeals which
seems simply to have ignored it, presumably as insubstantial or
premature given the present state of the record.
In Part IV of this order, the court discusses whether
plaintiffs should be granted leave to serve defendants in their
individual capacities.
III
The determination that FISA preempts the state secrets
privilege does not necessarily clear the way for plaintiffs to
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pursue their claim for relief against these defendants under FISA's
section 1810. That section provides:
An aggrieved person, other than a foreign power or an
agent of the foreign power * * * who has been
subjected to an electronic surveillance or about whom
information obtained by electronic surveillance of
such person has been disclosed or used in violation
of section 1809 of this title shall be entitled to
recover----
(a) actual damages * * *
(b) punitive damages; and
(c) reasonable attorney's fees and other
investigation and litigation costs reasonably
incurred.
50 USC � 1810. An "aggrieved person" is "a person who is the
target of an electronic surveillance or any other person whose
communications or activities were subject to electronic
surveillance." 50 USC � 1801(i). Section 1809, violation of which
forms the basis for liability under section 1810, criminalizes two
types of conduct: (1) intentionally "engag[ing] in electronic
surveillance under color of law except as authorized by statute"
and (2)
disclos[ing] or us[ing] information obtained under
color of law by electronic surveillance, knowing or
having reason to know that the information was
obtained through electronic surveillance not
authorized by statute.
A host of obstacles, however, make section 1810 a mostly
theoretical, but rarely, if ever, a practical vehicle for seeking a
civil remedy for unlawful surveillance.
A
Before an aggrieved person can bring an action for
damages under section 1810, the person must learn somehow of the
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electronic surveillance and thus the cause to be "aggrieved." The
primary circumstance FISA describes in which a person learns of
this surveillance arises from a criminal proceeding----i e, if and
when the individual is arrested and charged with a crime. For
example, section 1806(c) provides:
Whenever the Government intends to enter into evidence
or otherwise use or disclose in any trial, hearing, or
other proceeding in or before any court, department,
officer, agency, regulatory body, or other authority of
the United States, against an aggrieved person, any
information obtained or derived from an electronic
surveillance of that aggrieved person pursuant to the
authority of this subchapter, the Government shall,
prior to the trial, hearing, or other proceeding or at
a reasonable time prior to an effort to so disclose or
so use that information or submit it in evidence,
notify the aggrieved person and the court or other
authority in which the information is to be disclosed
or used that the Government intends to so disclose or
so use such information.
Nearly identical requirements applicable to state governments
require notification to the attorney general of the United States
as well as to the aggrieved party and the court. � 1806(d). An
analogous pair of notification provisions pertaining to evidence
obtained pursuant to physical searches applies to the United States
and to state governments, respectively. � 1825(d) and (e). See
also � 1845(c) and (d)(pertaining to pen registers and trap and
trace devices) and 50 USC � 1861(h)(part of the USA PATRIOT Act
enacted in 2001 and amended in 2006, pertaining to "information
acquired from tangible things").
FISA's section 1806(j) provides for notice to be given to
the United States person targeted for surveillance when "an
emergency employment of electronic surveillance is authorized under
section 1805(e) * * * and a subsequent order approving the
surveillance is not obtained." In that circumstance, the judge
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"shall cause to be served" on the affected United States persons
notice of the fact of the application, the period of the
surveillance and "the fact that during the period information was
or was not obtained." The notice provided for under section
1806(j) may be postponed or suspended once for up to ninety days
upon an ex parte showing of good cause by the government. Upon a
further ex parte showing of good cause, the notice requirement
under section 1806(j) may be forever waived.
FISA contains a provision requiring direct notification
to a "United States person" whose residence has been searched under
FISA's section 1824 if "at any time after the search the Attorney
General determines there is no national security interest in
continuing to maintain the secrecy of the search." 50 USC �
1825(b). In that event, the attorney general "shall provide notice
to the United States person * * * of the fact of the search
conducted * * * and shall identify any property of such person
seized, altered, or reproduced during such search." Id.
Intelligence-gathering related to national security is
generally not for law enforcement; in fact, the initiation of law
enforcement actions may work at cross-purposes to the goals of the
intelligence-gathering by disrupting surveillance that is more
valuable to national security goals if left intact. The sense that
intelligence-gathering under FISA was rarely for the purpose of
criminal prosecution emerges from the text of FISA as crafted in
Congress and from its legislative history. In the context of
allowing the destruction of surveillance records acquired under
FISA, the Senate Report distinguished FISA from Title III, noting:
\\
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Although there may be cases in which information
acquired from a foreign intelligence surveillance
will be used as evidence of a crime, these cases
are expected to be relatively few in number,
unlike Title III interceptions the very purpose of
which is to obtain evidence of criminal activity.
