Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006
Receipt Number
53'oCZ fo-7

Page 1 of 50

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

AMERICAN CIVIL LIBERTIES UNION; AMERlCAN

CTVIL LIBERTIES UNION FOUNDATION;

AMERICAN CIVIL LIBERTIES UNION OF

COMPLAINT i''OR

MICHIGAN; COUNCIL ON AMERICAN-ISLAMlC DECLARATORY

RELATIONS; COUNCIL ON AMERICAN-ISLAMIC AND INJUNCTIVE

RELATIONS MICHIGAN; GREENPEACE, INC.;

RELIEF

NATIONAL ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS; JAMES BAMFORD; LARRY

DIAl'v!OND; CHRISTOPHER HITCHENS; TARA

Case No.

MCKELVEY; and BARNETT R. RUBIN,

Plaintiffs,
v.
NATIONAL SECURITY AGENCY I CENTRAL
SECURITY SERVICE; and LIEUTENANT
GENERAL KEITH B. ALEXANDER, in his o

Hon Case: 2:06-cv-10204 Assigned To : Taylor, Anna Diggs Referral Judge: Whalen, R. Steven Assign. Date : 01/1712006
Description: CMP AMERICAN CIVIL LIBERTIES UNION,
ET AL V. NATIONAL SECURITY AGENCY, ET AL (TAM)

capacity as Director of the National Security Agency

and Chief ofthe Central Security Service,

Defendants.

ANN BEESON Attorney a/Record
JAMEEL JAFFER
MELISSA GOODMAN (admission pending) CATHERINE CRUMP (admission pending) National Legal Department American Civil Liberties Union Foundation 125 Broad Street, l 81h Floor New York, NY 10004-2400
(212) 549-2500
MICHAEL J. STEINBERG
KARYL MOSS
American Civil Liberties Uni011 Fund of Michigan 60 West Hancock Street
Detroit, MI 48201-1343 (313) 578-6814

FILFO
JAN 1I 2006
CLERK'S OFFICE-DtJf101T-PSG U.S. DISTRICT COURT

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 2 of 50
PRELIMINARY STATEMENT 1. This lawsuit challenges the constitutionality of a secret government program to intercept vast quantities of the international telephone and Internet communications of innocent Americans without court approval (hereinafter "the Program"). The National Security Agency I Central Security Service ("NSA") launched the Program in 2001 and t11e President of!he United States ratified it in 2002. 2. Plaintiffs are a group of prominent journalists, scholars, attorneys, and national nonprofit organizations who frequently communicate by telephone and email with people outside the United States, including in the Middle Bast and Asia. Because of the nature of their calls and emails, and the identities and locations of those with whom they commimicate, plaintiffs have a well-founded belief that their communications are being intercepted under the Program. The Program is disrnpting the ability of the plaintiffs to talk with sources, locate witnesses, conduct scholarship, and engage in advocacy. 3. By seriously compromising the free speech and privacy rights of the plaintiffs and others, the Program violates the First and Fourth Amendments of the United States Constitution. It also violates constitutional separation of powers principles, because it was authori,-.ed by President George W. Bush in excess of his Executive authority and contrary to limits imposed by Congress. ln response to widespread domestic surveillance abuses committed by the Executive Branch and exposed in the 1960s and 1970s, Congress enacted legislation that provides "the exclusive means by which electronic surveillance ... and !he interception of domestic wire, oral, and electronic communications may be conducted." 18 U.S.C. ~ 2511 (2)( l) (emphasis
2

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 3 of 50
added), Plaintiffs respectfully seek a declaration that the Program is unlawful, and a permanent injunction against its use.
JURISDICTION AND VENUE 4. This case arises under the United States Constitution and the laws orthe U11ited States and presents a federal question within this Cou11's jurisdiction un.der Alticle III of the United States C011stitution and 28 U.S.C. § 1331. The Court also has jurisdiction under the Administrative Procedures Act, 5 U.S.C. § 702. The Court has authority to grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C.
§ 2201 et seq. The Court has authority to award costs and attorneys' fees under 28
U.S.C. § 2412. Venue is proper in this district under 28 U.S.C. § 139!(c). PARTIES
5. The Alucrican Civil Lihe11ies Union ("ACLU") is a 50l(c)(4) non· prolit, non-partisan organization that engages in public education and lobbying about the constinitional principles ofliberty and equality. The ACLU has more than 500,000 members and has members in every state, including Michigan. The ACLU sues on its own behalf and on behalf of its staff and members.
6. The American Civil Liberties Unhm Foundation ("ACLlJF") is a 501(c)(3) organization that educates the public about civil liberties issues and employs lawyers who provide legal representation free of charge in cases involving civil liberties. The ACLUF sues on its own behalf and on behalf of its staff.
7. The Aluerican Civil Liberties Union of Michigan ("ACLU of Michigan") is a 501(c)(4) non-profit, non-partisan organization that engages in puhlic education and lobbying about civil rights and civil libe11ies in the state or Michigan. The
3

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 4 of 50
ACLU of Michigan has approximately 15,000 members. The ACLU of Michigan sues on its own behalf of on behalf of its members.
8. The National Association of Criminal Defense Lawyers ("NACDL") is a 50!(c)(6) non-profit organization based in Washington, D.C. whose direct membership is comprised of more than 13,000 criminal defense lawyers. The NACDL has members in every state, including Michigan. The NACDL sues on its own behalf and on behalf of its members.
9. The Council on American-Islamic Relations ("CAlR") is a 50l(c)(4) non-profit organization based in Washington, D.C. and is the largest Islamic civil liberties organization in the United States. CATR has chapters and members nationwide and members in over 25 countries. CAIR sues on its own behalf and on behalf of its staff and members.
10. The Council on American-Islamic Relations Michigan ("CATRMichigan") is a 50l(c)(3) organization and represents the interest of the American Muslim community living in the state of Michigan. CATR-Michigan sues on its own behalf and on behalf of its members.
11. Greenpeace, Inc. ("Greenpeace") is a non·profit advocacy organization based in Washington, D.C. dedicated to combating the most serious threats to the planet's biodiversity and environment. Greenpeace has approximately 250,000 members nationwide, including members in Michigan. Internationally, Greenpeace has a presence in 39 other countries and more than 2.5 million mcmhers. Greenpeace sues on its own behalf, and on behalf of its staff and members.
4

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 5 of 50
12. James Bamford i~ an award-winning author andjoumalist. He is one of U1e world's leading experts on U.S. h1telligcnce and the National Security Agency and he has published numerous hooks and articles on those topics. Mr. Bamford lives in Washington, D.C.
13. Lan-y Diamond is a Se11ior Fellow at the Hoover lnstitulion at Stanford University. He is a leading expert on governance and development in Iraq, Asia, Africa and Latin America. Professor Diamond lives in Stanford, California.
14. Christopher Hitchens is a prominent reporter and bestselling author wh(l has written numerous articles and books on topics including U.S policy in the Middle East and Tslamic fundamentalism. Mr. Hitchens lives in Washington, D.C.
15. Tara McKelvey is a senior editor at The A.mcriean Prospect, and has written numerous articles and books on topics including U.S. policy in the Middle East. Ms. McKelvey lives in Washington, D.C.
16. Barnett R. Rubin is Director of Studies and Senior Fellow at U1e New York University Center on International Co(lperation. Professor Rubin is an internationally renowned scholar on conflict and peace, with a particular focus on Afghanistan, South Asia, ai1d Central Asia, and has written numerous books and articles about Afghan history, politics, and development. Professor Rubin lives in New York.
17. Defendant National Security Agency I Central Security Service ("NSA") is the agency of the United States government responsible for administering the warrantless surveillance program challenged in this case.
5

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 6 of 50
18. Defendant Lieutenant General Keith B. Alexander is the Director of the NSA Defendant Lieutenant General Alexander has ultimate authority for supervising and implementing all operations and functions of Lhe NSA.
LEGAL FRAMl£WORK 19. The First Amendment provides in relevant part that "Congress shall make no law ... abJidging the freedom of speech, or of the press." 20. The Fourth Amendment provides that "[t]h0 right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." 21. Congress has enacted two statutes that together supply "the exclusive
means by which electronic surveillance ... and the interception of domestic wire, oral, and electronic communications may be conducted.'' 18 U.S.C. § 2511 (2)(1) (emphasis added). The first is Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title TU"), 18 U.S.C. § 2510 et seq., and the second is the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801 et seq. ("FlSA").
Title III 22. Congress enacted Title III in response to the U.S. Supreme Comt's recognition, i11 Katz v. United States, 389 U.S. 347 (1967), that individuals have a constitutionally protected privacy interest in the content of their telephone calls. Through Title TTI, Congress created a statutory framework to govern !he surveillance of wire and oral communications in law enforcement investigations.
6

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 7 of 50
23. Tn its current form, Title Ill authmizes the government to intercept wire, oral, or electronic communications in investigations of certain enumerated criminal
offenses, see 18 U.S.C. § 2516, with prior judicial approval, see id.§ 2518. ln order to
obtain a court order authorizing the interception of a wire, oral, or electronic communication, the government must demonstrate "probable cause for bclicflhat an individllal is committing, has commi!!ed, or is abollt to commit" one of the enumerated
criminal offenses. Id. § 2518(3)(a). It must also demonstrate, among other things,
"probable cause for belief that particular communications concerning [!he enumerated] offense will be obtained through [the] interception," id.§ 2518(3)(b), and that "non11al investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous," id.§ 2518(3)(c).
24. Every court order authori>:ing surveillance under Title III must include a provision requiring that the interception be "conducted in a such a way as to minimize the interception of communications not otherwise subject to interception under this chapter." Id. § 2518(5).
25. While Title Ill generally pennits surveillance only with prior judicial authorization, the statute includes a provision that allows for warrantlcss surveillance in "emergency situation[s]" - where, for example, a "situation exists that involves ...
immediate danger of death or serious physical injury to any person." id. fl 2518(7)(a).
Where an emergency situation exists and "there arc grounds upon which an order could be entered ... to authmi'!:e ... interception," the statute pe1mits specified executive officials to authori:1,e wanantlcss surveillance "if an application for an order approving
7

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 8 of 50
the interception is made in accordance with this section within forty-eight hours after the interception has occurred, or begins to occur." ld. § 2518(7)(b).
26. Title III specifies civil and criminal penalties for survcilla:nce that is not authorized. See id. §§ 2511 & 2520.
27. As originally enacted, Title llT provided that "[n]othing contained in this chapter. , . shall limit the constitutional power of the President to take such measures as he deems necessary to pmlect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence i11fom1ation deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitulional power ofthc President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government." See 18. U.S.C. § 2511(3) (1976). As discussed below, Congress repealed this provision in 1978.
Foreign Intelligence Surveillance Act 28. In 1978, Congress enacted FISA to govern the use of electronic surveillance against foreign powers and their agents inside the United States. The statute created the Foreign Intelligence Surveillance Court, a court composed of seven (now eleven) federal district court judges, and empowered this court to grant or deny govGmment applications for electronic surveillance orders in foreign intelligence investigations. See 50 U.S.C. § I 803(a).
8

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 9 of 50
29. Congress enacted FTSA after the U.S. Supreme Court held, in United Stales v. United States District Court.for the Eastern Districl of Michigan. 407 U.S. 297 (1972), that the Fouith Amendment does not permit warra.ntlcss surveillance in intelligence investigations of domestic Hecurity threats. FISA was a response to that decision and to the Report of the Senate Select Committee to Study Government Operations with Respect to Intelligence Activities, S.Rep. No. 94-755, 94th Cong., 2d Sess. (1976) ("Church Committee Report"), which found that the executive had engaged in warranlless wiretapping of numerous United States citizens - including journalists, activists, and Congressmen who posed no threat to the nation's security and who were not suspected of any criminal offense. The Church Committee Report warned that "[ u]nless new and tighter controls arc established by legislation, domestic intelligence activities threaten to undermine our democratic society and fundamentally alter its
nature."
30. When Congress enacted FISA, it amended Title Ill to provide that the procedures set out therein and in FlSA "shall be the exclusive means by which electronic surveillance ... and the interception of domesti.c wire, oral, and electronic communications may be conducted." 18 U.S.C. § 2511(2)(f) (emphasis added). FISA provides that no one may engage in electronic surveillance "except as authorized by statute," id.§ 1809(a)(l), and it specifics civil and criminal penalties for electronic
surveillance undertaken without statutory authority, see id. §§ 1809 & 1810. The Senate
Judiciary Committee explained that "[t]he basis for this legislation is the understanding concun-ed in by the At!on1ey General - that even if the President has an 'inherent' Constitutional power to authorize warrantless surveillance for foreign intelligence
9

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 10 of 50
purposes, Congress has the power to regulate the exercise of this authority by legislating a reasonable warrant procedure goveniing foreign intelligence surveillance." S. Rep. 95604(1), reprinted at 1978 U.S.C.C.A.N. at 3917. The Committee further explained that the legislation was meant lo ··spell out that lhe executive cannot engage in electronic surveillance within the United States without a prior Judicial warrant." Td. at 3906.
31. FISA defines "electronic surveillance" broadly to include: a. "the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes"; b. "lhe acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United Slates, without the consent of any party thereto, if such acquisition occurs in the United States ..."; c. "the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a wammt would be required for law enforcement purposes, and if both the sender and all intended recipients arc located within the United States"; and
10

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 11 of 50
<l. "the installation or use of an electronic, mechanical, or other surveillance device in the United Slates for monitoring to acquire infonnati(ln, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a wan-ant would be required for Jaw enforcement purposes." SO U.S.C. § I 801(±).
32. FlSJ\ defines "contents" lo include "any infonnation concerning the identity or the parties lo such communication or the existence, substance, purport, or meaning of that communication." 50 U.S.C. § 180!(n). Tt defines "United Stales person" to include United States citizens and lawful pennanenl residents. Id. § 1801 (d).
33. In order to obtain an order from lhe FISA Comt authorizing clcc!ronic surveillance, the government must demonstrate, among other things, probable cause lo believe that "the target of the electronic surveillance is a foreign power or an agent of a foreign power" and that "each or lhe facilities or places at which lhe electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent ofa foreign power." Id.§ 1805(a)(3).
34. While FISA generally prohibits surveillance without prior judicial authorization, it, like Tille Ill, includes a provision that aJlows for warrantless surveillance in "emergency situation[s]." ld. § 1805(£). Where an emergency situation exists and "!he factual basis for issuance of an order under this subchapler to approve such surveillance exists," the statute pcm1its the AUomcy General to authorize warrantless surveillance "if a judge having j urisdicticm under section 1803 of this ti lie is infonned by the Attorncy General or his designee at the time of such authorization that
l 1

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 12 of 50
the decision has been made lo employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance-" id.
35. FTSA also allows the Attorney General to authorize electronic surveillance without a court order for up to one year if the Attomey General certifies in w1iting under oath that the electronic surveillance is directed solely at the property or means of communication used exclusively by a foreign power, that "there is no substantial likelihood that the surveillance will acquire !he contents of any communication to which a United States person is a party," and that there are minimization procedures in place. Id. § 1802.
36. Finally, FISA permits electronic surveillance without a court order for fifteen days after a formal declaration of war. Id.§ 1811 ("Notwithstanding any other law, the President, through the Atton1ey General, may allthorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war hy the ( ,,ongress.").
37. FISA requires the Attorney General to report to the House and Senate Intelligence Committees twice a year regarding "all electronic surveillance" authorized under FISA. Id. § l 808(a). Statistics released annually by the Justice Department indicate that, between 1978 and 2004, the government submitted almost 19,000 surveillance applications to the FISA Court. The FISC denied four of these applications;
12

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 13 of 50
granted approximately 180 applications with modifications; and granted !he remainder without modifications.
FACTUAL BACKGROUND The Pi·ogram
38. According to published news reports, in the fall of2001 the NSA launched a secret surveillance program ("the Program") to intercept, without prior judicial authorization, the telephone and In!en;et communications of people inside the United States. President Bush ratified the Program in 2002. Since !hen, the President has reauthorized the Program more than 30 times.
39. Under the Program, the NSA engages in "electronic surveillance" as defined by FISA and Title III.
40. Under the Program, the NSA intercepts vast quantities of the international telephone and Internet communications (hereinafter collectively "communications") of people inside the United States, including citizens and lawfol permanent residents.
41. Under the Program, the NSA also intercepts some purely domestic communications, that is, communications among people all of whom are inside !he United States.
42. Under the Program, the NSA intercepts the communications of people inside the United States without probable cause to believe that the surveillance targets have committed or are about to commit any crime.
13

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 14 of 50
43. Under the Program, the NSA intercepts the cornmunications of people inside the United Stales without probable cause lo believe that the surveillance targets arc foreign powers or agents thereof.
44. Under the Program, the NSA intercepts the communications of people inside !he United States without obtaining authorization fbr each interception frorn the President or the Attorney General.
45. Under the Program, NSA shift supervisors arc authorized to approve NSA employees' requests to intercept the communications of people inside the United States.
46. Under the Program, the NSA accesses communications in at least three ways.
47. First, the NSA uses NSA-controlled satellite dishes to access communications that are transmitted via satellite. Some of these NSA-controlled satellite dishes are located within the United States.
48. Second, !he NSA works with tclccmnmunications companies to access communications that pass through switches controlled by these companies. These switches, which are located inside the United States, serve as primary gateways for communications going into and out of the United States. The switches connect to transoceanic fiber optic cables that transmit communications to other countries.
49. Third, the NSA works with Tnternet providers and lelecommllnications companies to access comrnunications transmitted over the Internet.
50. Under the Program, the NSA intercepts, retains, and analyzes communications in at least three ways.
14

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 15 of 50
51. First, the NSA obtains names, telephone numbers and Internet addresses from the cell phones, computers, and other infonnation found in the possession of persons deemed suspicious. The NSA intercepts the telephone numbers and Internet addresses associated with these people, as well as numbers and emails associated with anyone who communicates with them, and continues to identify additional telephone numbers and Internet addresses in an expanding network of people with fewer and fewer links to the original suspect. Through this method, the NSA intercepts the contents of the communications of as many as a thousand people inside the United States at any one time.
52. Second, the NSA intercepts communications to and from particular counhies, including Iraq and Afghanistan. The intercepted communications include calls and emails between people inside the tlnited States and people in those other countries.
53. Third, the NSA engages in wholesale datamining of domestic and international communications. It uses artificial intelligence aids to search for keywords and analyze patterns in millions of communications at any given time. One purpose of this datamining is to identify individuals for targeted sttrveillance.
54. Under the Program, the NSA docs not obtain judicial review before or after intercepting the communications of people inside the United States.
55. The NSA has submitted information obtained through the Program to the Foreign Intelligence Surveillance Court in order to support applications for surveillance orders under FISA.
15

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 16 of 50
Plai11tiffs' Allegatio11s 56. Plaintiffs and their staff and members (hereinafter "plaintiffs") routinely communicate by email and telephone with people outside the United States, including people in the Middle East and Asia. 57. Some of!he plaintiffs, in connection with scholarship, journalism, or legal representation, communicate with people whom the United States government believes or believed to be !enorist suspects or to be associated with terrorist organizations. 58. Plaintiffs communicate about subjects that are likely to t1igger scrutiny by the NSA under the Program. 59. Some of the plaintiffa conduct research on the Internet concerning topics that are likely to trigger semtiny under the Program. 60. Because of the nature of plaintiffs' communications and the identities and locations ofthose with whom they communicate, plaintiffa have a well-founded belief that their domestic and international communications are heing intercepted by the NSA under lhe Program. 61. The Program is substantially impairing plaintiffs' ability lo obtain infornrnlion from sources abroad, lo locate wihwsses, to represent their clients, lo conduct scholarship, and to engage in advocacy. 62. The Program is inhibiting the lawful, constitutionally protected cn111munications ofplaintiffa and others not before the Court.
16

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 17 of 50
American Civil Liberties Union !lnd American Civil Liberties Union Foundation 63. The ACLU is a 501(c)(4) non-profit, non-partisan organization that
engages in public education and lobbying about the constitutional principles of libe11Y and equality. The ACLU has more than 500,000 members. The ACLU's activities include lobbying Congress on legislation that affects civil liberties, analyzing and educating the public about such legislation, and mobilizing ACLU members and activists to lobby their legislators t(l protect ci vii rights and civil liberties.
64, The ACLUF is a 501(c)(3) organization that educates the public about civil liberties and that cmplClys lawyers who provide legal representation free of charge in cases involving civil liberties.
65. Since September 11, a core priority of the ACLU and the ACLUl' has been to publicize and oppose violations of civil liberties effected in the name of national secu1ity. This work frequently requires ACLU and ACLUF staff and members to communicate by email and telephone with people and organizations outside the United States. The international communications of ACLU and ACLUF Slaff and members concern a range of subjects that are likely to trigger sc111tiny under the Prngra111.
66. For exan1plo, in November and December 2002, ACLU staff traveled to Pakistan to interview men whom the Immigration and Naturalization Service had arrested and held after the terrorist attacks of S<.'Jllember 2001 as "special interest" detainees but subsequently deported without having been charged with any terrorism related offense. In preparation for this trip, ACLU staff communicated by telephone and email with people and organizations in Pakistan and India. For example, Marsha Zecsman, the ACLU's Director of Campaigns and Special Projects, and Emily Whitfield, the ACLU's
17

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 18 of 50
Media Relations Director, communicated by telephone and email on multiple occasions with staff of the lluman Rights Commission of Pakistan, an organization based in Karachi. Whitfield also communicated hy ~mail with Ash-har Quraishi, Cahle News Network's correspondent in Pakistan; with Carlo!la Gall, a New York Times correspondent in Pakistan; and with David Rohde, a New York Times correspondent in India. Some of the communications of ACLU staff concerned individuals whom the Justice Department's website describes as "linked to the September I l th investigation."
67. In Ja11uary 2004, the ACLUF filed a petition with lhe United Nations Working Group on Arbitrary Detention on bchal f of some of the men whom the INS had held as "special interest" detainees. The drafting of the petition required ACLUF attorney Omar Jadwat and other ACLUF employees to communicate by telephone and email with former detainees living in Pakistan, Egypt, and Jordan.
68. Since March 2005, ACLUF attorneys and staff have been investigating instances in which the CIA has transferred "rendered" foreign nationals to detention and interrogation in facilities operated by the CTA outside U.S sovereign territory and to countries and intelligence services that are known to employ torture and other forms of cruel, inhuman or degrading treatment. In co1mcction with this research, ACLUF attorneys and human rights advisors have communicated by telephone and email with individuals whom the ClA has alleged are associated with terrorist organizations. ACLUF attorneys and staff have also communicated by telephone and email with attorneys representing these individuals.
69. ACLUF attorneys currently represent Kha.led El-Masri, a German citizen residing in Neu-Ulm, Gcmmny, whom the CTA rendered to a CIA-nm prison in
18

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 19 of 50
Afghanistan in January 2004. ACLUF human rights advisor Steven Wall regularly communicates by telephone and email with Mr. El-Masri and with Mr. El-Masri's Gem1an attorney, Manfred Gnjidic. In addition, as part of the ACLU's research into the extraordinary rendition program, Mr. Watt regularly communicates by telephone with attorneys based in Sweden and Egypt representing Ahmed Agiza and Mohammed Alzery, whom the ClA rendered from Sweden to Egyptian custody in December 2001, and with the Italian attorney representing Abu Omar, whom the CIA rendered from Ttaly to Egyptian custody in February 2003.
70. ACLUF attorneys also currently represent a number of individuals who were detained and abused by United States forces at Abu Ghraib prison in Iraq and at other detention facilities in Traq and Afghanistan. ACLUF attorney Omar Jadwat and ACLUF human rights advisor Jamil Dakwar regularly communicate by telephone and email with individuals in Iraq and Afghanistan, including plaintiffs in the litigation, concerning the treatment of prisoners held by United States forces in those countries. Some of these communications concern individuals who remain in the custody of United Slates forces.
71. Because of the content of their communications and lhe identities and locations of individuals with whom they are communicating, ACLU and ACLUF staff have a well.founded belief that their communications are being intercepted by the NSA under the Program.
72. The Program substantially impairs the ability of the ACLU and ACLUF to engage in communication that is vital to their respective missions. The Program requires ACLU and ACLUF staff and members to minimize the sensitive inforniation
19

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 20 of 50
they include in their communications because of the risk that such information will be intercepted. In addition, ACLU and ACLUF staff and members believe that individuals abroad are more reticent in communicating with them because of the possibility that their communications are being intercepted by the NSA under the Program.
73. Attorneys at the ACLUF have represented to many of their clients that their telephone and email communications with ACLUF attorneys are confidential and covered by the attorney-client privilege. The willingness of ACLUF clients lo consult with ACLUF attorneys and to provide information to ACLUF attorneys is based in part on that assurance. The Program is inhibiting candid communication between ACLUF attorneys and their clients and is thereby compromising the ability of ACLUF attorneys to effectively represent their clients.
American Civil Liberties Union of IVHchigan 74. The ACLU of Michigan is the Michigan affiliate of the ACLU and is dedicated to ddending the civil liberties ofMicl1igan residents. Its activities include lobbying the Michigan legislature on proposed bills that affect civil liberties, educating the Michigan public about such legislation and mobilizing ACLU of Michigan members and activists to lobby their representatives to protect civil rights and civil liberties. 75. Since September 11, 200 I, a core priority of the ACLU of Michigan has been to publicize and oppose violations of civil liberties affected in the name of national security. For exan1plc, the Michigan ACT ,lJ established a "Safe and Free Project" devoted to post·9/I I civil liberties issues and hired a staff attorney for the project. It
opposed state legislation that it believed tumecessarily sacrificed civil liberties in the
name of national security. Tt mobilized its members to lobby local government bodies
20

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 21 of 50
across the state, resulting in the enactment of sixteen local resolutions opposing provisions of the USA PATRIOT Act that pose the most serious threats to civil liberties. The manner in which post·9/J I measures impact Arab-Americans is especially important to the Michigan ACLU affiliate because sout11east Michigan has the highest concentration of Arab-Americans in the country.
76. The ACLU of Michigan has many members who regularly communicate with people outside the U11ited States, including in the Middle East and Asia. Because oftlw nature of these communications, the identities of the individuals with whom they cmnnmnicate, and the locations of individuals with whom they communicate, ACLU of Michigan members have a well-founded belief that their communications are being intercepted by the NSA under the Program. The Program is inhibiting ACLU of Michigan members from communicating freely and candidly in their personal and professional communications.
Noel Saleh 77. Noel Saleh is a member of the ACLU of Michigan who resides in Wayne County, Michigan. He is a United States citize11. Jle is a licensed altomey in the State of Michigan and served as !he staff attorney for the American Civil Liberties Union ofMichiga11's "Safe and Free Project" from 2002 to 2004. 78. Mr. Saleh has been a community activist for Arab causes both in the United States and in the Arab World. Since 1989 he has served on the board of ACCESS, the Arab Cornmunity Center for Economic and Social Services. Cum"ntly, he is the Chair of the ACCESS Board of Directors. As part of his role as an ACCESS Board men1ber, Mr. Saleh is frequently called upon to comment on ernTent affairs and events
21

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 22 of 50
affecting the Arab American community. 79. Mr. Saleh has friends and family in Lebanon, Jordan and the Occupied
Palestinian Territories with whom he frequently communicates by phone and by email. Prior to becoming aware of the Program, Mr. Saleh communicated with family members about various political topics and their opinions on current events including Israeli repression of Palestinians under occupation, Palestinian Right of Return and statehood, Islamic fundamentalists, terrorism, Osama bin Laden, al Qaeda, mid America's role in each of these areas.
80. Bccau~e of his frequent communications with numerous people in the Middle East and other foreign countries about topics likely to trigger monitoring, Mr. Saleh has a well-founded belief that his communications m·e currently being intercepted by the NSA under the Program.
81. The likelihood U1at his communications are being intercepted by the NSA under the Proe,'l'am impinges on Mr. Saleh's ability to communicate freely and candidly in his intemational calls and emails. Since learning of the Program in news repmis, he has refrained from talking about or emailing friends and family abroad about topics that might trigger monitoring.
82. The Program also interferes with Mr. Sal.eh's efforts to promote peace and justice in this country. Before he became awm·e of the Program, he felt free to engage in free and open communication with people in other countries about critical issues of the day. He gained unique insight from these conver~alions into U.S. foreign policy that he could not gain from the media in this country. Because of the NSA Program, he is less willing lo engage in substantive discussions with people abroad and
22

