No Easy Answers


Tuesday, April 07, 2009

Jewel v NSA - Govt Motion to Dismiss

         Case 3:08-cv-04373-VRW           Document 18       Filed 04/03/2009      Page 1 of 36



1    MICHAEL F. HERTZ
     Acting Assistant Attorney General, Civil Division
2    DOUGLAS N. LETTER
     Terrorism Litigation Counsel
3    JOSEPH H. HUNT
     Director, Federal Programs Branch
4    VINCENT M. GARVEY
     Deputy Branch Director
5    ANTHONY J. COPPOLINO
     Special Litigation Counsel
6    PAUL G. FREEBORNE
     MARC KRICKBAUM
7    Trial Attorneys
     U.S. Department of Justice
8    Civil Division, Federal Programs Branch
     20 Massachusetts Avenue, NW, Rm. 6102
9    Washington, D.C. 20001
     Phone: (202) 514-4782
10   Fax: (202) 616-8460

11   Attorneys for the Government Defendants
     Sued in their Official Capacity
12
                                UNITED STATES DISTRICT COURT
13
                             NORTHERN DISTRICT OF CALIFORNIA
14
                                     SAN FRANCISCO DIVISION
15

16                                                        Case No. C:08-cv-4373-VRW
                                                     )
17   CAROLYN JEWEL, TASH HEPTING,                    )    GOVERNMENT DEFENDANTS'
     GREGORY HICKS, ERIK KNUTZEN, and                )    NOTICE OF MOTION AND MOTION
18   JOICE WALTON,                                   )    TO DISMISS AND FOR SUMMARY
                                                     )    JUDGMENT
19                  Plaintiffs,                      )
                                                     )    Date:          June 25, 2009
20       v.                                          )    Time:          2:30 p.m.
                                                     )    Courtroom:     6, 17th Floor
21   NATIONAL SECURITY AGENCY ("NSA");               )
     KEITH B. ALEXANDER, Director of the NSA;        )    Chief Judge Vaughn R. Walker
22   UNITED STATES OF AMERICA;                       )
     BARACK OBAMA, President of the United           )
23   States; UNITED STATES DEPARTMENT OF             )
     JUSTICE; ERIC HOLDER, Attorney General          )
24   of the United States; DENNIS C. BLAIR,          )
     Director of National Intelligence.              )
25                                                   )
                    Government Defendants            )
26                  Sued in Their Official Capacity. )
     _______________________________________
27

28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW
    

         Case 3:08-cv-04373-VRW            Document 18         Filed 04/03/2009       Page 2 of 36



1           PLEASE TAKE NOTICE that, on June 25, 2009 at 2:30 p.m., before Chief Judge

2    Vaughn R. Walker, the Government Defendants sued in their official capacity in this action will

3    move to dismiss certain claims in the Complaint against them pursuant to Rule 12(b)(1) of the

4    Federal Rules of Civil Procedure, and for summary judgment as to any remaining claims

5    pursuant to Rule 56. The grounds for this motion are that the Court lacks subject matter

6    jurisdiction with respect to plaintiffs' statutory claims against the United States because

7    Congress has not waived sovereign immunity, and summary judgment for the Government on all

8    of plaintiffs' remaining claims against all parties (including any claims not dismissed for lack of

9    jurisdiction) is required because information necessary to litigate plaintiffs' claims is properly

10   subject to and excluded from use in this case by the state secrets privilege and related statutory

11   privileges. The grounds for this motion are set forth further in the accompanying (i)

12   Memorandum of Points and Authorities in Support of the Government Defendants' Motion to

13   Dismiss and for Summary Judgment; (ii) Public Declaration of Admiral Dennis C. Blair,

14   Director of National Intelligence (hereafter "Public DNI Decl."); (iii) Public Declaration of

15   Deborah A. Bonanni, Chief of Staff, National Security Agency (hereafter "Public NSA Decl.").

16   Additional grounds for these motions are also set forth in the (iv) Classified State Secrets

17   Privilege Declaration of Dennis C. Blair, Director of National Intelligence; (v) Classified

18   Declaration of Deborah A. Bonanni, Chief of Staff, National Security Agency; and (vi)

19   Supplemental Classified Memorandum of Points and Authorities in Support of the Government

20   Defendants' Motion to Dismiss and for Summary Judgment. These classified materials have

21   been lodged with court security officers and are available upon request solely for the Court's in

22   camera, ex parte review.

23   April 3, 2009                                 Respectfully Submitted,

24                                                 MICHAEL F. HERTZ
                                                   Acting Assistant Attorney General
25
                                                   DOUGLAS N. LETTER
26                                                 Terrorism Litigation Counsel

27

28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW                2
    

         Case 3:08-cv-04373-VRW           Document 18       Filed 04/03/2009      Page 3 of 36


                                                 JOSEPH H. HUNT
1                                                Director, Federal Programs Branch

2                                                VINCENT M. GARVEY
                                                 Deputy Branch Director
3
                                                  s/ Anthony J. Coppolino
4                                                ANTHONY J. COPPOLINO
                                                 Special Litigation Counsel
5
                                                 s/ Paul G. Freeborne
6                                                PAUL G. FREEBORNE

7                                                 s/ Marc Krickbaum
                                                 MARC KRICKBAUM
8                                                Trial Attorneys
                                                 U.S. Department of Justice
9                                                Civil Division, Federal Programs Branch
                                                 20 Massachusetts Avenue, NW, Rm. 6102
10                                               Washington, D.C. 20001
                                                 Phone: (202) 514-4782
11                                               Fax: (202) 616-8460
                                                 Email: tony.coppolino@usdoj.gov
12
                                                 Attorneys for the Government Defendants
13                                               Sued in Their Official Capacity

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28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW                3
    

     Case 3:08-cv-04373-VRW           Document 18       Filed 04/03/2009      Page 4 of 36



1    MICHAEL F. HERTZ
     Acting Assistant Attorney General, Civil Division
2    DOUGLAS N. LETTER
     Terrorism Litigation Counsel
3    JOSEPH H. HUNT
     Director, Federal Programs Branch
4    VINCENT M. GARVEY
     Deputy Branch Director
5    ANTHONY J. COPPOLINO
     Special Litigation Counsel
6    PAUL G. FREEBORNE
     MARC KRICKBAUM
7    Trial Attorneys
     U.S. Department of Justice
8    Civil Division, Federal Programs Branch
     20 Massachusetts Avenue, NW, Rm. 6102
9    Washington, D.C. 20001
     Phone: (202) 514-4782
10   Fax: (202) 616-8460

11   Attorneys for the Government Defendants
     Sued in their Official Capacity
12
                                UNITED STATES DISTRICT COURT
13
                             NORTHERN DISTRICT OF CALIFORNIA
14
                                     SAN FRANCISCO DIVISION
15
                                                          Case No. C:08-cv-4373-VRW
16                                                  )
     CAROLYN JEWEL, TASH HEPTING,                   )     GOVERNMENT DEFENDANTS'
17   GREGORY HICKS, ERIK KNUTZEN, and               )     MEMORANDUM IN SUPPORT OF
     JOICE WALTON,                                  )     MOTION TO DISMISS AND FOR
18                                                  )     SUMMARY JUDGMENT
                    Plaintiffs                      )
19                                                  )     Date:          June 25, 2009
         v.                                         )     Time:          2:30 p.m.
20                                                  )     Courtroom:     6, 17th Floor
     NATIONAL SECURITY AGENCY ("NSA"); )
21   KEITH B. ALEXANDER, Director of the NSA; )           Chief Judge Vaughn R. Walker
     UNITED STATES OF AMERICA;                      )
22   BARACK OBAMA, President of the United          )
     States; UNITED STATES DEPARTMENT OF )
23   JUSTICE; ERIC HOLDER, Attorney General )
     of the United States; DENNIS C. BLAIR,         )
24   Director of National Intelligence.             )
                                                    )
25                  Government Defendants           )
                    Sued in Their Official Capacity
26   _______________________________________

27

28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW
    

     Case 3:08-cv-04373-VRW             Document 18           Filed 04/03/2009         Page 5 of 36



1                                                       TABLE OF CONTENTS

2                                                                                           PAGE

3    INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

4    ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

5    I.        CONGRESS HAS NOT WAIVED SOVEREIGN IMMUNITY FOR
               PLAINTIFFS' STATUTORY CLAIMS. . . . . . . . . . . . . . .  . . . . . . . . . . 2
6
               A.         Congress Has Not Waived Sovereign Immunity as to Plaintiffs'
7                         Claims for Damages. . . . . . . . . . . . . . . . . . . . . . . . . 3

8                         1.         Congress Has Expressly Preserved Sovereign Immunity
                                     For Plaintiffs' Wiretap Act and ECPA Claims. . . . . . . 3
9
                          2.         Congress Has Not Waived Sovereign Immunity in
10                                   FISA Section 1810. . . . . . . . . . . . . . . . . . . . 7

11             B.         Congress Has Not Waived Sovereign Immunity for the Equitable
                          Relief Plaintiffs Seek under FISA, the Wiretap Act, and ECPA. . . . 8
12
                          1.         APA Section 702 Does Not Waive Sovereign
13                                   Immunity Where Other Statutes Explicitly or
                                     Implicitly Bar Relief Against the United States. . . . . 9
14
                          2.         Larson Fails to Provide an Independent Basis for Equitable
15                                   Relief. . . . . . . . . . . . . . . . . . . . . . . . . 10

16   II.       INFORMATION SUBJECT TO THE STATE SECRETS PRIVILEGE
               AND RELATED STATUTORY PRIVILEGES IS NECESSARY TO
17             LITIGATE THIS CASE AND MUST BE EXCLUDED FROM
               FURTHER PROCEEDINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 12
18
               A.         The State Secrets Privilege Bars Use of Privileged Information In
19                        Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . .. . 12

20             B.         The United States Has Properly Asserted the State Secrets and
                          Related Statutory Privileges in this Case. . . . . . . . . . . . . 14
21
     III.      WHERE STATE SECRETS ARE NEEDED TO LITIGATE PLAINTIFFS'
22             CLAIMS, THE CASE CANNOT PROCEED. . . . . . . . . . . . . . . . . . . . . .. . 16

23             A.         Standing Cannot be Established or Refuted Without the Disclosure
                          of State Secrets and Harm to National Security. . . . . . . . .. . 18
24
               B.         The Disclosure of Privileged Information Would Also be Required
25                        to Adjudicate Plaintiffs' Claims on the Merits. . . .. . . . . . . 21

26   V.        LITIGATION OF THE PLAINTIFFS' CLAIMS CANNOT PROCEED
               UNDER FISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
27

28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW                  -i-
    

     Case 3:08-cv-04373-VRW             Document 18        Filed 04/03/2009           Page 6 of 36


     CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 25
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28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW                -ii-
    