The Committee believes that in light of the
relatively few cases in which information acquired
under this chapter may be used as evidence, the
better practice is to allow the destruction of
information that is not foreign intelligence
information or evidence of criminal activity.
This course will more effectively safeguard the
privacy of individuals * * *.
Foreign Intelligence Surveillance Act of 1978, S Rep No 95-604 Part
I, 95th Cong 2d Sess 39 (1978), reprinted in 1978 USCCAN 3940-41.
Situations in which individuals subject to FISA warrants would be
notified of such warrants are therefore narrowly circumscribed
under FISA and this appears to be by design.
FISA also contains reporting requirements to facilitate
Congressional oversight of FISA, but these are of little help to an
individual seeking to learn of having been the subject of a FISA
warrant: sections 1808 (electronic surveillance), 1826 (physical
searches), 1846 (pen registers and trap and trace devices) and 1862
(requests for production of tangible things). Each of these
provisions, under the heading "Congressional oversight," requires
semiannual reporting by the United States attorney general to
Congress.
As relevant to the subject matter of the instant action,
section 1808(a)(1) requires that the attorney general on a
semiannual basis "fully inform" certain Congressional committees
"concerning all electronic surveillance under this subchapter."
Section 1801(a)(2) requires that each report under section
1808(a)(1) include a description of:
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(A) the total number of applications made for orders
and extensions of orders approving electronic
surveillance under this subchapter where the nature
and location of each facility or place at which the
electronic surveillance will be directed is unknown;
(B) each criminal case in which information acquired
under this chapter has been authorized for use at
trial during the period covered by such report; and
(C) the total number of emergency employments of
electronic surveillance under section 1805(f) of this
title and the total number of subsequent orders
approving or denying such electronic surveillance.
Of note, these provisions only require itemized information about
surveillances to be reported to Congress if the information
pertains to criminal cases in which the information is intended to
be used at trial. All other surveillances and/or uses need be
reported in the form of aggregate numbers only.
A further reporting requirement newly adopted in 2004 as
part of the Intelligence Reform and Terrorism Prevention Act of
2004, PL 108-458, requires the attorney general to report
semiannually to the Congressional intelligence committees:
(1) the aggregate number of persons targeted for
orders issued under this chamber [broken down by
type of warrant or search];
(2) the number of individuals covered by an order
issued pursuant to [� 1801(b)(1)(C) (i e non-
United States persons who are "agent[s] of a
foreign power" engaged in "international terrorism
or activities in preparation therefor")];
(3) the number of times that the Attorney General
has authorized that information obtained under
this chapter may be used in a criminal proceeding
* * *;
(4) a summary of significant legal interpretations
of this chapter involving matters before the FISC
or the FISCR * * *; and
(5) copies of all decisions (not including orders)
or opinions of the FISC or FISCR that include
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significant construction or interpretation of the
provisions of this chapter.
50 USC � 1871(a). These reports are presumably not available to
the press or the public; in any event, they do not provide any
means for an individual to learn of having been subject to
surveillance or search under a FISA warrant.
A provision requiring periodic reporting to Congress by
the Department of Justice of the number of pen register orders and
orders for trap and trace devices applied for under 18 USC � 3123
and under FISA by law enforcement agencies of the Department of
Justice was enacted in 1986 as part of the Electronic
Communications Privacy Act of 1986, Pub L 99-508, 100 Stat 1871.
18 USC �� 3121(a), 3126. The report to Congress must include
certain specifics as to each order: the period of interceptions,
including extensions, the offense, the number of investigations,
the number and nature of facilities affected and the identity of
the applying agency and the person authorizing the order. Id �
3126. There are, however, no specific notification requirements in
that chapter (Chapter 206).
By contrast, Title III, 18 USC �� 2510-22, the federal
wiretapping statute used by law enforcement to conduct electronic
surveillance domestically, provides not only for reporting to
Congress to facilitate oversight of the executive branch's
surveillance activities, but also for notice as a matter of course
to individuals surveilled and for civil liability to such
individuals in the event of unlawful surveillance.
Reporting to Congress on electronic surveillance under
Title III is the responsibility of the judiciary, the Department of
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Justice and the individual states' attorneys general. All three
are separately and independently obligated to provide data about
applications for electronic surveillance to the Administrative
Office of the United States Courts, which in turn must transmit
annually to Congress "a full and complete report concerning the
number of applications for orders and extensions granted or denied
pursuant to this chapter during the preceding calendar year." 18
USC � 2519. "The reports are not intended to include confidential
material [but] should be statistical in character * * * It will
assure the community that the system of court-order electronic
surveillance envisioned by the proposed chapter is properly
administered * * *." Omnibus Crime Control and Safe Streets Act of
1968, S Rep No 1097, 90th Cong 2d Sess (1968), reprinted in 1968
USCCAN at 2196.