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 23 of 50
therefore is not able to either gain these unique insights or share them with others. Mohammed Ahdrabboh
83. Mohammed Abdrabboh is a member of the ACLU of Michigan and has been a member of the ACLU of Michigan's Board of Directors since 2002. He is a United States citizen and a licensed attorney in the State of Michigan, with a practice in immigration, criminal defense and civil rights law, in Wayne County, M.ichigan. Mr. Abdrabboh serves as a Commissioner on the Michigan Civil Rights Commission, to which he was appointed by the Governor in May 2003. Mr. Ahrabboh also teaches a course on civil liberties and national security at the University of Michigan at Dearborn.
84. Mr. Abdrabboh frequently communicates by telephone and email with family in the West Bank, Gaza, and Jerusalem. After law school, Mr. Ahdrabboh worked for Al Haq, a human rights organization in the West Bank. He frequently communicates with fiiends and acquaintances he met while working there. He also communicates a number of times per month by telephone and email with fiiends and acq t1aintanccs in Saudi Arabia.
85. Approximately ninety-percent of Mr. Abdrabboh's clien!ele come l'rom countries in the Middle East. As part of his immigration practice, he regularly represents individuals who live in the Middle East and are seeking lo enter the United States, and as part of his representation he must conduct all communications with them through telephone and email. The nature of Mr. Abdrabhoh's law practice requires him to communicate regularly by telephone and email with people in Lebanon, the West Bank and Gaza. His practice also requires that he occasionally communicate with individuals by telephone and email in Jordan, Afghanistan and Yemen. These communications arc
23

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 24 of 50
essential in providing effective representation to his clients. 86. As part of his criminal defense practice, Mr. Abdrabboh has represented
and continues to represent people the government has suspected of allegedly having some link to ten-oiism or tetTorist organizations.
87. Because of the nature of his communications, the identities and locations of people with whom he communicates, Mr. Abdrabboh has a well-founded belief that his t.ommunications are being intercepted by the NSA under the Program.
88. The Program has inhibited communications between Mr. Abdrabboh and his family mid friends because he is less candid about his political views and avoids saying things that are critical of the U.S. government over the telephone or through email.
89. The Program has inhibited communications between Mr. Abdrabboh and his clients, both foreign and domestic.. Since learning of the Program, Mr. Abdrabboh has limited his communications about sensitive or privileged matters over the telephone or by email for fem· the government is monitoring the communication. Instead, he has tried to limit such communications to in-person meetings, which has greatly impaired his ability to quickly get information he needs for the purpose of representing clients. Mr. Adbrabboh also believes that some of his clients have now stopped giving him sensitive infonnation over the telephone. In one instance, a client who now lives in Afghanistan refused to share information over the telephone with Mr. Adbrabboh that was necessary to his representation in an immigration matter because the client feared the .communication was being monitored by the gove111rnent
Nabih Ayad 90. Nabih Ayad is a member of the ACLU of Michigan. He is a licensed
24

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 25 of 50
attorney whose practice includes immigration, criminal defense and civil rights cases, in Wayne County, Michigan. Since 2002, he has served on the Lawyers Committee of the ACLU of Michigan, a committee that makes recommendations to the Board of Directors about which cases to pursue.
91. In his immigration practice, Mr. Ayad represents individuals throughout the Middle East and South Asia including individuals fr()J11 Lebanon, Syria, Jordan, Egypt, United Arab Emirates, Iraq, Iran and Saudi Arabia. The govcmment has attempted to deport some of his clients because of suspected ties to terrorism. For example, the government suspected some of his clients of supporting, or having ties to, the military wing of Hez.bollah, a group !hat has been designated a terrorist organization by the Department of State. Mr. Ayad has also represented individuals from Lebanon, Liberia, and Trinidad who seek political asylum in this country. He successfully prevented 130 immigrants from Leb;mon and Yemen accused of visa fraud from being deported through an expedited removal process. In the course of his immigration practice, Mr. Ayad is required to communicate by phone or through email with clients, clients' families and associates, and witnesses in the countries mentioned above.
92. . Mr. Ayad has represented criminal defendants from Middle Eastern count1ies who have been accused of terrorism-related crimes. For example, he represented one individual from Jordan with suspected ties to the Taliban who came into this country with $12 million of counterfoil checks. Ile represented a man for Yemen who case was dismissed at the preliminary examination afler he was wrongfi.tlly accused of attempting to blow up a federal building in Detrnit. He also represented individuals from Lebanon who were accused of smuggling weapons oversees to Hezbollah. Through
25

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 26 of 50
!he course of his criminal defense work, it is necessary to prepare a defense by communicating with clients, clients' families, witnesses and others in the client's home countries.
93. Mr. Ayad is a naturalized U.S. Citiz.en who was born in Lebanon. He has family and friends in Lebanon and Germany with whom he communicates by phone and email. When speaking with friends and family in tl1e past, he discussed current events in the Middle East including the war in Iraq and terrorism.
94. Because ofthc nature of his communications, the identities of the some of the people with whom he communicates and the subject matter of conversations, Mr. Ayad has a well-founded belief that his communications are being intercepted by the NSA under the Program.
95. The Program has already inhibited communications between Mr. Ayad and individuals in the Middle East and Asia that arc necessary to provide effective legal representation to his clients. Because of the Program, Mr. Ayad will not have certain kinds of conversations hy phone or email for fear tliat the goven:unent might he monitoring his communicati.ons. For example, he will no longer communicate by phone or email about important strategic matters and about certain evidence in !enorist-relatcd irrnnigration or criminal cases. In addition, because of the program Mr. Ayad will even avoid discussing c.ertain political topics with family and friends abroad for foar that such conversations will trigger monitoring.
Council on American-Islamic Relations 96. Plaintiff CAIR is a non-profit and non-partisan grassroots organiza!im1 dedicated to enhancing the general public's understanding of Islam, protecting civil
26

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 27 of 50
liberties, empowering American Muslims and building coalitions that promote social justice and mutual understanding. CATR is the largest Islamic civil liberties organi~ation in the United States with more than 30 affiliated sister chapters throughout the United States and Canada representing the interests of over seven million Ame1ican Muslims.
97. CAIR's Communications Department works in conjunction with local, national an<;! international media outlets to ensure that an accurate portrayal of Islam and Muslims is presented lo the general public. CAIR 's daily news release service reaches individua.ls and intemational media outlets on a daily basis. Because of its communications work, CATR has become a respected and credible source for journalists and other media professionals worldwide. CAlR representatives are regularly interviewed by CNN, BBC World Service, FOX News, The Washington Post, The New York Times, and The Los Angeles Times, as well as media outlets throughout the Muslim world, such as Al-Jaz.eera, Al-Arabi ya, the Middle East Broadcasting Company (MBC), GEO TV (Pakistan), Al-A11ram, and other intemational print and broadcast outlets.
98. Because of its advocacy work, CAIR makes international telephone calls and write emails to journalists worldwide.
99. C:AIR's international media communications an" vital to its organizational goals of enhancing understanding oflslam, facililali11g inter-cultural understanding, ensuring fair and accurate portrayals of Islam and Muslims in the media, and serving as a bridge between American and the Muslim world. CAIR's communications with members of the American Muslim community arc also an essential part of its organizational success. Many members of the American Muslim community
27

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 28 of 50
communicate, both clcctrnnically and otherwise, to their families abroad. 100. CATR ·~ international media comnnmications cover a range of subjects
that are likely to trigger NSA scmtiny under the Program. These subjects incl Lide Islam, extremism, post-9111 policies, surveillance, terrolism and counterterrorism, the war in Iraq and the American Muslim community.
101. CATR's Communications Department drafts press releases, edits opinion articles and coordinates public education campaigns related to CAlR's missmn and vision. In this role, CAIR's Communications Department receives calls from journalists from all over the world who seek infomiation or official comment from the American Muslim perspective on issues related to CATR's press releases or official positions.
102. The Program suhstantially impairs lhe ability of CATR lo engage in communications that are vital to its mission and the ability of!he American Muslim community to freely communicate abroad without the fear of being placed under unlawful surveillance.
103. As a civil rights organi;i;ation, CAIR also communicates confidential information about pending civil rights cases via international telephone calls and emails.
104. For example, alter lwo high-profile individuals, musician Cat Stevens (known as Yusufislam since his conversion to Islam) and world-renowned academic Tariq Ramadan, named one of TIME Magazine's Top 100 Innovators, were denied admission to the United States; CAIR personally spoke with and emailed each of the individuals abroad.
105. The members of the American Muslim community, many of whom are
28

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 29 of 50
members of CAIR, are engaged in efforts of commerce, education and social services with individuals and institutions in the Muslim world. The work of the A:mericai1Muslim community in being able to engage freely in commerce, education and social services in the l'v1uslim world is a vi la.I part of building bridges between America and the Muslim world and thus, is integral to America's national security and vital interests. The Program substantially impairs the ability of the American Muslim community to engage in collllnunications that arc vital to America's national interests.
106. The communications of C:AlR, its members and the American Muslim community with individuals and journalists abroad are an integral part of the mission and vision of CA IR, specifically related to building bridges of understanding between America and the Muslim world. The possibility that the Ami;:rican Muslim c(llmnunity's international electronic communications are being intercepted by the NSA impinges their ability to communicate freely and candidly in their international communications.
CA1R-Michigan I 07. CAIR-Michigan is a non-profit and non-partisan grassroots organization dedicated to enhancing the general public's understanding ofislam, protecting civil liberties, empowering American Muslims and building coalitions that promote social justice and mutual understanding. 108. Because of its advocacy and civil rights work, CATR-Michigan makes intemational telephone calls and writes emails to journalists worldwide related lo the large American Muslim population within the state of Michigan. 109. CAIR-Michigan's media communications are vital to its organizational goals of enhancing a better understanding ofislam, facilitating inter-cultural
29

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 30 of 50
understanding and ensuring fair and accurate portrayals oflslam and MLLs\ims in the media. CAIR-Michigan's communications are also essential to the organization's communication with its members in the American Muslim conununity in Michigan; many o I' whom communicate, both electronically and otherwise, to their families abroad.
Na7,ihllas~
110. Nazih Hassan is a member of CAIR-Michigan who resides in Washtenaw County, Michigan. He was born in Lebanon in 1969, and became a legal pcnnanent resident of the United States in 2001. From 2002 to 2003, he served as the president of the Muslim Community Associalion of /\nn Arbor. He has served as chair on MCA' Board of Directors from mid-2005 to the present. Mr. Hassan works as a technology consultant.
111. Mr. Hassan has friends and family in Lebanon, Saudi Arabia, France, Australia and Canada with whom he frequently communicates by telephone and email. Among the people with whom he communicates by phone and email are his friends !slam Ahnurabit and Rabih Haddad.
112. Mr. Haddad is a native of Lebanon who was educated in the United States and lived in Ann Arbor, Michigan for more than 3 years. Mr. Haddad was an active member and popular volunteer teacher at the mosque to which Mr. Hass<1.n belongs. Mr. Haddad co-founded Global Relief Foundation (GRF) in 1993, a humanitarian organization which the federal government has accused of having provided material support for tenorism. ln December 2001, Mr. Haddad was arrested for an immigration violation on the same day that the offices of GRF were raided. Mr. Haddad was held for about a year before being deported to Lebanon. As one of the two media
30

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 31 of 50
coordinators for the Free Rabih Haddad Commi!tee, Mr. Hassan drafted press releases, spoke to the media and organized public demonstrations against the detention of Mr. Haddad. Mr. Hassan visits Rabih Haddad when he returns to Lebanon for vacations.
113. Islam Alnrnrabit, the fo1mer executive director oflslamic Assembly of North Arnerich, lived in Ann Arbor for approximately 7-8 years. Tn 2003, after the IANA offices were raided in Ypsilanti, Mr. Almurabit was visited by !he FBI and accused of being a supporter of extremism. Rather than face continual harassment by the FBI, Mr. Almurabit left the United States in 2004 or 2005 and lJloved to Saudi Arabia.
114. Prior to beco111ing aware of the NSA Program, Mr. Hassan would speak with or communicate with family members about various political topics and their opinions on current events including Tslan1 and the war in Iraq, Islamic fundamentalists, terrorism, Osama bin Laden, al Qaeda, the war in Afghanistan and the riots in France and Australia. Mr. Hassan would also participate in online discussion groups or bulletin boards about the war in Afghanistan on foreign websites in order to learn what people from other count1ies were thinking and to voice objections to those who favored extremism.
115. Because of his activism in the United States, his friendship with Islam Ahnurabit and Rabih Haddad, and his frequent communications with numerous people in
the Middle East and other foreign countries about topics likely to trigger monitoring, MT.
Hassan has a well-founded belief that his communications are currently being intercepted by the NSA under the Program.
116. The likelihood that his communications are being intercepted by the NSA under the Program impinges on Mr. Hassan's ability to communicate freely and
31

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 32 of 50
candidly in his calls and emails. Since learning of the NSA Program in news reports, he has refrained from talking about m emailing friends and family abroad about any topic that might trigger monitoring. He has not called his friends Islam Al-Murabit or Rabih Haddad or engaged in email communications with them about anything political for fear that such commu11ications would somehow be taken out of context or misconstrued as support for extremism. Finally, he no longer visits websites or discussion groups where some people advocate extremism, even though his purp(lse in participating in the discussion groups previously had been to oppose extremism.
117. The Program also interferes with J\.fr. Hassan's efforts lo promote peace and justice in this country. Before he became aware of the NSA Program, he felt free to engage in free and open communication with people in other countries about critical issues of the day. He gained unique insight from these conversations into U.S. forcii;,'11 policy that he could not gain from the media in this country. Mr. Hassan used these communications in his political work in the United States to educate Americans about the consequences l)fU.S. policy abroad. Because of the Program, he is no longer engaging in substantive discussions with people abroad and therefore is not able to either gain these unique insights or share them with others.
Greenpeace 118. Plaintiff Greenpeace is an advocacy organization dedicated to combating the most serious threats tc) the planet's biodiversity and environment. Since
1971, Greenpeace has been at the forefront of environmental activism through non"
violent protest, research, lobbying, and public education. Greenpeace has approximately 250,000 members and seven offic.es in the United States. Greenpeace is associated with
32

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 33 of 50
international Greenpeace entities, which have a presence in 39 other countries and more than 2.5 million members.
119. As part of its international environmental advocacy, Greenpeace leaders and staff engage in international communications, via telephone and email, on a daily basis. Individuals contacted include staff members of Greenpeace offices in other countries, representatives of multinational organizations, governmental officials, scientific ex.pe1is, ru1d Greenpeace members. GreenpeacG communicates by telephone and email with people in the Netherlands, England, Germany, Canada, Mexico, Australia, Brazil, Tndia and Japan.
120. Greenpeace is aware that it has been targeted for surveillance in the past by the NSA. For exarnple, in 1992 British intelligence officials revealed to the London Observer that in the 1990s the NSA had used the word "Greenpeace" as a keyword to intercept communications outside the United States. Government documents recently ohtamed under the Freedom of Infonnation Act (FOIA) reveal that Greenpeace has been the subject of sunrcillance by the FBI and Joint Ternirism Task Forces, whose internal documents contend that the organization is associated with "suspicious activity with a collllection to international terrorism." Documents obtained through the FOIA also indicate that the FBI has us<:ld confidential informants to obtain infom1atiou about Greenpeace activities.
121. Greenpeace's recent activities also make the organization a likely target for government surveillance. In the past several years, Greenpeace has repeatedly engaged the Bush administration through public protest and activism. In 200 I, Greenpeace held public demonstrations outside the personal residences of President Bush
33

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 34 of 50
and Vice President Cheney, attacking the administration's environmental and energy policies. Greenpeace has also actively publicized the Bush administration's ties to the oil industry, particularly to ExxonMobil. Seventeen Greenpeace activists were anested in 2001 in connection with a p1.·otest aimed at disrupting a "star wars" missile test at Vandenberg Air Force Base. In 2002, Greenpeace protestors chained themselves to gas pumps at ExxonMobil stations in New York and Los Angeles, carrying banners that called on the Bush administration to stop favoring the oil industry over the environment. ln 2003, there were several European protests against the war in Traq by Greenpeace activists, including one al Rota Naval Air Base in Spain. More recently, a team of international Greenpeace experts exposed the United States' military's failure to secure and contain nuclear waste fi.1cilities in Iraq.
122. Bccacise of the nature of Greenpeace's international communications, Greenpeace's recent activities, and the U.S. government's past surveillance of Greenpeace, Greenpeace has a well-founded belief that its international communications are currently being intercepted by the NSA under the Program.
123. Greenpeace's telephone calls, emails, and other Internet communications with individuals and organizations abroad are vital to its organizational goal of addressing enviromnental problems of glohal magnitude. This mission requires free and open communication with international colleagues, members, experts, and leaders of governments and industry.
124. The Program substantially impairs the ability of Greenpeace to engage in communications that are vital to i!s mission. Kn(lwledgc of the Program requires Greenpeace staff to minimize !he sensitive infonnation they include in their international
34

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 35 of 50
electronic communications and to be more circumspect and less candid in their communications to members and others. Greenpeace also believes that people abroad are more reticent in communicating with Greenpeace because of the lihlihood that their conversations will be monitored by the NSA under the Program. (rreenpeacc fears that the Program will enable the U.S. government to dismpl Greenpeace's lawful activities by taking preemptive action against legitimate, and peaceful, protests.
National Association of Criminal Defense Lawyers 125. The National Association of Criminal Defense Lawyers (NACOL) is a District of Columbia non-profit organization whose membership is comprised ofover 13,000 lawyers and 28,000 affiliate members representing every stale. The NACOL was founded in 1958 to promote study and research in the field of criminal law; to disseminate and advance knowledge of the law in the area of criminal practice; and to encourage the integrity, independence, and expertise of defense lawyers in criminal cases. 126. NACOL is concerned with the erosion of due process and the rights of criminal defendants and suspects generally, but particularly so with respect to the impact of the "War on Tenor" upon lhe criminal justice system, due process, and the protections afforded by the Fourth, Fifth, and Sixth Amendments. 127. NACDL has been active with respect to those issues. NACDL has filed amicus briefs in a considerable number of cases involving the infringement of rights precipitated by !he War on Terror, including in the Courts of Appeal, the Foreign Intelligence Surveillance Court of Review, and the Supreme Court. NACDT. has been involved as amicus in all of the cases involving the rights of detainees, either U.S. citi;~ens or those held at Guantanamo Bay, Cuba, in the lower and appeals courts.
35

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 36 of 50
128. NACDL also has at least three com111ittecs that address these issues: its Select Committee on Military Tribunals, its international Law Committee, and its Ethics Committee. Its Amicus Curiae Committee has also been intensively involved in these issues.
129. Al least fifty NACDL members currently represent or have represented terrorism suspects, and many of these members regularly communicate with people outside the United States. Because of the nature of!hese communications, the identities of the individuals with whom they communicate, and the locations of individuals with whom thev communicate, NACDL members have a well-found beliefthal their communications are being intercepted by !he NSA under the Program. The Program is inhibiting communications that are necessary for NACDL members to provide effective legal representation to !heir clients.
Joshua L. Dratel 130. Joshua L. Dratcl is a nationally recognized criminal defense lawyer in New York City. Mr. Dratel is a member ofNACDL's Board of Directors and Co-Chair of its Select Committee on Military Tribunals. He is also co-editor of The Torture Papers: The Legal Road to Abu Ghraib (Cambridge University Press: 2005). 13 J_ Mr. Dratel currently represents a number of individuals who have been accused by !he federal government of terrorism-related crimes. For example, Mr. Dratel is lead counsel for David Hicks, whom the United States government has detained as an enemy combatant at Guantanan10 Bay since 2001, and who is being prosecuted by the U.S. military commission. Mr. Dratel also represents Lynne Stewart, a criminal defense lawyer accused of providing material support for terrorism_ Mr. Dratel also represents
36

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 37 of 50
Mohamed El-Mezain in a federal prosecution charging material support for te1Torism, and Wadih El-Hage, a defendant in United States v. Usama Bin Laden (the Embassy Bombings case), in Mr. El-Hage's pending appeal of his conviction. Mr, Dratcl also represented Sami Omru· Al-Hnssayen, who was acquitted in federal cou1i in Idaho of providing material support for terrorism based on the technical support he provided to web sites and discussitln boards about terrorism and jihad.
132. ln representing these and other clients, Mr. Dratel routinely engages in telephone and email communications with witnesses, foreign counsel, experts, journalists, and government officials in Israel, Gcm1any, Australia, the United Kingdom, and elsewhere. He also routinely communicates with the family members of his clients, many of whom reside in other countries. These conununications are essential to his effective representation of his clients.
133. In representing these and other clients, Mr. Dratel conducts research and accesses discussion boards on the lnte1net as an integral par! of the investigatory process. This research often includes review of web sites that allegedly support terrorism and jihad, and/or discuss the issues, including qoqaz.com, azzam.com, alasr.ws, palestineinfo.org, islamway.com, and cageprisoners.com, among many others. Because of the charges against Sarni Omar Al-Hussayen, Mr. Dratel reviewed hundreds of such web sites and discussion boards in preparation for trial. Mr. Dratel also engages in keyword searches using terms such as "Usama bin Laden," "Chechnya," "qoqaz," "Sheikh Safer al-Hawaii," "Sheikh Salman al Odah," and "Hamas."
134. Because of the nature of his conununications, the identities of people with whom he communicates, and the subject matter of his onlinc re~earch, Mr. Dratel
37

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 38 of 50
has a well-founded belief that his communicalions arc heing intercepted under the Program.
135. The Program has already inhibited co111munications between Mr. Dratcl and individuais in other countries that are necessary to provide effective legal representation to his clients. Since learning of the Program, Mr. Orate! has ceased having certain kinds of discussions over the telephone or by cmai.l for fear that lhe government may be monitoring his conmrnnicatfons.
Nancy Hollander 136. Nancy Hollander, a member and past President ofNACDL, is a nationally recognized criminal defense lawyer in Albuquerque, New Mexico. Ms. Hollander is co-chair ofNACDL's lntcmalional Affairs Committee and also in charge of recruiting volunteers to represent prisoners at Guantanamo. 137. Ms. Hollander currently represents organizations and individuals who have been accused by the federal government ofte1TOrism-related crimes. For exan1plc, Ms. Hollander represents Holy Land Foundation and its Executive Director Shukri Abu Baker, who are currently under indictment in Dallas, Texas charged with providing material support lo a terrorist organization. She also represents Mohammcdou Ould Salahi, who the federal govemm<:'nt has declared an enemy combatant and who has been detained at Guantanamo Bay since 2002. She also represented Fawaz Damrah, who was charged and convicted in Ohio of naturalization crimes but whom the federal goveminent attempted to link to Sarni Al-A1ian, a profossor accused and recently acquitted in Florida of terrorism-related crimes.
38

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 39 of 50
138. The nature of Ms. Hollander's legal practice requires her to communicate regularly by email and telephone with individuals outside the United States. These communications arc essential in providing effoc!ive representation to her clients. liar example, in representing thes"' and other clients, Ms. Hollander routinely communicates by telephone and email with witnesses, foreign counsel, experts, journalists, government officials and political figures in Israel, Gaza, the West Bank, Egypt, and other countries in the Middle East, as well as in Mauritania.
139. In representing these and other clients, Ms. Hollander also conducts research on !he Internet about terrorism, religion, and polities in the Middle East and South Asia, and also participates in Internet discussions on these topics. Ms. Ho! lander routinely searches web sites using key words such as "Hamas," "Palcstianian Islamic .Jihad," "muhajadin," and "suicide bomber." This research is a necessary component of the investigatory process.
140. Because of the nature of her communications, the identities of people with whom she communicates, and the subject matter of her online research, Ms. Hollander has a we11·founded belief that his communications are being intercepted by the NSA under the Program.
141. The Program has already inhibited communications between Ms. Hollander and individuals in the Middle East that are necessary to provide effective legal representation to her clients. Since learning of the Program, Ms. Hollander has ceased having certain kinds of discussions over the telephone or by email for fear that t11c government may be monitoring her communications. Ms. Hollander has decided that she will no longer communicate by phone or email about any strategic or privileged
39

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 40 of 50
matters with her clients charged in terrorism related cases, or with witnesses, experts, potential experts and co-counsel outside the United Stales. Jn one cunent case, Ms_ Hollander is planning an expensive trip to obtain information that she would have previously obtained via telephone and email.
William W. Swor 142. William W. Swor is a member of the NACDL, and a member of the Board of Directors of the Criminal Defense Attorneys of Michigan. He maintains a private practice or law in Detroit, Michigan. His practice is primarily in the areas of federal criminal defense and immigration law. 143. Mr. Swor has represented, currently represents and expects !o represent in the future, individuals who were investigated and or prosecuted under one or more of the federal terrorism-related statutes_ For example, Mr. Swor rcpre~ents Abdcl-Ilah Elmardoudi who was wrongfolly accused by the United States of providing material aid
in support of terrorism. Mr. Swor also represents Mahmoud Kourani who was accused
by the United States of providing material aid to Hezbollah, in Lebanon. Mr. Swor has other matters pending, both criminal and immigration matters, in several federal districts in which his clients arc being investigated or prosecuted under one or more of the federal terrorism-related statutes.
144. In representing these and other clients, Mr. Swor conducts research on the Jntcrnet about terrorism, religion and politics in the Middle East, Eastern Europe, Africa and the Caucasus Mountain region. This research includes review of sites that support terrorism and/or organizations that the United States has declared Foreign Terrorist Organizations (FTOs). This research is a necessary component of his
40

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 41 of 50
preparation of his cases. Based upon discovery provided by the United States in pending matters, he will continue to need to refer lo these sites for infonnatiort
145. The nature of Mr. Swor's legal practice also requires him to communicate by telephone with individuals outside of the United States, including individuals whose communications are likely to have been intercepted under the Program. These individuals are witnesses, potential experts, journalists, and others who are located in tbe Middle East, e.g. Lebanon, and Jordan, as well as western European countries such as France and England. These communications are essential in providing effective representation to his clients.
146. Mr. Swor has a well-founded belief that his communications are being intercepted hy the NSA under the program. The Program has already iJJhibited communications between Mr. Swor and individuals in the Middle East that are necessary \(1 provide effective legal representation to his clients. Since learning of the Program, Mr. Swor has avoided having cmtain kinds of discussions over the telephone or email for fear that the government may be monitoring his communications. Mr. Swor believes that he will now have to schedule one or more trips overseas to interview witnesses and to ohtain infom1ation that he would have previously been able to obtain via telephone and email communications.
.James Bamford 147. Plaintiff James Bamford, of Washington, D.C., is an award-winning and bestselling author and journalist. He is one of the world's leading experts on U.S. intelligence generally and lhe National Security Agency specifically. Mr. Bamford is the author of A Pretext for War: 9/11, Irnq, and the Abuse of America's Intelligence
41

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 42 of 50
Agencies (Doubleday, 2004), Body of Secrets: Anatomy of the Ultra-Secret National Security Agency (Doubleday, 2001), and The Puzzle Palace: A Report on NSA, America's Most Secret Agency (H(mghton Mifflin, 1982). Mr. Bamford has written extensively on national sccwily issues for a range of newspapers a11d magazines, including investigative cover stories for The New York Times Magazine, The Washington Post Magazine, and The Los Angeles Times Magazine. From 1989 -1 998, he was the Washington investigative producer for ABC's World News Tonight with Peter Jennings. In 2002, he was a distinguished visiting professor of National SecL1rity at the Goldman School of Public Policy, University of California, Berkeley.
148. As an expert on intelligence, Mr. Bamford has testified before co111111ittees of both the Senate and House of Representatives as well as the European Parliament in Brussels and the International Criminal Tribunal for the fonner Yugoslavia. He has also been a guest speaker at the Central Intelligence Agency's Senior Intelligence Fellows Progran1, the National Security Agency's National Cryptologic School, the Defense Intelligence Agency's Joint Military Intelligence College, the Pentagon's National Defense Umversity and Air War College, and the Director of National Intelligence's National Counterintelligence Executive.
149. Mr. Bamford first experie1ic.ed the impact of illegal NSA eavesdropping on Americans, and the lengths to which the U.S. government will go to prevent disclosure of its spying programs, thirty years ago. As Mr. Bamford was wri!ing The Puzzle Palace. he discovered that the Justice Depa11mc11t in 1976, during the Ford administration, began a secret criminal investigation into widespread illegal domestic cavesdnlpping by the NSA. Mr. Bamford filed a request under the Freedom of
42

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 43 of 50
Information Acl for documents dealing with that investigation. Several hundred pages of documents were eventually released lo h.im in 1979. The documents showed that the FBI questioned senior NSA officials about the possibility of their having violated federal criminal laws by engaging in warrnntlcss eavesdropping of American citizens. "The investigation," said the documents, "uncovered 23 differe11t categories of questionable activities." However, because oflhe secrecy of the operations, and the fact that law was undefined in this area, the Justice Depiiliment decided against prosecution and instead recommended that new law5 be created to outlaw this type of activity.
150. Shortly a Iler President Ronald Reagan took office, the Justice Department, at the request of!he NSA, notified Mr. Bamford that lhe documents had been "reclassified" as top secret and demanded their return. When Mr. Barn f(lrd refused, saying that they had been properly declassified and released lo him by the Carter administration, he was threatened with prosecution. Mr. Bamford then cited the presidential executive order on secrecy which stated that once a document had been
declassified, it cannot be reclassified. As a result, President Reagan changed the executive order to indicate that once a document has been declassified it can be
reclassified. However, because !he order could not be applied retroactively, the new executive order could not be applied to Mr. Bamford and the infonn<ttion was subsequently published in The Puzzle Palace.
151. During that period, sources necessary to Mr. Bamford's investigative journalism were much less willing to communicate with him due to the likelihood that his communications were being intercepted by the NSA. The NSA had previously placed another writer, David Kahn, on its watch list, and intercepted his communications, as he
43