     Case 3:08-cv-04373-VRW         Document 18        Filed 04/03/2009             Page 7 of 36


                                                 TABLE OF AUTHORITIES
1
     CASES                                                                                     PAGE(S)
2
     Alaska v. Babbitt, 75 F.3d 449 (9th Cir. 1996) (Babbitt II) . . . . . . . . . . . . . 9, 10, 11
3
     Alaska v. Babbitt, 38 F.3d 1068 (9th Cir. 1994) (Babbitt I) . . . . . . . . . . . . . . . . . 9
4
     Al-Haramain Islamic Found., Inc. v. Bush, 564 F. Supp. 2d 1109 (N.D. Cal. 2008) . . . 7, 13, 24
5
     Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190 (9th Cir. 2007) .  . . . . . . . passim
6
     American Civil Liberties Union v. NSA, 493 F.3d 644 (6th Cir. 2007). . . . . . . . . . . . . 19
7
     Aminoil U.S.A., Inc. v. Cal. State Water Ctrl. Bd., 674 F.2d 1227 (9th Cir. 1982). . . . . . 11
8
     Block v. North Dakota, 461 U.S. 273 (1983). . . . . . . . . . . . . . . . . . . . . . 9, 10, 11
9
     Cent. Bank of Denver v. First Interstate Bank, 511 U.S. 164 (1994). . . . . . . . . . . . . . 7
10
     Cent. Res. Life of North America Ins. Co. v. Struve, 852 F.2d 1158 (9th Cir. 1988) . . . . . 11
11
     Children's Hosp. Health Ctr. v. Belshe, 188 F.3d 1090 (9th Cir. 1999). . . . . . . . . 4, 6, 11
12
     CIA v. Sims, 471 U.S. 159 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 23
13
     City of Los Angeles v. Lyons, 461 U.S. 95 (1983) . . . . . . . . . . . . . . . . . . . . . . 18
14
     Dep't of the Army v. Blue Fox, Inc., 525 U.S. 255 (1999) . . . . . . . . . . . . . . . . . 2, 6
15
     Dep't of Army v. Fed. Labor Relations Auth., 56 F.3d 273 (D.C. Cir. 1995) . . . . . . . . . . 6
16
     Dugan v. Rank, 372 U.S. 609 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
17
     Duncan v. Walker, 533 U.S. 167 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6
18
     Ellsberg v. Mitchell, 709 F.2d 51 (D.C. Cir. 1983) . . . . . . . . . . . . . . . 12, 14, 18, 19
19
     El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007). . . . . . . . . . . . . . . . . . . 12
20
     F.D.I.C. v. Meyer, 510 U.S. 471 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
21
     Freeman v. DirecTV, 457 F.3d 1001 (9th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . 7
22
     Hepting v. AT&T, 493 F. Supp. 2d 974 (N.D. Cal. 2006). . . . . . . . . . . . . . . . . . passim
23
     Halkin v. Helms, 690 F.2d 977 (D.C. Cir. 1982) (Halkin II) . . . . . . . . . . . . . 12, 13, 19
24
     Halkin v. Helms, 598 F.2d 1 (D.C. Cir. 1978) (Halkin I). . . . . . . . . . . . . . . . . 13, 18
25
     Hawaii v. Gordon, 373 U.S. 57 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
26
     Holloway v. United States, 526 U.S. 1 (1999). . . . . . . . . . . . . . . . . . . . . . . . . 4
27

28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW                   -iii-
    

     Case 3:08-cv-04373-VRW           Document 18          Filed 04/03/2009              Page 8 of 36


     Hughes v. United States, 953 F.2d 531 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . 9
1
     Jones v. United States, 527 U.S. 373 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . 5
2
     Kasza v. Browner, 133 F.3d 1159 (9th Cir. 1998). . . . . . . . . . . . . . . . . . . . . passim
3
     Lane v. Pena, 518 U.S. 187 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6, 8
4
     Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949) . . . . . . . . . 3, 8, 10, 11
5
     Lewis v. Casey, 518 U.S. 343 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6
     Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). . . . . . . . . . . . . . . . . . . . . 18
7
     Multi Denominational Ministry of Cannabis v. Gonzales,
8    474 F. Supp. 2d 1133 (N.D. Cal. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

9    New Jersey v. T.L.O., 469 U.S. 325 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . 22

10   Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395 (D.C. Cir. 1984) . . . . . . . . . . 14

11   North Side Lumber Co. v. Block, 753 F.2d 1482 (9th Cir. 1985). . . . . . . . . . . . . . . . 10

12   O'Connor v. Ortega, 480 U.S. 709 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . 22

13   Palomar Pomerado Health Sys. v. Belshe, 180 F.3d 1104 (9th Cir. 1999)  . . . . . . . . . . . 11

14   People for the American Way Found v. NSA ("PFAW"),
     462 F. Supp. 2d 21 (D.D.C. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 19
15
     Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984). . . . . . . . . . . . . 10, 11
16
     Prescott v. United States, 973 F.2d 696 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . 2
17
     Rakus v. Illinois, 439 U.S. 128 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
18
     Sigman v. United States, 217 F.3d 785 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . 2, 8
19
     Smith v. Maryland, 442 U.S. 735 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23
20
     Tenet v. Doe, 544 U.S. 1 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
21
     Terkel v. AT&T Corp., F. Supp. 2d 899 (N.D. Ill. 2006) . . . . . . . . . . . . . . . . . 15, 16
22
     Territory of Guam v. HHS, 997 F.2d 1290 (9th Cir. 1993). . . . . . . . . . . . . . . . . . . 10
23
     Totten v. United States, 92 U.S. 105 (1875). . . . . . . . . . . . . . . . . . . . . . . 12, 23
24
     Touche Ross & Co. v. Redington, 442 U.S. 560 (1979) . . . . . . . . . . . . . . . . . . . . . 8
25
     Tuscon Airport Auth. v. Gen. Dynamics Corp., 136 F.3d 641 (9th Cir. 1998)  . . . . . . . . . 10
26
     United States v. Barr, 25 F. Case 30 (C.C. D. Va. 1807). . . . . . . . . . . . . . . . . . . 12
27

28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW                 -iv-
    

     Case 3:08-cv-04373-VRW         Document 18       Filed 04/03/2009                Page 9 of 36


     United States v. Forrester, 512 F.3d 500 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . 23
1
     United States v. Menashe, 348 U.S. 528 (1955) . . . . . . . . . . . . . . . . . . . . . . . . 4
2
     United States v. Marchetti, 466 F.2d 1309 (4th Cir. 1972). . . . . . . . . . . . . . . . . . 13
3
     United States v. Morton, 467 U.S. 822 (1984). . . . . . . . . . . . . . . . . . . . . . . . . 4
4
     United States v. Nordic Village, Inc., 503 U.S. 30 (1992). . . . . . . . . . . . . . . . . 2, 6
5
     United States v. Reynolds, 345 U.S. 1 (1953) . . . . . . . . . . . . . . . . . . 12, 13, 14, 17
6
     Vermont Agency of Nat. Res. v. United States, 529 U.S. 765 (2000) . . . . . . . . . . . . . . 8
7
     Warth v. Selden, 422 U.S. 490 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
8
     Wilner v. National Security Agency, 2008 WL 2567765 (S.D. N.Y. 2008) . . . . . . . . . . 16, 19
9
     Zuckerbraun v. General Dynamics Corp., 935 F.2d 544 (2d Cir. 1991) . . . . . . . . . . . . . 17
10
     CONSTITUTIONAL PROVISIONS
11
     U.S. CONST. amend. I  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 22
12
     U.S. CONST. amend. IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 20, 22, 23
13
     STATUTES
14
     5 U.S.C. � 702. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 8, 9, 10
15
     18 U.S.C. � 2511. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 22
16
     18 U.S.C. � 2520 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
17
     18 U.S.C. � 2702  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
18
     18 U.S.C. � 2703 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5, 22
19
     18 U.S.C. � 2707 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
20
     18 U.S.C. � 2711 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
21
     18 U.S.C. � 2712 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
22
     50 U.S.C. � 1801 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
23
     50 U.S.C. � 1806  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 19, 25
24
     50 U.S.C. � 1809 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 8, 10, 21, 22
25
     50 U.S.C. � 1810  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7, 8, 10, 20
26
     Section 223 of the Patriot Act of 2001, Pub. L. No. 107-56, 115 Stat. 272  . . . . . 4, 5, 6, 7
27

28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW                 -v-
    

     Case 3:08-cv-04373-VRW           Document 18         Filed 04/03/2009          Page 10 of 36


     LEGISLATIVE MATERIALS
1
     Administration's Draft Anti-Terrorism Act of 2001: Hearing Before the H. Comm.
2    on the Judiciary, 107th Cong. 17 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

3    H.R. REP. NO. 109-174(I), at 496 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

4    H.R. REP. NO. 107-236(I), at 42 (2001)  . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

5    H.R. REP. NO. 95-1283, at 66 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

6    H.R. REP. NO. 94-1656, at 13 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

7    CRS Summary, H.R. 3162 (Oct. 24, 2001)  . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW                  -vi-
    

     Case 3:08-cv-04373-VRW            Document 18         Filed 04/03/2009       Page 11 of 36


                                             INTRODUCTION
1
            Plaintiffs in this action allege that the Government, through the National Security Agency
2
     ("NSA"), is undertaking an "illegal and unconstitutional dragnet communications surveillance in
3
     concert with major telecommunications companies," and that NSA has indiscriminately
4
     intercepted the content of communications, as well as the communications records, of millions of
5
     ordinary Americans. See Complaint � 1, 7; see also id. �� 9-11; 73-75; 82-97.
6
            This is not the first instance in which these allegations have been before this Court. The
7
     plaintiffs in this case (it appears with one exception) are the same plaintiffs who filed the
8
     Hepting action against AT&T raising identical allegations. See Hepting v. AT&T, 493 F. Supp.
9
     2d 974 (N.D. Cal. 2006). Plaintiffs now bring a seventeen-count complaint against the United
10
     States and Government officials in their official capacity, claiming that the alleged actions
11
     violate the First and Fourth Amendments of the United States Constitution, and the separation of
12
     powers doctrine, as well as various statutory provisions--Section 109 of the Foreign Intelligence
13
     Surveillance Act of 1978 ("FISA"), 50 U.S.C. � 1809; the Wiretap Act, as amended by the
14
     Electronic Communications Privacy Act ("ECPA"), 18 U.S.C. � 2511(1)(a), (1)(c), (1)(d) and
15
     (3)(a); and the Stored Communications Act ("SCA"), 18 U.S.C. � 2703(a), (b), and (c).1
16
            As a threshold matter, the Court should dismiss plaintiffs' statutory claims against the
17
     Government Defendants in their official capacity for lack of subject matter jurisdiction because
18
     Congress has not waived sovereign immunity. This leaves plaintiffs with, at most, constitutional
19
     claims for declaratory and injunctive relief against the United States. These claims cannot
20
     proceed as well--indeed, none of plaintiffs' claims could proceed against any
21
     defendant--because, at every stage, litigation plaintiffs' claims would require or risk the
22