Regarding notice to surveilled individuals, 18 USC
section 2518(d) provides that, "within a reasonable time but not
later than ninety days after the filing of an application [for
interception of electronic communications]," whether successful or
unsuccessful, the judge in the matter "shall cause to be served" on
the individuals affected "an inventory" notifying them of the fact,
date and disposition of the order or application and whether or not
wire, oral or electronic communications were intercepted. The
statute further authorizes the judge, upon motion by an individual
so notified, to allow inspection of "such portions of the
intercepted communications, applications and orders as the judge
determines to be in the interest of justice." Id. The serving of
the inventory may be postponed "on an ex parte showing of good
cause * * *." Id.
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The legislative history of this provision both
acknowledges and addresses the potential implications for national
security of section 2518(d)'s notice requirement and expressly
contemplates civil actions based on the inventories:
[W]here the interception relates, for example, to a
matter involving or touching on the national security
interest, it might be expected that the period of
postponement could be extended almost indefinitely.
Yet the intent of the provision is that the principle
of postuse notice will be retained. This provision
alone should insure the community that the techniques
are reasonably employed. Through its operation all
authorized interceptions must eventually become known
at least to the subject. He can then seek
appropriate civil redress for example, under section
2520 * * * if he feels that his privacy has been
unlawfully invaded.
1968 USCCAN at 2194. In describing the civil damages available
under section 2520, the Senate report stated that Congress
expressly contemplated the provisions requiring notice to affected
individuals to form the basis for civil suits: "It is expected
that civil suits, if any, will instead grow out of the filing of
* * * inventories under section 2518(8)(d)." Id at 2196.
Eighteen USC section 2520, in turn, provides for civil
remedies in the form of injunctive relief, declaratory relief and
damages and sets out specific measures of damages based on the
number of violations ($50-500 for the first finding of liability,
$100-1000 for the second and, for the third or other subsequent
finding of liability, actual damages and profits reaped or $100 per
day or $10,000). 18 USC � 2520(c). Defenses include, inter alia,
good faith reliance on a court warrant or order, grand jury
subpoena or legislative or statutory authorization. Id.
In summary, FISA makes little provision for notice to
surveilled individuals except when the government chooses to
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disclose surveillance materials and the provisions that exist are
easy for the government to avoid. This must be presumed to be part
of Congress's design for FISA because the notification procedure in
Title III----which, moreover, contemplated special handling of cases
involving national security concerns----predated FISA by a decade.
Congress could have modeled FISA on Title III in this regard, but
did not do so. In consequence, the cases are few and far between
in which an individual ever learns of having been subject to
electronic surveillance within FISA's purview and therefore
possibly having standing as an aggrieved party for FISA section
1810 purposes.
One of the few cases in which an individual surveilled
under a FISA warrant became aware of his status as an "aggrieved
party" is that of Brendan Mayfield, an American-born United States
citizen, attorney and former United States Army officer who brought
suit against the United States after being arrested and imprisoned
in 2004 upon suspicion of involvement in the conspiracy to detonate
bombs on commuter trains in Madrid, Spain. Mayfield v United
States, 504 F Supp 2d 1023 (D Or 2007). The Mayfield case is
instructive. The investigation leading to the arrest and the
arrest itself were apparently the result of a false fingerprint
match which led the FBI, among other things, to seek and obtain
from the FISC an order authorizing electronic surveillance of
Mayfield's home and his law office. Id at 1028. The published
opinion in Mayfield noted, without providing specifics, that
Mayfield had settled claims for "past injuries," id at 1033;
Mayfield, however, continued to press his claims for a declaration
that FISA, as amended by the USA PATRIOT Act, violated the Fourth
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Amendment by undermining the requirement of probable cause as a
pre-condition for obtaining a search warrant and for collecting,
disseminating and retaining information thus obtained. Mayfield
also claimed that FISA violated the Fourth Amendment by permitting
warrants to be issued under FISA without a showing that the
"primary purpose" of the search is to obtain foreign intelligence
information. Id at 1032.
The district court agreed with Mayfield and granted, on
summary judgment, a declaration finding FISA unconstitutional. The
United States appealed this order and the appeal is now pending
before the court of appeals.
The district court drew particular attention to the
"notice problem" under FISA:
Nor does FISA require notice. The Fourth Amendment
ordinarily requires that the subject of a search be
notified that the search has occurred. Although in
some circumstances the government is permitted to
delay the provision of notice, the Supreme Court has
never upheld a statute that, like FISA, authorizes
the government to search a person's home or intercept
his communications without ever informing the person
that his or her privacy has been violated. Except
for the investigations that result in criminal
prosecutions, FISA targets never learn that their
homes or offices have been searched or that their
communications have been intercepted. Therefore,
most FISA targets have no way of challenging the
legality of the surveillance or obtaining any remedy
for violations of their constitutional rights.