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 44 of 50
was writing his history of cryplology, The Codcbrcakers. According to the Senate Select Committee on Intelligence, the agency also considered undertaking "clandestine service applications" against the author, which apparently meant anything from physical surveillance to conducting a "surreptitious entry" into Kalm's New York home.
152. Mr. Bamford's recent work has again made it likely that his
communications are being intercepted by the NSA. For example, in the fall of2001, Mr.
Bamford received a book contract from Doubleday Publishing Company lo write A Pretext for War, which documents the intellige110e mistakes that led lo the nation's failure to prevent the 9/11 attacks and lhe Bush administration's subsequent misuse of
intelligence to sell preemptive war to the American people.
153. Since the fall of2001, Mr. Bamford has also written more than two dozen articles, reviews and opinion pieces on intelligence, 9111, and the wars in Iraq and Afghanistan. These include "Where Spying Starts and Stops" (The New York Times, January 2006), "The Agency That Could Be Big Brother" (The New York Times,
December 2005), "The Labyrinthine Morass of Spying in the Cold War" (The New York
Times, July 2003), "This Spy For Rent" (The New York Times, June 2004), "How To De-Centralize Intelligence" (The New York Times, Novernber 2002), ''War of Secrets" (The New York Times, September 2005), "Washington Bends The Rules" (The New
York Times, September 2002), "A Fonner CIA Cowboy and his Disillusioning Ride"
(The New York Times, September 2002), "We're Watching Them" (The Washington Post, Febrnary 2005), "Sowing the Whirlwind" (The Washington Post, Febrnary 2004), "A Look Over My Shoulder" (The Washington Post, April 2003), "Shadow Warriors" (The Washington Post, December 2002), "Strategic Thinking" (The Washington Post,
44

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 45 of 50
September 2002), "The Wrong Man" (The Washington Post, January 2002), "Intelligence Failures" (The Washington Post, June 2002), "Maintain CIA's Independence" (USA Today, October 2002), "U1m:sted Administration Hawks Clamor for War" (USA Today, September 2002), "Bush Wrong to Use Pretext as Excuse to lnvadc Iraq" (USA Today, August 2002), "Linguist Reserve Corp Answers Terror Need" (USA Today, July 2002), "Secret Warriors: The Great Game" (The Los Angeles Times, May 2004), "Secrets on High" (The Los Angeles Times, March 2003), "The Man Whu Sold The War" (Rolling Stone, December 2005) and "Breeding Terror: The Intelligence Community Analyzes a Cotmterproduclive War" (The American Conservative, March 2005). Mr. Bamford also is a contributing editor for Rolling Stone and has served on the USA Today Board of Contributors.
154. Communicating with individuals i11 Traq, Afghanistan, and elsewhere in the Middle East via email and telephone is a vital part ofMr. Bamford's work as an author and journalist. Mr. Bamford's sources in the Middle East include people working for the United States military and intelligence agencies, intelligence officials in other countries, intelligence experts, and foreign journalists specializing in writing on intelligence.
155. Mr. Bamford's email communications include discussions of the NSA, Central Intelligence Agency, military strategies related to the wars in Iraq and
Afghanistan, and the 9111 attacks and other terrorist attacks. The people with whom Mr.
Bamford has communicated, the locations of people with whom he has communicated, and the content of his communications are all likely to have triggered scrutiny by the NSA under the Program.
45

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 46 of 50
156. Mr. Bamford also frequently communicates by telephone and email with journalists in the Middle East, both as part of his research and because he is often interviewed as an expert on U.S. intelligence. For example, he has appeared several times on Al-Jazeera, the leading teh;vision network in the Arab world.
157. As part of his research, Mr. Bamford also frequently visits web sites that are likely to trigger NSA scrutiny. For example, Mr. Bamford has researched web sites about ten-orism, jihad, Osama bin Laden, al Qaeda, Islamic fundamentalism, Saddam Hussein, weapons of mass destruction, and signals intelligence. One web site, Jihad Unleashed, includes translations of Osama bin Laden's communications. Some of these web sites express support for terrorism.
158. Mr. Bamford's ability to research and write about the NSA, intelligence, and the war on terror is seriously compromised by the Program. Because the Program substantially increases the likelihood that his communications are being intercepted by the NSA, Mr. Bamford is less able to communicate freely and candidly in his international calls and emails. ln addition, because of the Program, Mr. Bamford believes that sources who have first-hand knowledge about intelligence failures and abuses are less willing to engage in communications with him.
Larry Diamond 159. Larry Diamond is a senior fellow al the Hoover Institution, Stanford University, and founding coeditor of the Joumal of Democracy. He is also codirector of the hltemational Fornm for Democratic Studies of the National Endowment for Democracy. At Stanford University, he is professor by courtesy of political science and sociology and coordinates the democracy program of the Center on Democracy,
46

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 47 of 50
Development, and the Rule of Law. During 2002-03, he served as a consultant to the U.S. Agency for International Development (USA IO) and was a contributing author of its report Foreign Aid in the National Interest. Currently he serves as a member ofUSATD's Advisory Committee on Voluntary Foreign Aid. Professor Diamond has also advised and lectured to the World Bank, the United Nations, the State Department, and other governmental and nongovernmental agencies dealing with governance and development.
160. During the first three months of 2004, Professor Diamond served as a senior adviser on governance to the Coalition Provisional Authority in Baghdad. He is now lecturing and writing about the challenges ofpost,conflict state building in Iraq, and the challenges of developing and promoting democracy around the world, with a particular focus on the Middle East and Africa. Professor Diamond has worked with a group of Europeans and A.mericans to produce the Transatlantic Strategy for Democracy and Human Development in lhe Broader Middle East, published in 2004 by the German Marshall Fund of the United Stales, During 2004-5, he has been a member of the Council on Foreign Relations' Independent Task Force on United Stales Policy Toward Arab Refo1m.
161. Professor Diamond is the author of numerous books, including Squandered Victory: The American Occupation and the Bungled Effort to Bring Democracy to Iraq (Times Books, 2005). His recent edited books include Islam a11d Democracy in the Middle East (with Marc F. Plattner and Daniel Brumberg) and Assessing the Quality of Democracy (with Leonardol\forlino).
162. Professor Diamond's work requires him to communicate by email, and occasionally by telephone, with advocates of democracy in lhe Middle East, Asia, and
47

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 48 of 50
Africa. For example, Professor Diamo11d corresponds by email with Saad Eddin Ibrahim, a leading advocate of democratic refonn in Egypt, and with Professor Maye Kassem, a political scientist at the American University in Cairo. Professor Diamond corresponds with Adel Abdellatif of the United Nations Development Program in Beiruit. Professor Diamond also corresponds with advocates for democratic reform in many other countries, including Iran, the Palestinian Authority, Pakistan, China, the Philippines, Nigeria, Kenya, and Uganda.
163. Professor Diamond has a well-founded belief that his communications
are being intercepted by the Program.
164. Some of Professor Diamond's correspondence with individuals in the
Middle East and Asia concerns political and human rights issues that are extremely sensitive. For example, Professor Diamond has coJTesponded with Sana Baloch, a Pakistani Senator, about human rights issues in Baluchistan. Profossor Diamond believes that Senator Baloch would not have provided him with this information had he believed that communications with Professor Diamond were monitored by the United States government. Profossor Diamond believes that the existence of the Program makes it less likely that individuals in Afghanistan, Pakistan, Egypt, China, and elsewhere in the Middle East and Asia will provide him with sensitive information over email or by telephone in the future.
I65, Because Professor Diamond is a well-known scholar of democratic reform, he is occasionally contacted unsolicited by individuals who live under repressive governments and have complaints about !heir governments' policies. Professor Diamond believes that the Program makes it substantially less likely that such individuals will
48

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 49 of 50
contact him. Professor Diamond believes that this is particularly true of individuals who live under repressive governments that have close relations with the United States, such as Pakistan, EgyPt, and Kazakhstan, because these individuals will reasonably fear that their communications may ultimately be provided by the United States to their own governments.
166. Professor Diamond's ability to advocate and advise on democratic reform in the Middle East and Asia depends in part on the willingness of political dissidents to contact him, to consult with him, and to provide him with information about their own governments' policies. Professor Diamond believes that the Program infobits the exchange of infom1ation and ideas among advocates of democratic refonn and the victims of human rights abuses and defenders of human 1ights, and thereby compromises his ability to study the progress of democratic reform and support those in the Middle East and Asia who advocate change.
167. Additionally, Professor Diamond is concerned about the implications of the program for academic freedom. He periodically has undergraduate and graduate students who travel lo !he Middle East, Asia, and Arrica to conduct research on sensitive political questiuns and who need to be in touch with him by email for advice and coordination while in the field. For example, this past summer, one of his Stanford undergraduate advisees, Omar Shakir, worked for him as a research assistant in EgyPt interviewing opposition activists, intellectuals, and advocates of democratic change. Shakir sent weekly reports back to Professor Diamond and they communicated by email while he was in Egypt. Professor Diamond believes the Program inhibits the conduct and coordination of overseas research and the supervision of student research by impairing
49

Case 2:06-cv-10204-ADT-RSW Document 1 Filed 01/17/2006 Page 50 of 50
the ability to communicate freely and responsibly wi!h his students and assistants overseas, who often give their interviewees pledges of strict confidentiality.
Ch risto1>her Hitchens 168. Christopher Hitchens is a reporter and author based in Washington, D.C. He is a prominent and controversial commentator who is vocal in his suppo11 for the military interventions in Iraq and Afghanistan. Mr. Hitchens writes frequently on the politics of the Middle East. Many of his articles focus on understanding the role and influenc0 of Islamic fundamentalism in the region. He also probes the success ofUnitcd States policy in assuaging the threat to security posed by Muslim terrorists harbored in the Middle East and West Asia. 169. Mr. Hitchens' reportage and analysis appear in numerous publications. He has published in Harpers, The Spectator, The Nation, New York Newsday, and Atlantic Monthly. He currently is a frequent contributor to Slate and Vanity Fair. Mr. Hitchens writes a regularly featured column for Slate called Fighting Words, which he used to voice his strong support for the allied military actions in Iraq and Afghanistan. He has traveled throughout the Middle East on behalf of Vanity Fair in order to write a series of articles describing the political climate in various countries. Mr. Hitchens is also a best-selling author of several books. In 2003, he published A Long Short War: The Postponed Liberation of Iraq, a c<lllection of essays analyzing arguments for and against the war in Iraq. In 2005, he contributed an essay to Thomas Cushman's compilation A Matter of Principle: Humanitarian Arguments for War in Iraq. I 70. Mr. Hitchens' work requires him to maintain frequent contact with sources in the Middle East and Western Asia. Such communications were necessary for
50

2:06-cv-10204-ADT-RSW Doc # 1-2 Filed 01/17/06 Pg 1 of 12 Pg ID 1
him to research his Vanity Fair articles 011 political conditions in various Midd.le East states. These articles mclude "On the Frontier of Apocalypse" on Pakistan (January 2002), "The Maverick Kingdom" on Qatar (Decernber 2002), "Saddam's Long GoodByc" on Kuwait (June 2003), "A Prayer for Indonesia" (January 2004), "Afghanistan's Dangerous Bet" (November 2004), and "Iran's Waiting Game" (July 2005). Mr. Hitchens' upcon1ing book and continuing journalism will involve contact wilh, and visits to, the Middle East and Western Asia.
171. As part of his work, Mr. Hitchens regularly exchanges emails and telephone calls wi!h individuals in Iraq, Iran, Afghanistan, Pakistan, India, Indonesia, Qatar and Kuwait. In a typical week, Mr. Hitchens hears from individuals in st'lveral of these counhies. For example, Mr. Hitchens has spoken with Dr. Masuda Jalal, the only woman who ran for president of Afghanistan; Hossein Khomeini, a cleric whose grandfather overthrew the Iranian monarchy in J 979; Ali Mohmmcd Kamal, a TV marketing director for Al Jazeera; and Sardar Sikander Haya! Khan, the prime minister of Pakistani Kashmir. Mr. Hitchens' communications to the Middle East and Western Asia include contacting journalists of a variety of nationalities and individuals in the United States military and diplomatic corps. He also contacts those who are actively hostile to the United States military intervention in Iraq and Afghanistan and the United States more generally. Because of the subject mal(er of his reporting, many of Mr. Hitchens' communications involve discussions oflslamic fundamentalism, te1Toiism, jihad, Osania bin Laden, al Qaeda, and Saddam Hussein.
172. Since well before 200 I, but more regularly and frequently since then, Mr. Hitchens' work has required him to travel to the Middle East and Western Asia.
51

2:06-cv-10204-ADT-RSW Doc # 1-2 Filed 01/17/06 Pg 2 of 12 Pg ID 2
Since 2001, the countries he has visited include Traq, Iran, Afghanistan, Pakistan, India, Indonesia, Qatar and Kuwait Travel is an important element of Mr. Hitchens' work, as his reporting offers detailed, first-hand accounts of conditions in countries few Wcstemers have an oppo11unity to visit. For instance, Mr. Hitchens traveled throughout Iran to prepare "Tran's Waiting Game" (July 2005 Vanity Fair)_ He visited Tehran, Qom, and Mashhad to gain a sense oflife under Iran's theocratic government. Tn researching "Afghanistan's Dangerous Bet" (November 2004 Vanity Fair), Mr. Hitchens ventured from Kabul to the pr(1vincial capital of Heral to witness the rnn-up to Afghanistan's first democratic elections from different vantage points_ Mr. Hitchens visited Qatar to report on its relatively free society, a report in which he devoted much attention to Qatar-based media outlet Al Jazeera (The Maverick Kingdom, December 2002 Vanity Fair). While traveling, Mr. Hitchens communicates regularly by telephone and email with colleagues, editors, and sources in the United States.
173. Because of the nature of his communications with people in the Middle East, the identities of those with whom he communicates, and the subject matter of his online research, Mr. Hitchens has a well-founded belief that his communications are being intercepted by the NSA under the Program, Mr. Hitchens believes that free and open communication with his sources is an essential element ofhis work as a journalist. Given the sensitive nature of his work, Mr. Hitchens must assure some of his sources that their communications iu-e kept in strict confidentiality. The Program unde1mines Mr. Hitchens' ability to make that assurance. As a result, individuals are less forthcoming in their conversations with him, and may cut off communications completely. In addition, the likelihood that Mr. Hitchens' international communications are being intercepted by
52

2:06-cv-10204-ADT-RSW Doc # 1-2 Filed 01/17/06 Pg 3 of 12 Pg ID 3
the NSA under the spying program impinges his own ability to communicate freely and candidly wi!h his sources and others, to the detriment of his effectiveness as ;m investigative journalist.
Tara McKelvcy
174. Plaintiff Tara McKelvey is a senior editor at The American Prospect
and a contributing editor to Marie Claire. Her a1iicles have appeared in those two magazines as well as in The Nation, USA Today, Chicago Tiibunc, and The New York Times.
175. Ms. McKelvey has written extensively about the Midd.le East, including
articles about Iraqi detainees held in United States custody, about women's issues in Iraq, and about the United States military in Iraq. She is working on a book about U.S. legal efforts to fight torture and is editing an upcoming anthology about women and torture.
176. Communicating with individuals in Iraq, Jordan, and Syria via
telephone and email is a vital part of Ms. McKelvey's work as a journalist. Since October 2004, Ms. McKclvey regularly emails people in Iraq and Jordan as part of her research. For example, she made frequent calls to individuals in Iraq, Jordan, and Syria during November and December 2004 and January, November, and December 2005. Ms. McKelvey's sources in the Middle Easl include individuals working for the United Stales military, Iraqi soldiers, nongovernmental agencies, bankers, school administrators, journalists, activists, human-rights workers, and others.
177. Among Ms. McKelvey's many sources in the Middle East arc individuals she believes are likely to have been the targets of United States government surveillance because they have heen anested or investigated by United States or coalition
53

2:06-cv-10204-ADT-RSW Doc # 1-2 Filed 01/17/06 Pg 4 of 12 Pg ID 4
forces, have been suspected of aiding insurgents, have ties to the former Iraqi regime, or are critical oflhe United States presence in Iraq.
178. For example, in December 2004, for an article for The Ameiican Prospect, Ms. l'vfcKelvey interviewed hy telephone Khadeja Vassen in B<1ghdad. Yasscn was a ranking member of the Baalh Party and is the sister of fonner vice president Taha Yassin Ramadan, who in turn was included in the United States military's playing card deck of!he 55 most wanted Iraqis. Vassen had her house raided by United States .forces in 2003 and was thereafter arrested.
179. Also in December 2004, for an article for The American Prospect, Ms. McKelvey interviewed Saja, an engineer in her thirties, by telephone at her home in Damascus. Ms. McKclvcy also emailed her. Saja is, according to an American spokesman for coalition forces in Iraq, believed to be a fonner mistress of Saddam Hussein.
180. As part of her journalistic research, Ms. McKelvey visits numerous websites hosted in the Middle East that include aggressive anti-American propaganda.
181. Because of her journalistic c.ontacts with individuals in Iraq who have been arrested or investigated by United States or coalition forces, who have been suspected of aiding insurgents, who have tics to the fonner Iraqi regime, or who are critical of the United States presence in Iraq, Ms. McKelvcy has a well-founded belief that her international communications arc being intercepted by the NSA under !he Program.
182. The Program substantially impairs Ms. McKelvey's ability to communicate openly with sources in the Middle East that are essential to her work as a
54

2:06-cv-10204-ADT-RSW Doc # 1-2 Filed 01/17/06 Pg 5 of 12 Pg ID 5
joumalist. Many of Ms. McKclvey's most important sources have spoken to her in the past only with greal trepidation: they fear that other Iraqis will kill them for speaking with an American and, at the same time, they foar being arrested (in some cases, rearrested) by United States or coalition forces who suspect them of being involved in insurgent activities. Ms. McXelvey believes that the Program is diminishing the willingness of her sources to communicate with her and may deter them from communicating with her altogether for fear that their communications may be intercepted.
Barnett R. Rubin J 83. Barnett R. Rubin is Director of Studies and Senior Fellow at the New York University Center on Tnlernational Cooperation ("CIC"). The CIC promotes policy research and intemational consultations on mullilateral responses to transnational problems. He is the chair of the Conflict Prevention and Peace Forum (CPPF), a program of the Social Science Research Council in New York, that provides the United Nations with confidential consultations with experts on issues related to conflict and peace around the world. He is also a member of the board of Gulestan Ariana Ltd., a comn1ercial company registered in Afghanistan to manufacture essential oils, hydrosols, and related proeducts, with offices and operations in Kabul and Jalalabad. Previously Professor Rubin was the Director of the Center for Preventive Action of the Council on Foreign Relations, of which be is now an advisory board member. He was a member of the UN . delegation to the UN Talks on Afghanistan in Bonn, Gennany, in November-December 2001. Professor Rubin advised the United Nations in Afghanistan during the process of drafting the constitution of the Islamic Republic of Afghanistan in 2003. Professor Rubin
55

2:06-cv-10204-ADT-RSW Doc # 1-2 Filed 01/17/06 Pg 6 of 12 Pg ID 6
is a mcmher of the advisory hoard of the Central Eurasia Program ofthe Open Society Institute, overseeing programs in the Caucasus, Central Asia, A lghanistan, Iran, and Pakistan.
184_ Professor Rubin's work and research concerns conflict prevention and peace building in Atghanistan and the surrounding region. Professor Ruhin is regularly consulted a~ an expert on Afghanistan, Central Asia, and South Asia and regularly works in collaboration with officials of Afghanistan, the United Nations, the United States, and other governments and international organizations on development and institution· building projects. In his work with CPPF he works on issues related to conflict prevention in Central Asia and travels to the area. As a board member of Gulestan, he communicates with individuals in Kabul and Jalalabad, and travels to inspect the company's operations in Jalalahad and elsewhere in Nangarhar province, including some areas close to Tora Bora. He has authored and edited numerous books and articles about Afghanistan and conflict prevention, including The Fragmcmtation of Afghanistan (New Haven: Yale University Press, 2002 (second edition), 1995 (first edition)), The Search for Peace in Afghanistan (New Haven: Yale University Press, 1995), and Blood on the Doorstep: The Politics of Preventing Vi(llent Conflict (New York: The Century Foundation and the Council on Foreign Relations, 2002).
185. Professor Rubin communicates by email and telephone with individuals in Afghanistan almost every day. Professor Rubin frequently communicates by telephone with Afghan government officials in Kabul. In connection with Gulcstan 's activities he speaks to individuals in Jalalabad. In connection with his work for CPPF and OSI, Professor Rubin communicates with individuals in Central Asia. Professor Rubin
56

2:06-cv-10204-ADT-RSW Doc # 1-2 Filed 01/17/06 Pg 7 of 12 Pg ID 7
communicates regularly by telephone with Amrullah Saleh, the Director of the National Directorate of Security (Afghanistan's intelligence agency); with Ishaq Nadiri, President Hamid Kar:t.ai's Minister Advisor of Economic Affairs; with Adib Farhadi, Director of the Afghanistan Reconstruction and Development Services; with Ali Aluuad Jalali, when he was Minister of the Interior of Afghanistan; with Dr. AshrafGhani, Chancellor of Kabul University and fonner Minister of Finance of Afghanistan; with engineer Mohammad Eshaq, fom1er director of Afghan Radio and Television; and with many others.
186. Professor Ruhin also communicates frequently hy telephone wilh United Nations officials in Kabul, including Lakhdar Brahimi, when he was the United Nations Special Representative of the Secretary General for Afgh;inistan (SRSG); Jean Arnault, the current SRSG; Ameerah Haq, Deputy SRSG; Clu-is Alexander, Deputy SRSG; and Eckart Schwieck, Mr. Amault's Executive Assistant.
I 87. ln connection with his work on Afghanistan and South Asia, Rubin frequently communicates by email and telephone with colleagues such as Alllncd Rashid, a journalist and author residing in Lahore, Pakistan. He frequently communicated in the past several years with a Pakistani journalist named Abubaker Saddique, who worked for the lntemationa.1 Crisis Group, the Integrated Regional Infon1rntion Network (Central Asia) of the United Nations and who also worked for CIC as a consultant. These communications concerned particularly sensitive matters, such ;is the Afghan-Pakistani border areas, a pruject on which they are now working together.
188. In connection with his work for CPPF and OSI, Profossor Rubin has traveled to Tajikistan and other Central Asian countries and engages in email and
57

2:06-cv-10204-ADT-RSW Doc # 1-2 Filed 01/17/06 Pg 8 of 12 Pg ID 8
telephone communications with journalists in the area as well as with OST staff, such as Zuhra Halim.ova, director of the OSI office in Dushanbe, Tajikistan.
189. In connection with his work, Professor Rubin also frequently communicates with Afghan govemm<;nt officials and others by email. For example, between August 2005 and the present, Professor Rubin has exchanged numerous emails with Afghan government officials who arc drafting the Afghan National Development Strategy, on which Professor Rubin works as an advisor. Professor Rubin has also communicated by email with Amrullah Saleh, the Director of the Afghan intelligence agency On occasion, Professor Rubin has also exchanged emails with individuals, including government officials, in Iran. These have included fom1er deputy foreign minister Abbas Malcki, editor of the Hamshahri newspaper and direci\lr \Jflhe Caspial) Studies hlstitute; and Dr. Sayed Kazem Sajjadpour, fomier director orthe Institute for Political and International Studies; and Klan Tadjbakhsh, Senior Research Fellow, Cultural Research Bureau, Tehran. Rubin traveled to Tehran for a conference in December 2003, and in conjunction with that trip made numerous telephone calls and emails.
190. Because of the nature of Professor Rubin's communications, and the identities and locations of those with whom he communicates, Professor Rubin has a well-founded belief that his communications are being intercepted by the NSA under the Program.
191. Professor Rubin believes that free and open ctimrnunication with individuals in Afghanistan and elsewhere in the Middle Easl and Asia is essential to his work as a scholar. A large part of Professor Rubin's work involves exchanging ideas and
58

2:06-cv-10204-ADT-RSW Doc # 1-2 Filed 01/17/06 Pg 9 of 12 Pg ID 9
infonnation with people in Afghanistan and elsewhere in the Middle East and Asia. The ideas are sometimes controversial and the information is sometimes sensitive. Pro ressor Rubin believes that the Program inhibits the free exchange of controversial ideas and sensitive infom1ation and thereby compromises his ability lo engage in scholarship and lo work collaboratively with individuals in Afghanistan and elsewhere in lhe Middle East and Asia.
CAUSES 01<' ACTION 192. The Program violates plaintiffs' free speech and associational rights guaranteed by the First Amendment. 193. The Program violates plaintiffs' privacy rights guaranteed by the Fourth Amendment. 194. The Program violates the principle of separation of powers because it was authorized by President Bush in excess of his Executive authority under Article 11 of the United States Constitution and is contrary to limits imposed by Congress. 195. The Program violates the Administrative Procedures Act because the NSA's actions Lmder the Pmgram exceed statutory authority and .limitations imposed by Congress through PISA and Title III; are not otherwise in accordance with law; arc contrary lo conslilulional 1ight; and are taken without observance of procedures required by law.
PRAYER FOR RELIEF WHEREFORE plaintiffs respectfully requests that the Court:
1. Declare that the Program is unconstitutional under the First and Fourth Amendments;
59

- 2:06-cv-10204-ADT-RSW Doc # 1-2 Filed 01/17/06 Pg 10 of 12

Pg ID 10

2. Declare that the Program violates the principle of separation of
powers;
2. Declare that the Program violates the Administrative Procedures Act; 3. Permanently enjoin defendants from utilizing the Program; 4. Award Plaintiff fees and costs pursuant to 28 U.S.C. § 2412; 5 Grant such other and further relief as the Court deems just and proper.
Respectfully submitted,

ANN BEESON Attorney ofRecord
JAMEEL .TAFFER MELISSA GOODMAN (admission pending) CATHERlNE CRUMP (admission pending) National Legal Department American Civil Liberties Union
Foundation 125 Broad Street, l 81h Floor New York, NY 10004-2400 (212) 549-2500
MICHAEL J. STE KARYL.MOSS American Civil Liberties Union Fund
of Michigan 60 West Hancock Detroit, MI 48201-1343 (313) 578-6814
January 17, 2006
60

2:06-cv-10204-CAIDVTI-RLSCWUVD1o£cR#S1H-2EEFTiledCo0u1nt/y1i7n /w0h6ich

Pg
thi•

11 of 12
•<:lion arose

Pg ID 11
VV"Y"•

1c JS 4·1 civil !:.over sheet and the infonnaticn contained herein neither replace nor supplement the filing and 1iervice of pleadings or other ria~rs as requin:::d by law, cxccrit as pitivided bv local rules of court. rhis fhrm, approved by the Judicial Conference of the lfnikd States in September 1974, is requirecf ror the use ot the <:lerk of Court for the purpi"l$c
ot'm1tia1111g Lht t:ivil docket sheet (SEE lNSTRUC"! l(lNS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS
American Civil Llb(,':rtlc$ Union, Ameril::1:1n Ci11il Liberties Unlon of Michigan, et al. (Sec attached caption for co1uplcte list ofplah1tiffi;.)

DEFENDANTS
National Security Agtmcy/Cemral Sci:::udty Service unJ Lieutenam Genera.I Keith B. Al~x11n.der (Director)

lb'l:i'bt. (b) Count~' of Residence uf PiP->l Listed Plaintiff New York. NY&. \Vaync. Ml (F.XCEPT [N U.S. PLAlNTll•l' CASF.,~
"
(c) Attorney's (Firm Name, Addrc:ss, •ind Tder1l1onc: Number) /\itn Beeson; ACLU Foundulion; 12513road St.,, \~th Floor, Nl'lw York~ NY 10004 (St:t: 1.1ttm.:ht'ld \'.:(1ptio11 for conip!ete !ii>t ofph1.iutiffs' attorneys,)

County of Residence of Fir:.l Listed DctCnd8nt

Anne Arnndd <:ounty, rv10

(IN US. l"l.AINT!FF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION ()II II-IE LAND INVOl .Vl~D

Altorncys (lt'Knirvn~)

II. BASIS OF .JURISDICTION lS<l•ct o., "'"Only)

., I \ !.S. Govcl'nment l·'l;iiritiff

Ii 3 Federal Question (U.S. C11ve1•11mcnt Not a Party)

Ill. CITIZENSHIP OF PRINCIPAL PARTIES 1s'1"' I»<"'" fr.,· Plaimitr

(I'm' Divcr~ity Cases Only)

and 0111:: Box for Dcfond;mt)

Citizen of This State

PTF DEi<' i:'I l 0 I Jncorpc,1rn1~d or Principal Plac~

l'Tt DEF
n 4 n ·1

of Business Jn Thi~ $lat~

. (J(\\·~rt\1111;'111 Defendant

::J 4 Diversity (lnd1c<1\r: (:i1i·t.1:mship cif Pa.L1ics in Item Ill)

Ci1i1.cn of Another State

n

0

lnt•orpz1rnl~!l 1.mdPrincJpal Pl.1i::e

ns n

ofBusini::s~ In A1wtlu~1· State

Ci1i:t.1m m· SL1bjcct of a

.IV N <\ TURE OF SUIT __fli.etei.:I ()n~ Uo11. 0111J1.