23
            1
24            A summary of plaintiffs' claims is attached as Exhibit 1. Plaintiffs also sue NSA
     Director Alexander and several former officials in their personal capacity, see Compl. �� 26,
25   29-31, 33-37 and Counts I-VIII; X-XI; XIII-XIV; XVI-XVII. This motion is brought solely by
26   the Government Defendants sued in their official capacity. However, as set forth herein, the
     Government's proper invocation of the state secrets and applicable statutory privileges also
27   excludes information relevant to addressing the personal capacity claims and requires summary
     judgment and dismissal of all personal capacity claims as well.
28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW
    

          Case 3:08-cv-04373-VRW           Document 18         Filed 04/03/2009       Page 12 of 36


     disclosure of information that is properly subject to the state secrets privilege and related
1
     statutory privileges.
2
            This lawsuit squarely puts at issue whether, or to what extent, the Government utilized
3
     certain intelligence sources and methods after the 9/11 attacks. As in Hepting, the Director of
4
     National Intelligence ("DNI") has once again demonstrated that the disclosure of the information
5
     implicated by this case, which concerns how the United States seeks to detect and prevent
6
     terrorist attacks, would cause exceptionally grave harm to national security. See Public and
7
     Classified In Camera, Ex Parte Declarations of Dennis C. Blair, Director of National
8
     Intelligence. The information subject to the DNI's privilege assertion should therefore be
9
     excluded from this case. In addition, because disclosure of the privileged information would be
10
     required or at risk in further proceedings, the Court should grant summary judgment for the
11
     United States on all of plaintiffs' claims and dismiss this case against all defendants.
12
            While the dismissal of private claims is a significant step, long-standing authority holds
13
     that "the greater public good" is the protection of the national security interests of the United
14
     States. Kasza v. Browner, 133 F.3d 1159, 1167 (9th Cir. 1998) (quoting Bareford v. Gen.
15
     Dynamics Corp., 973 F.2d 1138, 1144 (5th Cir. 1992)).
16
                                                ARGUMENT
17
     I.     CONGRESS HAS NOT WAIVED SOVEREIGN IMMUNITY FOR PLAINTIFFS'
18          STATUTORY CLAIMS.

19          "Absent a waiver, sovereign immunity shields the Federal Government and its agencies

20   from suit." Dep't of the Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999) (quoting F.D.I.C. v.

21   Meyer, 510 U.S. 471, 475 (1994)). Plaintiffs bear the burden of establishing such a waiver, see

22   Prescott v. United States, 973 F.2d 696, 701 (9th Cir. 1992), which must be explicitly and

23   unequivocally expressed in statutory text. See Lane v. Pena, 518 U.S. 187, 192 (1996); Sigman

24   v. United States, 217 F.3d 785, 792 (9th Cir. 2000). This Court should "strictly construe[]" any

25   purported waiver "in favor of the sovereign," Blue Fox, 525 U.S. at 261, and a statute does not

26   waive sovereign immunity if it will bear any "plausible" alternative interpretation. See United

27   States v. Nordic Village, Inc., 503 U.S. 30, 33-37 (1992).

28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW                  -2-
    

         Case 3:08-cv-04373-VRW            Document 18        Filed 04/03/2009       Page 13 of 36


            As set forth below, in the Wiretap Act and ECPA, Congress expressly preserved
1
     sovereign immunity against claims for damages and equitable relief, permitting such claims
2
     against only a "person or entity, other than the United States." See 18 U.S.C. � 2520; 18 U.S.C.
3
     � 2707. Plaintiffs attempt to locate a waiver of sovereign immunity in other statutory provisions,
4
     primarily through a cause of action authorized by the Stored Communications Act, 18 U.S.C.
5
     � 2712, but this attempt fails. Section 2712 does not erase the express reservations of sovereign
6
     immunity noted above, because it applies solely to a narrow set of allegations not presented here:
7
     where the Government obtains information about a person through intelligence-gathering, and
8
     Government agents unlawfully disclose that information. Likewise, the Government preserves
9
     its position that Congress also has not waived sovereign immunity under in FISA to permit a
10
     damages claim against the United States. See 50 U.S.C. � 1810.
11
            Plaintiffs' claims for equitable relief under Section 702 of the Administrative Procedure
12
     Act ("APA") and the Supreme Court's decision in Larson v. Domestic & Foreign Commerce
13
     Corp., 337 U.S. 682 (1949), fare no better. First, Section 702 does not provide an equitable
14
     remedy when another statute explicitly or implicitly forbids such relief. Second, plaintiffs
15
     cannot proceed without a waiver of sovereign immunity Larson, because Congress has explicitly
16
     forbidden equitable relief, and the relief plaintiffs seek would run against the United States.
17
            A.      Congress Has Not Waived Sovereign Immunity as to Plaintiffs'
18                  Claims for Damages.

19          Plaintiffs seek damages against the United States under the Wiretap Act and ECPA, as

20   well as FISA (Counts VI, IX, XII, and XV), but can establish no waiver of sovereign immunity

21   for these claims.

22                  1.      Congress Has Expressly Preserved Sovereign Immunity For
                            Plaintiffs' Wiretap Act and ECPA Claims.
23
            Congress has expressly barred suits against the United States for damages and equitable
24
     relief based on alleged violations of the Wiretap Act and ECPA, in both cases by permitting
25
     relief against only a "person or entity other than the United States." See 18 U.S.C. � 2520(a); 18
26
     U.S.C. � 2707(a). Congress enacted these express reservations of sovereign immunity in Section
27

28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW                    -3-
    

         Case 3:08-cv-04373-VRW             Document 18         Filed 04/03/2009       Page 14 of 36


     223 of the Patriot Act of 2001, Pub. L. No. 107-56, 115 Stat. 272. See � 223(a)(1), (b)(1)
1
     (inserting the words "other than the United States."). Plaintiffs' apparent theory--that another
2
     provision of Section 223 of the Patriot Act, codified in 18 U.S.C. � 2712, provides the requisite
3
     waiver of sovereign immunity for plaintiffs' Wiretap Act and ECPA claims, see Compl., Counts
4
     IX, XII, XV--is meritless. Such a theory depends on the assumption that Congress, in the same
5
     Act, expressly reserved sovereign immunity in Sections 2520(a) and 2707(a) for Wiretap Act
6
     and ECPA claims, and expressly waived sovereign immunity for those claims in Section 2712(a).
7
     Such a construction would use one provision of an Act to "emasculate . . . entire section[s]"
8
     elsewhere in the Act, see United States v. Menashe, 348 U.S. 528, 538-39 (1955), and thereby
9
     violate the "cardinal principle of statutory construction" that courts must "give effect, if possible,
10
     to every clause and word of a statute," rather than rendering any section "superfluous." Duncan
11
     v. Walker, 533 U.S. 167, 174 (2001) (collecting cases) (internal quotations omitted).
12
            In fact, all of the provisions enacted in Section 223 of the Patriot Act can be read
13
     harmoniously. As noted, 18 U.S.C. � 2520(a) (Section 223(a)(1)) generally precludes suits
14
     against the United States for claims arising under the Wiretap Act, Chapter 119 of Title 18.
15
     Similarly, 18 U.S.C. � 2707(a) (Section 223(b)(1)) precludes suits against the United States for
16
     conduct that constitutes a "knowing or intentional" violation of ECPA, Chapter 121 of Title 18.
17
     Finally, 18 U.S.C. � 2712 (Section 223(c)(1)) creates a narrow exception to these provisions,
18
     waiving sovereign immunity for damages suits against the United States solely for certain
19
     "willful violation[s]" of the Wiretap Act, ECPA, and specific provisions of FISA--all of which
20
     concern willful disclosures of information by Government agents, not alleged or at issue here.
21
            This construction of Section 223 is supported by reading "the statute as a whole,
22
     including its object and policy," not by reading any one provision in isolation.2 See Children's
23
     Hosp. Health Ctr. v. Belshe, 188 F.3d 1090, 1096 (9th Cir. 1999); see also Holloway v. United
24
     States, 526 U.S. 1, 7 (1999); United States v. Morton, 467 U.S. 822, 828 (1984). Section 223 is
25
     entitled "Civil Liability For Certain Unauthorized Disclosures," and the text of the statute makes
26

27          2
                The text of Section 223 of the Patriot Act is attached as Exhibit 2.
28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW                   -4-
    

         Case 3:08-cv-04373-VRW            Document 18         Filed 04/03/2009       Page 15 of 36


     clear that Congress intended its provisions, including the provision codified in 18 U.S.C. � 2712,
1
     to afford relief only where Government agents make unauthorized disclosures of information
2
     obtained through surveillance.
3
            Accordingly, Section 223(a)(3) amended the Wiretap Act to state that "[a]ny willful
4
     disclosure or use by an investigative or law enforcement officer or governmental entity of
5
     information beyond the extent permitted by [the Wiretap Act] is a violation . . . of [the Act]."
6
     See 18 U.S.C. � 2520(g). Similarly, Section 223(b)(3) amended ECPA to state that "[a]ny
7
     willful disclosure of a `record'. . . obtained by an investigative or law enforcement officer, or a
8
     governmental entity, pursuant to 2703 of this title . . . that is not a disclosure made in proper
9
     performance of the official functions of the officer or governmental entity making the disclosure,
10
     is a violation of [ECPA]." See 18 U.S.C. � 2707(g). And Section 223(c)(1) added 18 U.S.C.
11
     � 2712, providing for money damages against the United States for a "willful violation" of FISA,
12
     the Wiretap Act, and ECPA. The phrase "willful violation" in Section 223(c)(1) (18 U.S.C.
13
     � 2712) "gathers meaning" from the use of the term "willful" in its surrounding provisions. See
14
     Jones v. United States, 527 U.S. 373, 389 (1999) (internal quotation omitted). In particular, a
15
     "willful violation" in Section 223(c)(1) refers to the "willful disclosure" of intelligence
16
     information by Government agents, as described by Section 223(a)(3) and (b)(3), and such
17
     disclosures by the Government are the only actions that create liability against the United States.
18
            Other provisions of Section 223 also address themselves to unauthorized disclosures by
19
     Government agents. For example, Section 223(a)(2) and (b)(2) amended the Wiretap Act and
20
     ECPA to provide for administrative discipline of Government agents who make such willful
21
     disclosures. See 18 U.S.C. � 2520(f); 18 U.S.C. � 2707(d). Similarly, Section 223(c)(1)(a)
22
     authorized suit against the United States for violations of specific sections of the FISA--sections
23
     106(a), 305(a), and 405(a)--which also concern the use and disclosure by Federal officers of
24
     information acquired from electronic surveillance, a physical search, or a pen register and trap
25
     and trace device. See 18 U.S.C. � 2712(a) (authorizing suit for violations of 50 U.S.C.
26
     �� 1806(a), 1825(a), 1845(a)). Each of these provisions demonstrates that the "object and
27