Id at 1039.
Ironically, the Mayfield case seems an ideal one for the
government to provide notification under section 1825(b), discussed
above, which directs the attorney general to notify United States
persons whose residences have been subjected to physical search
after the attorney general "determines there is no national
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security interest in continuing to maintain the secrecy of the
search." Yet the government leaned toward secrecy rather than
candor. Only after Mayfield had filed litigation and moved to
compel notification did the government notify him of the physical
search and, in doing so, contended that both the fact and the
extent of notification were entirely within the attorney general's
discretion. Agency Defendants' Reply In Support Of Motion to
Dismiss Counts Twelve and Thirteen and Opposition to Motion to
Compel, Mayfield v Gonzales, CV 04-1427-AA Doc # 72 at 6-10, United
States District Court for the District of Oregon, filed April 15,
2005. Mayfield later challenged the sufficiency of the
government's disclosure. Mayfield v Gonzales, 2005 WL 1801679, *17
(D Or 2005). The Mayfield case illustrates the limited
effectiveness of FISA's narrowly-defined notice provision relating
to physical searches. Limited and imperfect as FISA's notification
provision for physical searches may be, FISA contains no comparable
provision for United States persons who have been subjected to
electronic surveillance as opposed to physical search.
In the Al-Haramain case, notification to plaintiffs of
their potential status as "aggrieved parties" came in the form of
an accident: the inadvertent disclosure of the Sealed Document
during discovery proceedings, a disclosure that the various United
States entities involved took immediate and largely successful
steps to undo. To speak metaphorically, the inadvertent disclosure
by OFAC of the Sealed Document amounted to a small tear in the
thick veil of secrecy behind which the government had been
conducting its electronic surveillance activities. The Oregon
district court refused to allow plaintiffs to learn more by
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conducting discovery, but held that no further harm could result
from working with the salient information divulged thus far. By
refusing to allow the use of the Sealed Document in any form for
the adjudication of plaintiffs' claims in this matter, the court of
appeals required that the small tear be stitched closed, leaving
plaintiffs with actual but not useful notice and without the sole
item of evidence they had offered in support of their claims.
B
Difficult as it is to learn of one's status as an
aggrieved party for section 1810 purposes, an aggrieved party needs
more than mere knowledge of the surveillance to be able to proceed
with a lawsuit under section 1810. The next major obstacle to
seeking civil remedies under FISA is the lack of a practical
vehicle for obtaining and/or using admissible evidence in support
of such claims. An aggrieved party must be able to produce
evidence sufficient to establish standing to proceed as an
"aggrieved party" and, later, to withstand motions for dismissal
and/or summary judgment. This effort is encumbered with legal and
practical obstacles.
As noted above in Part III A, FISA does not provide for
the preservation of recordings and other information obtained
pursuant to a FISA warrant. Rather, Congress intended to allow
such material to be destroyed, the idea being that to allow
destruction would better protect the privacy of individuals
surveilled than to require preservation. S Rep No 95-604 Part I at
39. By contrast, Title III expressly requires intercepted
communications to be recorded and expressly prohibits destruction
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of the recordings except upon an order of the issuing or denying
judge. Also, "in any event [they] shall be kept for ten years."
18 USC � 2518(8)(a). It provides, moreover, that "custody of the
recordings shall be wherever the judge orders." Id. These
provisions ensure that a body of evidence establishing the fact of
the surveillance is brought into existence and safeguarded under a
a judge's control. By failing to impose parallel obligations on
the government agencies and officials who are the putative
defendants in an action alleging FISA violations, FISA provides
little help to "aggrieved persons" who might seek to become civil
plaintiffs.
Plaintiffs and plaintiff amici contend that FISA's
section 1806(f) provides the means for them to overcome this
evidentiary hurdle. The court has carefully studied section
1806(f) and does not agree.
As relevant here, section 1806(f) provides:
whenever any motion or request is made by an aggrieved
person pursuant to any other statute or rule of the
United States * * * before any court * * * of the
United States * * * to discover or obtain applications
or orders or other materials relating to electronic
surveillance or to discover, obtain, or suppress
evidence or information obtained or derived from
electronic surveillance under this chapter, the United
States district court * * * shall, notwithstanding any
other law, if the Attorney General files an affidavit
under oath that disclosure or an adversary hearing
would harm the national security of the United States,
review in camera and ex parte the application, order,
and such other materials relating to the surveillance
as may be necessary to determine whether the
surveillance of the aggrieved person was lawfully
authorized and conducted. In making this
determination, the court may disclose to the aggrieved
person, under appropriate security procedures and
protective orders, portions of the application, order,
or other materials relating to the surveillance only
where such disclosure is necessary to make an accurate
determination of the legality of the surveillance.