L

COJ\"ffiiH :T

·roRTS

0 110 Jnsurnnce

PERSONAL INJ\IRV

,.,0 120 M;1r1r1~ 1.~O \<tiller /\ct

0 310/\irplnn~
n 315 Airplane Proth1ct

0 140 Ni:!?,lllialil.- l111'trumcnt
,., 150 R~covcry of Overp;1y111en1 n

& Llnfon:l;!l!l!;!Hl(!f.lm1glllel\t

, I.~ I Mtdk.l"Jrc Act

l'1

Li11bilily :~20 Assault, Libd &
Slttnditlf .~30 Federal Employers'

J l 52 R1;"~:<1V~l'}' 11!' l'Jcfaultcd

n :.i1c1dcnt Loans

(l·.~d v~1~um~)

0

, I .~.l Rcl·<i~·c1) of Overpayment

U;ibiluy 3<10 !>.farinc 345 M11ri11~ 11nld!ICI
l.i<ibility

ofVetl:'nm'.~ l!r::ndit~
n 16(J Str)ckholdcr.i:;' Stlits

0 350 Motor Veh1~lr::
n .~!IS Mn11w Vehicle

0 I ()I) (lth~r Crn1l1ad

Pr0th1i.:t l.i:thilily

n 195 Contruct Produt:t I.1;1bih1y n Jli(J Other P~rsonal

[1 I!.)(; h,111d1iso..:

l!illirv

[ Ht'.AI, PROPERTY

CIVIi, lUGHTS

PERSONAL INJliH\' 0 362 Person;1l lnJ11ry ~
Med. Malpractice 0 J65 Pitr~!)rwl (11jwy •
Produc·t Liabihtv 0 J68 Astiei;to~ Pt:r~v;1;1J
lr1Ju(y Product Liabihty l't:.J:t.SONAL PROPERT't' 0 370 Other Fnmd 0 ~71 lrulli iu Lending 0 380 Other Pc::rS(.1IlUI (J'111pedy Damage 0 385 Property L">t1m;1gt! Pl'oduct Liability
PRISONJ~R 1'1',Tl'flON.S

ri 2 I0 I..1.11d 0.)11dcin11otion

0 441 Vc1ting

0 510 Mc.11im1,, Ill Vacate

r"i '22() ~\)f8i::l1~~lll'C

LI 442 l'impk1ymcnt

Si:11t~11i;i:

1i ·;nf.l 1i.c1it Ll'.:asc & E.jcctment 0 44~ f lnu~iui;/

Habeas Corp..-~;

:J ?4(1'I011•; IO 1.aml .:J 24~ Tort Produi;I J ,i;iliilily

Act.ornrn1.•diltirn1 s 0 444 Welfare

0 5JO General
n S3:5 Death Penalty

A- 1:);" ., 290 All Other Renl Prcper~y

n 44:5 Amer. w/Dii;abililic::s • 0 540 M;m1li\11111~ & Other

Hmp!t)yment
Am~. w/fJi<abilitics-

0 D

550 Civil Riy,hl.~ 555 Prison (.'.!)rulition

Other

h.u·~i •1l Count!
FORFEITURE/P .TY
n 6 l 0 Agricult11re
0 620 Other Food & l)n1~
n 62~ DL"ug Related Seizure of Propr:rt~· 21 llSC 881 LI 61() I,iquf)f Laws
n <i40 R.R. & Trni.:k
0 n~o Airlii1e Reg~ . 0 G60 Oc1mpntional
$;irdy1Hcalth
,0 690 Other -1. 710 Fair Labor Stnndmd~ Ac:I n 720 Labor/Mgmt. Rel;11ii.1n.~
0 7l<I 1.ab!1r/f\·1~mtRcporting & Disclosure /wt
0 740 Ri11lw;1y 1.;111111 Ad 0 790 Oth~r Li1b.:1r I.i!ic;11!i1i11 0 791 Empl. Rel lni,:
Sccuritv /1i.:t

BANJ:ilil!l'TCV
0 422 Appenl 2.8 use 1ss
0 423 Withdr;iwal 28 USC 157
_l'I PRRTYRI' 0 820 Copvni,;hl:_.
("l !UOl'rll1i:l\t
0 840 Trndem;1rk
l'iAl,,!i.!'fJIRITY '.1 861 HIA(l3!)5ft) :J 862. l!l;u;k L11ng (923)
n 863 Dl\VC/D!WW {40:5(g))
0 i'.iti4 :)SID li1k XVI
n 865 RS[ (405(g))
FEDERAi. TAX t;l.irl'S
O 870 "roxe~ (Us 1•!11i111iff or Dc::ferid;ml)
0 871 IRS--l"hirdP•nly 26 \JSC 7609

Ofll. STATl.ITES J

0 400 Stute Ri:~1pp!111in11inc11t

0 410 An111rn~1
n ~30 Banks and H<inki11;.;

0 4:10 Cnmmcrc..::
n 460 Dcportotion

0 470 R;ii.:kt:l!;!r::1 1111l11c11ccd and

, CrnTupt Orga11iz<1tH.i11~
0 480 Con$11mr::1' t:11::di1 ~90 Cable/Sat TV

::J 810 Sele\:tiv~ Smv1cc

:'.l l;'iO Sr::<.;1111lic~/C(!n\l1K><lltl'J5.

Excham,w

0 ~;~ (:(1~h1111t:1 Ch111li:mg1:

12USCJ4\0

0 l\91l 01li1::1· S1at11\(.1rv Actions
n 891 Agric.t1ltt1rnl A"•:h

0

892 Eeonomic Stab1l1z.a11on Act

0 89J Erivm,1m11~111i1I .\fallt:U,

0 894 EnerJiY Allu~a1i1rn A1.:t

0 8~15 Freedo111 (il'l11ll11111a1i;>11

AC(
0 90(1 .l\pp~;il of fuc Detcnnim1t111n l)11<ll;!1

Access to Justk.e r1 950 C(")11stitutio11alih' or
$1;11~ Srniutc~

• 40 Other Civil Rights

~. RIGIN

,.j 1 ( ·ip.in::il

\

p uc~~-d i1ig_

(Sel~ Box Only)
:1 2 Removed frorr1
State Court

LI 3 Remanded from
~llat0Co11rt

11 4 ReinstMcd or

LI

5

Traus1eircd tro111 anoth~r d1str1c1

Ll 6 Mult1d1!ilrmt

kt:Qru;·lit:d

_m_,.,cifiL

L1tj&_at10n

";'~

Cit~ thi; U.S. Civil Slalut~ under which you l'!rc fillng (Do not cite jurisdictlonAI st;1"1t11frs unlc!'i~ 1.livcr:sli)' }:

Firs,t and Fourth Amendmentlii to the U.S. Constit\ltion; 1R lJ.S.C. i;ei.;. 2510 et seq.; 50 U.~.C. s.cc. 1801 d ~eq.

VI. CAUS£ OF ACTION Drief Uescription of cause:

A1~eu.I l~> Dl::11rid

11

? .Ill gc frt)ITI Maiiistratc

Ju~rn~11t

Challenge to the warrantlcss surveillance pn1brram of the National Sccllrity Agency

VII. REQUESTED IN COMPLAINT:

0 CHECK le THIS IS A CLASS ACTION
UNDER F.R.C.P. l3

VIII. RF.LATED CASE(S)

IF ANY

See L~stnu,:ti()ns :

IJEMAND $ Dcdarilt.io11. Injunction

Cl!ECK YF.S only ifdemanJro~t:

JllH.'\i Dl<:MAND:

11 Y s g{ No

DOCK F..l. NIJMULlR

{ 7

Jauw.iry 17, 2006

RECEIPT#

AMOUNT

APPL YING IFP

JUDGE

l\iAG. JUDULl

2:06-cv-10204-ADT-RSW Doc # 1-2 Filed 01/17/06 Pg 12 of 12 Pg ID 12
RSUANT TO LOCAL RULE 83.11

1.

Is this a case that has been previously dismissed?

If yes, give the following information:

0Yes
[l] No

Case No.: ------~-----------
Judge:------------------

2.

Other than stated above, are there any pending or previously

discontinued or dismissed companion cases in this or any other

0Yes

[l) court, including state court? (Companion cases are matters in which

No

it appears substantially similar evidence will be offered or the same

or related parties are present and the cases arise out of the same

transaction or occurrence.)

If yes, give the following information:

Court: ------------------~
Case No.: - - - - - - - - - - - - - - - - - -
Judge: ------------------~

Notes:

 
 Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 1 of 44

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION FOUNDATION; AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN; COUNCIL ON AMERICAN-ISLAMIC RELATIONS; COUNCIL ON AMERICAN ISLAMIC RELATIONS MICHIGAN; GREENPEACE, INC.; NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; JAMES BAMFORD; LARRY DIAMOND; CHRISTOPHER HITCHENS; TARA MCKELVEY; and BARNETT R. RUBIN,

Case No. 06-CV-10204 Hon. Anna Diggs Taylor

Plaintiffs,

v.

NATIONAL SECURITY AGENCY / CENTRAL SECURITY SERVICE; and LIEUTENANT GENERAL KEITH B. ALEXANDER, in his official capacity as Director of the National Security Agency and Chief of the Central Security Service,

Defendants.

_______________________________________________________/

MEMORANDUM OPINION

I. Introduction

This is a challenge to the legality of a s ecret program (hereinafter “TSP”) undisputedly

inaugurated by the National Security Agency (hereinafter “NSA”) at least by 2002 and continuing

today, which intercepts without benefit of warrant or other judicial approval, prior or subsequent,

the international telephone and internet com munications of numerous persons and organizations

1

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 2 of 44
within this country. The TSP has been acknowledged by this Adm inistration to have been authorized by the President’s secret order during2002 and reauthorized at least thirty times since.1
Plaintiffs are a group of persons and organiza tions who, according to their affidavits, are defined by the Foreign Intelligence SurveillanceAct (hereinafter “FISA”) as “U.S. persons.”2 They conducted regular international telephone and internet communications for various uncontestedly legitimate reasons including journalism , the practice of law, and scholarship. Many of their communications are and have been with persons in the Middle East. Each Plaintiff has alleged a “well founded belief” that he, she, or it, has been subjected to Defendants’ interceptions, and that the TSP not only injures them specifically and directly, but that the TSP substantially chills and impairs their constitutionally protected communications. Persons abroad who before the program spoke with them by telephone or internet will no longer do so.
Plaintiffs have alleged that the TSP violates their free speech and associational rights, as guaranteed by the First Am endment of the United States Constitution; their privacy rights, as guaranteed by the Fourth Am endment of the United States Constitution; the principle of the Separation o f P owers b ecause th e T SP h as b een au thorized b y th e P resident in e xcess o f h is Executive Power under Article II of the United States Constitution, and that it specifically violates the statutory lim itations placed upon such interceptions by the Congress in FISA be cause it is conducted without observation of any of the pr ocedures required by law, either statutory or Constitutional.
Before the Court now are several m otions filed by both sides. Plaintiffs have requested a
1Available at http://www.white-house.gov//news/releases/2005/12/20051219-2.html 2Pub. L. 95-511, Title I, 92 Stat 1976 (Oct. 25, 1978), codified as amended at 50 U.S.C. §§ 1801 et seq.
2

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 3 of 44
permanent injunction, alleging t hat they sustai n irreparable dam age because of the continued existence of the TSP. Plaintiffs also request a Partial Sum mary Judgment holding that the TSP violates the Administrative Procedures Act (“APA”); the Separation of Powers doctrine; the First and Fourth Amendments of the United States Constitution, and the statutory law.
Defendants have moved to dismiss this lawsuit, or in the alternative for Summary Judgment, on the basis of the state secrets evidentiary privilege and Plaintiffs’ lack of standing.
II. State Secrets Privilege Defendants argue that the state secrets privilege bars Plaintiffs’ clai ms because Plaintiffs cannot establish standing or a prima facie case for any of their claim s without the use of state secrets. Further, Defendants argue that they cnanot defend this case without revealing state secrets. For the reasons articulated below, the court rejecst Defendants’ argument with respect to Plaintiffs’ claims challenging the TSP. The court, however, agrees with Defendants with respect to Plaintifs’ data- mining claim and grants Defendants’ motion for summary judgment on that claim. The state secrets privilege i s an evidentiary rule developed to prevent the disclosure of information which may be detrim ental to national security. There are two distinct lines of cases covering the privilege. In the first line of cases the doctrine is more of a rule of “non-justiciability because it deprives courts of their ability to h ear suits against the G overnment based on covert espionage agreements.” El-Masri v. Tenet, 2006 WL 1391390 at 7 (E.D.Va., 2006). The seminal decision in this line of cases is Totten v. United States 92 U.S. 105 (1875). In Totten, the plaintiff brought suit against the government seeking payment for espionage services he had provided during the Civil War. In affirming the dismissal of the case, Justice Field wrote:
The secrecy which such contracts im pose precludes any action for their enforcement. The publicity produced by an action would itself
3

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 4 of 44
be a breach of a contract of t hat kind, and thus defeat a recovery. Totten, 92 U.S. at 107. The Supreme Court reaffirmed Totten in Tenet v. Doe, 544 U.S. 1, (2005). In Tenet, the plaintiffs, who were former Cold War spies, brought estoppel and due process claims against the United States and the Director ofthe Central Intelligence Agency (hereinafter “CIA”) for the CIA’s alleged failure to provide them with the assistan ce it had allegedly prom ised in return for their espionage services. Tenet, 544 U.S. at 3. Relying heavily on Totten, the Court held that the plaintiffs claim s were barred. Delivering the opinion for a unanim ous Court, Chief J ustice Rehnquist wrote: We adhere to Totten. The state secrets privilege and the m ore frequent use ofin camerajudicial proceedings simply cannot provide the absolute protection we found necessary in enunciating theTotten rule. The possibility that a suit m ay proceed and an espionage relationship may be revealed, if the state secrets privilege is found not to apply, is unacceptable: “Even a small chance that some court will order disclosure of a source’s identity could well impair intelligence gathering and cause sources to ‘close up like a clam .’” (citations omitted). Tenet, 544 U.S. at 11. The second line of cases deals with the exclus ion of evidence because of the state secrets privilege. In United States v. Reynolds, 345 U.S. 1 (1953), the plaintiffs were the widows of three civilians who died in the crash of a B-29 aircraft. Id. at 3-4. The plaintiffs brought suit under the Tort Claims Act and sought the production of the Air Force’s official accident investigation report and the statements of the three surviving crew members. Id. The Government asserted the states secret privilege to resist the discovery of this information, because the aircraft in question and those aboard were engaged in a highly secret mission of the Air Force. Id. at 4. In discussing the state secrets privilege and its application, Chief Justice Vinson stated: The privilege belongs to the Government and must be asserted by it;
4

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 5 of 44
it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself mus t determine whether the circumstances are appropriate for the claimof privilege, and yet do so without forcni g a disclosure of the very thing the privilege is designed to protect. Reynolds, 345 U.S. at 8.
The Chief Justice further wrote:
In each case, the showing of necessity which is made will determine how far the court should probe in satisfying itself that the occasi on for invoking the privilege is appropriate. Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake. Reynolds, 345 U.S. at 11.
The Court sustained the Government’s claim of privilege, finding the plaintiffs’ “necessity” for the
privileged information was “greatly m inimized” by the fact that the plaintiffs had an available
alternative. Reynolds, 345 U.S. at 11. Moreover, the Court found that there was nothing to suggest
that the privileged information had a “causal connection with the accident” and that the plaintiffs
could “adduce the essential facts as to causation without resort to material touching upon military
secrets.” Id.
In Halkin v. Helms, 598 F.2d 1 (D.C.Cir.1978) (Halkin I ), the District of Columbia Circuit
Court applied the holding in Reynolds in a case in which the plaintiffs, Vietnam War protestors,
alleged that the defendants, former and presentmembers of the NSA, the CIA, Deef nse Intelligence
Agency, the Federal Bureau of Investigation a nd the Secret Service engaged in warrantless
surveillance of their international wire, cable and telephone communications with the cooperation
of telecommunications providers. Id. at 3. The telecommunications providers were also named as
defendants. Id. The plaintiffs specifically challenged thelegality of two separate NSA surveillance
5

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 6 of 44
operations undertaken from1967 to 1973 named operation MINARET and operation SHAMROCK3. Id. at 4.
The Governm ent asserted the state secrets pr ivilege and m oved for dism issal for the following reasons: (1) discovery would “confirm the identity of individuals or organizations whose foreign communications were acquired by NSA”; (2) discovery would lead to the disclosure of “dates and contents of such com munications”; or (3) discover y would “divulge the m ethods and techniques by which the com munications were acquired.” Halkin, 598 F.2d at 4-5. The district court held that the plaintiffs’ claims against operation MINARET had to be dismissed “because the ultimate issue, the fact of acquisition, could neither be admitted nor denied.” Id. at 5. The district court, however, denied the Governm ent’s m otion t o di smiss the plaintiffs’ claim s regarding operation SHAMROCK, because it “thought congressional committees investigating intelligence matters had revealed so m uch information about operation SHAMROCK that s uch a disclosure would pose no threat to the NSA mission.” Id. at 10.
On appeal, the District of Columbia Circuit Court affirmed the district court’s dismissal of the plaintiffs’ c laims with respect to operation MINARET but reversed the court’s ruling with respect to operation SHAMROCK. In reversing the district court ruling regarding SHAMROCK, the circuit court stated:
. . . we think the affidavits and testimony establish the validity of the state secrets claimwith respectto both SHAMROCK and MINARET acquisitions; our reasoning applies to bot h. There is a “reasonable danger”, (citation om itted) that conf irmation or denial that a particular plaintiff' s com munications have been acquired would
3Operation MINARET was part of the NSA’s regular intelligence activity in which foreign electronic signals were monitored. Operation SHAMROCK involved the processing of all telegraphic traffic leaving or entering the United States. Hepting v. AT & T Corp 2006 WL 2038464 (N.D.Cal.2006) quoting Halkin.
6

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 7 of 44
disclose NSA capabilities and other valuable intelligenceinformation to a sophisticated intelligence analyst. Halkin, 598 F.2d at 10.
The case was remanded to the district court and itdismissed the plaintiffs’ claims against the NSA
and the individuals connected with the NSA’s alleged monitoring. Halkin v. Helms, 690 F.2d 977,
984 (D.C. Cir.1982) (Halkin II).
In Halkin II, 690 F.2d 977, the court addressed plaintiff’s remaining claims against the CIA,
which the district court di smissed because of the state secrets privilege. In affirm ing the district
court’s ruling, the District of Columbia Circuit stated:
It is self-evident that the disclosures sought here pose a “reasonable danger” to the diplomatic and military interests of the United States. Revelation of particular instances in w hich f oreign governm ents assisted the CIA in conducting surveillance of dissidents could strain diplomatic relations in a number of ways-by generally embarrassing foreign governments who may wish to avoid or may even explicitly disavow allegations of CIA or United St ates involvem ents, or by rendering foreign governments or their officials subject to political or legal action by those among their own citizens who may have been subjected to surveillance in the course of dissident activity. Halkin II, 690 F.2d at 993.
Ellsberg v. Mitchell, 709 F.2d 51 (D.C. Cir.1983) was yet another case where the Di strict
of Columbia Circuit dealt with the state secrets privilege being raised in the defense of a claim of
illegal wiretapping. In Ellsberg, the pl aintiffs, the defendants and attorneys in the “Pentagon
Papers” criminal prosecution brought suit when, durnig the course of that litigation, they discovered
“that one or more of them had been the subjectof warrantless electronic surveillance by the federal
Government.” Id. at 51. The defendants admitted to two wiretaps but refused to respond to some
of the plaintiffs’ interrogatories, asserting the state secrets privilegeI. d. at 54. The plaintiffs sought
an order com pelling t he i nformation and the di strict court denied the m otion, sustaining the
Government’s assertion of the state secrets privilege. Id. at 56. Further, the court dism issed the
7

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 8 of 44
plaintiffs’ claims that pertained “to surveillance of their f oreign communications.” Ellsberg v .
Mitchell, 709 F.2d at 56.
On appeal, the District of Columbia Circuit reversed the district cour t with respect to the
plaintiffs’ claims regarding the Government’s admitted wiretaps, because there was no reason to
“suspend the general rule that the burden is on those seeki ng an exem ption from the Fourth
Amendment warrant requirement to show the need for it.” Ellsberg, 709 F.2d at 68. With respect
to the application of the state secrets privilege, the court stated:
When properly invoked, the state s ecrets privilege is absolute. No competing public or pr ivate interest can be advanced to com pel disclosure of inform ation found to be protected by a claim of privilege. However, because of the broad sweep of the privilege, the Supreme Court has made clear that “[i]t is not to be lightly invoked.” Thus, the privilege may not be used to shield any material not strictly necessary to prevent injury to national security; and, whe never possible, sensitive inf ormation m ust be disentangled f rom nonsensitive inf ormation to allow for the release of the latter. Ellsberg, 709 F.2d at 56.
In Kasza v. Browner, 133 F.3d 1159 (9 th Cir.1998), the plaintiffs, for mer employees at a
classified United States Air Force facility, filed suit against the Air Force and the Environmental
Protection Agency under the Resource Conservation and Recovery Act, alleging violations at the
classified facility. Id. at 1162. The district court granted summary judgment against the plaintiffs,
because discovery of information necessary for the proof of the plaintiffs’ claims was impossible
due to the state secrets privilege. Id. In affirming the district court’s grant of summary judgment
against one of the plaintiffs, the Ninth Circuit stated:
Not onl y does t he st ate secret s pri vilege bar [t he pl aintiff] from establishing her prima facie case on any of her eleven claims, but any further proceeding in this matter would jeopardize national security. No protective procedure can salvage [the plaintiff’s] suit.Kasza, 133 F.3d at 1170.
8

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 9 of 44
The Kasza court also explained that “[t]he application of the state secrets privilege can have . . . three effects.” Kasza, 133 F.3d at 1166. First, when the privilege is properly invoked “over particular evidence, the evidence is completely removed from the case.” Id. The plaintiff’s case, however, may proceed “based on evidence not covered by the privilege.” Id. “If . . . the plaintiff cannot prove theprima facie elements of her claimwith nonprivileged evidence, then the court may dismiss her claim as it would with any plaintiff who cannot prove her case.” Id. Second, summary judgement m ay be granted, “if the privilege depr ives the defendant of inform ation that would otherwise give the defendant a valid defens e t o t he claim .” Id. Lastly, “notwithstanding the plaintiff's ability to produce nonprivileged evidence, if the ‘very subject matter of the action’ is a state secret, then the court should dismiss the plaintiff's action based solely on the invocation of the state secrets privilege.” Id.
The Sixth Circuit delivered its def initive opinion regarding the states secrets privilege, in Tenenbaum v. Simonini, 372 F.3d 776 (6th Cir. 2004). In that case, the plaintiffs sued the United States and various employees of federal agencies, alleging that the defendants engaged in criminal espionage investigation of the plaintiff,David Tenenbaum, because he was Jewish. Id. at 777. The defendants moved for summary judgment, arguing thatthey could not defend themselves against the plaintiffs’ “claims without disclosing information protected by the state secrets doctrine.” Id. The district court granted the defendants’ motion and the Sixth Circuit affirmed stating:
We fur ther conclude that Defe ndants cannot defend their conduct with respect to Tenenbaum without revea ling the privileged information. Because the state secrets doct rine thus deprives Defendants of a valid defense to the Tenenbaum s’ claims, we find that the district court properly dismissed the claims. Tenenbaum, 372 F.3d at 777. Predictably, the War on Terror of this administration has produced a vast number of cases,
9

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 10 of 44

in which the state secrets privilege has been invoked. 4 In May of this year, a district c ourt in the

Eastern District of Virginia addressed the state secrets privilege in El-Masri v. Tenet, 2006 W L

1391390, (E.D. Va. May 12, 2006). In El Masri , the plaintiff, a Germ an citizen of Lebanese

descent, sued the former director of the CIA and others, for their alleged involvement in a program

called Extraordinary Rendition. Id. at 1. The court dismissed the plaintiff’s claims, because they

could not be fairly litigated without the disclosure of state secrets.5 Id. at 6.