28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW                  -5-
    

         Case 3:08-cv-04373-VRW           Document 18         Filed 04/03/2009       Page 16 of 36


     policy" of Section 223 was to impose liability for unauthorized disclosures of intelligence
1
     information by Government agents. See Belshe, 188 F.3d at 1096.3
2
            The legislative history of Section 223, though scarce, confirms that Section 2712(a) is
3
     intended to authorize suit against the United States solely for such alleged unauthorized
4
     disclosures by the Government. Section 223 was an amendment proposed by Representative
5
     Barney Frank during the consideration of the Patriot Act before the House Committee on the
6
     Judiciary. Citing the historical example of leaks by FBI Director J. Edgar Hoover against Dr.
7
     Martin Luther King, Jr., Mr. Frank explained that when law enforcement agents
8
     "inappropriate[ly] release . . . information garnered by surveillance," the victim of such leaks
9
     should have "the right to go into Federal court under the Federal Tort Claims Act before a
10
     federal judge and get damages from the Government." Administration's Draft Anti-Terrorism
11
     Act of 2001: Hearing Before the H. Comm. on the Judiciary, 107th Cong. 17 (2001), Exh. 3.
12
     The House Judiciary Committee approved the Frank amendment, recognizing that the
13
     Amendment "provide[d] for actions against the United States" "for unlawful disclosures
14
     obtained by [intelligence gathering]." H.R. REP. NO. 107-236(I), at 42 (2001), Exh. 4. Four
15
     years later, when Congress reauthorized 18 U.S.C. � 2712 and other provisions in the Patriot
16
     Act, it recognized that Section 2712 was limited to the "unauthorized disclosure of pen trap,
17
     wiretap, stored communications or FISA information." H.R. REP. NO. 109-174(I), at 496 (2005),
18
     Exh. 5.4
19

20
            3
              This harmonious reading of all the provisions of Section 223 of the Patriot Act not only
21   comports with proper statutory construction, see Duncan, 533 U.S. at 174; Belshe, 188 F.3d at
22   1096, but also with the Supreme Court's frequent admonition that courts should construe any
     purported waiver of sovereign immunity "strictly" and "in favor of the sovereign." See Blue
23   Fox, 525 U.S. at 261; Lane, 518 U.S. at 192. Moreover, since there is a "plausible"
     interpretation of 18 U.S.C. � 2712 that does not waive sovereign immunity, the Court should
24   adopt that interpretation. See Nordic Village, 503 U.S. at 33-37; Dep't of Army v. Fed. Labor
     Relations Auth., 56 F.3d 273, 277 (D.C. Cir. 1995).
25
            4
26            A Congressional Research Service summary of the Patriot Act likewise explained that
     Section 223 "provide[s] for administrative discipline of Federal officers or employees who
27   violate prohibitions against unauthorized disclosures of information gathered under this Act" and
     "[p]rovides for civil actions against the United States for damages by any person aggrieved by
28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW                   -6-
    

         Case 3:08-cv-04373-VRW            Document 18         Filed 04/03/2009       Page 17 of 36


            Thus, both the text and legislative history of Section 223 of the Patriot Act make clear
1
     that a "willful violation" in 18 U.S.C. � 2712 means a willful, unauthorized disclosure of
2
     information by a Government agent. Plaintiffs do not allege any such disclosures, and thus the
3
     general reservations of sovereign immunity in 18 U.S.C. �� 2520(a) and 2707(a) control
4
     plaintiffs' statutory claims for damages against the Government under Counts IX, XII, and XV.5
5
                    2.      Congress Has Not Waived Sovereign Immunity
6                           in FISA Section 1810.

7           Plaintiffs' final claim for damages against the United States is under FISA, where

8    plaintiffs assert that 50 U.S.C.� 1810 waives sovereign immunity (Count VI). Defendants

9    recognizes that the Court found an "[i]mplicit" waiver of sovereign immunity under 50 U.S.C.

10   � 1810 in Al-Haramain Islamic Foundation, Inc. v. Bush, 564 F. Supp. 2d 1109, 1124-25 (N.D.

11   Cal. 2008). But the Government respectfully disagrees with the Court's conclusion and, for the

12   record of this case, expressly reserve its position that Section 1810 contains no waiver of

13   sovereign immunity to bring a damages claim against the United States.6

14

15   such violations." CRS Summary, H.R. 3162 (Oct. 24, 2001), Exhibit 6.
16          5
               Plaintiffs allege that the Government solicited, acquired, or received their
     communications from telecommunications carriers, not that Government agents disclosed
17   intelligence information unlawfully (See Compl. �� 9-10, 13, 73-84, 90-97). Allegations that
18   third parties made disclosures to the Government do not establish that the Government made
     unauthorized disclosures within the meaning of 18 U.S.C. � 2712. Moreover, nothing in any of
19   the statutes upon which plaintiffs base their claims creates liability against the United States for
     allegedly aiding and abetting disclosures of third parties, and the Supreme Court has refused to
20   impose such secondary civil liability absent any "congressional direction to do so." Cent. Bank
     of Denver v. First Interstate Bank, 511 U.S. 164, 183 (1994); see also id. at 177 ("If . . .
21   Congress intended to impose aiding and abetting liability, we presume it would have used the
22   words `aid' and `abet' in the statutory text."). The Ninth Circuit has followed Central Bank of
     Denver by refusing to find a private cause of action under 18 U.S.C. � 2702 against those who
23   allegedly aid and abet, or conspire with, electronic communication service providers in
     unlawfully disseminating the contents of electronic communications under ECPA. Freeman v.
24   DirecTV, 457 F.3d 1001, 1004-09 (9th Cir. 2006).
25          6
             The Government briefed the sovereign immunity issue in the Al-Haramain action, see
26   Memorandum of Points and Authorities in Support of Defendants' Second Motion to Dismiss or
     for Summary Judgment (Dkt. 17, Case No. 07-109-VRW) ("Defs. 2d MSJ Mem.") at 8-12; see
27   also Defendants' Reply in Support of Defendants' Second Motion to Dismiss or for Summary
     Judgment (Dkt. 29, Case No. 07-109-VRW) ("Defs. 2d MSJ Reply") at 4-8.
28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW                  -7-
    

         Case 3:08-cv-04373-VRW            Document 18        Filed 04/03/2009       Page 18 of 36


            Sovereign immunity cannot be waived implicitly; waivers of sovereign immunity must
1
     instead be explicit and unequivocal. See Multi Denominational Ministry of Cannabis v.
2
     Gonzales, 474 F. Supp. 2d 1133, 1140 (N.D. Cal. 2007) (Walker, C.J.); see also Lane, 518 U.S.
3
     at 192; Sigman, 217 F.3d at 792. Section 1810 creates a "cause of action against any person"
4
     who violates the provisions of 50 U.S.C. � 1809.7 But Section 1810 does not mention suit
5
     against the United States, and the United States is not a "person" within the meaning of the
6
     statute. There is a "longstanding interpretive presumption that [the term] `person' does not
7
     include the sovereign," Vermont Agency of Nat. Res. v. United States, 529 U.S. 765, 780 (2000)
8
     (collecting cases), and the presumption may be overcome "only upon some affirmative showing
9
     of statutory intent to the contrary." Id. FISA reveals no such intent. When Congress intends to
10
     waive the sovereign immunity of the United States, it knows how to do so expressly. Cf. Touche
11
     Ross & Co. v. Redington, 442 U.S. 560, 572 (1979); Central Bank, 511 U.S. at 176-77, 184.
12
     Notably, Congress expressly authorized actions for damages "against the United States" as to
13
     specific violations of FISA, see 18 U.S.C.� 2712--but not as to alleged violations of Section
14
     1810. Without such an express waiver, plaintiffs' FISA claim may not proceed.
15
            B.      Congress Has Not Waived Sovereign Immunity for the
16                  Equitable Relief Plaintiffs Seek under FISA, the Wiretap Act,
                    and ECPA.
17
            Plaintiffs' statutory claims for equitable relief (see Compl., Counts V, VII, X, XIII, XVI)
18
     fare no better. Again, plaintiffs' alleged bases for equitable relief for their Wiretap Act and
19
     ECPA claims are 18 U.S.C. � 2520, and 18 U.S.C. � 2707, which expressly reserve sovereign
20
     immunity by permitting claims only against a "person or entity, other than the United States."
21
     18 U.S.C. �� 2520(a), 2707(a). Plaintiffs base another claim for equitable relief on Section
22
     1809, 50 U.S.C. � 1809, but nowhere in FISA has Congress waived sovereign immunity for
23
     equitable relief against the United States. And as discussed below, neither Section 702 of the
24
     APA nor the Larson doctrine supply the basis for such relief.
25

26          7
             FISA defines "person" to mean "any individual, including any officer or employee of
27   the Federal Government, or any group, entity, association, corporation, or foreign power." 50
     U.S.C. � 1801(m).
28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW                     -8-
    

         Case 3:08-cv-04373-VRW             Document 18          Filed 04/03/2009        Page 19 of 36


                     1.      APA Section 702 Does Not Waive Sovereign Immunity Where
1                            Other Statutes Explicitly or Implicitly Bar Relief Against the
                             United States.
2
             Section 702 of the APA provides a general waiver of sovereign immunity for suits
3
     seeking equitable relief against the United States based on "agency action," see 5 U.S.C. � 702,
4
     but Congress has also made clear that � 702 does not waive sovereign immunity "where some
5
     other statute controls." Alaska v. Babbitt, 38 F.3d 1068, 1072-73 (9th Cir. 1994) (Babbitt I).
6
     Section 702 emphasizes that "[n]othing herein . . . affects other limitations on judicial review
7
     [or] . . . confers authority to grant relief if any other statute that grants consent to suit expressly
8
     or impliedly forbids the relief which is sought." Id. Because Congress has expressly forbidden
9
     relief for the plaintiff's Wiretap Act and ECPA claims (Counts VII, X, and XIII) by barring
10
     equitable relief against the United States in Sections 2520(a) and 2707(a) of Title 18, these
11
     specific and express reservations of sovereign immunity preclude jurisdiction under � 702 of the
12
     APA. See Block v. North Dakota, 461 U.S. 273, 284-86 & n.22 (1983) (holding there is no
13
     jurisdiction under � 702 when another statute expressly forbids relief by preserving sovereign
14
     immunity); accord Alaska v. Babbitt, 75 F.3d 449, 451-53 (9th Cir. 1996) (Babbitt II); Hughes v.
15
     United States, 953 F.2d 531, 537 (9th Cir. 1992).
16
             In addition, the Supreme Court has held that "� 702 provides no authority to grant relief
17
     when Congress has dealt in particularity with a claim and [has] intended a specified remedy to be
18
     the exclusive remedy." Block, 461 U.S. at 284-86 & n.22 (quoting H. REP. NO. 94-1656 at 13
19
     (1976)) (rejecting claims under � 702 because the Quiet Title Act provided the "exclusive
20
     means" to challenge an action); accord Babbitt II, 75 F.3d at 452-53; Babbitt I, 38 F.3d at 1072-
21
     73. Congress has provided such an exclusive remedy for claims under the Wiretap Act and
22
     ECPA in 18 U.S.C. � 2712, which provides for damages only against the United States for
23
     certain willful disclosures by Government agents, and makes clear that "an action against the
24
     United States under this subsection shall be the exclusive remedy against the United States for
25
     any claims within the purview of this section." 18 U.S.C. � 2712(d). Plaintiffs cannot evade this
26
     exclusive damages remedy by seeking equitable relief under the APA, because "a precisely
27