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The parties have argued at length in their papers and in court
about the meaning and application of this convoluted pair of
sentences. Both plaintiff amici and telecommunications carrier
defendant amici ("defendant amici") have devoted their entire
amicus briefs to this subject. Doc # 440/23, 442/25.
Defendants contend that section 1806(f) does not come
into play unless and until the government has acknowledged that it
surveilled the "aggrieved person" in question (by, for example,
initiating criminal proceedings), but that it is not available as a
means for an individual to discover having been surveilled absent
such governmental acknowledgment. See, e g, Doc #432/17 at 16-20.
Defendants further assert that, assuming arguendo that FISA
"preempts" the state secrets privilege, as this court holds it does
for purposes of electronic surveillance, plaintiffs would still be
unable to establish their standing as "aggrieved persons" for
section 1810 purposes without "inherently risk[ing] or requir[ing]
the disclosure of state secrets to the plaintiffs and the public at
large." Id at 22-23.
The defendant amici present more detailed arguments about
section 1806(f) that are in accord with defendants' position. They
assert that the "motion * * * to discover" provision at issue in
this case "creates no rights for aggrieved persons; it provides
procedures to implement their existing right to seek discovery in
support of efforts to suppress evidence obtained or derived from
electronic surveillance." Doc #442/25 at 5. Defendant amici
further assert that section 1806(f)'s purpose was to preserve for
the prosecution a "dismiss option" when the legality of
surveillance evidence is challenged, so that the prosecution could
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choose not to proceed rather than risk the disclosure of classified
information. Id at 10-11. In support of this contention, they
point to section 1806(f)'s language providing for the United States
attorney general to invoke its procedures and argue that the
section does not provide for courts to compel the disclosure of
information absent the attorney general's involvement. Id at 11.
Defendant amici also contrast FISA's section 1806(f) with
18 USC section 3504(a)(1), enacted in 1970 as part of the Organized
Crime Control Act. The latter establishes a procedure by which "a
party aggrieved" seeking to exclude evidence based on a claim that
it was obtained illegally may obligate "the opponent of the claim"
(i e, the government) "to affirm or deny the occurrence of the
alleged unlawful act." Defendant amici argue that "[t]he existence
of the carefully circumscribed discovery right in � 3504 negates any
suggestion that � 1806(f) implicitly covers the same ground" and
cite United States v Hamide, 914 F2d 1147 (9th Cir 1990) for the
proposition that section 3504(a) and section 1806(f) can be used
together but that they accomplish different objectives and cannot be
construed as serving similar purposes. Doc # 442/25 at 15-16.
In Hamide, an immigration judge had entertained a motion
under section 3504(a)(1) by an individual in deportation proceedings
requesting that the government affirm or deny the existence of
electronic surveillance. After the government disclosed that it had
conducted electronic surveillance of the individual, it filed in the
district court a "Petition of the United States for Judicial
Determination of Legality of Certain Electronic Surveillance" under
FISA's section 1806(f), together with the FISA materials relevant to
the authorization of the surveillance filed under seal and a request
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that the matter be handled ex parte for national security reasons.
914 F2d at 1149. The district court then ruled ex parte in the
government's favor. Id at 1149-50.
Defendant amici argue that Congress could have
incorporated into FISA a procedure like that provided for in
section 3504(a)(1) by which an individual could require the
executive branch to confirm or deny the existence of electronic
surveillance and, since Congress did not do so, it must be presumed
not to have intended such a procedure to be available under FISA.
Doc #442/25 at 16.
Plaintiff amici counter defendants' arguments against
plaintiffs' proposed use of section 1806(f) with several major
contentions. First, they argue that section 1806(f)'s scope is
expansive enough to provide for in camera review in any civil or
criminal case----not merely cases arising under FISA----in which a
claim of unlawful surveillance is raised. Doc #440/23 at 11-13,
17. They point out that the text of section 1806(f) referring to
"any motion or request * * * pursuant to any other statute or rule
of the United States" does not suggest a limitation to criminal
statutes. Id at 11. They also point to language in the conference
report on the final version of FISA stating "[t]he conferees agree
that an in camera and ex parte proceeding is appropriate for
determining the lawfulness of electronic surveillance in both
criminal and civil cases." Id at 13, citing H Conf Rep 95-1720 at
32. And plaintiff amici find support in the District of Columbia
Circuit's opinion in ACLU Foundation of Southern California v Barr,
952 F2d 457, 465 n 7 (D C Cir 1991), which cited FISA's legislative
history for the proposition that Congress had intended a court's in
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camera, ex parte review under section 1806(f) to "determine whether
the surveillance was authorized and conducted in a manner that did
not violate any constitutional or statutory right." Thus,
plaintiff amici contend, section 1810 is one such "other statute"
referred to in section 1806(f) under which in camera review is
available.