In Hepting v. AT & T Corp.,2006 WL 2038464, (E.D. Cal. June 20, 2006), which is akin to

our inquiry in the instant case, the plaintiffs brought suit, alleging that AT & T Corporati on was

collaborating with the NSA in a warrantless su rveillance program , which illegally tracked the

domestic and foreign communications and communication records of millions of Americans. Id.

at 1. The United States intervened and moved that the case be dismissed based on the state secrets

privilege. Id. Before applying the privilege to the plaintiffs’ claims, the court first examined the

information that had already been exposed to thepublic, which is essentially the same information

that has been reve aled in the instant case. District Court Judge Vaughn W alker found that the

Government had admitted:

. . . it monitors “contents of communications where * * * one party

to the com munication is outside the United States a

nd t he

government has a reasonable basis to conclude that one party to the

communication is a member of al Qaeda, affiliated with al Qaeda, or

a member of an organization affiliated with al Qaeda, or working in

support of al Qaeda.” (citations om itted). Hepting, 2006 W L

4In Terkel v. AT & T Corp., 2006 WL 2088202 (N.D. Ill. July 25, 2006), the plaintiffs alleged that AT&T provided information regarding their telephone calls and internet communications to the NSA. Id. at 1. District Court Judge Matthew F. Kennely dismissed the case because the state secrets privilege made it impossible for the plaintiffs to establish standing. Id. at 20.
5Further, the court was not persuaded by the plaintiff’s argument that the privilege was negated because the Government had admitted that the rendition program existed because it found the Government’s admissions to be without details.
10

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 11 of 44
2038464, at 19. Accordingly Judge Walker reasoned that “[b]ased on these public disclosures,” the court could not “conclude that the existence of a certification regarding the ‘communication content’ program is a state secret.” Id.
Defendants’ assertion of the privilege withoutany request for answers to any discovery has prompted this court to first analyze this case under Totten/Tenet, since it appears that Defendants are argui ng t hat this case should not be subj ect to judicial review. As discussed supra, the Totten/Tenet cases provide an absolute bar toany kind of judicial review.Tenet, 544 U.S. at 8. This rule should not be applied in the instant case, however, since the rule applies to actions where there is a secret espionage relationship betw een the Plaintiff and the Governm ent. Id. at 7-8. It is undisputed that Plaintiffs’ do not claim to be parties to a secret espionage relationship with Defendants. Accordingly, the court finds theTotten/Tenet rule is not applicable to the instant case. The state secrets privilege belongs exclusively tothe Executive Branch and thus, it is appropriately invoked by the head of t he Executive Branch agency with control over the secrets involved. Reynolds, 345 U.S. at 1. In the instant case, the court is satisfied that the privilege was properly invoked. De fendants’ publicly-filed affidavits from Director of National Intelligence John D. Negroponte and Signal Intelligence Director, NSA Major General Richard J. Quirk, set forth facts supporting the Government’s contention that the state sec rets privilege and other legal doctrines required dism issal of the case. Additionally, Defendants filed classified versions of these declarations ex parte and in camera for this court’s review. Defendants also filed ex parte and in camera versions of its brief along with other classifiedmaterials, further buttressing its assertion of the privilege. Plaintiffs concede that the publicdeclaration from Director Negroponte satisfies the
11

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 12 of 44
procedural requirements set forth inReynolds. Therefore, this court concludes that the privilege has been appropriately invoked.
Defendants argue that Plaintiffs’ claims must be dismissed because Plaintiffs cannot establish standing or aprima faciecase for any of its claims without the disclosure of state secrets. Moreover, Defendants argue that even if Plaintiffs are able to establish a prima facie case without revealing protected information, Defendants would be unable to defend this case without the disclosure of such inform ation. Plaintiffs argue that Defenda nts’ invocation of the s tate secrets privilege is improper with respect to their challenges to th e TSP, since no additional facts are necessary or relevant to the summary adjudication of this case. Alternatively, Plaintiffs argue, that even if the court finds that the privilege was appropriately asserted, the court should use creativity and care to devise methods which would protect the privilege but allow the case to proceed.
The “next step in the judicial inquiry into the validity of the assertion of the privilege is to determine whether the information for which the privilege is claim ed qualifies as a state secret.” El Masri, 2006 WL 1391390, at 4. Again, the court acknowle dges that it has reviewed all of the materials Defendants submitted ex parte and in camera. After reviewing these materials, the court is convinced that the privilege applies “because a reasonable danger exists that disclosing the information in court proceedings would harm national security interests, or would impair national defense capabilities, disclose intelligence-gathering methods or capabilities, or disrupt diplomatic relations with foreign governments.” Tenenbaum, 372 F.3d at 777.
Plaintiffs, however, maintain that this information is not relevant to the resolution of their claims, since their claim s regarding the TSP are based solely on what Defendants have publicly admitted. Indeed, although the instant case appears factually similar to Halkin, in that they both
12

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 13 of 44
involve plaintiffs challenging the legality ofwarrantless wiretapping, a key distinction can be drawn. Unlike Halkin or any of the cases in the Reynolds progeny, Plaintiffs here are not seeking any additional discovery to establish their claims challenging the TSP.6
Like Judge Walker in Hepting, this court recognizes that simply because a factual statement has been made public it does not necessarily follow that it is true. Hepting, 2006 WL 2038464 at 12. Hence, “in determining whether a factual statement is a secret, the court considers only public admissions or denials by the [G]overnm ent.” Id. at 13. It is undisputed that Defendants have publicly admitted to the following:(1) the TSP exists; (2) it operatse without warrants; (3) it targets communications where one party to the com munication is outside the United States, and the government has a reasonable basis to conclude thatone party to the communication is a member of al Qaeda, af filiated with al Qaeda, or a m ember of an organization af filiated with al Qaeda, or working in support of al Qaeda. As the Government has on many occasions confirmed the veracity of these allegations, the state secrets privilege does not apply to this information.
Contrary to Defendants’ arguments, the court is persuaded that Plaintiffs are able to establish a prima facie case based solely on Defendants’ public ad missions regarding the TSP. Plaintiffs’ declarations establ ish that their com munications would be m onitored under the TSP. 7 Further, Plaintiffs have shown t hat be cause of the existe nce of the TSP, they have suffered a real and concrete harm. Plaintiffs’ decla rations state undisputedly that they are stifled in their ability to
6In Halkin, the plaintiffs were requesting that the Government answer interrogatories and sought to depose the secretary of defense. Halkin, 598 F.2d at 6.
7See generally, in a Declaration, attorney Nancy Hollander stated that she frequently engages in international communications with individuals who have alleged connections with terrorist organizations. (Exh. J,
Hollander ). Attorney William Swor also provided a similar declaration. (Exh. L, Swor Decl. ). Journalist Tara
McKelvey declared that she has international communications with sources who are suspected of helping the insurgents in Iraq. (Exh. K, McKelvey Decl.).
13

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 14 of 44
vigorously conduct research, interact with sources, talk with clients and, in the case of the attorney Plaintiffs, uphold their oath of providing effective and ethical representation of their clients. 8 In addition, Plaintiffs have the additional injury of incurring substantial travel expenses as a result of having to travel and meet with clients and others relevant to their cases. Therefore, the court finds that Plaintif fs need no additional f acts to establish a prima facie case for any of their claim s questioning the legality of the TSP.
The court, however, is convinced that Plaintiffs cannot establish aprima faciecase to support their data- mining claims without the use of privileged information and further litigation of this issue would force the dis closure of the very thing the privilege is designed to protect. Therefore, the court grants Defendants’ motion for summary judgment with respect to this claim.
Finally, Defendants assert that they cannot de fend this case without the exposure of state secrets. This court disagrees. The Bush Administration has repeatedly told the general public that there is a valid basis in law ofr the TSP.9 Further, Defendants have contended that the President has the authority under the AUMF and the Constitution to authorize the continued use of the TSP. Defendants have supported these argum ents wit hout revealing or r elying on any classified information. Indeed, the court has reviewed the clsasified information and is of the opinion that this information is not necessary to any viable defense to the TSP. Defendants have presented support
8Plaintiffs’ Statement of Undisputed Facts (hereinafter “SUF”) SUF 15 (Exh. J, Hollander Decl. ¶¶12, 16, 25; Exh. L, Swor Decl. ¶¶9, 11-12, 14-16);Plaintiffs;’ Reply Memorandum in Support of Plaintiffs’ Motion for Partial Summary Judgment (hereinafter “Pl.’s Reply”) (Exh. P, Dratel Decl. ¶¶9-11; Exh. Q, Abdrabboh Decl. ¶¶7-8; Exh. R. Ayad. Decl. ¶¶ 4, 6-8); (Exh. M Niehoff Decl. ¶¶ 12 ).
9On December 17, 2005, in a radio address, President Bush stated: In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations. http://www.whitehouse.gov/news/releases/2005/12/20051217.html
14

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 15 of 44
for the argument that “it . . is well-established that the President m ay exercise his statutory and constitutional authority to gather intelligence information about foreign enemies.”10 Defendants cite to various sources to support this position. Consqeuently, the court finds Defendants’ argument that they cannot defend this case without the use ofacslsified information to be disingenuous and without merit.
In sum, the court holds that the state secrets pivrilege applies to Plaintifs’ data-mining claim and that claim is dismissed. The privilege, however, does not apply to Plaintiffs’ remaining claims challenging the validity of the TSP, since Plaintiffs are not relying on or requesting any classified information to support these claims and Defendantsdo not need any classified information to mount a defense against these claims.11
III. Standing Defendants argue that Plaintiffs do not establishtheir standing. They contend that Plaintiffs’ claim here is merely a subjective fear of surveillance which falls short of the type of injury necessary to establish standing. They argue that Plaintiffs’ alleged injuries are too tenuous to be recognized, not “distinct and palpable” nor “concrete and particularized.” Article III of the U.S. Constitution lim its the f ederal court’s jurisdiction to “cases” and “controversies”. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Tohave a genuine case or controversy, the plaintiff m ust establish sta nding. “[T]he core com ponent of st anding is an essential a nd u nchanging p art o f th e c ase-or-controversy re quirement o f Article III.” Lujan v.
10Defendants’ Brief in Support of Summary Judgment pg. 33. 11Defendants also contend that Plaintiffs’ claims are barred because they properly invoked statutory privileges under the National Security Agency Act of 1959, 50 U.S.C. § 402 and the Intelligence Reform and Terrorism Prevention Act of 2004, 50 U.S.C. § 403-(i)(1). Again, these privileges are not availing to Defendants with respect to Plaintiffs’ claims challenging the TSP, for the same reasons that the state secrets privilege does not bar these claims.
15

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 16 of 44
Defenders of Wildlife , 504 U.S. at 560. To establish standing under Article III, a plaintif f must satisfy the following three requirements: (1) “the plaintiff must have suffered an injury in fact - an invasion of a legally protected interest which i s (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical”; (2) “t here must be a causal connection between the injury and the conduct complained of”, and (3) “itmust be likely, as opposed to merely speculative, that the injury will be redressed by a favor able decision.” Id. at 560-561. The party invoking federal jurisdiction bears the burden of establishing these elements. Id. at 561.
“An association has standing tobring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests it seeks to protect are germane to the organization’s purpose, and neither the claim a sserted nor the relief requested requi res the participation of individual m embers in the lawsuit.” Friends of the Earth, I nc. v . Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 181 (2000) (citing Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 342 (1977)).
“At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we ‘presume that general allegations embrace those specific facts that are necessary to support the claim .’ ” Id. at 561 (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990)). “In response to a motion for summary judgment, however, the plaintiff can no longer rest upon such ‘mere allegations,’ but m ust ‘ set forth’ by affidavit or other evidence ‘specific facts’Fed.R.Civ.Proc. 56(e), which for purposes of the sumary judgment motion will be taken to be true.” Id. This court is persuaded that Plaintiffs in this case have set forth the necessary facts to have satisfi ed all three of the prerequisites listed above to establish standing.
16

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 17 of 44
To determine whether Plaintiffs have standing to challenge the constitutionality ofthe TSP, we must examine the nature of the injury-in-fact which they have alleged. “The injury must be ... ‘distinct and palpable,’ and not ‘abstract’ or ‘conjectural’ or ‘hypothetical.’” National Rifle Association of America v. Magaw, 132 F.3d 272, 280 (6th Cir. 1997) (citingAllen v. Wright,468 U.S 737, 751 (1982)).
Plaintiffs here contend that the TSP has interf ered with their ability to carry out their professional responsibilities in a variety of ways, including that the TSP has had a significantpiamct on their ability to talk with sources, locate witnesses, conduct scholarship, engage in advocacy and communicate with persons who are outside of the United States, including in the Middle East and Asia. Plaintif fs have subm itted several declarati ons to that ef fect. Fo r exam ple, scholars and journalists such as plaintiffs Tara McKelvey,Larry Diamond, and Barnett Rubin indicate that they must conduct extensive research in the Middle East, Africa, and Asia, and must communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations.12 In addition, attorneys Nancy Hollander, William Swor, Joshua Dratel, Mohammed Abdrabboh, and Nabih Ayad indicate that they must also communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations1,3 and must discuss confidential information over the phone and email with their international clients.14 All of the Plaintiffs contend that the TSP has caused clients, witnesses and sources to discontinue their communications with plaintiffs out of fear that
12SUF 15B (Exh. I, Diamond Decl. ¶9; Exh. K, McKelvey Decl. ¶8-10). 13SUF 15B (Exh. J, Hollander Decl. ¶¶12-14, 17-24; Exh. L, Swor Decl. ¶¶5-7, 10);Pl.’s Reply ( Exh. M, Dratel Decl. ¶¶5-6; Exh. Q, Abdrabboh Decl. ¶¶3-4; Exh. R, Ayad Decl. ¶¶ 5, 7-9). 14SUF 15 (Exh. J, Hollander Decl. ¶¶12, 16, 25; Exh. L, Swor Decl. ¶¶9, 11-12, 14-16); Pl.’s Reply (Exh. P, Dratel Decl. ¶¶5-6; Exh. Q, Abdrabboh Decl. ¶¶3-4; Exh. R, Ayad Decl. ¶¶ 6-7).
17

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 18 of 44
their communications will be intercepted1.5 They also allege injury based on the increased financial burden they incur in having to travel substantial distances to meet personally with their clients and others relevant to their cases.16
The ability to com municate confidentially is an indispensable part of the attorney-client relationship. As University ofMichigan legal ethics professor Leonard Niehoff explains, attorneyclient confidentiality is “central tothe functioning of the attorney-client relationship and to effective representation.”17 He further explains that Defendants’ TSP “creates an overwhelm ing, if not insurmountable, obstacle to effective and ethical representation” and that although Plaintiffs are resorting to other “inefficient” m eans for ga thering inform ation, the TSP cont inues t o cause “substantial and ongoing harm to the attorney-client relationships and legal representations.”18 He explains that the increased risk that privilegedcommunications will be intercepted forces attorneys to cease telephonic and electronic com munications w ith clients to f ulfill their ethical responsibilities.19
Defendants argue that the allegations present no more than a “chilling effect” based upon purely speculative f ears that the T SP subjects the Plaintif fs to surveillance. In arguing that the injuries are not constitutionally cognizable, Defendants rely heavily on the case ofLaird v. Tatum, 408 U.S. 1 (1972).
15SUF 15 (Exh. J, Hollander Decl. ¶¶12, 16, 25; Exh. L, Swor Decl. ¶¶9, 11-12, 14-16);Pl.’s Reply (Exh. P, Dratel Decl. ¶¶9-11; Exh. Q, Abdrabboh Decl. ¶¶7-8; Exh. R. Ayad. Decl. ¶¶ 4, 6-8).
16SUF 15 (Exh. J, Hollander Decl. ¶¶20, 23-25; Exh. L, Swor Decl. ¶¶13-14); Pl.’s Reply (Exh. P, Dratel Decl. ¶¶9-11; Exh. Q, Abdrabboh Decl. ¶¶7-8; Exh. R, Ayad Decl. ¶¶ 6-8).
17Pl.’s Reply (Exh. M Niehoff Decl. ¶¶ 12 ) 18Pl.’s Reply (Exh. M Niehoff Decl. ¶¶ 19-20 ) 19Pl.’s Reply (Exh. M Niehoff Decl. ¶¶ 15-20 )
18

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 19 of 44
In Laird, the plaintiffs sought declaratory and inujnctive relief on their claimthat their rights were being invaded by the Army’s domestic surveillance of civil disturbances and “public activities that were thought to have at leastsome potential for civil disorder.” Id. at 6. The plaintiffs argued that the surveillance created a chilling ef fect on their First Am endment rights caused by the existence and operation of the surv eillance program in general. Id. at 3. The Suprem e Court rejected the plaintiffs’ efforts to rest standni g upon the mere “chill” that the programcast upon their associational activities. It said that the “jurisdiction of a federal court m ay [not] be invoked by a complainant who alleges that the exercise ofhis First Amendment rights is being chilled by the mere existence, without more, of a governmental investigative and data-gathering activity.”Id. (emphasis added)
Laird, however, must be distinguished here. The plaintiffs in Laird alleged only that they could conceivably become subject to the Arm y’s domestic surveillance program . Presbyterian Church v. United States, 870 F.2d 518, 522 (1989) (citingLaird v. Tatum, 408 U.S at 13) (emphasis added). The Plaintiffs here are not merely alleging that they “could conceivably” become subject to surveillance under the TSP, but that continuation of the TSP has damaged them. The President indeed has publicly acknowledged that the types of calls Plaintiffs are m aking are the types of conversations that would be subject to the TSP.20
Although Laird establishes that a party’s allegation that it has suffered a subjective “chill” alone does not confer Article III standing,Laird does not control this case. As Justice (then Judge)
20In December 2005, the President publicly acknowledged that the TSP intercepts the contents of certain communications as to which there are reasonable grounds to believe that (1) the communication originated or terminated outside the United States, and (2) a party to such communication is a member of al Qaeda, a member of a group affiliated with al Qaeda, or an agent of al Qaeda or its affiliates. Available at http://www.whitehouse.gov//news/releases/2005/12/20051219-2.html.
19

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 20 of 44
Breyer ha s observed, “[t]he problem for the govern ment with Laird . . . lies in the key words ‘without more.’” Ozonoff v. Berzak , 744 F.2d 224, 229 (1 st Cir. 1984). T his court agrees w ith Plaintiffs’ position that “standing here does not rest on the TSP’s ‘mere existence, without more.’” The Plaintiffs in this case are not claiming simply that the Defendants’ surveillance has “chilled” them from making international calls to sources and clients. Rather, they claim that Defendants’ surveillance has chilled their sources, clients, and potential witnesses f rom communicating with them. The alleged efect on Plaintiffs is a concrete, actual inability to communicate with witnesses, sources, clients and others without great expense which has significantly crippled Plaintiffs, at a minimum, in their ability to report the news and cmo petently and effectively represent their clients. See Presbyterian Church v. United State,s 870 F.2d 518 (1989) (church sfufered substantial decrease in attendance and participation of individual congregants as a result of governmental surveillance). Plaintiffs have suf fered actual concrete injuries to their abilities to carry out their prof essional responsibilities. The direct injury and objective chill incurred by Plaintiffs are more than sufficient to place this case outside the limitations imposed by Laird.
The instant case is more akin to Friends of the Earth, in which the Court granted standing to environmental groups who sued a pollut er under the Clean W ater Act because environm ental damage caused by the defendant had deterred members of the plaintiff organizations fromusing and enjoying certain lands and rivers. Friends of the Earth, 528 U.S. at 181-183. The Court there held that the affidavits and testim ony pres ented by plaintiffs were sufficient to establish reasonable concerns about the effects of those discharges and were m ore than “general averm ents” and “conclusory allegations.” Friends of the Earth, 528 U.S. at 183-184. The court distinguished the case from Lujan, in whic h the Court had held that no act ual injury had been established where
20

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 21 of 44
plaintiffs merely indicated “‘some day’ intentions to visit endangered species around the world.” Friends of the Earth, 528 U.S. at 184 (quoting Lujan, 504 U.S. at 564). The court found that the affiants’ conditional statements that they would use the nearby river for recreation if defendant were not discharging pollutants into it was sufficient to establish a concrete injury. Id. at 184.
Here, Plaintiffs are not asserting speculative allegations. Instead, the declarations asserted by Plaintiffs establish that they are suffering a present concrete injury in addition to a chill oftheir First Amendment rights. Plaintiffs would be able to continue using the telephone and email in the execution of their professional responsibilities if the Defendants were not undisputedly and admittedly conducting warrantless wire taps of c onversations. As in Friends of the Earth, this damage to their interest is sufficient to establish a concrete injury.
Numerous cases have granted standing where the plainti ffs ha ve suffered concrete profession-related injuries comparable to those suffered by Plaintiffs here. For example, the First Circuit conferred standing upon claim ants who challenged an executive order which required applicants for employment with the World Health Organization to undergo a “loyalty” check that included an investigation into the applicant’s asscoiations and activities. The court there determined that such an investigation would have a chilling effect on what an applicant says or does, a sufifcient injury to confer standing. Ozonoff, 744 F.2d at 228-229. Similarly, the District of Columbia Circuit Court of Appeals granted standing to a r eshelver of books at the Library of Congress who was subjected to a full field FBI investigation which included an inquiry into his political beliefs and associations and s ubsequently resulted in his being denied a prom otion or any additional employment opportunities; the court having determ ined that plaintiff had suffered a present objective harm , as well as an objective chill of his First Am endment ri ghts and not m erely a
21

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 22 of 44
potential subjective chill as in Laird. Also, the Supreme Court in Presbyterian Church v. United States, granted standing to a church which suffered decreased attendance and participation when the government actually entered the church to conduct surveillance. Presbyterian Church, 870 F.2d at 522. Lastly, in Jabara v. Kelley, 476 F.Supp. 561 (E.D. Mich. 1979), vac’d on other grounds sub. nom. Jabara v. Webster , 691 F.2d 272 (6 th Cir. 1982), the court held that an attorney had standing to sue to enjoin unlawf ul FBI and NSA surveillance which had deterred others f rom associating with him and caused “injury to his reputation and legal business.” Id. at 568.
These cases constitute ac knowledgment that substantial burdens upon a plaintiff’s professional activities are an injury sufficient tosupport standing. Defendants ignore the significant, concrete injuries which Plaintiffs continue to experience from Defendants’ illegal monitoring of their telephone conversations and em ail com munications. Plaintiffs undeniably have cited t o distinct, palpable, and substantial injuries that have resulted from the TSP.
This court finds that the injuries alleged by Plaintiffs are “concrete and particularized”, and not “abstract or conjectural.” The TSP is nothypothetical, it is an actual surveillance programthat was admittedly instituted after September 11, 2001, and has been reauthorized by the President more than thirty times since the attacks.21 The President has, moreover, emphasized that he intends to continue to reauthorize the TSP indefinitely.22 Further, the court need not speculate upon the kind of activity the Plaintiffs want to engage in - they want to engage in conversations with individuals abroad without fear that their First Am endment rights are be ing infringed upon. Therefore, this court concludes that Plaintiffs have satisfied the requirem ent of alleging “actual or threatened
21Available at http://www.white-house.gov//news/releases/2005/12/20051219-2.html 22Id.
22

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 23 of 44
injury” as a result of Defendants’ conduct. It must now be determined whether Plaintiffs have shown that there is a causal connection
between the injury and the com plained of conduct. Lujan, 504 U.S. at 560-561. The causal connection between the injury and the conduct complained of is fairly traceable to the challenged action of Defendants. The TSP admittedly targets communications originated or terminated outside the United States where a party to such communication is in the estimation of Defendants, a member of al Qaeda, a member of a group affiliated with al Qaeda, or an agent of al Qaeda or its affiliates.23 The injury to the Plain tiffs stems directly from the TSP and their injuries can unequivocally be traced to the TSP.
Finally, it is likely that the injury will be rederssed by the requested relief. A determination by this court that the TSP is unconstitutional anda further determination which enjoins Defendants from continued warrantless wiretapping in contravention of FISA would assurePlaintiffs and others that they could freely engage in conversations and correspond via email without concern, at least without notice, that such communications were being monitored. The requested relief would thus redress the injury to Plaintiffs caused by the TSP.
Although this court is persua ded that Plaintiffs have alleged sufficient injury to establish standing, it is important to note that if the court were to deny standing based on the unsubstantiated minor di stinctions drawn by Defendants, the President’s actions in warrantless wiretapping, in contravention of FISA, Title III, and the Firstand Fourth Amendments, would be immunized from judicial scrutiny. It was never theintent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of
23Available at http://www.white-house.gov//news/releases/2005/12/20051219-2.html
23

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 24 of 44
Rights. The three separate branches of government were developed as a check and balance for one another. It is within the court’s duty to ensu re that power is never “condense[d] ... into a single branch of government.” Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (plruality opinion). We must always be mindful that “[w]hen the President ta kes official action, the Court has the author ity to determine whether he has acted within the law.” Clinton v. Jones, 520 U.S. 681, 703 (1997). “It remains one of the m ost vital functions of this Court to police with care the separation of the governing powers . . . . When structure fails, liberty is always in peril.”Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440, 468 (1989) (Kennedy, J., concurring).
Because of the very secrecy of the activity here challenged, Plaintiffs each must be and are given standing t o challenge it, because each of th em, is injured and chilled substantially in the exercise of First Am endment ri ghts so long as it continues. Indeed, as the perceived need for secrecy has apparently required that no person be notified that he is aggrieved by the activity, and there have been no prosecutions, no requests for extnesions or retroactive approvals of warrants, no victim in America would be given standing to challenge this or any other unconstitutional activity, according to the Government. The activity has been acknowledged, nevertheless.
Plaintiffs have sufficiently alleged that they suffered an actual, concrete injury traceable to Defendants and redressable by this court. Acco rdingly, this court denies Defendants’ m otion to dismiss for lack of standing.
IV. The History of Electronic Surveillance in America Since the Court’s 1967 decision ofKatz v. U.S.,389 U.S. 347 (1967), it has been understood that the search and seizure of private telephone conversations without physi cal trespass required
24

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 25 of 44
prior judicial sanction, pursuant to the Fourth Amendment. Justice Stewart there wrote for the Court that searches conducted without prior approval by a judge or magistrate were per se unreasonable, under the Fourth Amendment. Id. at 357.
Congress then, in 1968, enacted Title III of theOmnibus Crime Control and Safe Streets Act (hereinafter “Title III”)24 governing all wire and electronic interceptions in the fight against certain listed major crimes. The Statute defined an “ aggrieved person”,25 and gave such person standing to challenge any interception allegedly made without a judicial order supported by probable cause, after requiring notice to such person of any interception made.26
The statute also stated content requirements for warrants and applications underoath therefor made,27 including time, name of the target, place to besearched and proposed duration of that search, and provided that upon showing of a n emergency situation, a post-interception warrant could be obtained within forty-eight hours.28
In 1972 the court decided U.S. v. U.S. District Court, 407 U.S. 297 (1972) (the Keith case) and held that, f or lawf ul electronic surveillance even in dom estic security m atters, the Fourth Amendment requires a prior warrant.
In 1976 the Congressional “Church Committee”29 disclosed that every President since 1946
24Pub. L. 90-351, 82 Stat. 211, codified as amended at 18 U.S.C. §§ 2510 et seq. 2518 U.S.C. § 2510(11) (“aggrieved person” means a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed.) 2618 U.S.C. § 2518 2718 U.S.C. § 2518(1) 2818 U.S.C. § 2518(7) 29The “Church Committee” was the United States Committee to Study Governmental Operations with Respect to Intelligence Activities.
25

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 26 of 44

had engaged in w arrantless w iretaps in the nam e of national security, and that there had been

numerous political abuses30, and in 1978 Congress enacted the FISA.31

Title III specifically excluded from its coverage all interceptions of international or foreign

communications; and was later am ended to state that “the FISA of 1978 shall be the exclusive

means by which electronic surveillance of

foreign intelligence com munications m ay be

conducted.”32

The government argues that Title III’s disclaimer language, at 18 U.S.C. § 2511(2)(f), that

nothing therein should be construed to lim it the constitutional power of the Pr esident (to m ake

international wiretaps). In the Keith case, Justice Powell wrote that “Congre ss s imply left

Presidential powers where it found them”, that the disclaimer was totally neutral, and not a grant of

authority. U.S. v. U.S. District Court, 407 U.S. at 303.

The FISA defines a “United States person3”3 to include each of Plaintiffs herein and requires

a prior warrant for any dom estic international interception of their communications. For various

exigencies, exceptions are made. That is, the govermn ent is granted fifteen days from Congressional

Declaration of War within which it may conduct intercepts before application for an order.34 It is

also granted one year, on certification by the Attorney General,35 and seventy-two hours for other

30S. REP. NO. 94-755, at 332 (1976)
31Pub. L. 95-511, Title I, 92 Stat 1976 (Oct. 25, 1978), codified as amended at 50 U.S.C. §§ 1801 et seq.
3218 U.S.C. §2511(2)(f)
3350 U.S.C. § 1801(h)(4)(i)(“United States person) means a citizen of the United States, an alien lawfully admitted for permanent residence, an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States which is not a foreign power.
3450 U.S.C. § 1811
3550 U.S.C. § 1802
26

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 27 of 44
defined exigencies.36 Those delay provisions clearly reflect the Congressional effort to balance executive needs
against the privacy rights of United States persons, as recommended by Justice Powell in theKeith case when he stated that:
Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitim ate need of Government for intelligence information and the protected rights of our citizens.. U.S. v. U.S. District Court, 407 U.S. at 322-323. Also reflective of the ba lancing pr ocess Congr ess pursued in FISA is the requirem ent that interceptions may be for no longer than a ninety day duration, minimization is again required37, and an aggrieved person is again (as in Title III) required to be notified of proposed use and given the opportunity to file a motion to suppress.38 Also again, alternatives to a wiretap m ust be found to have been exhausted or to have been ineffective.39 A FISA judicial warrant, moreover, requires a finding of probable cause to believe that the target was either a foreign power or agent thereof, 40 not that a crim e had been or would be committed, as Title III’s m ore stringent standard required. Fi nally, a special FISA court was required to be appointed, of federal judges designated by the Chief Justice.41 They were required to hear, ex parte, all applications and make all orders.42
3650 U.S.C. § 1805(f) 3750 U.S.C. § 1805(e)(1) 3850 U.S.C. § 1806(c) 3950 U.S.C. § 1804(a)(7)(E)(ii), § 1805(a)(5) 4050 U.S.C. § 1805(b) 4150 U.S.C § 1803 4250 U.S.C § 1805
27

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 28 of 44
The FISA was essentially enacted to create a secure fram ework by which the Execut ive branch may conduct legitimate electronic surveillance for foreign intelligence while m eeting our national commitment to the Fourth Amendment. It is fully described inUnited States v. Falvey, 540 F. Supp. 1306 (E.D.N.Y. 1982), where the court heldthat FISA did not intrude upon the President’s undisputed right to conduct foreign af fairs, but pr otected citizens and resident aliens within this country, as “United States persons.” Id. at 1312.
The Act was subsequently found to m eet Fourth Amendment requirements constituting a reasonable balance between Governmental needs and the protected rights of our citizens, inUnited States v. Cavanagh, 807 F.2d 787 (9th Cir. 1987), andUnited States v. Duggan,743, F.2d 59 (2d Cir. 1984).
Against this background the present programof warrantless wiretappinghas been authorized by the administration and the present lawsuit filed.
V. The Fourth Amendment The Constitutional Amendment which must first be discussed provides:
The right the of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no W arrants shall issue, but upon probabl e c ause, supported by Oa th or affirm ation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. CONST. Amend. IV. This Amendment “. . . was specifically pr opounded and ratified with the m emory of . . . Entick v. Carrington , 95 Eng. Rep. 807 (1765) in m ind”, stated Circuit Judge Skelly W right in Zweibon v. Mitchell, 516 F.2d 594, 618 n.67 (D.C. Circ. 1975) (enbanc) (plurality opinion). Justice Douglas, in his concurrence in the Keith case, also noted the significance of Entick in our history,
28