28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW                   -9-
    

         Case 3:08-cv-04373-VRW            Document 18         Filed 04/03/2009       Page 20 of 36


     drawn, detailed statute" such as Section 2712 "preempts more general remedies" under � 702.
1
     See Block, 461 U.S. at 285; Babbitt II, 75 F.3d at 453.
2
            Similarly, plaintiffs' claim for equitable relief under Section 702 of the APA for an
3
     alleged violation of FISA (Compl., Count V) is also foreclosed. As outlined above, Congress
4
     limited recovery for violations of Section 1809 by permitting recovery only against a "person,"
5
     and limiting such recovery to damages and fees. See 50 U.S.C. � 1810. Section 1810 thus
6
     forecloses equitable relief under � 702 of the APA for at least two reasons. First, by permitting
7
     relief only for damages, � 1810 "impliedly forbids declaratory and injunctive relief and
8
     precludes a � 702 waiver of sovereign immunity." See Tuscon Airport Auth. v. Gen. Dynamics
9
     Corp., 136 F.3d 641, 646 (9th Cir. 1998) (holding the same for the Tucker Act) (internal
10
     quotation omitted); accord North Side Lumber Co. v. Block, 753 F.2d 1482, 1484-85 (9th Cir.
11
     1985). Second, by choosing to permit recovery only against a person, Congress implicitly
12
     prohibited recovery against the United States. See supra Sec. I(A)(2).
13
            Accordingly, the Court lacks subject matter jurisdiction to grant plaintiffs' claims for
14
     equitable relief under FISA, the Wiretap Act, and ECPA pursuant to Section 702 of the APA.8
15
                    2.      Larson Fails to Provide an Independent Basis for Equitable Relief.
16
            Plaintiffs' reliance on Domestic and Foreign Commerce Corp. v. Larson to support their
17
     statutory claims for equitable relief likewise fails. In Larson, the Supreme Court rejected the
18
     notion that no waiver of sovereign immunity was required for a suit against a Government
19
     official for acts he committed in his official capacities. 337 U.S. at 703. The Court went on to
20
     observe in dicta that there may be certain circumstances where, if an officer of the United States
21
     takes action that is unconstitutional or beyond his statutory authority, a suit against him for
22
     equitable relief is not a suit against the sovereign, and no waiver of sovereign immunity is
23
     necessary. See Larson, 337 U.S. at 689-90, 701-02. In the context of state sovereign immunity,
24
     the Supreme Court has described Larson's ultra vires exception as "questionable," Pennhurst
25

26          8
             Plaintiffs also bring a freestanding APA claim that is not tied to another statute (Count
27   XVI). This claim fails because � 702 of the APA "does not confer jurisdiction independent of
     some other specific statute." Territory of Guam v. HHS, 997 F.2d 1290, 1292 (9th Cir. 1993).
28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW                   -10-
    

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     State School & Hosp. v. Halderman, 465 U.S. 89, 116 n.27 (1984), and has emphasized that any
1
     exception must be "very narrow" in order to preserve the principle of sovereign immunity. See
2
     id. at 114 n.25. The narrow exception does not apply here.
3
            First, as with plaintiffs' APA claims, Larson "provides no authority to grant relief,"
4
     because Congress has created an exclusive remedy in 18 U.S.C. � 2712, and that statute's
5
     "precisely drawn, detailed" provisions "preempt[] more general remedies" under Larson. See
6
     Block, 461 U.S. at 284-86 & n.22; Babbitt II, 75 F.3d at 451-53. Second, even if Larson
7
     provided an avenue for relief, plaintiffs cannot establish a Larson claim because "the effect of
8
     the relief sought" would run against the United States. See Pennhurst, 465 U.S. at 107
9
     (emphasis omitted). Plaintiffs allege that the equitable relief they seek would halt widespread
10
     intelligence-gathering activity of the United States, and thus there is no question that plaintiffs
11
     seek relief that "would . . . restrain the Government from acting, or . . . compel it to act," or
12
     "interfere with the public administration." Pennhurst, 465 U.S. at 102 n.11 (quoting Dugan, 372
13
     U.S. 609,620 (1963)); see also Hawaii v. Gordon, 373 U.S. 57, 58 (1963). The Ninth Circuit has
14
     repeatedly dismissed such ultra vires theories. See Cent. Res. Life of North America Ins. Co. v.
15
     Struve, 852 F.2d 1158, 1159-60, 1161 (9th Cir. 1988) (holding that "it cannot be seriously
16
     maintained" that a suit seeking an injunction ordering a state official to approve the marketing of
17
     insurance within the state was not against the sovereign); Aminoil U.S.A., Inc. v. Cal. State Water
18
     Ctrl. Bd., 674 F.2d 1227, 1234 (9th Cir. 1982) (holding that a suit nominally against a federal
19
     official, which sought a determination that the official acted beyond the scope of his statutory
20
     authority was, in reality, a suit against the United States that would "preclude the [official] in his
21
     official capacity from enforcing the [law]."); see also Palomar Pomerado Health Sys. v. Belshe,
22
     180 F.3d 1104, 1108 (9th Cir. 1999) (holding that where plaintiff sought an injunction that
23
     would restrain a state from reducing medical payment rates charged by plaintiff, relief would
24
     interfere with public administration and was thus barred absent waiver of sovereign immunity).
25

26

27

28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW                  -11-
    

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     II.     INFORMATION SUBJECT TO THE STATE SECRETS PRIVILEGE AND
1            RELATED STATUTORY PRIVILEGES IS NECESSARY TO LITIGATE THIS
             CASE AND MUST BE EXCLUDED FROM FURTHER PROCEEDINGS.
2
             Apart from the jurisdictional defects of plaintiffs' statutory claims against the
3
     Government, all of plaintiffs' claims in this case would require or risk the disclosure of
4
     information properly protected by the DNI's assertion of the state secrets privilege. Plaintiffs'
5
     Complaint quite clearly seeks disclosure of whether or to what extent the Government may have
6
     utilized certain intelligence sources and methods after the 9/11 attacks in order to detect and
7
     prevent further attacks. It also seeks disclosure of whether any of the alleged activities (if they
8
     exist) are ongoing. As set forth below, the Director of National Intelligence (supported by the
9
     NSA) has properly asserted privilege to protect such information from disclosure in order to
10
     prevent exceptionally grave harm to national security.
11
             A.     The State Secrets Privilege Bars Use of Privileged Information In Litigation.
12
              "The state secrets privilege is a common law evidentiary privilege that permits the
13
     government to bar the disclosure of information if `there is a reasonable danger' that disclosure
14
     will `expose military matters which, in the interests of national security, should not be
15
     divulged.'" Al-Haramain Islamic Found. v. Bush, 507 F.3d 1190, 1196 (9th Cir. 2007) (quoting
16
     United States v. Reynolds, 345 U.S. 1, 10 (1953)). The ability of the executive to protect state
17
     secrets from disclosure in litigation has been recognized from the earliest days of the Republic.
18
     See Totten v. United States, 92 U.S. 105 (1875); United States v. Barr, 25 F. Case 30 (C.C.D. Va.
19
     1807); Reynolds, 345 U.S. at 7-9; Al-Haramain, 507 F.3d at 1196-97; Kasza, 133 F.3d at 1165-
20
     66 (discussing cases); see also Hepting, 439 F. Supp. 2d at 98-981.9 The privilege protects a
21
     broad range of information, including the "disclosure of intelligence-gathering methods or
22
     capabilities." See Ellsberg v. Mitchell, 709 F.2d 51, 57 (D.C. Cir. 1983) (footnotes omitted);
23
     accord Al-Haramain, 507 F.3d 1202-03 (holding that state secrets privilege precludes disclosure
24

25           9
               The privilege has a firm foundation in the constitutional authority of the President
26   under Article II to protect national security information. See Dept. Of the Navy v. Egan, 484
     U.S. 518, 527 (1988); United States v. Nixon, 418 U.S. 683, 710-11 (1974) (recognizing the
27   President's constitutional authority to protect national security information) (citing Reynolds);
     see also El-Masri v. United States, 479 F.3d 296, 304 (4th Cir. 2007).
28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW                 -12-
    

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     of whether plaintiffs were subject to foreign intelligence surveillance);10 see also Halkin v.
1
     Helms, 690 F.2d 977, 990 (D.C. Cir. 1982) (Halkin II) (holding that state secrets privilege
2
     protects intelligence source and methods involved in NSA surveillance). The privilege also
3
     protects information that on its face may appear innocuous, but in a larger context could reveal
4
     sensitive classified information. Kasza, 133 F.3d at 1166.
5
            An assertion of the state secrets privilege "must be accorded the `utmost deference' and
6
     the court's review of the claim of privilege is narrow." Kasza, 133 F.3d at 1166; see also Al-
7
     Haramain, 507 F.3d at 1203 ("[W]e acknowledge the need to defer to the Executive on matters of
8
     foreign policy and national security and surely cannot legitimately find ourselves second guessing
9
     the Executive in this arena"). Aside from ensuring that the privilege has been properly invoked as
10
     a procedural matter, the sole determination for the court is whether, "under the particular
11
     circumstances of the case, `there is a reasonable danger that compulsion of the evidence will
12
     expose military matters which, in the interest of national security, should not be divulged.'"
13
     Kasza, 133 F.3d at 1166 (quoting Reynolds, 345 U.S. at 10). Moreover, the Ninth Circuit has
14
     made clear that the focal point of review is whether the Government has identified a reasonable
15
     danger to national security--not a court's own assessment as to whether information is a secret or
16
     its disclosure would cause harm. See Al-Haramain, 507 F.3d at 1203 ("[J]udicial intuition . . . is
17
     no substitute for documented risks and threats posed by the potential disclosure of national
18
     security information."); see also CIA v. Sims, 471 U.S. 159, 180 (1985) ("It is the responsibility of
19
     the [intelligence community], not that of the judiciary to weigh the variety of complex and subtle
20
     factors in determining whether disclosure of information may lead to an unacceptable risk of
21
     compromising the . . . intelligence-gathering process."); Halkin v. Helms, 598 F.2d 1, 8-9 (D.C.
22
     Cir. 1978) (Halkin I) ("`[C]ourts, of course, are ill-equipped to become sufficiently steeped in
23