Next, plaintiff amici characterize defendants' contention
that section 1806(f) is only available in cases in which the
government has acknowledged having surveilled a party as "look[ing]
at section 1806(f) through the wrong end of the telescope." Doc
#440/23 at 14. Plaintiff amici correctly observe that section
1806(f) only comes into play when the attorney general notifies the
court that "disclosure or an adversary hearing would harm the
national security"----for example, in opposing a discovery request.
A "motion or request * * * by an aggrieved person" alone is not
sufficient to trigger in camera review. Therefore, they argue,
defendants' position that the government must have acknowledged
surveillance sets the bar higher than FISA prescribes.
Third, plaintiff amici address what they believe the bar
should be----that is, what an individual must show to establish being
"aggrieved" for section 1806(f) purposes. They assert that a
person need only have a "colorable basis for believing he or she
had been surveilled." Doc #440/23 at 11-16. Lacking examples
arising directly under section 1806(f), plaintiff amici look to
cases decided under 18 USC section 3504(a)(1) (discussed above),
including United States v Vielguth, 502 F2d 1257, 1258 (9th Cir
1974). In Vielguth, the Ninth Circuit held that the government's
obligation to affirm or deny the occurrence of electronic
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surveillance under section 3504(a)(1) "is triggered by the mere
assertion that unlawful wiretapping has been used against a party."
Plaintiff amici argue that the standard articulated in Vielguth is
the applicable standard for an "aggrieved person" for purposes of
FISA's section 1806(f). Doc #440/23 at 16.
The court agrees with plaintiffs that section 1806(f) is
not limited to criminal proceedings, but may also be invoked in
civil actions, including actions brought under section 1810. The
court disagrees with defendants' proposed limitation of section
1806(f) to cases in which the government has acknowledged the
surveillance at issue. The plain language of the statute, which
the court must use as its primary compass, United States v Ron Pair
Enterprises, Inc, 489 US 235, 242 (1988), does not support
defendants' purported limitations.
The court parts company with plaintiffs, however, with
regard to what an individual must show to establish being
"aggrieved" for section 1806(f) purposes and, consequently, the
availability of section 1806(f) to plaintiffs in this case in its
current posture. As the court reads section 1806(f), a litigant
must first establish himself as an "aggrieved person" before
seeking to make a "motion or request * * * to discover or obtain
applications or orders or other materials relating to electronic
surveillance [etc]." If reports are to be believed, plaintiffs
herein would have had little difficulty establishing their
"aggrieved person" status if they were able to support their
request with the Sealed Document. But the court of appeals,
applying the state secrets privilege, has unequivocally ruled that
plaintiffs in the current posture of the case may not use "the
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Sealed Document, its contents, and any individuals' memories of its
contents, even well-reasoned speculation as to its contents." 507
F3d at 1204. Plaintiffs must first establish "aggrieved person"
status without the use of the Sealed Document and may then bring a
"motion or request" under � 1806(f) in response to which the
attorney general may file an affidavit opposing disclosure. At
that point, in camera review of materials responsive to the motion
or request, including the Sealed Document, might well be
appropriate.
The court disagrees with plaintiff amici's suggestion
that Vielguth, an opinion that established a claimant's burden to
invoke 18 USC section 3504(a)(1), should also be relied on to
define the burden for an individual to establish standing as an
"aggrieved person" for purposes of FISA section 1806(f). The bar
set by Vielguth is too low given the text and structure of FISA.
Moreover, a review of other Ninth Circuit cases reveals that
Vielguth did not define the standard for all purposes under section
3504(a)(1). The court in Vielguth was at pains to distinguish its
earlier decision in United States v Alter, 482 F2d 1016 (9th Cir
1973), which, while stating that a witness "does not have to plead
and prove his entire case to establish standing and to trigger the
Government's responsibility to affirm or deny," nonetheless
established a stringent test for making out a prima facie issue of
electronic surveillance of counsel for a grand jury witness. The
court held required affidavits that established:
(1) the specific facts which reasonably lead the
affiant to believe that named counsel for the named
witness has been subjected to electronic
surveillance;
(2) the dates of such suspected surveillance;
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(3) the outside dates of representation of the
witness by the lawyer during the period of
surveillance;
(4) the identity of the person(s), by name or
description, together with their respective telephone
numbers, with whom the lawyer (or his agents or
employees) was communicating at the time the claimed
surveillance took place; and
(5) facts showing some connection between possible
electronic surveillance and the grand jury witness
who asserts the claim or the grand jury proceeding in
which the witness is involved.