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 29 of 44
stating:
For it was such excesses as the use of general warrants and the writs of assistance that led to the ratiifcation of the Fourth Amendment. In Entick v. Carrington (citation omitted), decided in 1765, one finds a striking parallel to the executive warrants utilized here. The Secretary of State had issued general executive warrants to his messengers authorizing them to roam about and to seiz e l ibelous material and libellants of the sovereign. Entick, a critic of the Crown, was the victim of one such general search during which his seditious publications were im pounded. He brought a s uccessful dam age action for trespass against the messengers. The verdict was sustained on appeal. Lord Cam den wrote that if such sweepi ng tactics were validated, then the secret cabinets and bureaus of every subject in this kingdom will be thrown ope n to th e search and inspection of a messenger, whenever the secretary of state shall think fit to charge, or even to suspect, a person to be the author, printer, or publisher of a seditious libel.’ (citation om itted) In a related and sim ilar proceeding, Huckle v. Money (citation omitted), the same judge who presided over Ent ick’s appeal held for another victim of the sam e despotic practice, saying ‘(t)o enter a m an’s house by vir tue of a nameless warrant, in order t o procure evidence, is worse than the Spanish Inquisition . . .’ See alsoWilkes v. Wood (citation omitted), . . . [t]he tyrannical invasions described and assailed in Entick, Huckle, and Wilkes, practices which also were endured by the colonists, have been recognized asthe primary abuses which ensured the Warrant Clause a prominent place in our Bill of Rights. U.S. v. U.S. District Court, 407 U.S. at 328-329 (Douglas, J., concurring).
Justice Powell, in writing for the court in the Keith case also wrote that:
Over two centuries ago, Lord Mansfield held that com mon-law principles prohibited warrants that ordered the arrest of unnam ed individuals who the officer might conclude were guilty of seditious libel. ‘It is not fit,’ said Mansfield, ‘that the receiving or judging of the information should be left to the discretion of the officer. The magistrate ought to judge; and should give certain directions to t he officer.’ (citation omitted).
Lord Mansfield’s formulation touches the very heart of the Fourth Amendment directive: that, where practical, a governmental search and seizure should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of the magistrate that the collected evidence is suf ficient to justif y invasion of a citizen’s
29

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 30 of 44
private prem ises or conversation. Inherent in the concept of a warrant is its issuance by a ‘neutral and detached m agistrate.’ (citations om itted) The f urther requirem ent of ‘probable cause’ instructs the magistrate that baseless searches shall not proceed.U.S. v. U.S. District Court, 407 U.S. at 316.
The Fourth Amendment, accordingly, was adopted to assure that Executive abuses of the
power to search would not continue in our new nation.
Justice White wrote in 1984 inUnited States v. Karo, 468 U.S. 705 (1984), a case involving
installation and monitoring of a beeper which had ofund its way into a home, that a private residence
is a place in which society recognizes an expectation of privacy; that warrantless searches of such
places are presumptively unreasonable, absent exigencies. Id. at 714-715. Karo is consistent with
Katz where Justice Stewart held that:
‘Over and again this Court has emphasized that the mandate of the (Fourth) Am endment requires adherence to judicial processes,’ (citation omitted) and that searches conducted outside the judicial process, without prior approval by judge or m agistrate, are per se unreasonable under the Fourth Am endment - subject onl y to a few specifically established and wel l-delineated exceptions. Katz, 389 U.S. at 357.
Justice Powell’s opinion in the Keith case also stated that:
The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are t o e nforce the laws, to investigate, and to prosecute. (citation om itted) But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive m eans in pursuing their tasks. The historical judgm ent, which the Fourth Am endment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech. U.S. v. U.S. District Court, 407 U.S. at 317.
Accordingly, the Fourth Amendment, about whichmuch has been written, in its few words requires
30

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 31 of 44
reasonableness in all searches. It also requirse prior warrants for any reasonable search, based upon prior-existing probable cause, as well as particularity as to persons, places, and things, and the interposition of a neutral magistrate between Executive branch enforcement officers and citizens.
In enacting FISA, Congress made numerous concessions to stated executive needs. They include delaying the applications for warrants until after surveillance has begun for several types of exigencies, reducing the probable cause requirement to a less stringent standard, provision of a single court of judicial experts,and extension of the duration of approved wiretaps fromthirty days (under Title III) to a ninety day term.
All of the above Congressional concessions to Executive need and to the exigencies of our present situation as a people, however, have beenfutile. The wiretapping programhere in litigation has undispute dly been continued for at least five years, it has undisputedly been im plemented without regard to FISA and of course the m ore stringent st andards of Title III, and obviously in violation of the Fourth Amendment.
The President of the United States is himself created by that same Constitution. VI. The First Amendment
The First Amendment provides: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, o r o f th e p ress; o r th e rig ht o f th e p eople peaceably to assemble, and to petition the Government for a redress ofgrievances.
U.S. CONST. Amend. I. This Amendment, the very first which the American people required to be made to the new
Constitution, was adopted, as was the Fourth, withEntick v. Carrington, and the actions of the star chamber in mind. As the Court wrote in Marcus v. Search Warrants, 367 U.S. 717 (1961):
31

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 32 of 44
Historically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and se izure. . ..
* * * * This history was, of cours e, pa rt of the intellectual m atrix within which our own constitutional fabric was shaped. The Bill of Rights was fashioned against the backgor und of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression. Marcus, 367 U.S. at 724, 729 As Justice Brennan wrote for the Court inDombrowski v. Pfister, 380 U.S. 479 (1965), the appellant organizations had been subjected to rpeeated announcements of their subversiveness which frightened off potential m embers and contributor s, and had been harm ed irreparably, requiring injunctive relief. The Louisiana law against whihc they complained, moreover, had a chilling efect on protected expression because, so long as the statute was available, the threat of prosecution for protected expression remained real and substantial. Judge Wright, in Zweibon, noted that the tapping of an organization’s office phone will provide the membership roster ofthat organization, as forbidden byBates v. City of Little Rock, 361 U.S. 516 (1960); t hereby causing m embers to leave that organization, and thereby chilling the organization’s First Amendment rights and causing the loss of membership. Zweibon, 516 F.2d at 634. A governm ental action to regulate speech may be justif ied only upon show ing of a compelling governmental interest; and that the m eans chosen to further that interest are the least restrictive of freedom of belief andassociation that could be chosen. Clark v. Library of Congress, 750 F.2d 89, 94 (D.C. Cir. 1984). It must be noted that FISA explicitly admonishes that “. . . no United States person may be
32

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 33 of 44

considered . . . an agent of aforeign power solely upon the basis of activities protected by the First

Amendment to the Constitution of the United States.” 50 U.S.C. §1805(a)(3)(A). See also United

States v. Falvey, 540 F. Supp. at 1310.

Finally, as Justice Powell wrote for the Court in the Keith case:

National security cases , moreover, often reflect a convergence of

First and Fourth Amendment values not present in cases of ‘ordinary’

crime. Though the investigative duty of the executive m ay be

stronger in such cases, so also is the

re gr eater jeopardy to

constitutionally protected speech. ‘Historically the struggle for

freedom of speech and press inEngland was bound up with the issue

of the scope of the search and seizure power,’ (citation om itted).

History abundantly docum ents the tendency of Governm ent

–however benevolent and benign its motives – to view with suspicion

those who m ost fervently dispute its policies. Fourth Am endment

protections become the more necessary when the targets of official

surveillance may be those suspected of unorthodoxy in their political

beliefs. U.S. v. U.S. District Court, 407 U.S. at 313-314.

The President of the United States, a creatureof the same Constitution which gave us these

Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required

by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well.

VII. The Separation of Powers

The Constitution of the United States provides that “[a]ll legislative Powers herein granted

shall be vested in a Congress of the United States. . . .” 43 It further provides that “[t]he executive

Power shall be vested in a President of the United States of America.”44 And that “. . . he shall take

care that the laws be faithfully executed . . . .”45

43U.S. CONST. art. I, § 1 44U.S. CONST. art. II, § 1 45U.S. CONST. art. II, § 3
33

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 34 of 44
Our constitution was drafted by founders and ratified by a people who still held in vivid memory the image of King George III and his General W arrants. The concept that each form of governmental power should be separated was a well-developed one. James Madison wrote that:
The accumulation of all powers, legislative, executive, and judiciary, in the sam e ha nds, whether of one, a few, or m any, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. THE FEDERALIST NO. 47, at 301 (James Madison). The seminal American case in this area, and one on which the government appears to rely, is that of Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952) in which Justice Black, for the court, held t hat t he Presidential order in que stion, to seize steel m ills, was not within the constitutional powers of the chief executive. Justice Black wrote that: The founders of this Nat ion entrusted the law-making power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our hol ding that this seizure order cannot stand. Youngstown, 343 U.S. at 589. Justice Jackson’s c oncurring opinion in that case has becom e historic. He wrote that, although the Constitution had diffused powers the better to secure liberty, the powers of the President are not fixed, but fluctuate, depending upon their junctures with the actions of Congress. Thus, if the President acted pursuant to an experss or implied authorization by Congress, his power was at it maximum, or zenith. If he acted in absence of Congressional action, he was in a zone of twilight reliant upon only his own independent powers. Youngstown, 343 U.S. at 636-638. But “when the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for he can rely only upon his own Constitutional powers minus any Constitutional powers of Congress over the m atter.” Youngstown, 343 U.S. at 637 (Jackson, J.,
34

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 35 of 44
concurring).
In that case, he wrote that it had been conceded that no congressional authorization existed
for the Presidential seizure. Indeed, Congress had several tim es covered the area with statutory
enactments inconsistent with the seizure. He further wrote of the President’s powers that:
The example of such unlimited executive power that must have most impressed the forefathers wa s the prerogative exercised by George III, and the description of its evilsin the Declaration of Independence leads me to doubt that they were creating their new Executive in his image. Continental European exam ples were no m ore appealing. And if we seek instruction fromour own times, we can match it only from the executive powers in those governm ents we disparagingly describe as totalitarian. I cannot accept the view that this clause is a grant in bulk of all conceivable executive power but regard it as an allocation to the presidential office of the generic powers thereafter stated. Id. at 641.
After analyzing the more recent experiencesof Weimar, Germany, the French Republic, and
Great Britain, he wrote that:
This contemporary foreign experience may be inconclusive as to the wisdom of lodging e mergency powers som ewhere in a m odern government. But it suggests that em ergency powers are consistent with free governm ent only when their control is lodged elsewhere than in the Executive who exercisesthem. That is the safeguard that would be nullified by our adoption ofthe ‘inherent powers’ formula. Nothing in my experience convinces me that such risks are warranted by any real necessity, although such powers would, of course, be an executive convenience. Id. at 652.
Justice Jackson concluded that:
With all its defects, delays and inconveniences, men have discovered no technique for long preserving free governm ent except that the Executive be under the law, a nd t hat the law be m ade by parliamentary deliberations. Youngstown, 343 U.S. at 655 (Jackson, J., concurring).
Accordingly, Jackson concurred, the President had acted unlawfully.
35

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 36 of 44
In this case, the President has acted, undisputedly, as FISA forbids. FISA is the expressed statutory policy of our Congress. The presidentialpower, therefore, was exercised at its lowest ebb and cannot be sustained.
In United States v. Moussaoui , 365 F.3d 292 (4 th Cir. 2004) a prosecution in which production of enemy combatant witnesses had been refused by the government and the doctrine of Separation of Powers raised, the court, citingMistretta v. United States, 488 U.S. 361 (1989), noted that it:
“[C]onsistently has given voice to, and has reaffirm ed, the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation ofliberty.” United States v. Moussaoui, 365 F.3d at 305 citing Mistretta v. United States, 488 U.S. 361, 380 (1989)
Finally, in the case of Clinton v. Jones , 520 U.S. 681 (1997), the sepa ration of powers doctrine is again discussed and, again, some overlap of the authorities of two branches is permitted. In that case, although Article III jurisdiction of tehfederal courts is found intrusive and burdensome to the Chief Executive it did not follow, the court held, that separation of powers principles would be violated by allowing a la wsuit against the Chief Executive to proceed. Id. at 701. Mere burdensomeness or inconvenience did not rise to the level of superceding the doctrine of separation of powers. Id. at 703.
In this case, if the teachings of Youngstown are law, the separation of powers doctrine has been violated. The President, undispute dly, has violated the provisions of FISA for a five-year period. Justice Black wrote, in Youngstown:
Nor can th e s eizure o rder b e s ustained because o f th e s everal constitutional provisions that grant executive power to the President.
36

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 37 of 44
In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who make laws which the President is to execute. The first section of the first article says that ‘All legislative powers herein granted shall be vested in a Congress of the Uni ted States * * *’
The President’s order does not direct that a congressional policy be executed in a m anner prescribed by Congr ess – it directs that a presidential policy be executed in a m anner prescribed by the President. . . . The Constitution did not subject this law-m aking power of Congress to presidential or military supervision or control. Youngstown, 343 U.S. at 587-588.
These secret authorization orders m ust, like the executive order in that case, fall. They
violate the Separation of Powers ordained by the very Constitution of which this President is a
creature.
VIII. The Authorization for Use of Military Force
After the terrorist attack on this Country oSf eptember 11, 2001, the Congress jointly enacted
the Authorization for Use of Military Force (hereinafter “AUMF”) which states:
That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, com mitted, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by suchnations, organizations or persons.46
The Government argues here that it was given authority by that resolution to conduct the TSP
in violation of both FISA and the Constitution.
First, this court m ust note that the AUMF says nothing whatsoever of intelli gence or
46Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (Sept. 18, 2001) (reported as a note to 50 U.S.C.A. § 1541)
37

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 38 of 44
surveillance. The government argues that such authority must be implied. Next it must be noted that FISA and Title III, are together by their terms denominated by Congress as the exclusive means by which electronic surveillance may be conducted. Both statutes have made abundantly clear that prior warrants must be obtained from the FISA court for such surveillance, with limited exceptions, none of which are here even raised as applicable. Inde ed, the governm ent here claim s that the AUMF has by im plication granted its TSP authority for m ore than five years, although FISA’s longest exception, for the Declaration of War by Congress, is only fifteen days from date of such a Declaration.47
FISA’s history and content, detailed above, arehighly specific in their requirements, and the AUMF, if construed to apply at all to intelligence is utterly general. In Morales v. TWA, Inc., 504 U.S. 374 (1992), the Supreme Court taught us that “it is a commonplace of statutory construction that the specific governs the general.” Id. at 384. The implication argued by Defendants, therefore, cannot be made by this court.
The case of Hamdi v. Rumsfeld, 542 U.S. 507 (2004) in whichthe Supreme Court held that a United States citizen may be held as an enemy combatant, but is required by the U.S. Constitution to be given due process of law, must also be examined. Justice O’Connor wrote for the court that:
[D]etention of individuals . . . for the duration of t he pa rticular conflict in which they are captured is so fundamental and accepted an incident to war as to be an execrise of the “necessary and appropriate force” Congress has authorize d the President to use. Hamdi, 542 U.S. at 518. She wrote that the entire object of capture is to prevent the captured com batant from returning to his same enemy force, and that a prisoner would most certainly return to those forces
4750 U.S.C. § 1811
38

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 39 of 44

if set free. Congress had, therefore, clearlyauthorized detention by the Force Resolution.Id. at 518-

519.

However, she continued, indefinite detentionfor purposes of interrogation was certainly not

authorized and it raised the question of what process is constitutionally due to a citizen who

disputes the enemy combatant status assigned him. Hamdi, 542 U.S. at 521, 524.

Justice O’Connor concluded that such a citizen must be given Fifth Amendment rights to

contest his classification, including notice and the opport unity to be heard by a neutral

decisionmaker. Hamdi, 542 U.S. at 533 (citing Cleveland Board of Education v. Laudermill, 470

U.S. 532 (1985)). Accordingly, her holding was that the Bill of Right s of the Uni ted St ates

Constitution must be applied despite authority granted by the AUMF.

She stated that:

It is during our m ost challenging and uncertain m oments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.

* * * *

Any process in which the Executiv e’s factual assertions go wholly

unchallenged or are simply presumed correct without any opportunity

for the alleged combatant to dem

onstrate otherwise f alls

constitutionally short. Hamdi, 542 U.S. at 532, 537.

Under Hamdi, accordingly, the Constitution of the United States must be followed.

The AUMF resolution, i f i ndeed it is constr ued as replacing FISA, gives no support to

Defendants here. Even i f t hat Re solution supe rceded all other statutory law, Defendants have

violated the C onstitutional rights of their c itizens including the F irst A mendment, F ourth

Amendment, and the Separation of Powers doctrine.

39

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 40 of 44
IX. Inherent Power Article II ofthe United States Constitution provides that any citizen ofappropriate birth, age and residency may be elected to the Office of President of the United States and be vested with the executive power of this nation.48 The duties and powers of the Chief Executive are carefully listed, including the duty to be Commander in Chief of the Arm y and Navy of the United Stat es,49 and the Presidential Oath of Office is set forth in the Constitution and requires him to swear or affirm that he “will, to the best of my ability, preserve, protect and defend the Constitution of the United States.”50 The Government appears to argue here that , pursuant to the penum bra of Constitutional language in Article II, and particularly becausethe President is designated Commander in Chief of the Army and Navy, he has been gr anted the inherent pow er to violate not only the law s of the Congress but the First and Fourth Amendments of the Constitution, itself. We must first note that the Office of the Ch ief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all “inherent powers” must derive from that Constitution. We have seen in Hamdi that the Fifth Amendment of the United States Constitution is fully applicable to the Executive branch’s actions and tehrefore it can only follow that the First and Fourth Amendments must be applicable as well. 51 In the Youngstown case the same “inherent powers” argument was raised and the Court noted that the President had been created Commander in Chief
48U.S. CONST. art. II, § 5 49U.S. CONST. art. II, § 2[1] 50U.S. CONST. art. II, § 1[8] 51See generally Hamdi, 542 U.S. 507 (2004)
40

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 41 of 44
of only the m ilitary, and not of all the people, even in tim e of war. 52 Indeed, since Ex Parte Milligan, we have been taught that the “Constitution of the United States is a law for rulers and people, equally in war and in peace. . . .” Ex Parte Milligan , 71 U.S. (4 W all.) 2, 120 (1866). Again, in Home Building & Loan Ass’n v. Blaisdell, we were taught that no emergency can create power.53
Finally, although the Defendants have suggestedthe unconstitutionality of FISA, it appears to this court that that question is here irrelevnat. Not only FISA, but the Constitution itselfhas been violated by the Executive’s TSP. As the court states inFalvey, even where statutes are not explicit, the requirements of the Fourth Amendment must still be met.54 And of course, theZweibon opinion of Judge Skelly Wright plainly states that although many cases hold that the President’s power to obtain foreign intelligence information is vast, none suggest that he is immune from Constitutional requirements.55
The argument that inherent powers justify the program here in litigation must fail. X. Practical Justifications for Exemption
First, it must be remembered that both Title III and FISA perm it delayed applications for warrants, after surveillance has begun. Also, the case law has long perm itted law enforcem ent action to proceed in cases in which the lives of o fficers or others ar e threatened in cases of “hot pursuit”, border searches, school locke r s earches, or where em ergency situations exist. See generally Warden v. Hayden, 387 U.S. 294 (1967); Veronia School District v. Acton, 515 U.S. 646
52See generally Youngstown, 343 U.S. 579 (1952) 53See generally Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934) 54See generally Falvey, 540 F. Supp. 1306 (E.D.N.Y. 1982) 55See generally Zweibon, 516 F.2d 594 (D.C. Circ. 1975)
41

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 42 of 44

(1995); and Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990).

Indeed, in Zweibon, Judge Wright enumerates a number of Defendants’ practical arguments

here (including judicial c ompetence, danger of security leaks, less likelihood of crim

inal

prosecution, delay, and the burden placed upon bot h the courts and the Executive branch by

compliance) and finds, after long and careful analysis, that none constitutes adequate justification

for exemption from the requirements of either FISA or the Fourth Amendment. Zweibon, 516 F.2d

at 641. It is noteworthy, in this regard, that Defendants here ha ve sought no Congressional

amendments which would remedy practical difficulty.

As long ago as theYoungstown case, the Truman administration argued that the cumbersome

procedures required to obtain warrants made the process unworkable5.6 The Youngstown court made

short shift of that argum ent and, it appears, t he present Defendants’ need for speed and agility is

equally weightless. The Supreme Court in the Keith57, as well as the Hamdi58 cases, has attempted

to offer helpful solutions to the delay problem, all to no avail.

XI. Conclusion

For all of the reasons outlined above, this court icsonstrained to grant to Plaintiffs the Partial

Summary Judgment requested, and holds that the TSP violates the APA; the Separation of Powers

doctrine; the First and Fourth Amendments of the United States Constitution; and the statutory law.

Defendants’ Motion to Dismiss the final claim of data-mining is granted, because litigation

of that claim would require violation of Defendants’ state secrets privilege.

56See generally Youngstown, 343 U.S. 579 (1952) 57See generally U.S. v. U.S. District Court, 407 U.S. 297 (1972) 58See generally Hamdi, 542 U.S. 507 (2004)
42

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 43 of 44

The Permanent Injunction of the TSP requestedby Plaintiffs is granted inasmuch as each of
the factors required to be m et to s ustain such an injunction have undisputedly been m et.59 The
irreparable injury necessary to warrant injunctive reliefis clear, as the First and Fourth Amendment
rights of Plaintiffs are violated by the TSP. SeeDombrowski v. Pfister, 380 U.S. 479 (1965). The
irreparable injury conversely sustained by Defendants under this injunction m ay be rectified by
compliance with our Constitution and/or stat utory law, as am ended if necessary. Plaintiffs have
prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution.
As Justice Warren wrote in U.S. v. Robel, 389 U.S. 258 (1967):
Implicit in the term ‘national def ense’ is the notion of def ending those values and ide as which set this Nation apart. . . . It would indeed be ironic if, in the nam e of na tional defense, we would sanction the subversion of . . . t hose liberties . . . which m akes the defense of the Nation worthwhile. Id. at 264.

IT IS SO ORDERED.
Date: August 17, 2006 Detroit, Michigan

s/Anna Diggs Taylor ANNA DIGGS TAYLOR UNITED STATES DISTRICT JUDGE

59It is well-settled that a plaintiff seeking a permanent injunction must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. eBay Inc. v. MercExchange, L.L.C. 126 S.Ct. 1837, 1839 (2006). Further, “[a] party is entitled to a permanent injunction if it can establish that it suffered a constitutional violation and will suffer “continuing irreparable injury” for which there is no adequate remedy at law.” Women's Medical Professional Corp. v. Baird, 438 F.3d 595, 602 (6th Cir. 2006).
43

Case 2:06-cv-10204-ADT-RSW Document 70 Filed 08/17/2006 Page 44 of 44
CERTIFICATE OF SERVICE The undersigned certifies that the foregoingMemorandum Orderwas served upon counsel of record via the Courts' ECF System to their respective em ail addresses or First Cla ss U.S. m ail disclosed on the Notice of Electronic Filing on August 17, 2006.
s/Johnetta M. Curry-Williams Case Manager
44

 
 Case 2:06-cv-10204-ADT-RSW Document 71 Filed 08/17/2006 Page 1 of 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION FOUNDATION; AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN; COUNCIL ON AMERICAN-ISLAMIC RELATIONS; COUNCIL ON AMERICAN ISLAMIC RELATIONS MICHIGAN; GREENPEACE, INC.; NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; JAMES BAMFORD; LARRY DIAMOND; CHRISTOPHER HITCHENS; TARA MCKELVEY; and BARNETT R. RUBIN,

C L O S E D
Case No. 06-CV-10204 Hon. Anna Diggs Taylor

Plaintiffs, v. NATIONAL SECURITY AGENCY / CENTRAL SECURITY SERVICE; and LIEUTENANT GENERAL KEITH B. ALEXANDER, in his official capacity as Director of the National Security Agency and Chief of the Central Security Service,

Defendants. _______________________________________________________/

JUDGMENT AND PERMANENT INJUNCTION ORDER

For the reasons set forth in an accom panying Memorandum Opinion, Plaintiffs’ Motion

for Partial Summary Judgment [Doc #4] is GRAN TED. Defendants’ Motion to Dism iss, or, in

the Alternative, for Summary Judgment [Doc #34] is GRANTED in part and DENIED in part.

IT IS HEREBY ORDERED that Defendants, its agent s, employees, representatives, and

any other persons or entities in active concert or participation with Def endants, are permanently

enjoined f rom directly or indirectly utilizi ng the Terrorist Surveillance Program (hereinaf ter

“TSP”) in any way, including, but not lim ited to, conducting warr antless wiretaps of telephone

Case 2:06-cv-10204-ADT-RSW Document 71 Filed 08/17/2006 Page 2 of 2

and internet com munications, in contravention of the Foreign Intelligence Surveillance Act (hereinafter “FISA”) and Title III;
IT IS FURTHER ORDERED AND DECLARED th at the TSP violates the Separation of Powers doctrine, the Adm inistrative Procedures Act, the First and Fourth Am endments to the United States Constitution, the FISA and Title III;
IT IS ALSO ORDERED that Defendants’ Motion for Summary Judgment is GRANTED with respect to Plaintif fs’ data-m ining claim and is DENIED regarding Plaintiffs’ rem aining claims;
IT IS ALSO ORDERED that Pla intiffs’ Motion for Partial Sum mary Judgm ent is GRANTED in its entirety.
IT IS SO ORDERED.

Date: August 17, 2006 Detroit, Michigan

s/Anna Diggs Taylor ANNA DIGGS TAYLOR UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their respective email addresses or First Class U.S. mail disclosed on the Notice of Electronic Filing on August 17, 2006.
s/Johnetta M. Curry-Williams Case Manager

 
 2:06-cv-10204-ADT-RSW Doc # 100 Filed 11/28/07 Pg 1 of 2 Pg ID 1220

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

AMERICAN CIVIL LIBERTIES UNION, et al., Plaintiffs,
v.

Criminal No. 06-10204 Hon. Anna Diggs Taylor

NATIONAL SECURITY AGENCY/CENTRAL SECURITY SERVICE, et al.,
Defendants, /

ORDER DISMISSING CASE Plaintiff filed the complaint in this action on January 17, 2006. On March 9, 2006, Plaintiffs filed a m otion for partial sum mary judgment. On May 26, 2006, De fendants filed a m otion to dismiss, or, in the alternative for summary judgment. Oral arguments were held on July 10, 2006 and the matter was taken under advisement. On August 17, 2006, this court issued a Memorandum Opinion and Order denying Defendants’ m otion to dismiss on all claim s except the data m ining claim and gr anting the Plaintiffs’ m otion for partial sum mary judgment. On August 17, 2006, Defendants filed a notice of appeal. On August 24, 2006P, laintiffs filed a notice of appeal. On July 9, 2007, the Appeal Judgment was issued from the Sixth Circuit Court of Appeals remanding the case to this court with instructions to dismiss for lack of jurisdiction. On September 4, 2007, the Mandate was issued by the Court of Appeals. Pursuant to the order of the Sixth Circuit Court of Appeals, IT IS ORDERED that this case is DISMISSED FOR LACK OF JURISDICTION. IT IS SO ORDERED.