24
             10
                The Government recognizes that the Ninth Circuit in Al-Haramain remanded for
25   consideration of whether the state secrets privilege is preempted by the Foreign Intelligence
26   Surveillance Act, see Al-Haramain, 507 F.3d at 1205-06, and that this Court has ruled that the
     privilege is preempted by the FISA, see Al-Haramain, 564 F. Supp. 2d at 1115-125. As set forth
27   below, the Government expressly preserves its position that the FISA does not preempt the state
     secrets privilege or other statutory privileges.
28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW                   -13-
    

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     foreign intelligence matters to serve effectively in the review of secrecy classifications in that
1
     area.'") (quoting United States v. Marchetti, 466 F.2d 1309, 1318 (4th Cir. 1972)). In addition, in
2
     assessing whether to uphold a claim of privilege, the court does not balance the respective needs
3
     of the parties for the information. Rather, "[o]nce the privilege is properly invoked and the court
4
     is satisfied that there is a reasonable danger that national security would be harmed by the
5
     disclosure of state secrets, the privilege is absolute" and cannot be overcome by even the most
6
     compelling need in the litigation. Kasza, 133 F.3d at 1166; see also Northrop Corp. v.
7
     McDonnell Douglas Corp., 751 F.2d 395, 399 (D.C. Cir. 1984); Ellsberg, 709 F.2d at 57.
8
            B.      The United States Has Properly Asserted the State Secrets and
9                   Related Statutory Privileges in this Case.

10          The United States has properly asserted and supported the state secrets privilege in this

11 case. First, as a procedural matter, "[t]here must be a formal claim of privilege, lodged by the

12 head of the department that has control over the matter, after actual personal consideration by the

13 officer." Reynolds, 345 U.S. at 7-8 (footnotes omitted). Here, the Director of National

14 Intelligence, who is head of the United States Intelligence Community, see 50 U.S.C. � 403

15 (b)(1); Al-Haramain, 507 F.3d at 1202 n.6, has formally asserted the state secrets privilege after

16 personal consideration of the matter. See Public and Classified In Camera, Ex Parte Declarations

17 of Admiral Dennis C. Blair, Director of National Intelligence.11 Second, the Government has

18 amply demonstrated in these submissions that there is a reasonable danger that disclosure of the

19 privileged information would cause exceptionally grave harm to national security.

20          Plaintiffs' allegations implicate several facts at the heart of the Government's privilege

21 assertion. First, plaintiffs allege that they have been personally subject to alleged NSA

22 intelligence activities. See e.g. Compl. �� 9, 10. But the DNI has explained that the disclosure of

23 information concerning whether or not plaintiffs have been subject to alleged NSA intelligence

24 activity would inherently reveal NSA intelligence sources and methods. Whether specific

25 individuals were targets of alleged NSA activities would either reveal who is subject to

26
             11
27            The DNI's assertion of privilege is supported by the Public and Classified In Camera,
     Ex Parte Declarations of Deborah A. Bonanni, Chief of Staff, National Security Agency.
28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW                   -14-
    

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     investigative interest--helping that person to evade surveillance--or who is not--thereby
1
     revealing the scope of intelligence activities as well as the existence of secure channels for
2
     communication. See Public DNI Decl. � 13; Public NSA Decl. � 11-12.
3
            Second, plaintiffs allege that they have been subject to a dragnet on the content of their
4
     communications, as well as the collection of their communication records, as part of an alleged
5
     presidentially-authorized program after the 9/11 attacks. See, e.g., Compl. � 7. But the facts
6
     necessary to litigate these allegations are also properly excluded by the DNI's privilege assertion.
7
     The DNI explains that, as the Government has previously indicated, the NSA's collection of the
8
     content12 of communications under the now inoperative Terrorist Surveillance Program ("TSP")
9
     was directed at international communications in which a participant was reasonably believed to
10
     be associated with al Qaeda or an affiliated terrorist organization, and thus plaintiffs' allegation
11
     that the NSA has indiscriminately collected the content of millions of communications sent or
12
     received by people inside the United States after 9/11 under the TSP is false. See Public DNI
13
     � 15; see also Public NSA Decl. � 14. But attempting to demonstrate that the TSP was not the
14
     content dragnet plaintiffs allege, or that the NSA has not otherwise engaged in the alleged content
15
     dragnet, would require the disclosure of highly classified NSA intelligence sources and methods
16
     about the TSP and other NSA activities. See Public DNI Decl. � 15; see also Public NSA Decl.
17
     �� 15-16. The DNI has also explained that confirmation or denial of whether the NSA has
18
     collected communication records would cause exceptional harm to national security by disclosing
19
     whether or not NSA utilizes certain intelligence sources and methods and thereby revealing the
20
     capability and operations or lack thereof for foreign adversaries to exploit. See Public DNI Decl.
21
     � 16; see also Public NSA Decl. � 15. Indeed, this Court has previously barred discovery into
22
     allegations concerning communications records, see Hepting, 439 F. Supp. 2d at 997, and the
23
     harms outlined by the DNI warrant no alteration of the Court's conclusion.13 Indeed, the Court in
24

25           12
              The term "content" is used herein and by the DNI to refer to the substance, meaning or
26   purport of a communication, as defined in 18 U.S.C. � 2510(8). See Public DNI Decl. � 14 n.1.
             13
27             While the Court in Hepting did not conclude that the state secrets privilege bars
     disclosure of whether or not such a program exists or whether AT&T was involved, see Hepting,
28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW                -15-
    

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     Terkel v. AT&T Corp., 441 F. Supp. 2d 899, 917 (N.D. Ill. 2006), addressing an identical
1
     allegation, upheld the Government's state secrets privilege assertion to preclude disclosure of
2
     whether the Government was obtaining large quantities of communications records in order to
3
     protect against the disclosure of information that would allow adversaries to gain valuable insight
4
     into the Government's intelligence activities.
5
            Finally, all of plaintiffs' claims require the disclosure of whether or not AT&T assisted the
6
     Government in alleged intelligence activities, and the DNI again has demonstrated that disclosure
7
     of whether the NSA has an intelligence relationship with a particular private company would also
8
     cause exceptional harm to national security--among other reasons by revealing to foreign
9
     adversaries which channels of communication may or may not be secure. See Public DNI Decl.
10
     � 17; Public NSA Decl. � 16. Again, in Terkel, the court upheld the Government's privilege
11
     assertion over whether AT&T in particular has disclosed communications records to the
12
     Government. See 441 F. Supp. 2d at 917.
13
            In sum, the DNI's privilege assertion is amply supported and clearly demonstrates there is
14
     a reasonable danger that disclosure of the privileged information would harm national security.14
15

16
     439 F. Supp. 2d at 977, the Government's privilege assertion demonstrates that plaintiffs'
17   communications records allegation concerns information that should be excluded from the
18   litigation, and claims based on this allegation should be dismissed.
             14
19                Both the DNI and the NSA have asserted statutory privileges to protect the
     information at issue, underscoring that the protection of the privileged information is not only
20   supported by the judgment of the Executive, but also pursuant to authority delegated by
     Congress. First, Section 6 of the National Security Agency Act of 1959, Pub. L. No. 86-36, � 6,
21   73 Stat. 63, 64, codified at 50 U.S.C. � 402 note, forecloses "disclosure of the organization or
     any function of the National Security Agency, of any information with respect to the activities
22
     thereof. . . ." Second, Section 102A(i)(1) of the Intelligence Reform and Terrorism Prevention
23   Act of 2004, Pub. L. No. 10-458, 118 Stat. 3638 (Dec. 17, 2004), codified at 50 U.S.C. � 403-
     1(i)(1), requires the Director of National Intelligence to protect intelligence sources and methods
24   from unauthorized disclosure. The information subject to these statutory privileges is co-
     extensive with the assertion of the state secrets privilege by the DNI. See Public DNI Decl. � 10;
25   Public NSA Decl. � 10. Notably, in People for the American Way Found v. NSA ("PFAW"), 462
26   F. Supp. 2d 21 (D.D.C. 2006), the court applied Section 6 of the National Security Act to bar
     disclosure under FOIA of information related to the operation of the Terrorist Surveillance
27   Program, including whether the plaintiffs in that case had been subject to TSP surveillance, and
     recognized as well that this information would be protected by the DNI's statutory privilege. See
28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW                   -16-
    

            Case 3:08-cv-04373-VRW          Document 18         Filed 04/03/2009       Page 27 of 36


     III.    WHERE STATE SECRETS ARE NEEDED TO LITIGATE PLAINTIFFS'
1            CLAIMS, THE CASE CANNOT PROCEED.

2             Once the Court has upheld a claim of the state secrets privilege, the evidence and

3    information identified in the privilege assertion is "completely removed from the case," Kasza,

4    133 F.3d at 1166, and the Court must undertake a separate inquiry to determine the

5    consequences of this exclusion on further proceedings. First, if the plaintiffs cannot establish

6    their standing as a factual matter without the excluded state secrets, then the privilege assertion

7    (unless preempted) would require dismissal. See Al-Haramain, 507 F.3d at 1204-05. Similarly,

8    if the plaintiffs cannot make out a prima facie case in support of their claims absent the excluded

9    state secrets, the court should enter summary judgment for the United States because the evidence

10 needed to adjudicate the merits is unavailable. See Kasza, 133 F.3d at 1176 (affirming entry of

11 summary judgment for the United States on state secrets privilege grounds). Likewise, if the

12 privilege "`deprives the defendant of information that would otherwise give the defendant a valid

13 defense to the claim, then the court may [also] grant summary judgment to the defendant.'"