Id at 1026. Vielguth distinguished Alter by limiting the latter to
"a claim by the person under interrogation that questions put to
him are tainted by unlawful surveillance of conversations in which
he did not participate" and did so only over the dissent of one of
the three panel members. 502 F2d at 1259-61.
Not long after Vielguth, the Ninth Circuit clarified the
standard, but only slightly. In United States v See, 505 F2d 845,
855-56 (9th Cir 1974), the court rejected a claim under section
3504 as "vague to the point of being a fishing expedition" and held
that correspondingly little was required of the government. The
court noted that "a general claim requires only a response
appropriate to such a claim" and that "varying degrees of
specificity in a claim will require varying degrees of specificity
in a response." Id at 856 & n 18.
The flexible or case-specific standards articulated by
the Ninth Circuit for establishing aggrieved status under section
3504(a)(1), while certainly relevant, do not appear directly
transferrable to the standing inquiry for an "aggrieved person"
under FISA. While attempting a precise definition of such a
standard is beyond the scope of this order, it is certain that
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plaintiffs' showing thus far with the Sealed Document excluded
falls short of the mark. Plaintiff amici hint at the proper
showing when they refer to "independent evidence disclosing that
plaintiffs have been surveilled" and a "rich lode of disclosure to
support their claims" in various of the MDL cases. Doc #440 at 16-
17. To proceed with their FISA claim, plaintiffs must present to
the court enough specifics based on non-classified evidence to
establish their "aggrieved person" status under FISA.
C
It is a testament to the obstacles to seeking civil
remedies for alleged violations of FISA that section 1810 has lain
"dormant for nearly thirty years." Andrew Adler, Note, The Notice
Problem, Unlawful Electronic Surveillance, and Civil Liability
Under the Foreign Intelligence Surveillance Act, 61 U Miami L Rev
393, 397 (2006-07). Dormant indeed. The print version of the
United States Code Annotated contains no case notes under section
1810. The parties have cited no other case in which a plaintiff
has actually brought suit under section 1810, let alone secured a
civil judgment under it. By contrast, the civil liability
provisions of Title III, 18 USC � 2520, have been used successfully
by "aggrieved persons" with regularity since they were enacted in
1968. See, e g, Jacobsen v Bell Telephone Co, 592 F2d 515 (9th Cir
1978), Dorris v Absher, 179 F3d 420 (6th Cir 1999).
While Congress enacted section 1810 in order to provide a
private cause of action for unlawful surveillance, section 1810
bears but faint resemblance to 18 USC section 2520. While the
court must not interpret and apply FISA in way that renders section
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1810 superfluous, Dole Food Co v Patrickson, 538 US 468, 476-77
(2003), the court must be wary of unwarranted interpretations of
FISA that would make section 1810 a more robust remedy than
Congress intended it to be. As noted, Title III predated FISA by a
full decade. If Congress had so intended, it could have written
FISA to offer a more fulsome and accessible remedy patterned on
Title III. Congress may therefore be presumed to have intended not
to provide such a remedy and the court should not strain to
construe FISA in a manner designed to give section 1810 greater
effect than Congress intended. See id. The same applies with
regard to the procedure set forth in 18 USC section 3504(a)(1),
enacted in 1970. This is not to say that it is impossible to
obtain relief under section 1810, but the fact that no one has ever
done so reinforces the court's reading of the plain terms of the
statute: section 1810 is not user-friendly and the impediments to
using it may yet prove insurmountable.
IV
On April 17, 2008, less than a week before the hearing on
defendants' second motion to dismiss, plaintiffs filed a motion for
an order extending the time to serve defendants Bush, Alexander,
Werner and Mueller individually, presumably in response to
defendants' sovereign immunity arguments in their moving and reply
papers. Doc # 447/30. In that motion, plaintiffs do not
specifically state whether they intended to sue defendants in both
their official and individual capacities, but they assert that "a
nonspecific complaint may be characterized as alleging both
official and personal capacity liability." Id at 2. Plaintiffs
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explain their failure to serve the individual defendants
individually within the 120-day deadline for service under Federal
Rule of Civil Procedure 4(m) as follows: "Within weeks [of serving
their complaint upon the Attorney General] this case became focused
on the classified document that Plaintiffs filed under seal with
the Complaint." Id at 1. They assert that issues pertaining to
the Sealed Document, including defendants' assertion of the state
secrets privilege, "have driven this litigation to date in the
trial and appellate courts and have overshadowed all other aspects
of this case." Id.
