No Easy Answers

Thursday, August 09, 2007

Government (Defendant) Notice of FISA Amendments [Doc 345]

The FISA modification being put to use to dispose of litigation.
Notice that this is aimed at only one plaintiff, likely one whose claim is based on the allegation of actual interception, rather than on a claim of having call records transferred from the telco to the government.


According to attorneys, there are substantial questions about whether the new law, which is temporary and due to expire in six months, is constitutional, and they will seek permission to file additional legal papers to that effect today.

I think this plaintiff's case will be thrown out on absence of standing, just as the plaintiffs who survived a motion to dismiss before Judge Taylor in Michigan ultimately lost on a reversal by the Sixth Circuit due to inability to allege they were in fact under warrantless surveillance.

Government notice of statute ...

         Case M:06-cv-01791-VRW               Document 345          Filed 08/08/2007   Page 1 of 5

     Assistant Attorney General, Civil Division
     Deputy Assistant Attorney General
     Director, Federal Programs Branch
     Special Litigation Counsel
 5   Email:
 6   Trial Attorney
 7   U.S. Department of Justice
     Civil Division, Federal Programs Branch
 8   20 Massachusetts Avenue, NW, Rm. 6102
     Washington, D.C. 20001
 9   Phone: (202) 514-4782/(202) 514-4263
     Fax: (202) 616-8460
10   Attorneys for Defendants
11                                 UNITED STATES DISTRICT COURT
12                              NORTHERN DISTRICT OF CALIFORNIA
13                                      SAN FRANCISCO DIVISION

14                                             )                 No. M:06-cv-01791-VRW
15   TELECOMMUNICATIONS RECORDS                )                 DEFENDANTS' NOTICE OF
     LITIGATION                                )                 STATUTORY AMENDMENTS TO THE
16                                             )                 FOREIGN INTELLIGENCE
        _______________________________________)                 SURVEILLANCE ACT
17                                             )
     This Document Relates Only To:            )                 Judge:       Hon. Vaughn R. Walker
18                                             )                 Date:        August 9, 2007
     Center for Constitutional Rights v. Bush, )                 Time:        2 p.m.
19   (Case No. 07-1115)                        )                 Courtroom:   6, 17th Floor
20                                             )
21      _______________________________________)

         Case M:06-cv-01791-VRW               Document 345       Filed 08/08/2007       Page 2 of 5


 2           Defendants hereby give notice of the attached statute, signed into law by the President on
 3   August 5, 2007. See S. 1927, 110th Cong., 153 Cong. Rec. H9952-05 (enacted) (attached as
 4   Exhibit A). The statute, entitled the Protect America Act of 2007, amends the Foreign
 5   Intelligence Surveillance Act ("FISA") in a manner that bears directly on this case.

 6           First, the statute amends FISA by clarifying that "[n]othing in the definition of electronic
 7   surveillance under [50 U.S.C. § 1801(f)] shall be construed to encompass surveillance directed at
 8   a person reasonably believed to be located outside of the United States." Id. § 2 (adding § 105A
 9   to FISA).

10           Second, the statute sets forth new procedures for authorizing acquisitions of foreign
11   intelligence information concerning persons reasonably believed to be outside the United States.
12   See id. (adding § 105B to FISA). In relevant part, the Director of National Intelligence ("DNI")
13   and Attorney General may authorize such acquisitions for periods of up to one year if they
14   determine, inter alia, that there are reasonable procedures in place for determining that the
15   acquisition concerns persons reasonably believed to be outside the United States; the acquisition
16   does not constitute electronic surveillance as defined by FISA; a significant purpose of the
17   acquisition is to obtain foreign intelligence information; and the minimization procedures to be
18   used with respect to such acquisition activity meet the definition of minimization procedures
19   under 50 U.S.C. § 1801(h). Id. The determination of the DNI and Attorney General may be
20   made orally if immediate action is required, but shall be reduced to a sworn written certification
21   within 72 hours and transmitted to the Foreign Intelligence Surveillance Court ("FISC") "as soon
22   as practicable." Id. The DNI and Attorney General are also authorized under the statute to
23   direct a person to provide information, facilities, and assistance necessary to accomplish the
24   acquisition and in such a manner as to preserve secrecy. See id. The Government may request
25   the FISC to enforce the directive, which the FISC shall do if the directive was issued in
26   accordance with the directive provision and is otherwise lawful, and the person may challenge

         Case M:06-cv-01791-VRW               Document 345       Filed 08/08/2007       Page 3 of 5

 1   the legality of the directive with a FISC judge pursuant to certain procedures. See id.

 2           Third, the statute provides for judicial review by the FISC of the procedures by which the
 3   Government determines that acquisitions conducted pursuant to section 105B do not constitute
 4   electronic surveillance. See id. § 3 (adding § 105C to FISA). Within 120 days of enactment, and
 5   annually thereafter, the Attorney General is required to submit those procedures to the FISC, and
 6   within 180 days of enactment the FISC is required to assess the Government's determination that
 7   the procedures are reasonably designed to ensure that the acquisitions do not constitute
 8   electronic surveillance. Id. If the FISC concludes that the Government's determination is
 9   clearly erroneous, it shall direct the Government to submit new procedures within 30 days or
10   cease any implicated acquisitions; otherwise, it shall approve the continued use of such
11   procedures. Id. The Government may appeal any adverse order to the Foreign Intelligence
12   Surveillance Court of Review and, ultimately, the Supreme Court, and any affected acquisitions
13   may continue during the pendency of the appeal. See id.