14 Kasza, 133 F.3d at 1166 (quoting Bareford, 973 F.2d at1141) (emphasis in original); accord

15 Zuckerbraun v. General Dynamics Corp., 935 F.2d 544, 547 (2d Cir. 1991).

16           In addition, courts have also considered the related question of whether the "very subject

17 matter" of the case warrants dismissal as a threshold matter. See Al-Haramain, 507 F.3d at 1197-

18 1201; see also Kasza, 133 F.3d at 1166 (citing Reynolds, 345 U.S. at 11 n.26). The Ninth Circuit

19 has recognized that "a bright line does not always separate the subject matter of the lawsuit from

20 the information necessary to establish a prima facie case," and that "in some cases there may be

21 no dividing line." Al-Haramain, 507 F.3d at 1201.15 The court also observed that in some cases

22

23
      id. at 29, 31 & n.8. Likewise, in Wilner v. National Security Agency, No. 07 Civ. 3883, 2008
24    WL 2567765, at **4-5, (S.D. N.Y. June 25, 2008) (appeal pending), the court applied Section 6
      to bar disclosure of whether the plaintiffs had been subject to TSP surveillance.
25
              15
26              See, e.g., Kasza, 133 F.3d at 1170 (finding that the very subject matter of the case is a
      state secrets because "[n]ot only does the state secrets privilege bar [plaintiff] from establishing
27    her prima facie case on any of her eleven claims, but any further proceedings in this matter
      would jeopardize national security").
28    Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
      Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW                  -17-
    

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     "the suit itself may not be barred because of its subject matter and yet, ultimately, the state secrets
1
     privilege may nonetheless preclude the case from proceeding to the merits." Id.16 Here, plaintiffs
2
     do not challenge the publicly acknowledged Terrorist Surveillance Program, but allege that other
3
     "dragnet" activities were authorized after 9/11 and are ongoing, including the alleged collection
4
     of communication records. Dismissal of these allegation would thus be appropriate on the ground
5
     that its very subject matter would inherently risk or require the disclosure of state secrets. But, to
6
     be clear, the Government does not seek dismissal merely on this basis, but seeks summary
7
     judgment, as permitted by Kasza, on the ground that the Government's privilege assertions
8
     exclude the very information necessary for plaintiffs to establish their standing or a prima facie
9
     case, as well as information relevant to the defense of both the Government and personal capacity
10
     defendants.
11
            A.      Standing Cannot be Established or Refuted Without the
12                  Disclosure of State Secrets and Harm to National Security.

13          The fundamental, threshold issue of plaintiffs' standing cannot be adjudicated without

14 state secrets. Plaintiffs, of course, bear the burden of establishing standing and must, at an

15 "irreducible constitutional minimum," demonstrate (1) an injury-in-fact, (2) a causal connection

16 between the injury and the conduct complained of, and (3) a likelihood that the injury will be

17 redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60 (1992).

18 In meeting that burden, plaintiffs must demonstrate an actual or imminent--not speculative or

19 hypothetical--injury that is particularized as to them; they cannot rely on alleged injuries to

20 unnamed members of a purported class. See, e.g., Warth v. Selden, 422 U.S. 490, 502 (1975); see

21 also Ellsberg, 709 F.2d at 65. Moreover, to obtain prospective relief, plaintiffs must show that

22 they are currently subject to an alleged activity or otherwise "immediately in danger of sustaining

23 some direct injury" as the result of the challenged conduct. City of Los Angeles v. Lyons, 461

24
             16
                Al-Haramain itself was such a case. The Ninth Circuit held that the "very subject
25   matter of the case" was not a state secret based on several public disclosures by the Government
26   as to the existence of the Terrorist Surveillance Program. See 507 F.3d at 1197-1200. But the
     court nonetheless held that the case would have to be dismissed on the ground that the state
27   secrets privilege precluded plaintiffs from establishing their standing (unless the FISA
     preempted that privilege). See id. at 1205.
28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW                    -18-
    

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     U.S. 95, 102 (1983). Plaintiffs cannot rest on general allegations in their Complaint, but must be
1
     able to set forth specific facts that establish their standing to obtain the relief sought. See Lewis v.
2
     Casey, 518 U.S. 343, 358 (1996) (quoting Lujan, 504 U.S. at 561).
3
             Here, the DNI has properly asserted privilege over facts essential for plaintiffs to establish
4
     their standing, or for the Government to respond to their allegations of injury,17 and courts have
5
     consistently recognized the dismissal is necessary in these circumstances. In Al-Haramain, the
6
     Ninth Circuit upheld the Government's assertion of the state secrets privilege (unless otherwise
7
     preempted by FISA) and found that it foreclosed plaintiffs there from establishing their standing
8
     as a factual matter. See 507 F.3d at 1205.18 Likewise, in Terkel, supra, the court dismissed the
9
     very claim at issue here--whether AT&T had disclosed communication records to the
10
     Government--because the state secrets privilege foreclosed plaintiffs from establishing their
11
     standing. See 441 F. Supp. 2d at 919-20. The Sixth Circuit has also rejected standing based on a
12
     "well founded belief"--as opposed to actual evidence-- that communications were being
13
     intercepted under the TSP. See American Civil Liberties Union v. NSA, 493 F.3d 644, 656, (6th
14
     Cir. 2007) (Batchelder, J.) (where states secrets privilege prevents discovery of evidence of
15
     standing, allegations of harm held to be speculative and insufficient); see also id. at 692
16
     (Gibbons, J. concurring) (dismissal required where state secrets privilege prevents plaintiffs from
17
     establishing whether they were subject to TSP or government from presenting evidence to refute
18
     that allegation).19
19

20            17
                  The Government and personal capacity defendants likewise would not be able to
21    present any evidence in an attempt to disprove plaintiffs' standing without information covered
      by the state secrets privilege assertion (e.g., whether or not a particular person's communications
22    were intercepted). See Halkin I, 598 F.2d at 11 (rejecting contention that acquisition of
      plaintiff's communication may be presumed from certain facts because "such a presumption
23    would be unfair to the individual defendants who would have no way to rebut it").
24            18
               Again, the Government preserves its position that FISA Section 1806(f) does not
      preempt the state secrets privilege or authorize a court to invoke its procedures in order to
25    adjudicate whether or not a party has in fact been subject to surveillance and has standing.
26            19
                 A similar state secrets assertion was upheld in Halkin II. See 690 F.2d at 998 (holding
27    that plaintiffs' inability to adduce proof of actual acquisition of their communications rendered
      them incapable of making the showing necessary to establish their standing to seek relief); see
28    Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
      Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW                 -19-
    

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            The Government's privilege assertion also precludes plaintiffs from establishing standing
1
     as to any statutory claim that may survive the Government's motion to dismiss. For each cause of
2
     action, plaintiffs must establish, as a threshold matter, that they have been "aggrieved"--that is,
3
     subject to the alleged action being challenged.20 Because plaintiffs cannot adduce proof that the
4
     content of their communications has been collected by the Government, or that their
5
     communications records likewise have been obtained by the Government, the most basic element
6
     of every claim--their standing as "aggrieved persons"--cannot be established.
7
            It bears emphasis that plaintiffs' allegation of a "dragnet" of surveillance by the
8
     NSA--the alleged interception of communication content and records of millions of domestic and
9
     international communications made by ordinary Americans, see, e.g. Compl. � 7--does not
10
     establish their standing. Even if that allegation were sufficient to avoid dismissal on the
11
     pleadings, plaintiffs would be required to demonstrate that they personally have been subject to
12
     the alleged communications dragnet, and the information relevant to doing so is properly
13
     protected by the state secrets privilege. Plaintiffs cannot establish the existence of an alleged
14
     content dragnet (previously denied by the Government, see Hepting, 439 F. Supp. 2d at 996), or
15
     its application to them personally without the disclosure of NSA intelligence sources and
16

17   also Ellsberg, 709 F.2d at 51 (holding that dismissal was warranted where a plaintiff could not,
18   absent recourse to state secrets, establish that he was actually subject to surveillance). See also
     PFAW, 462 F. Supp. 2d at 28-32; Wilner, 2008 WL 2567765, at **4-8 (barring disclosure under
19   FOIA of whether plaintiffs had been subject to surveillance under the TSP).
             20
20              With respect to plaintiffs' claim for damages under FISA Section 1810, the term
     "aggrieved person" is "coextensive [with], but no broader than, those persons who have standing
21   to raise claims under the Fourth Amendment with respect to electronic surveillance," H.R. REP.
     NO. 95-1283, at 66 (1978); see also Rakus v. Illinois, 439 U.S. 128, 132 n.2 (1978) (a party
22
     raising a Fourth Amendment claim "must allege such a personal stake or interest in the outcome
23   of the controversy as to assure the concrete adverseness which Art. III requires."). Similarly,
     under the Wiretap Act, 18 U.S. C. � 2510, civil actions may be brought only by a "person whose
24   . . . communication is intercepted, disclosed, or intentionally used." 18 U.S.C. � 2520(a). The
     Stored Communication Act likewise limits it civil remedies to "person[s] aggrieved" under the
25   statute, id. � 2707(a); see id. 2711(1) (adopting � 2510(11) definition of "aggrieved person" as
26   one "who was a party to any intercepted . . . communication" or "a person against whom the
     interception was directed"). Each of these provision reflects the fundamental point that only
27   persons who can establish factually that their own rights were injured by the actual interception
     or disclosure of their own communications (or records) have Article III standing to proceed.
28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW                   -20-
    

          Case 3:08-cv-04373-VRW            Document 18         Filed 04/03/2009       Page 31 of 36


     methods. Similarly, plaintiffs cannot establish standing based on allegations that records
1
     concerning their communications were collected as part of (or apart from) the alleged
2
     communications dragnet. As this Court noted in Hepting, "the government has neither confirmed
3
     nor denied whether it monitors communication records and has never publicly disclosed whether
4
     [such a program] actually exists," see 493 F. Supp. 2d at 997, and the Court further recognized,
5
     in barring discovery on this claim in Hepting, that:
6
                    Revealing that a communication records program exists might
7                   encourage that terrorist to switch to less efficient but less detectable
                    forms of communication. And revealing that such a program does
8                   not exist might encourage a terrorist to use AT&T services when he
                    would have done so otherwise.
9
     Id.; accord, Terkel, 441 F. Supp. 2d at 917. The Government's privilege assertion as to this
10
     allegation again demonstrates the exceptional harm to national security that would result from any
11
     further proceedings on this allegation. For this reason, plaintiffs cannot sustain their burden of
12
     showing that such a program exists, much less satisfy their burden of establishing standing by
13
     showing that their communication records were collected under such an alleged program.
14
            B.      The Disclosure of Privileged Information Would Also be
15                  Required to Adjudicate Plaintiffs' Claims on the Merits.