Plaintiffs also contend that the individual defendants
will not be prejudiced by late service of the complaint because:
(1) they have been on notice of the litigation either through
personal, open participation in the defense (e g, Declaration of
NSA Director & Declaration of Keith B Alexander, Al-Haramain, No C
06-0274 KI Doc #55-2, 59, United States District Court for the
District of Oregon, filed June 21, 2006) or due to the large amount
of publicity surrounding these cases and (2) because the case has
advanced little due to the courts' focus on the Sealed Document,
the state secrets privilege and legal issues under FISA. Doc
#447/30 at 2-3.
Defendants vigorously oppose plaintiffs' motion,
asserting that plaintiffs have failed to establish "good cause"
warranting relief from the 120-day deadline. They assert that
plaintiffs have been on notice of the defendants' sovereign
immunity defense for well over a year and of the particular point
that individual defendants had not been served for "at least nine
months." Doc # 448/31 at 3. Defendants assert that they will be
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prejudiced by the proposed late service because the suit has been
pending and actively litigated without notice to defendants as
individuals for over two years. Id at 5.
Defendants also point out----correctly----that plaintiffs'
motion is not in accordance with this court's local rules as it was
filed less than one week before the April 23 hearing without a
hearing date specified on the moving papers. Defendants filed a
short opposition the day before the hearing requesting, inter alia,
that the motion be placed on the calendar and briefed in accordance
with the local rules.
Plaintiffs' motion mentions Civil Local Rule 6-3 (Doc #
447/30 at 1), but does not properly invoke or comply with it. Rule
6-3 provides the procedure for obtaining a hearing on shortened
time. It requires the filing of a motion to shorten time and sets
forth detailed requirements for such a motion. Plaintiffs filed no
such motion. On the other hand, plaintiffs did not expressly seek
to have their motion heard on shortened time and, at the April 23
hearing, it was defendants' attorney who first sought to be heard
on the matter. Hearing transcript, Doc # 452 at 44-45.
Notwithstanding the inartful manner in which plaintiffs
brought their motion, the court finds the briefing and arguments
for and in opposition to plaintiffs' motion adequate. No further
briefing on this matter will be required. Plaintiffs, however, are
admonished to review the local rules of this court and to abide by
them for the duration of this litigation.
Rule 4(m) provides two alternative courses for a court to
follow if a plaintiff has failed to serve one or more defendants
within the 120-day time limit. As something like 680 days had
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elapsed between plaintiffs' filing of their action and the date of
their motion for an extension of time to serve the individual
defendants individually, plaintiffs have indisputably exceeded the
120-day limit by a wide margin. Rule 4(m) requires the court to
dismiss the action without prejudice against the particular
defendants in question "or order that service be made within a
specified time." If plaintiff shows good cause for the failure,
however, the court "must extend the time for service for an
appropriate period." The determinations required to adjudicate the
motion for an extension of time to serve defendants are committed
to the discretion of the court. Puett v Blandford, 912 F2d 270,
273 (9th Cir 1990).
The court agrees with plaintiffs that although more than
two years have elapsed, little has occurred in the litigation that
would prejudice a late-served individual defendant. This is
particularly the case given the specific individuals at issue, all
of whom are high-level government officials closely and publicly
connected to the policies and practices at issue in this
litigation. Dismissal on the ground of failure to serve individual
defendants would needlessly complicate the litigation and would not
advance the interests of justice in this case. Without reaching
the question whether plaintiffs have established "good cause" for
their failure to serve the individual defendants, the court instead
GRANTS the motion to extend time for service. Should plaintiffs
choose to amend their complaint in accordance with this order, they
may serve all unserved defendants with their amended complaint
within fifteen (15) days of filing it with the court.
\\
55
ase M:06-cv-01791-VRW Document 453 Filed 07/02/2008 Page 56 of 56
V
The lack of precedents under section 1810 complicates the
task of charting a path forward. The court of appeals reversed the
Oregon district court's plan for allowing plaintiffs to proceed
with their suit, but did not suggest a way for plaintiffs to
proceed without using the Sealed Document. Nonetheless, the court
believes that dismissal with prejudice is not appropriate.
Accordingly, plaintiffs' FISA claim will be dismissed with leave to
amend. Plaintiffs should have the opportunity to amend their claim
to establish that they are "aggrieved persons" within the meaning
of 50 USC � 1801(k). In the event plaintiffs meet this hurdle, the
court will have occasion to consider the treatment of the Sealed
Document under section 1806(f) and the significant practical
challenges of adjudicating plaintiffs' claim under section 1810.
For the reasons stated herein, plaintiffs' claim under
FISA is DISMISSED with leave to amend. Plaintiffs shall have
thirty (30) days to amend their complaint in accordance with this
order. Should plaintiffs seek to amend their non-FISA claims, they
shall do so by means of a noticed motion before this court in
accordance with the local rules.
IT IS SO ORDERED.
VAUGHN R WALKER
United States District Chief Judge
56
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