14           Fourth, the statute provides for congressional oversight by requiring the Attorney General
15   on a semi-annual basis to inform the Senate Select Committee on Intelligence, the House
16   Permanent Select Committee on Intelligence, the Senate Judiciary Committee, and the House
17   Judiciary Committee of the number of certifications and directives issued, as well as any
18   incidents of non-compliance. See id. § 4. The DNI and Attorney General are also required to
19   assess compliance with minimization procedures and report such assessments to the Senate
20   Select Committee on Intelligence and the House Permanent Select Committee on Intelligence.
21   See id. § 2 (§ 105B(d)).

22           Finally, the statute expires 180 days after the date of enactment, although authorizations
23   for the acquisition of foreign intelligence information pursuant to the statute shall remain in
24   effect until their expiration, and the Government has the option during the 180 days to continue
25   to seek the FISC's authorization or reauthorization of surveillance under the provisions of FISA
26   as they existed on the day before enactment of these amendments. See id. § 6.

         Case M:06-cv-01791-VRW               Document 345       Filed 08/08/2007       Page 4 of 5

 1                                                    ***
 2           This action should be dismissed for all of the reasons that we have previously explained,
 3   regardless of the foregoing FISA amendments. Because the basis for Plaintiffs' claims is their
 4   alleged communications with individuals located outside of the United States suspected of links
 5   to al Qaeda or other terrorist groups, however, the FISA amendments provide an additional basis
 6   for dismissal. See Compl. ¶¶ 3-5, 36-44. Indeed, now that Congress, in returning to the balance
 7   it generally struck when it enacted FISA in 1978, has expressly clarified that surveillance
 8   directed at individuals reasonably believed to be outside the United States does not constitute
 9   electronic surveillance as defined in FISA, Plaintiffs cannot claim that any alleged surveillance
10   directed at individuals outside the United States violates FISA, the Administrative Procedure
11   Act, or the separation of powers doctrine. Moreover, because the statute subjects such
12   surveillance to certain procedures, minimization requirements, FISC review, and congressional
13   oversight, Plaintiffs' allegations of a First Amendment chill are further negated. By Plaintiffs'
14   own description, their alleged chill derives from their belief that the now-inoperative Terrorist
15   Surveillance Program did not involve FISA minimization procedures, and while we have
16   explained why that alleged chill was plainly insufficient before the FISA amendments, the
17   statute now expressly applies FISA minimization procedures to surveillance conducted pursuant
18   to the amendments and directed at individuals outside the United States. ^1

19           The fact that the Protect America Act is set to expire in six months should not delay the
20   Court from dismissing this case on any number of valid grounds previously identified by
21   Defendants. As we have explained, Plaintiffs' allegations of injury were never sufficient from
22   the outset of this case, and state secrets would be needed to fully adjudicate Plaintiffs' claims.
23   Moreover, while the sunset provision should not preclude the Court from granting our motion to
24   dismiss or for summary judgment at any time, it should, at the very least, preclude the Court
               Although the statutory amendments may not be dispositive of a Fourth Amendment
27   claim, Plaintiffs have abandoned any claim of actual interception.

         Case M:06-cv-01791-VRW               Document 345        Filed 08/08/2007        Page 5 of 5

 1   from granting Plaintiffs' summary judgment motion during the next six months when FISA, on
 2   its face, clarifies that surveillance directed at individuals reasonably believed to be outside the
 3   United States does not constitute "electronic surveillance." ^2
 5   DATED: August 8, 2007                            Respectfully Submitted,
 6                                                    PETER D. KEISLER
                                                      Assistant Attorney General, Civil Division
                                                      CARL J. NICHOLS
 8                                                    Deputy Assistant Attorney General
 9                                                    JOSEPH H. HUNT
                                                      Director, Federal Programs Branch
                                                            /s/ Anthony J. Coppolino
11                                                    ANTHONY J. COPPOLINO
                                                      Special Litigation Counsel
13                                                          /s/ Andrew H. Tannenbaum
                                                      ANDREW H. TANNENBAUM
14                                                    Trial Attorney
                                                      U.S. Department of Justice
16                                                    Civil Division, Federal Programs Branch
                                                      20 Massachusetts Avenue, NW
17                                                    Washington, D.C. 20001
                                                      Phone: (202) 514-4782
18                                                           (202) 514-4263
                                                      Fax:   (202) 616-8460
               Of course, we submit that the Court should not grant Plaintiffs' summary judgment
25   motion in any event, not only for the various reasons that we have argued in support of
     dismissal, but also because, as we have explained, at the very least the state secrets questions
26   must be conclusively decided before Defendants could adequately respond to the merits of
27   Plaintiffs' motion.

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