16          Beyond the fact that plaintiffs cannot obtain evidence to establish standing, still more state

17 secrets would be required to litigate each of plaintiffs' claims on the merits. For example,

18 plaintiffs' "content" surveillance claims would require proof not only of an alleged interception of

19 their communications, but that any such interception met the highly specific definition of

20 "electronic surveillance" under the FISA, which includes inter alia, interception of a

21 communication on a wire inside the United States. See 50 U.S.C. � 1809; 1801(f). This would

22 require disclosure of specific facts concerning where and how any communications were

23 intercepted--information that would reveal precise intelligence sources and methods under which

24 content may be captured by the Government (if at all). Another element of plaintiffs' FISA claim

25 would require proof that the Government intentionally disclosed or used information obtained

26 under color of law by electronic surveillance, knowing or having reason to know the information

27 was obtained through unauthorized electronic surveillance. See 50 U.S.C. � 1809. Thus,

28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW                   -21-
    

          Case 3:08-cv-04373-VRW            Document 18         Filed 04/03/2009       Page 32 of 36


     assuming the content of their communications had been intercepted at all, plaintiffs still would
1
     have to show an intentional disclosure or use of that information to support this aspect of their
2
     FISA claim--information that, again, would either reveal the existence of foreign intelligence
3
     interest in plaintiffs or their communicants or, conversely, the lack thereof--in either case
4
     revealing the scope of NSA intelligence activities.21
5
            Similarly, for their ECPA claims, plaintiffs would have to show that the Government
6
     required an electronic communication service provider to disclose the content of plaintiffs'
7
     communications in electronic storage, and whether or not such a disclosure occurred pursuant to a
8
     court order or statutory authority. See 18 U.S.C. � 2703(a), (b). With respect to plaintiffs' ECPA
9
     claim concerning the alleged collection of communication records, see 18 U.S.C. � 2703(c), not
10
     only must there be official confirmation or denial of the existence of the alleged activity but, if
11
     that activity were confirmed, plaintiffs must adduce proof concerning the scope and operation of
12
     any such program, including, for example, whether it actually encompassed plaintiffs' records,
13
     when and how it may have done so, whether any such records were put to any use and in what
14
     manner, and again whether any such action was authorized by court order or statute. In any
15
     event, litigation of plaintiffs' ECPA claims would require or risk disclosure of intelligence
16
     sources and methods as to whether or not, or when and how, the content of plaintiffs' wire or
17
     electronic communications, or records of their communications, were obtained by the
18
     Government.
19
            Plaintiffs' related Fourth and First Amendment claims both put at issue not only whether
20
     plaintiffs' individual communications (content or records) were collected, but whether there
21
     existed a reasonable basis for the particular search or seizure, whether exigent circumstances
22

23
             21
24             Likewise, plaintiffs' Wiretap Act claims would require proof that one of plaintiffs'
     wire or electronic communications, as defined in the Act (see 18 U.S.C. � 2510 (1), (12)), had
25   been intercepted--information that would reveal particular intelligence methods were or were
26   not used to target plaintiffs' communications. If such an interception had occurred, plaintiffs
     must then show that the content of their communications, defined to mean the "substance,
27   meaning or purport" of the communication (see 18 U.S.C. � 2510(8)), was knowingly disclosed
     and used in violation of the Act. See 18 U.S.C. � 2511(1)(c) and (d).
28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW                     -22-
    

              Case 3:08-cv-04373-VRW          Document 18         Filed 04/03/2009       Page 33 of 36


     warranted any action at issue, and what specific information was actually obtained, viewed, used,
1
     or disclosed by the Government. Fourth Amendment claims require fact-specific determinations,
2
     including whether a search was undertaken, under what authority, whether it violated an
3
     expectation of privacy, and why the Government may have acted. See, e.g., O'Connor v. Ortega,
4
     480 U.S. 709, 718 (1987) ("`what is reasonable depends on the context within with a search takes
5
     place'") (quoting New Jersey v. T.L.O., 469 U.S. 325, 334-35 (1985)). And if the Government
6
     obtained only non-content informational records, there may be no Fourth Amendment issue at
7
     all.22
8
               In addition, as to all of the foregoing claims, the plaintiffs again would have to obtain
9
     confirmation or denial as to whether AT&T participated in the alleged activity, as well as where,
10
     how, and to what extent, to determine if any such participation involved plaintiffs'
11
     communications. The DNI has set forth a more than reasonable basis to conclude that harm to
12
     national security would result from the disclosure of whether the NSA has worked with any
13
     telecommunications carrier in conjunction with the alleged activities. Indeed, this Court
14
     previously has observed that it is not in a position to second-guess the DNI's judgment regarding
15
     a terrorist's risk preferences for picking a communications carrier--a judgment that might depend
16
     on an array of facts not before the Court. Hepting, 439 F. Supp. 2d at 990, 997.
17
               Plaintiffs' allegations with respect to AT&T are also foreclosed by the Totten/Tenet
18
     doctrine, in which the Supreme Court has made clear that litigation that would risk the disclosure
19
     of an alleged espionage relationship is barred per se.
20
               The possibility that a suit may proceed and an espionage relationship may be
21             revealed, if the state secrets privilege is not found to apply, is unacceptable: "Even
               a small chance that some court will order disclosure of a source's identity could
22             well impair intelligence gathering and cause sources to `close up like a clam.'"

23
                22
24               See Smith v. Maryland, 442 U.S. 735, 742-46 (1979) (holding that individuals have no
      legitimate expectation of privacy in the numbers they dial on the telephone and pen register
25    search of such information does not constitute a search for Fourth Amendment purposes); United
26    States v. Forrester, 512 F.3d 500,10 (9th Cir. 2007) ("[E]-mail and Internet users have no
      expectation of privacy in the to/from addresses of their messages or the IP addresses of the
27    websites they visit because they should know that this information is provided to and used by
      Internet service providers for the specific purpose of directing the routing of information." ).
28    Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
      Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW                 -23-
    

           Case 3:08-cv-04373-VRW          Document 18         Filed 04/03/2009       Page 34 of 36


     See Tenet v. Doe, 544 U.S. 1, 11 (2005) (quoting CIA v. Sims, 471 U.S. at 175). Plaintiffs'
1
     allegations with respect to AT&T must be dismissed for this independent reason as well.23
2
            Finally, adjudication of the merits would require disclosure of whether any of the alleged
3
     activities (if they exist) are ongoing, or occurred only during certain periods, or were authorized
4
     at some point by statute or court order. Disclosure of such information would be relevant not
5
     only to the question whether any prospective relief is appropriate, but also whether plaintiffs may
6
     seek damages for any past alleged violation.24 In either case, such disclosures again would reveal
7
     a range of facts concerning whether, when, how, why, and under what authority the NSA may
8
     have utilized certain intelligence sources and methods--information that is subject to the
9
     Government's privilege assertion and cannot be disclosed without risking exceptionally grave
10
     harm to national security.
11
     IV.    LITIGATION OF PLAINTIFFS' CLAIMS CANNOT PROCEED UNDER FISA.
12
            Finally, as noted above, the Government reserves its position that the FISA does not
13
     preempt the state secrets privilege. We recognize the Court has addressed this issue in the Al-
14
     Haramain action and is unlikely to change its view. Thus, the Government will not brief the
15

16

17           23
               In enacting the FISA Act Amendments Act of 2008, the Senate Select Committee on
18   Intelligence ("SSCI") found that the "details of the President's program are highly classified"
     and that, as with other intelligence matters, the identities of persons or entities who provide
19   assistance to the U.S. Government are protected as vital sources and methods of intelligence."
     See S. Rep. 110-209 at 9 (Dkt. 469-2). Notably, the SSCI expressly stated that "[i]t would be
20   inappropriate to disclose the names of the electronic communication service providers from
     which assistance was sought, the activities in which the Government was engaged or in which
21   providers assisted, or the details regarding any such assistance," because "identities of persons or
22   entities who provide assistance to the intelligence community are properly protected as sources
     and methods of intelligence." Id.
23           24
                For example, plaintiffs' "separation of powers" claim seeks only prospective equitable
24   relief as to ongoing activities allegedly authorized by the President pursuant to his Article II
     powers. See Compl., Count XVII. But the sole basis for this allegation remains media reports
25   concerning activities allegedly authorized in 2001, and the Government's acknowledgment of
26   the Terrorist Surveillance Program in 2005. The TSP ended in 2007, and plaintiffs' allegations
     as to any ongoing "dragnet" authorized by the President is sheer speculation that could not be
27   addressed in further litigation without the disclosure of classified intelligence sources and
     methods.
28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW                  -24-
    

          Case 3:08-cv-04373-VRW            Document 18        Filed 04/03/2009       Page 35 of 36


     matter again at length but incorporates by reference its prior detailed discussion of the issue.25 In
1
     sum, we simply reiterate our position that the state secrets privilege, which is rooted in the
2
     constitutional authority of the President as well as the common law, cannot be preempted absent
3
     an unmistakably clear directive by Congress that it intended to do so. Nothing in the text or
4
     legislative history of the FISA says anything about preempting the state secrets privilege--let
5
     alone reflects a clear and unambiguous intention to do so. In particular, Section 1806(f) of FISA
6
     only applies where the Government has acknowledged surveillance and seeks to use surveillance
7
     evidence in a court proceeding. See 18 U.S.C. � 1806 ("Use of Information"). Most importantly,
8
     that provision cannot be read (and has never been applied) to compel the Government to disclose
9
     (or risk the disclosure of) information concerning intelligence sources and methods that the
10
     Government chooses to protect.
11
                                               CONCLUSION
12
            For the foregoing reasons, the Court should dismiss plaintiffs' statutory claims for lack of
13
     jurisdiction, uphold the Government's privilege assertions, enter summary judgment for the
14
     Government Defendants, and dismiss the case as to all defendants and all claims.
15
     April 3, 2009                                 Respectfully Submitted,
16
                                                   MICHAEL F. HERTZ
17                                                 Acting Assistant Attorney General

18                                                 DOUGLAS N. LETTER
                                                   Terrorism Litigation Counsel
19
                                                   JOSEPH H. HUNT
20                                                 Director, Federal Programs Branch

21                                                 VINCENT M. GARVEY
                                                   Deputy Branch Director
22

23                                                  s/ Anthony J. Coppolino
                                                   ANTHONY J. COPPOLINO
24                                                 Special Litigation Counsel

25

26           25
               The Section 1806(f) issue was addressed at length by the Government in the Al-
27   Haramain action. See Defs. 2d MSJ at 12-24 (Dkt. 17, 07-109-VRW); and Defs. 2d MSJ Reply
     at 8-24 (Dkt. 29 in 07-109-VRW).
28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW
    

         Case 3:08-cv-04373-VRW          Document 18        Filed 04/03/2009      Page 36 of 36


                                                s/ Paul G. Freeborne
1                                               PAUL G. FREEBORNE

2                                                s/ Marc Krickbaum
                                                MARC KRICKBAUM
3
                                                Trial Attorneys
4                                               U.S. Department of Justice
                                                Civil Division, Federal Programs Branch
5                                               20 Massachusetts Avenue, NW, Rm. 6102
                                                Washington, D.C. 20001
6                                               Phone: (202) 514-4782
                                                Fax: (202) 616-8460
7                                               Email: tony.coppolino@usdoj.gov

8                                               Attorneys for the Government Defendants
                                                Sued in their Official Capacity
9

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28   Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
     Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW                     -26-
    

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