2:06-cv-10204-ADT-RSW Doc # 100 Filed 11/28/07 Pg 2 of 2 Pg ID 1221

DATED: November 28, 2007

s/Anna Diggs Taylor ANNA DIGGS TAYLOR UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing Orderof Dismissal was served upon counsel of record via the Courts' ECF System to their respective em ail addresses or First Cla ss U.S. m ail disclosed o n the Notice of Electronic Filing on November 28, 2007.
s/Johnetta M. Curry-Williams Case Manager

-2-

 
 Case: 2:06-cv-10204 As of: 09/16/2014 12:30 AM EDT 1 of 14
CLOSED,STAYED
U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:06−cv−10204−ADT−RSW

American Civil Liberties Union et al v. National Security Agency/Central Security Service et al Assigned to: District Judge Anna Diggs Taylor Referred to: Magistrate Judge R. Steven Whalen Case in other court: U.S. Supreme Court, 07−00468
Supreme Court, 07−00468 Cause: No cause code entered
Plaintiff

Date Filed: 01/17/2006 Date Terminated: 08/17/2006 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

American Civil Liberties Union

represented by Ann Beeson − INACTIVE American Civil Liberties Union 125 Broad Street 18th Floor New York, NY 10004−2400 212−549−2500 Fax: 212−549−2652 TERMINATED: 07/20/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer American Civil Liberties Union 125 Broad Street 18th Floor New York, NY 10004−2400 212−549−2500 Fax: 212−549−2652 Email: jjaffer@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kary L. Moss American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 313−578−6800 Fax: 313−578−6811 Email: kmoss@aclumich.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J. Steinberg American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 313−578−6814 Email: msteinberg@aclumich.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
American Civil Liberties Union Foundation

represented by Ann Beeson − INACTIVE (See above for address) TERMINATED: 07/20/2007 LEAD ATTORNEY

Case: 2:06-cv-10204 As of: 09/16/2014 12:30 AM EDT 2 of 14

ATTORNEY TO BE NOTICED

Jameel Jaffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kary L. Moss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
American Civil Liberties Union of Michigan

represented by Ann Beeson − INACTIVE (See above for address) TERMINATED: 07/20/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kary L. Moss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret A. Costello Dykema Gossett (Detroit) 400 Renaissance Center Detroit, MI 48243−1668 313−568−6800 Fax: 313−568−5306 Email: mcostello@dykema.com ATTORNEY TO BE NOTICED

Plaintiff Council on American−Islamic Relations

represented by Ann Beeson − INACTIVE (See above for address) TERMINATED: 07/20/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kary L. Moss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:06-cv-10204 As of: 09/16/2014 12:30 AM EDT 3 of 14

Plaintiff Council on American−Islamic Relations Michigan
Plaintiff Greenpeace, Incorporated
Plaintiff National Association of Criminal Defense Lawyers

Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ann Beeson − INACTIVE (See above for address) TERMINATED: 07/20/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jameel Jaffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ann Beeson − INACTIVE (See above for address) TERMINATED: 07/20/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jameel Jaffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kary L. Moss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ann Beeson − INACTIVE (See above for address) TERMINATED: 07/20/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jameel Jaffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kary L. Moss

Case: 2:06-cv-10204 As of: 09/16/2014 12:30 AM EDT 4 of 14

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff James Bamford

represented by Ann Beeson − INACTIVE (See above for address) TERMINATED: 07/20/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kary L. Moss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Larry Diamond

represented by Ann Beeson − INACTIVE (See above for address) TERMINATED: 07/20/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kary L. Moss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Christopher Hitchens

represented by Ann Beeson − INACTIVE (See above for address) TERMINATED: 07/20/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer (See above for address) LEAD ATTORNEY

Case: 2:06-cv-10204 As of: 09/16/2014 12:30 AM EDT 5 of 14

ATTORNEY TO BE NOTICED

Kary L. Moss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Tara McKelvey

represented by Ann Beeson − INACTIVE (See above for address) TERMINATED: 07/20/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kary L. Moss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Barnett R. Rubin

represented by Ann Beeson − INACTIVE (See above for address) TERMINATED: 07/20/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kary L. Moss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
National Security Agency/Central Security Service

represented by Andrew Tannenbaum − INACTIVE U.S. Department of Justice 20 Massachusetts Avenue, NW

Case: 2:06-cv-10204 As of: 09/16/2014 12:30 AM EDT 6 of 14

Room 7318 Washington, DC 20001 202−514−4263 Fax: 202−616−8202 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony J. Coppolino U.S. Department of Justice 20 Massachusetts Avenue, NW Room 7318 Washington, DC 20001 202−514−4782 Fax: 202−616−8460 Email: tony.coppolino@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Keith B. Alexander Lieutenant General, in his capacity as Director of the National Security Agency and Chief of the Central Security Service

represented by Andrew Tannenbaum − INACTIVE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony J. Coppolino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
National Association For The Advancement of Colored People, American−Arab Anti−Discrimination Committee, Asian American Legal Defense, Education Fund, Japanese American Citizens League, The League of

represented by Saul A. Green Miller, Canfield, 150 W. Jefferson Avenue Suite 2500 Detroit, MI 48226−4415 313−963−6420 LEAD ATTORNEY

Amicus
The Association of the Bar of the City of New York

represented by Larry J. Saylor Miller, Canfield, 150 W. Jefferson Avenue Suite 2500 Detroit, MI 48226−4415 313−963−6420 Fax: 313−496−7500 Email: saylor@millercanfield.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Certain Members of Congress

represented by Hugh M. Davis , Jr. Constitutional Litigation Associates 450 W. Fort Street Suite 200 Detroit, MI 48226 313−961−2255 Fax: 313−961−5999 Email: Info@ConLitPC.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:06-cv-10204 As of: 09/16/2014 12:30 AM EDT 7 of 14

Amicus Washington Legal Foundation

represented by Richard A. Samp Washington Legal Foundation 2009 Massachusetts Ave N.W. Washington, DC 20036 202−588−0302 Email: rsamp@wlf.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Louis Fisher and William G. Weaver

represented by Andrew A. Nickelhoff Sachs Waldman 2211 E. Jefferson Ave., Ste. 200 Detroit, MI 48207 313−496−9429 Email: anickelhoff@sachswaldman.com ATTORNEY TO BE NOTICED

Date Filed 01/17/2006 01/27/2006 03/07/2006 03/09/2006
03/09/2006 03/09/2006 03/13/2006 03/13/2006 03/13/2006

# Docket Text
1 COMPLAINT filed by plaintiffs against National Security Agency/Central Security Service and Keith B. Alexander, Receipt No: 536867 − Fee: $ 250. (Attachments: # 1 Document Continuation)(DPer, ) (Entered: 01/17/2006)
2 SUMMONS Returned Executed to U.S. Attorney, on behalf of Keith B. Alexander served on 1/18/2006, answer due 3/20/2006 (Steinberg, Michael) (Entered: 01/27/2006)
3 Ex Parte MOTION for Leave to File Excess Pages by all plaintiffs. (Steinberg, Michael) (Entered: 03/07/2006)
4 MOTION for Partial Summary Judgment by all plaintiffs. (Attachments: # 1 Index of Exhibits # 2 Exhibit A − President's Radio Address, 12/17/05# 3 Exhibit B − Excerpt from Alberto Gonzales and Michael Hayden Press Briefing, 12/19/05# 4 Exhibit C − Excerpt from Michael Hayden Address to National Press Club, 1/23/06# 5 Exhibit D − Excerpt from President?s News Conference, 12/19/05# 6 Exhibit E − Excerpt from James Taranta, A Strong Executive, Wall Street Journal, 1/28/06# 7 Exhibit F − Excerpt from Letter from William E. Moschella, Assistant Attorney General, 12/22/05# 8 Exhibit G − Excerpt from Alberto Gonzales, ?Ask the Whitehouse,? 1/25/06# 9 Exhibit H − Excerpt from Wartime Executive Power and the NSA?s Surveillance Authority: Hearing Before the Senate Judiciary Comm., 109th Cong. (2006)# 10 Exhibit I − Declaration of Larry Diamond# 11 Exhibit J − Declaration of Nancy Hollander# 12 Exhibit K − Declaration of Tara McKelvey# 13 Exhibit L − Declaration of William Swor)(Steinberg, Michael) (Entered: 03/09/2006)
5 ORDER GRANTING 3 Plaintiff's Motion for Leave to File Excess Pages− Signed by Honorable Anna Diggs Taylor. (JCurr, ) (Entered: 03/09/2006)
6 STATEMENT of Undisputed Facts in Support of Plaintiffs' Motion for Partial Summary Judgment by American Civil Liberties Union.(Steinberg, Michael) (Entered: 03/09/2006)
7 NOTICE of Appearance by Anthony J. Coppolino on behalf of all defendants. (Coppolino, Anthony) (Entered: 03/13/2006)
8 NOTICE of Appearance by Andrew Tannenbaum on behalf of all defendants. (Tannenbaum, Andrew) (Entered: 03/13/2006)
9 MOTION for Extension of Time to File Answer re 1 Complaint, MOTION for Extension of Time to File Response/Reply as to 4 MOTION for Partial Summary Judgment by all defendants. (Tannenbaum, Andrew) (Entered: 03/13/2006)

Case: 2:06-cv-10204 As of: 09/16/2014 12:30 AM EDT 8 of 14

03/15/2006 03/16/2006 03/17/2006 03/28/2006 04/20/2006 04/20/2006
04/26/2006 04/27/2006 04/28/2006 04/28/2006
05/04/2006 05/05/2006 05/08/2006
05/10/2006 05/10/2006

10 RESPONSE to 9 MOTION for Extension of Time to File Answer re 1 Complaint MOTION for Extension of Time to File Response/Reply as to 4 MOTION for Partial Summary Judgment filed by all plaintiffs. (Jaffer, Jameel) (Entered: 03/15/2006)
11 REPLY to Response re 9 MOTION for Extension of Time to File Answer re 1 Complaint MOTION for Extension of Time to File Response/Reply as to 4 MOTION for Partial Summary Judgment filed by all defendants. (Attachments: # 1 Exhibit 1)(Tannenbaum, Andrew) (Entered: 03/16/2006)
12 ORDER Granting 9 Extension of Time to Respond re 1 Complaint and 4 Motion for Partial Summary Judgment. Responses due by 5/19/2006. Signed by Honorable Anna Diggs Taylor. (JCurr, ) (Entered: 03/17/2006)
13 NOTICE of Hearing and Order Setting Briefing Schedule on 4 Plaintiffs' Motion for Partial Summary Judgment. Responses due by 5/19/2006. Replies due by 5/26/2006. Motion Hearing set for 6/12/2006 09:00 AM before Honorable Anna Diggs Taylor. (JCurr, ) (Entered: 03/28/2006)
14 MOTION for Leave to File Amici Curiae Brief of Business Leaders supporting Summary Judgment motion by all plaintiffs. (Attachments: # 1 Document Continuation Verification of Counsel)(Costello, Margaret) (Entered: 04/20/2006)
15 MOTION for Order by National Association For The Advancement of Colored People, American−Arab Anti−Discrimination Committee, Asian American Legal Defense, Education Fund, Japanese American Citizens League, The League of. (Attachments: # 1 Exhibit A − Memorandum of Law)(Green, Saul) (Entered: 04/20/2006)
16 ORDER granting 15 Motion for Order to Participate as Amici Curiae− Signed by Honorable Anna Diggs Taylor. (JCurr, ) (Entered: 04/26/2006)
17 ORDER granting 14 MOTION for Leave to File Amici Curiae Brief of Business Leaders supporting Summary Judgment motion − Signed by Honorable Anna Diggs Taylor. (JCurr, ) (Entered: 04/27/2006)
18 NOTICE of Appearance by Larry J. Saylor on behalf of The Association of the Bar of the City of New York. (Saylor, Larry) (Entered: 04/28/2006)
19 MOTION for Leave to File Amicus Curiae Memorandum of Law in Support of Plaintiffs' Motion for Partial Summary Judgment by The Association of the Bar of the City of New York. (Attachments: # 1 Index of Exhibits # 2 Exhibit A − Memorandum of Law of Amicus Curiae The Association of the Bar of the City of New York in Support of Plaintiffs' Motion for Partial Summary Judgment)(Saylor, Larry) (Entered: 04/28/2006)
20 ORDER granting 19 Motion for Leave to File Amici Curiae Brief in Support of Plaintiffs' Motion for Summary Judgment, filed by the Association of the Bar of the City of New York− Signed by Honorable Anna Diggs Taylor. (JCurr, ) (Entered: 05/04/2006)
21 Amicus Curiae BRIEF by The Association of the Bar of the City of New York.(Saylor, Larry) (Entered: 05/05/2006)
22 RESPONSE to 4 MOTION for Partial Summary Judgment filed by National Association For The Advancement of Colored People, American−Arab Anti−Discrimination Committee, Asian American Legal Defense, Education Fund, Japanese American Citizens League, The League of. (Green, Saul) (Entered: 05/08/2006)
23 MOTION for Leave to File Unopposed Motion of Certain Members of Congress as Amici Curiae for Leave to File Memorandum of Law in Support of Plaintiffs' Motion for Partial Summary Judgment by Certain Members of Congress. (Davis, Hugh) (Entered: 05/10/2006)
24 MOTION for Leave to File Amici's Motion for Leave to Exceed Page Limit by Certain Members of Congress. (Davis, Hugh) (Entered: 05/10/2006)

Case: 2:06-cv-10204 As of: 09/16/2014 12:30 AM EDT 9 of 14

05/10/2006 05/10/2006
05/11/2006 05/11/2006 05/11/2006 05/16/2006 05/17/2006 05/17/2006 05/18/2006
05/26/2006 05/26/2006 05/26/2006 05/27/2006 05/27/2006 05/27/2006 05/30/2006

25 SUPPLEMENTAL BRIEF re 4 MOTION for Partial Summary Judgment Memorandum of Law of Certain Members of Congress in Support of Plaintiffs' Motion for Partial Summary Judgment filed by Certain Members of Congress. (Davis, Hugh) (Entered: 05/10/2006)
26 CERTIFICATE OF SERVICE by Certain Members of Congress re 24 MOTION for Leave to File Amici's Motion for Leave to Exceed Page Limit, 23 MOTION for Leave to File Unopposed Motion of Certain Members of Congress as Amici Curiae for Leave to File Memorandum of Law in Support of Plaintiffs' Motion for Partial Summary Judgment, 25 Supplemental Brief.(Davis, Hugh) (Entered: 05/10/2006)
27 ORDER granting 23 Motion for Leave to File Amici Curiae Brief in Support of Plaintiffs' Motion for Partial Summary Judgment, filed by Certain Members of Congress− Signed by Honorable Anna Diggs Taylor. (JCurr, ) (Entered: 05/11/2006)
28 NOTICE of Appearance by Saul A. Green on behalf of National Association For The Advancement of Colored People, American−Arab Anti−Discrimination Committee, Asian American Legal Defense, Education Fund, Japanese American Citizens League, The League of. (Green, Saul) (Entered: 05/11/2006)
29 ORDER granting 24 Amici's Motion for Leave to Exceed Page Limit filed by Certain Members of Congress− Signed by Honorable Anna Diggs Taylor. (JCurr, ) (Entered: 05/11/2006)
30 Second MOTION for Extension of Time to File Answer re 1 Complaint, Second MOTION for Extension of Time to File Response/Reply as to 4 MOTION for Partial Summary Judgment by all defendants. (Tannenbaum, Andrew) (Entered: 05/16/2006)
31 ORDER Granting Defendants' 30 Second Motion for Extension of Time to Respond re 1 Complaint and 4 Motion for Partial Summary Judgment. Responses due by 5/26/2006. Replies due by 6/2/2006.− Signed by Honorable Anna Diggs Taylor. (JCurr, ) (Entered: 05/17/2006)
32 MOTION for Reconsideration of Order Granting Defendants' Second Request for Extension of Time by all plaintiffs. (Jaffer, Jameel) (Entered: 05/17/2006)
33 Order Denying 32 Plaintiffs' Motion For Partial Reconsideration Of 31 Order Granting Defendants' Second Request For Extension Of Time And Granting Plaintiffs' Request For Extension Of Time To File Reply re 1 Complaint and 4 Plaintiffs' Motion for Partial Summary Judgment. Replies due by 6/5/2006 − Signed by Honorable Anna Diggs Taylor. (JCurr, ) (Entered: 05/18/2006)
34 MOTION to Dismiss or, in the Alternative, for Summary Judgment by all defendants. (Tannenbaum, Andrew) (Entered: 05/26/2006)
35 MOTION to Stay Consideration of Plaintiffs' Motion for Partial Summary Judgment by all defendants. (Tannenbaum, Andrew) (Entered: 05/26/2006)
36 NOTICE by National Security Agency/Central Security Service, Keith B. Alexander of Lodging of In Camera, Ex Parte Material (Tannenbaum, Andrew) (Entered: 05/27/2006)
37 DECLARATION by John D. Negroponte, Director of National Intelligence re 34 MOTION to Dismiss or, in the Alternative, for Summary Judgment filed by National Security Agency/Central Security Service, Keith B. Alexander.(Tannenbaum, Andrew) (Entered: 05/27/2006)
38 DECLARATION by Major General Richard J. Quirk, Signals Intelligence Director, National Security Agency filed by National Security Agency/Central Security Service, Keith B. Alexander.(Tannenbaum, Andrew) (Entered: 05/27/2006)
39 MOTION for Leave to File Excess Pages by all defendants. (Tannenbaum, Andrew) (Entered: 05/27/2006)
40 MOTION for Leave to File Excess Pages by Washington Legal Foundation. (Samp, Richard) (Entered: 05/30/2006)

Case: 2:06-cv-10204 As of: 09/16/2014 12:30 AM EDT 10 of 14

05/30/2006 05/30/2006 05/30/2006 05/31/2006 05/31/2006
06/02/2006
06/05/2006 06/05/2006
06/06/2006 06/06/2006 06/06/2006
06/06/2006 06/07/2006
06/08/2006 06/12/2006
06/15/2006 06/16/2006

41 ATTORNEY APPEARANCE: Richard A. Samp appearing on behalf of Washington Legal Foundation.(Samp, Richard) (Entered: 05/30/2006)
42 MOTION for Leave to File by Washington Legal Foundation. (Samp, Richard) (Entered: 05/30/2006)
43 Amicus Curiae BRIEF by Washington Legal Foundation.(Samp, Richard) (Entered: 05/30/2006)
44 ORDER denying 35 Motion to Stay− Signed by Honorable Anna Diggs Taylor. (See image for important dates) (KDoa, ) (Entered: 05/31/2006)
Set/Reset Deadlines as to 34 MOTION to Dismiss or, in the Alternative, for Summary Judgment pursuant to order entered on May 31, 2006. Responses due by 6/20/2006. Replies due by 6/27/2006. Motion Hearing set for 7/10/2006 09:00 AM before Honorable Anna Diggs Taylor. (KDoa, ) (Entered: 05/31/2006)
45 [FILING ERROR: PLEADING IS A MOTION FOR CLARIFICATION] NOTICE by National Security Agency/Central Security Service, Keith B. Alexander of Defendants' Motion for Clarification of the Court's Order of May 31, 2006 (Tannenbaum, Andrew) Modified on 6/6/2006 (NHoll, ). (Entered: 06/02/2006)
46 MOTION for Leave to File Excess Pages by all plaintiffs. (Beeson, Ann) (Entered: 06/05/2006)
47 REPLY to Response re 34 MOTION to Dismiss or, in the Alternative, for Summary Judgment filed by all plaintiffs. (Attachments: # 1 Index of Exhibits # 2 Exhibit Exhibit M− Leonard Niehoff Declaration# 3 Exhibit Exhibit N− Barnett Rubin Declaration# 4 Exhibit Exhibit O− Nazih Hassan Declaration# 5 Exhibit Exhibit P− Joshua Dratel Declaration# 6 Exhibit Exhibit Q− Mohammed Abdrabboh Declaration# 7 Exhibit Exhibit R− Nabih Ayad Declaration)(Beeson, Ann) (Entered: 06/05/2006)
48 RESPONSE to 45 Notice (Other) Defendants' Motion for Clarification of the Court's Order of May 31, 2006 by all plaintiffs. (Beeson, Ann) (Entered: 06/06/2006)
49 ORDER granting 40 Washington Legal Foundation's Motion for Leave to File Excess Pages− Signed by Honorable Anna Diggs Taylor. (JCurr, ) (Entered: 06/06/2006)
50 ORDER granting 42 Washington Legal Foundation's Motion for Leave to File Amicus Curiae Memorandum in Opposition to 4 Plaintiffs' Motion for Partial Summary Judgment − Signed by Honorable Anna Diggs Taylor. (JCurr, ) (Entered: 06/06/2006)
51 ORDER GRANTING PLAINTIFFS' MOTION TO FILE OVERSIZED REPLY BRIEF− Signed by Honorable Anna Diggs Taylor. (JCurr, ) (Entered: 06/06/2006)
52 REPLY to 48 Response (Free) re Defendants' Motion for Clarification by all defendants. (Attachments: # 1 Exhibit A (June 6, 2006 Order in Hepting v. ATTCorp., No. 06−672 (N.D. Cal.)))(Tannenbaum, Andrew) (Entered: 06/07/2006)
53 ORDER GRANTING 39 DEFENDANTS' MOTION TO EXCEED PAGE LIMIT − Signed by Honorable Anna Diggs Taylor. (JCurr, ) (Entered: 06/08/2006)
Minute Entry −Motion Hearing held on 6/12/2006 re 4 Plaintiffs' MOTION for Partial Summary Judgment before Honorable Anna Diggs Taylor. Disposition: TAKEN UNDER ADVISEMENT(Court Reporter Andrea Wabeke) (JCurr, ) (Entered: 06/12/2006)
54 MOTION for Leave to File Excess Pages by all plaintiffs. (Beeson, Ann) (Entered: 06/15/2006)
55 ORDER GRANTING PLAINTIFFS' 54 MOTION TO FILE OVERSIZED BRIEF− Signed by Honorable Anna Diggs Taylor. (JCurr, ) (Entered: 06/16/2006)

Case: 2:06-cv-10204 As of: 09/16/2014 12:30 AM EDT 11 of 14

06/20/2006 06/23/2006 06/26/2006
06/26/2006
06/27/2006 06/27/2006 06/27/2006 06/27/2006 06/29/2006 06/30/2006 06/30/2006 06/30/2006 07/05/2006
07/07/2006 07/10/2006
08/16/2006

56 RESPONSE to 34 MOTION to Dismiss or, in the Alternative, for Summary Judgment filed by all plaintiffs. (Beeson, Ann) (Entered: 06/20/2006)
57 MOTION for Extension of Time to File Response/Reply as to 34 MOTION to Dismiss or, in the Alternative, for Summary Judgment by all defendants. (Tannenbaum, Andrew) (Entered: 06/23/2006)
58 ORDER GRANTING DEFENDANTS' MOTION FOR AN EXTENSION OF TIME to File Response as to 34 MOTION to Dismiss or, in the Alternative, for Summary Judgment. Responses due by 6/30/2006. Signed by Honorable Anna Diggs Taylor. (JCurr, ) (Entered: 06/26/2006)
59 [FILING ERROR − R18 EXHIBITS; NO INDEX, LABELING] NOTICE by National Security Agency/Central Security Service, Keith B. Alexander of Motion to Transfer to the Joint Panel on Multidistrict Litigation (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Tannenbaum, Andrew) Modified on 6/27/2006 (SMar, ). (Entered: 06/26/2006)
60 INDEX of Exhibits re 59 Notice (Other), Notice (Other) by National Security Agency/Central Security Service, Keith B. Alexander.(Tannenbaum, Andrew) (Entered: 06/27/2006)
61 MOTION for Leave to File Brief Amici Curiae by Louis Fisher and William G. Weaver. (Attachments: # 1 Index of Exhibits # 2 Exhibit Brief amici curiae)(Nickelhoff, Andrew) (Entered: 06/27/2006)
62 Ex Parte MOTION for Leave to File Excess Pages by Louis Fisher and William G. Weaver. (Nickelhoff, Andrew) (Entered: 06/27/2006)
63 RESPONSE to 61 MOTION for Leave to File Brief Amici Curiae filed by National Security Agency/Central Security Service, Keith B. Alexander. (Tannenbaum, Andrew) (Entered: 06/27/2006)
64 ORDER DENYING 61 MOTION OF LOUIS FISHER AND WILLIAM G. WEAVER FOR LEAVE TO FILE BRIEF AMICI CURIAE− Signed by Honorable Anna Diggs Taylor. (JCurr, ) (Entered: 06/29/2006)
65 REPLY to Response re 34 MOTION to Dismiss or, in the Alternative, for Summary Judgment filed by National Security Agency/Central Security Service, Keith B. Alexander. (Coppolino, Anthony) (Entered: 06/30/2006)
66 MOTION for Leave to File Excess Pages for Reply Brief in Support of Motion to Dismiss or for Summary Judgment by National Security Agency/Central Security Service, Keith B. Alexander. (Coppolino, Anthony) (Entered: 06/30/2006)
67 NOTICE by National Security Agency/Central Security Service, Keith B. Alexander of Lodging In Camera, Ex Parte Reply Brief (Coppolino, Anthony) (Entered: 06/30/2006)
TEXT−ONLY ORDER GRANTING re 66 MOTION for Leave to File Excess Pages for Reply Brief in Support of Motion to Dismiss or for Summary Judgment filed by National Security Agency/Central Security Service, Keith B. Alexander. Entered by Honorable Anna Diggs Taylor. (JCurr, ) (Entered: 07/05/2006)
68 TRANSCRIPT of Proceedings held on 6/12/2006 of Motion for Partial Summary Judgment. (SMar, ) (Additional attachment(s) added on 10/30/2008: # 1 Document Continuation) (DTyl). (Entered: 07/10/2006)
Minute Entry −Motion Hearing held on 7/10/2006 re 34 Defendants' MOTION to Dismiss or, in the Alternative, for Summary Judgment before Honorable Anna Diggs Taylor. Disposition: TAKEN UNDER ADVISEMENT(Court Reporter Carol Sapala) (JCurr, ) (Entered: 07/10/2006)
69 NOTICE by National Security Agency/Central Security Service, Keith B. Alexander of Decision by the Judicial Panel on Multidistrict Litigation (Attachments: # 1 Order of the Judicial Panel on Multidistrict Litigation (Aug. 9, 2006))(Tannenbaum, Andrew) (Entered: 08/16/2006)

Case: 2:06-cv-10204 As of: 09/16/2014 12:30 AM EDT 12 of 14

08/17/2006 08/17/2006 08/17/2006 08/17/2006
08/18/2006 08/18/2006
08/21/2006
08/24/2006 08/28/2006 08/29/2006 08/31/2006 08/31/2006 09/01/2006 09/01/2006 09/08/2006
09/15/2006

70 MEMORANDUM OPINION − Signed by Honorable Anna Diggs Taylor. (JCurr, ) (Entered: 08/17/2006)
71 JUDGMENT AND PERMANENT INJUNCTION ORDER − Signed by Honorable Anna Diggs Taylor. (JCurr, ) (Entered: 08/17/2006)
72 NOTICE OF APPEAL by National Security Agency/Central Security Service, Keith B. Alexander re 71 Permanent Injunction, 70 Memorandum Opinion &Order. Fee Status: No Fee Paid. (Tannenbaum, Andrew) (Entered: 08/17/2006)
73 [FILING ERROR − RULE 11 AND RULE 9] STIPULATION (Joint Stipulation and Proposed Stipulated Order Regarding Stay of Court's August 17, 2006 Ruling Pending Decision on Defendants' Motion to Stay Pending Appeal) by National Security Agency/Central Security Service, Keith B. Alexander.(Tannenbaum, Andrew) Modified on 8/18/2006 (CGre, ). (Entered: 08/17/2006)
74 Certificate of Service re 72 Notice of Appeal. (BSoc, ) (Entered: 08/18/2006)
75 STIPULATED ORDER STAYING CASE re 73 Stipulation, Defendants' Motion for Stay Pending Appeal due by 8/23/2006. Responses due by 8/29/2006. Replies due by 9/5/2006. Motion Hearing set for 9/7/2006 01:00 PM before Honorable Anna Diggs Taylor. Signed by Honorable Anna Diggs Taylor. (JCurr, ) (Entered: 08/18/2006)
TEXT−ONLY ORDER RE−NOTICE OF HEARING AND BRIEFING SCHEDULE: Defendants' Motion to Stay Pending Appeal is due by 9/1/2006. Responses due by 9/15/2006. Replies due by 9/22/2006. Motion Hearing set for 9/28/2006 11:00 AM before Honorable Anna Diggs Taylor. Entered by Honorable Anna Diggs Taylor. (JCurr, ) (Entered: 08/21/2006)
76 NOTICE of Appeal by American Civil Liberties Union Foundation of Appeal (Goodman, Melissa) Modified on 8/31/2006 (BSoc, ). (Entered: 08/24/2006)
77 TRANSCRIPT of Proceedings held on 6/12/06 of Motion Hearing (BSoc, ) (Additional attachment(s) added on 10/30/2008: # 1 Document Continuation) (DTyl). (Entered: 08/29/2006)
78 Appeal Fee received for 76 Notice of Appeal filed by American Civil Liberties Union Foundation, in the amount of $455.00 − Receipt No. 547348. (BSoc, ) (Entered: 08/31/2006)
79 Certificate of Service re 76 Notice of Appeal. (BSoc, ) (Entered: 08/31/2006)
80 NOTICE by National Security Agency/Central Security Service, Keith B. Alexander Notice of Filing Form re Transcript (Coppolino, Anthony) (Entered: 08/31/2006)
81 MOTION to Stay Defendants' Motion for a Stay Pending Appeal by National Security Agency/Central Security Service, Keith B. Alexander. (Attachments: # 1 Defendants' Memorandum in Support of Stay Pending Appeal)(Coppolino, Anthony) (Entered: 09/01/2006)
82 NOTICE by National Security Agency/Central Security Service, Keith B. Alexander Notice of Lodging of In Camera, Ex Parte Material In Support of Defendants' Motion for a Stay Pending Appeal (Coppolino, Anthony) (Entered: 09/01/2006)
83 TRANSCRIPT Order Form by American Civil Liberties Union of Michigan, Council on American−Islamic Relations, Council on American−Islamic Relations Michigan, Greenpeace, Incorporated, American Civil Liberties Union, National Association of Criminal Defense Lawyers, James Bamford, Larry Diamond, Christopher Hitchens, Tara McKelvey, Barnett R. Rubin, American Civil Liberties Union Foundation re 76 Notice of Appeal. (Beeson, Ann) (Entered: 09/08/2006)
84 [FILING ERROR: DOCUMENT PERTAINS TO PLAINTIFF'S ONLY]RESPONSE to 81 MOTION to Stay Defendants' Motion for a Stay Pending Appeal filed by National Association For The Advancement of Colored People, American−Arab Anti−Discrimination Committee, Asian American Legal Defense, Education Fund, Japanese American Citizens League, The League of,

Case: 2:06-cv-10204 As of: 09/16/2014 12:30 AM EDT 13 of 14

09/22/2006 09/22/2006 09/25/2006
09/28/2006
09/29/2006 09/29/2006 10/02/2006 10/17/2006 11/08/2006
11/27/2006 01/16/2007 07/06/2007 07/09/2007

American Civil Liberties Union of Michigan, Council on American−Islamic Relations, Council on American−Islamic Relations Michigan, Greenpeace, Incorporated, American Civil Liberties Union, National Association of Criminal Defense Lawyers, James Bamford, Larry Diamond, Christopher Hitchens, Tara McKelvey, Barnett R. Rubin, American Civil Liberties Union Foundation. (Beeson, Ann) Modified on 9/18/2006 (KClark, ). (Entered: 09/15/2006)
85 MOTION for Leave to File Excess Pages Unopposed Motion for Enlargement of Pages for Defendants' Reply in Support of a Stay Pending Appeal by National Security Agency/Central Security Service, Keith B. Alexander. (Coppolino, Anthony) (Entered: 09/22/2006)
86 REPLY to Response re 81 MOTION to Stay Defendants' Motion for a Stay Pending Appeal Defendants' Reply in Support of a Stay Pending Appeal filed by National Security Agency/Central Security Service, Keith B. Alexander. (Coppolino, Anthony) (Entered: 09/22/2006)
TEXT−ONLY ORDER GRANTING re 85 MOTION for Leave to File Excess Pages Unopposed Motion for Enlargement of Pages for Defendants' Reply in Support of a Stay Pending Appeal filed by National Security Agency/Central Security Service, Keith B. Alexander. Entered by Honorable Anna Diggs Taylor. (JCurr, ) (Entered: 09/25/2006)
Minute Entry −Motion Hearing held on 9/28/2006 re 81 Defendants' Motion for a Stay Pending Appeal before Honorable Anna Diggs Taylor. Disposition: GRANTED IN PART AND DENIED IN PART. Motion Granted to extent Temporary Stay is actually granted, but limited to 7 days to allow Defendants opportunity to file with Court of Appeals, however, motion DENIED to extent Defendants wanted Stay until decision rendered by Court of Appeals. Order to be presented by noon 9/29/2006 − to be signed by Judge Steeh.(Court Reporter Leann Lizza) (JCurr, ) (Entered: 09/28/2006)
87 ORDER granting in part and denying in part 81 Motion to Stay. Stay extended through 10/5/06.− Signed by Honorable George Caram Steeh for Honorable Anna Diggs Taylor (MBea, ) (Entered: 09/29/2006)
88 TRANSCRIPT of Proceedings held on 9/28/06 regarding Motion for Stay Pending Appeal. (BSoc, ) (DTyl). (Entered: 10/02/2006)
89 TRANSCRIPT of Proceedings held on 9/28/06 of Motion for Stay Pending Appeal (BSoc, ) (DTyl). (Entered: 10/03/2006)
90 (Not Certified) ORDER from USCA re: Motion for extension of time by Verizon Communications to file an amicus curiae brief is hereby granted. [Appeal Case Number 06−2095, 06−2140] (CGre, ) (Entered: 10/18/2006)
91 (Not Certified) ORDER from USCA re 72 Notice of Appeal filed by National Security Agency/Central Security Service, Keith B. Alexander, 76 Notice of Appeal filed by American Civil Liberties Union Foundation. Motion to set a 11/17/06 deadline for the filing of Amicus Curiae Briefs is hereby Granted. [Appeal Case Number 06−2095, 062140]. (CGre, ) (Entered: 11/08/2006)
92 (Not Certified) ORDER from USCA granting the Education and Research Institute's motion for an extension of time to file an amicus brief in [Appeal Case Number 06−2095, 06−2140]; brief due 12/18/06. (BSoc, ) (Entered: 11/29/2006)
93 TRANSCRIPT of Proceedings held on 7/10/2006 of Motion to Dismiss. (BSoc, ) (Entered: 01/17/2007)
94 ORDER from USCA re 72 Notice of Appeal filed by National Security Agency/Central Security Service, Keith B. Alexander Denying request to unseal classified documents [Appeal Case Number 06−2095/06−2140] (BSoc) (Entered: 07/11/2007)
95 APPEAL JUDGMENT from USCA as to 76 Notice of Appeal filed by American Civil Liberties Union Foundation, 72 Notice of Appeal filed by National Security Agency/Central Security Service, Keith B. Alexander [Appeal Case Number 06−2095; 06−2140] (BSoc) (Entered: 07/12/2007)

Case: 2:06-cv-10204 As of: 09/16/2014 12:30 AM EDT 14 of 14

07/16/2007 07/20/2007 09/04/2007
10/29/2007 11/28/2007 03/03/2008

96 Notice of Failure to Comply with ECF Policies and Procedures as to attorney Ann Beeson − for the dates of 07/11/07 and 07/12/07. (DHam) Modified on 7/16/2007 (Hamel, D.). (Entered: 07/16/2007)
97 NOTICE of Withdrawal of Attorney Ann Beeson by American Civil Liberties Union of Michigan, American Civil Liberties Union, American Civil Liberties Union Foundation. (Jaffer, Jameel) (Entered: 07/20/2007)
98 MANDATE from USCA as to 76 Notice of Appeal filed by American Civil Liberties Union Foundation, 72 Notice of Appeal filed by National Security Agency/Central Security Service, Keith B. Alexander [Appeal Case Number 06−2140/06−2095]. (CGre) (Entered: 09/05/2007)
99 LETTER from Supreme Court − Petition for a writ of certiorari was filed on 10/3/07 and placed on the docket 10/9/07. [Appeal Case Number 07−468]. (CGre) (Entered: 10/31/2007)
100 ORDER DISMISSING CASE FOR LACK OF JURISDICTION. Signed by Honorable Anna Diggs Taylor. (JCur) (Entered: 11/28/2007)
101 LETTER from U.S. Supreme Court re 72 Notice of Appeal filed by National Security Agency/Central Security Service, Keith B. Alexander − Petition for a writ of certiorari is denied. [Appeal Case Number 07−468]. (CGre) (Entered: 03/04/2008)

 
 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206
File Name: 07a0253p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

AMERICAN CIVIL LIBERTIES UNION, et al.,

X

Plaintiffs-Appellees/ -

Cross-Appellants,

-

v.

-,>

-

NATIONAL SECURITY AGENCY, et al.,

-

Defendants-Appellants/ -

Cross-Appellees. -

N

Nos. 06-2095/2140

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 06-10204—Anna Diggs Taylor, District Judge.

Argued: January 31, 2007

Decided and Filed: July 6, 2007

Before: BATCHELDER, GILMAN, and GIBBONS, Circuit Judges.

_________________

COUNSEL

ARGUED: Gregory G. Garre, UNITED STATES DEPARTMENT OF JUSTICE, Wa shington, D.C., for Appellants. Ann Beeson, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New
York, New York, for Appellees. ON BRIEF: Gregory G. Garre, Thomas M. Bondy, Douglas N. Letter, Anthony A. Yang, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Ann Beeson, Jam eel Jaffer, Melissa Goodm an, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Michael J. Steniberg, Kary L. Moss, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Dteroit, Michigan, Randal L. Gainer, DAVIS WRIGHT TREMAINE LLP, Sea ttle, Washington, for Appellees. Andrew G. McBride, W ILEY REIN LLP, W ashington, D.C., Paul D. Kam enar, W ASHINGTON LEGAL FOUNDAT ION, Washington, D.C., Paul J. Orfanedes, Mered ith L. DiLiberto, JUDICIAL W ATCH, INC., Washington, D.C., John C. Eastman, CHAPMAN UNIVERSITY SCHOOL OF LAW , Orange, California, Jay A. Sekulow, AMERICAN CENTER FOR LAWAND JUSTICE, Washington, D.C., Larry J. Saylor, Saul A. Green, MILLER, CANFIELD, PADDOCK & STONE, Detroit, Michigan, ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, Donald B. Verrilli Jr., JENNER & BLOCK, W ashington, D.C., Kathleen M. Sullivan, STANFORD LAW SCHOOL, Stanford, California, Lucy A. Dalglish, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, Arlington, Virginia, Richard M. Corn, New York, New York, for Amici Curiae.

BATCHELDER, J., delivered the judgm ent of the c ourt. GI BBONS, J. (pp. 36-40), delivered a separate opinion concurring in the judgment only. GILMAN, J. (pp. 41-64), delivered a separate dissenting opinion.

1

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 2

_________________

OPINION _________________

ALICE M. BATCHELDER, Ci rcuit Judge. The United States National Security Agency (“NSA”) appeals from the decision of the District Court for the Eastern District of Michigan that granted summary judgment against the NSA and imposed a permanent injunction. The plaintiffs are a collection of associations and individualsled by the American Civil Liberties Union, and they cross-appeal. Because we cannot find that any of tehplaintiffs have standingfor any of their claims, we must vacate the district court’s order and remand for dismissal of the entire action.

I.

Sometime after the September 11, 2001, terrorist attacks, President Bush authorized the NSA

to begin a counter-terrorism operation that has com e to be known as t he Terrorist Surveillance

Program (“TSP”). Although the specifics remain undisclosed, it has been publicly acknowledged

that the TSP includes the interception (i.e., wiretapping), without warrants, of telephone and email

communications where one party to the communication is located outside the United States and the

NSA has “a reasonable basis to conclude that one party to the com munication is a m ember of al

Qaeda, affiliated with al Qaeda, ora member of an organization affiliated with al Qaeda, or working

in support of al Q aeda.” See Press Briefing by Att’y Gen. Alberto Gonzales and Gen. Michael

Hayden, Principal D eputy Dir. for Nat’l Intelligence (D ec. 19, 2005), available whitehouse.gov/news/releases/2005/12/print/20051219-1.html (last visited July 2,

a2t0h0t7t)p.:1//www.

1 In Hepting v. AT&T Corp., the District Court for the Northern Disritct of California collected and documented certain publicly available information, which provides some background and context for the present case:
“The New York Timesdisclosed the [TSP] on December 16, 2005. (James Risen and Eric Lichthlau,Bush Lets U.S. Spy on Callers Without Courts , The New York Tim es (Dec 16, 2005)). The follo wing day, President George W Bush confirmed the existence of a ‘terrorist surveillance program’ in his weekly radio address:
‘In the weeks following the [Septem ber 11, 2001] terrorist attacks on our Nation, I authorized the National Security Agency, consistent with U.S. lawand theConstitution, to intercept the international communications of people with known links to Al Qaeda and related terrorist organizations. Before we intercept these communications, the Government must have information that establishes a clear link to these terrorist networks.’
“[Transcript] available at http://www.whitehouse.gov/news/releases/2005/12/print/20051217.html (last visited July 19, 2006). The President also described the mechanism by which the program is authorized and reviewed:
‘The activities I au thorized are reviewed approximately every 45 days. Each review is based on a fresh intelligence assessment of terrorist threats to the continuity of our Government and the threat of catastrophic dam age to our hom eland. During each asses sment, previous activities under the authorization are reviewed. The review incl udes approval by our Nation’s top legal officials, including the Attorney General and the Counsel to th e President. I have reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for as long as our Nation faces a continuing threat from Al Qaeda and related groups.
‘The NSA’s activities under this authorizationare throughly reviewed by the Justice Department and NSA’s top legal officials, inclu ding NSA’s Genera l Counsel and Inspector General. Leaders in Congress have been briefed more than a dozen times on this authorization and the activitiesconducted under it. Intelligence officials involved in this activity also receive extensive training toensure they perform their duties consistent with the letter and intent of the authorization.’
“Id.
“Attorney General Alberto Gonzales subsequently confirmed that this program intercepts ‘contents of communications where . . . one party to the communication is outside the United States’ and the government has ‘a reasonable basis to conclude that one party to the com munication is a m ember of al Qaeda, affiliat ed with al Qaeda, or a m ember of an organization affiliated with al Qaeda, or working in support of al Qaeda.’ [Press Briefing] available at http://www.

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 3

The plaintiffs in this action include journalists, academ ics, and lawyers who regularly communicate with individuals located overseas, who the plaintiffs believe are the types of people the NSA suspects of being al Qaeda terrorists, affiliates, or supporters, and are therefore likely to be monitored under the TSP. From this suspicion, and the limited factual foundation in this case, the plaintiffs allege that they have a “well founded be lief” that their com munications are being tapped. According to the plaintif fs, the NSA’ s operation of the TSP — and the possibility of warrantless surveillance — subjects them to conditions that constitute an irreparable harm.

The plaintiffs filed suit in the Eastern District of Michigan, seeking a permanent injunction against the NSA’s continuation of the TSP and a declaration that two particular aspects of the TSP — warrantless wiretapping and data m ining — viol ate t he Fi rst and Fourth Am endments, the Separation of Powers Doctrine, the Adm inistrative Procedures Act (“APA”), Title III of the Omnibus Crime Control and Safe Streets Act (“Title III”), and the Foreign Intelligence Surveillance Act (“FISA”). B oth sides m oved for summary judgment. T he district court dism issed the data mining aspect of the plaintiffs’ claim , but gr anted judgm ent to the plaintiffs regarding the warrantless wiretapping. See ACLU v. NSA, 438 F. Supp. 2d 754, 782 (E.D. Mich. 2006).

The NSA had invoked the State Secrets Doctrine 2 t o bar the discovery or adm ission of

evidence that would “expose [confidential] matters which, in the interest of national security, should

not be divulged.” See United States v. Reynolds , 345 U.S. 1, 10 (1953). The NSA argued that,

without the privileged inf ormation, none of the na med plaintiffs could establish standing. The

district court applied the state secrets privilege, but rejected the NSA’s argument, holding instead

that three publicly acknowledged facts about the TSP — (1) it eavesdrops, (2) without warrants,

(3) on international suspected al Qaeda

telephone and em ail communications affiliate — were sufficient to establish

isntawndhiinchg.3at

least one of the parties is a Moreover, the district court

whitehouse.gov/news/releases/2005/12/print/20051219-1.html (last visited July 19, 2005). The Attorney Generalalso

noted, ‘This [program] is not about wiretapping everyone. This is a very concentrated, very limited program focused

at gaining information about our enemy.’ Id. at 5. The President has also made a public statement, of which the court

takes judicial notice, that the government’s ‘international activities strictly target al Qaeda and their known affiliates,’

‘the government does not listen to domestic phone calls without court approval’ and the government is ‘not mining or

trolling through the personal lives of millions of innocent Americans.’ The White House, President BushDiscusses NSA

Surveillance Program (May 11, 2006), [

available at ] http://www.whitehouse.gov/n ews/releases/2006/05/

20060511-1.html (last visited July 19, 2005).”

Hepting v. AT&T Corp., 439 F. Supp. 2d 974, 986-87 (N.D. Cal. 2006) (certain citation forms altered).

2 The State Secrets Doctrine has two applications: a rule of evidentiary privilegsee,e United Statesv. Reynolds, 345 U.S. 1, 10 (1953), and a rule of non-justiciability, see Tenet v. Doe , 544 U.S. 1, 9 (2005). T he present case implicates only the rule of state secrets evidentiary privile ge. The rule of non-justiciability applies when the subject matter of the lawsuit is itself a state secret, so the claim cannot survive. See id. (espionage contract); Weinberger v. Catholic Action of Haw./Peace Educ. Project , 454 U.S. 139, 146-47 (1981) (s torage of nuclear weapons); Totten v. United States, 92 U.S. 105, 107 (1875) (espionage contract). If litigation would necessitate admission or disclosure of even the existence of the secret, then the case is non-justiciable and must be dismissed on the pleadings. Because the government has already acknowledged the existence of the warrantless wiretapping in this case, there is no risk ofsuch disclosure and the rule of non-justiciability does not appl y. The alleged data m ining, which has not been publicly acknowledged, might fall within this rule. But, under the present analysis, a decision on this matter is unnecessary.

3 The plaintiffs have not challenged on appeal either the invocation or the grant of the state secrets privilege and that issue is not before the court. At oral argument, Judge Gilman asked the plaintiffs’ counsel if the court should remand for further fact-finding in support of standing. Counsel asserted that the plaint iffs’ injuries were clear and undisputed in the record and there was no need to remand for a hearing or admission of additional evidence on this issue. To be sure, the parties dispute the implications of the privilege (i.e., whether the publicly available information about the TSP is sufficient to establish their claims), but it would not be appropriate to inquire, sua sponte, into the propriety of the NSA’s invocation of the privilege, the district court’s grant ofthe privilege, or the scope of the privilege granted.
The government provided the district court an opportunity to review certain, secret documents, in camera and under seal, as support for the invocation of the state secrets privilege. The government provided each member of this

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 4

found these three facts sufficient to grant summary judgment to the plaintiffs on the merits of their claims, resulting in a declaratory judgment and the imposition of an injunction. These three facts constitute all the evidence in the record relating to the NSA’s conduct under the TSP.

In deciding the merits, the district court constur ed the Fourth Amendment as an absolute rule that “requires prior warrants for any reasonable search,”ACLU v. NSA, 438 F. Supp. 2d at 775, and announced that “searches conducted without prior approval by a judge or m agistrate were per se unreasonable,” id. at 771. Having found that the NSA wasoperating without warrants, the district court concluded without further explanation that President Bush had “undisputedly violated the Fourth [Amendment] . . . and accordingly ha[d] violated the First Am endment Rights of these Plaintiffs as w ell.” Id. at 776. Proceeding from this conclusion, the court deem ed the TSP unconstitutional and issued an order enjoining its further operation entirely:

IT IS HEREBY ORDERED that Defendants [i.e., NSA], its agents, employees, representatives, and any other persons or entities in active concert or participation with Defendants, are permanently enjoined from directly or indirectly utilizing the Terrorist Surveillance Program (hereinaf ter ‘TSP’) in any way, including, but not lim ited to, conducting warrantless wiretaps of telephone a nd internet communications, in contravention of the Foreign Intelligence Surveillance Act (hereinafter ‘FISA’) and Title III;

IT IS FURTHER ORDERED AND DECLARED that the TSP violates the Separation of Powers doctrine, the Adm inistrative Procedures Act, the First and Fourth Amendments to the United States Constitution, the FISA and Title III[.]

ACLU v. NSA, E.D. Mich. Dist. Court, No. 2:06-CV-10204, “Judgment and Permanent Injunction

Order” (Aug. 17, 2006). The NSA m oved for a stay of the injunction pending appe al, which the

district court denied. Meanwhile, the NSA appealde, arguing that the plaintiffs lacked standing and

that the State Secrets pending the outcome

Doctrine prevented of this appeal. See

adjudicaotin on ACLU v. NSA,

4th6e7mFe.r3itds.59T0h,i5s 9c1ou(6rtthstCayire.d2t0h0e6i)n.4junction

panel with an opportunity to review those same documents, also in camera and under seal, in order to provide a complete district-court record on appeal. Finally, the government provided each member of this panel an opportunity to review, in camera and under seal, certain additional, privileged documents as support for the government’s contention that the appeal had been rendered m oot. See fn. 4, infra. At the behest of the governm ent, I reviewed these privileged documents, but their contents — being privileged — are excluded from our consideration and I have not relied on any of that information in this opinion. The state secrets privilgee granted by the district court has been maintained on appeal and this opinion is decided solely onthe publicly available information that was admitted by the district courtand made a part of its record.
4 On January 10, 2007, “a Judge of the Foreign Intelligence Surveillance Court issued orders authorizing the government to target for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization.” Letter from Att’y Gen. Alberto Gonzales to Chair. of the Com m. on the Judiciary Patrick Leahy (Jan. 17, 2 007), available at http://graphics8.nytim es.com/packages/pdf/politics/20060117gonzales_Letter.pdf (last visited July 2, 2007). According to a letter written by the Attorney General,“any electronic surveillance that was occurring as part of the [TSP] will now be conducted subjectto the approval of the Foreign Intelligence Surveillance Court.” Id. The NSA filed a submission with this court, discussing the implication of the intervening FISA Court order and contending that the case should be dismissed as moot. The plaintiffs filed a response, disputing any notion that this appeal had been rendered moot by the FISA Court order. Based on the analysis presented herein, it is unnecessary to reach the issue of intervening mootness. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180 (2000).

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 5

II.
This appeal presents a num ber of serious issues ,5 none of w hich can be addressed until a determination is made that these plaintiffs have standing to litigate them. See Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 101 (1998) (stating that th ere is no “doctrine of hypothetical jurisdiction”). “Every federal appellate court hasa special obligation to satisfy itself not only ofits own jurisdiction, but also that of the lower courts in a cause under review, even [if] the parties are prepared to concede it . . . . When the lower federal court lacks jurisdiction, we have jurisdiction on appeal, not of the merits but merely for the purpose of correcting the error of the lower court in entertaining the suit.” Id. at 95 (quotation marks, citations, and edits omitted).

Standing is an aspect of justiciability, Warth v. Selden, 422 U.S. 490, 498 (1975), and “a plaintiff must demonstrate standing for each claim he seeks to press,” DaimlerChrysler Corp. v. Cuno, 547 U.S. --, 126 S. Ct. 1854, 1867 (2006); accord Lac Vieux Desert Band of Lake Superior Chippewa Indians v. Mich. Gaming Control Bd,. 172 F.3d 397, 407 (6th Cir. 1999) (requiring proof of standing for each individual clami ). “[T]he standing inquiry requires careful judicial examination of a complaint’s allegations to ascertain whether theparticular plaintiff is entitled to an adjudication of the particular claims asserted.” Allen v. Wright, 468 U.S. 737, 752 (1984) (emphasis added).

The “particular plaintiffs” to this action area diverse group of associations and individuals,

and it would require a rigorous undertaking to assure that each has standing to litigate. However,

finojrupnucrtpioons6es—ofitthise

asser ted declaratory judgm ent only necessary that one plaintiff

— has

though not necessarily for standing. See Bowsher v.

the requested Synar, 478 U.S.

7pl1a4in, t7i2ff1h(a1d98st6a)n(ddiencgi)d.7ingThaecihnajlulnenctgieontointhtehicsocnassteituistiporneadliitcyatoefdaosntatthuetedebcelcaaruastoerayt

least one judgment (i.e.,

a determination that the NSA’s conduct is unlawful), soit follows that if the plaintiffs lack standing

to litigate their declaratory judgment claim, they must also lack standing to pursue an injunction.

The question is whether any plaintiff has standing to litigate the declaratory judgment claim.

As for the “particular claims,” the plaintiffs have asserted six separate claims or causes of

action — three three statutory

(cAoPnAsti,tTutiitolenaIIlI(,FainsrtdAFmISeAnd)m8e—nt,

Fourth Amendment, and t he plaintiffs m

and Separation of Powers) and ust establish that at least one

5 On the merits of this appeal, this court is presentde with a cascade of serious questions.Has the NSA violated the United States Constitution — the First Amendment, the Fourth Amendment, or the Separation of Powers Doctrine? Or, has the NSA violatedfederal statute — the APA, FISA, or Title III? If the NSA has violated a federal statute, isthat statute constitutional when applied to the NSA in this manner? If the NSA has violated eitherthe Constitution or a valid federal statute, is an injunction justified? And, if an injunction is justified, what is its proper scope? The district court answered all of the questions in the affirmative and imposed an injunction of the broadest possible scope.
6 “[A] plaintiff must demonstrate standing separately for each form of relief sought.” Laidlaw, 528 U.S. at 185 (citing City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983) (notwithstanding that the plaintiff had standing to pursue damages, he lacked standing to pursue injunctive relief)).
7 After argument on this appeal, the plaintiffs fileda citation to supplemental authority, urging usto rely on the Supreme Court’s recent decision in Massachusetts v. EPA, 549 U.S. -- , 127 S. Ct.1438, 1453 (2007) (“Only one of the petitioners needs to have standing topermit us to consider the petition for review.”). That case, howevero, ffers no direct legal support for the plaintiffs’ claimof standing because it involves a “petition for review,” a particular cause of action under 42 U.S.C. § 7607(b)(1), see id. at 1451 n.16, which has no applicability in the present case.
8 The plaintiffs, in the plain language of their complaint, actually assert only one statutory cause of action, predicated on the APA, 5 U.S.C. § 702(2000). They claim that the NSA violated the “substantive provisions” of FISA and Title III, and contend that this establishes standing for an APA cause of actioneven if they cannot establish standing to litigate a c ause of action under either FISA’s or Title III’s civil suit provisions (i.e., under the relevant statutes). Because the APA itself has no applicability in the present circumstances, see Section IV.B.1, the plaintiffs’ references

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 6

plaintiff has standing for each. See Bowsher, 478 U.S. at 721; Cuno, 126 S. Ct. at 1867. Because a cause of action is intertwined with an injury, the injuries being alleged m ust be described as precisely and unambiguously as possible. A particularized analysis is therefore necessary.

The conduct giving rise to the alleged injuries i s undisputed: the NSA (1) eavesdrops, (2) without warrants, (3) on international telephoneand email communications in which at least one of the parties is reasonably suspected of al Qaeda ties. The plaintiffs’ objection to this conduct is also undisputed, and they demand that the NSA discontinue it. The plaintiffs do not contend — nor could they — that the m ere practice of wiretapping (i.e., e avesdropping) is, by itself, unconstitutional, illegal, or even improper. Rather, the plaintiffs object to the NSA’s eavesdropping without warrants, specifical ly FISA warrants with their associated lim itations and m inimization requirements. See 50 U.S.C. §§ 1804-06. Accord ing to the plaintif fs, it is the absence of these warrants that renders the NSA’s conduct illegal and unconstitutional. But the plaintiffs do not — and because of the State Secrets Doctrine cannot — produce any evidence that a ny of their own communications have ever been intercepted by the NSA, under the TSP, or without warrants. Instead, they assert a mere belief, which they contend is reasonable and which they label a “well founded belief,” that: their overseas contacts are the types of people targeted by the NSA; the plaintiffs are consequently subjected to theNSA’s eavesdropping; the eavesdropping leads the NSA to discover (and possibly disclose) private or privileged inf ormation; and the m ere possibility of such discovery (or disclosure) has injured them in three particular ways.

Notably, the plaintiffs do not allege as injury that they personally, either as individuals or associations, anticipate or f ear any form of direct reprisal by the governm ent (e.g., the NSA, the Justice Department, the Departm ent of Hom eland Security, etc.), such as crim inal prosecution, deportation, administrative inquiry, civil litigation, oreven public exposure. The injuries that these plaintiffs allege are not so direct; they are more amorphous and necessitate a pointed description.

with

The plaintiffs’ primary alleged injury their overseas contacts by telephone or

e—matihl ediufresttooftthherierese—lf-igsotvheerinr iinngabeitlhitiycatloocbolmimgautnioicnast.e9

Under this claim, theimmediate injury results directlyfrom the plaintiffs’ own actions and decisions,

based on (1) their subjective belief that the NSA might be intercepting their communications, and

(2) t he ethical requirem ents governing such ci rcumstances, as dictated by their respective

professional organizations or affiliations. Relying on the district court’s three facts, the plaintiffs

allege their “well founded belief” that the NSA isintercepting their communications with overseas

contacts, to the perceived detriment of those overseascontacts. The plaintiffsexplain that they have

an ethical duty to keep their communications confidential, which, under the circumstances, requires

tvhioatlattheetyhraetfdrauitny.fr1o0mThcoempomsusinbiiclaittyintghawt ipthrivthaeteocvoemrseams ucnoinctaatcitosnbsymtealyepbheorneeveoarleemd bauilr,dleensst

they the

to FISA and Title III are construed liberally in this opinion, as assertions of independent causes of action under each, to consider whether the plaintiffs had standing to litigate their case despite the possible inartfulness of their pleading.
9 This injury, as alleged, actually appears to implicate the Fifth or Sixth Amendments, see, e.g., United States v. Robel, 389 U.S. 258, 270 (1967) (Brennan, J., concurring) (quoting Greene v. McElroy, 360 U.S. 474, 492 (1959)) (stating that “the right to hold specific private em ployment and to follow a chosen profession free from unreasonable governmental interference comes within the ‘liberty’ and ‘property’ concepts of the Fifth Am endment”); Sinclair v. Schriber, 916 F.2d 1109, 1112-13 (6th Cir. 199 0) (describing “a violation of the Sixth Am endment right to counsel ensuing from government surveillance”); Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144, 161-62 (D.D.C. 1976) (considering an alleged violation of the Sixth Amendment due to “electronic surveillance ofconversations between his attorney and a consultant”), but the plaintiffs have not asserted these causes of action.
10 Some plaintiffs appear to describe this injuryas an untenable choice, in which they must decide between their “professional duty” (i.e., completing the job) and complying with their ethical duties. Even accepting, arguendo, that these plaintiffs are bound by these duties, this description is incorrect. W hile these circum stances demand that the

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 7

plaintiffs’ pursuit of their chosenprofessions or organizational objectives — i.e., in order to comply with their ethical duties, the plaintiffs must refrain from communicating by telephone or email, and are instead required either to travel overseas to m eet with these contacts in person or else refrai n from communicating with them altogether. The injury manifests itself in both a quantifiable way (as the added time and expense of traveling overesas) and a non-quantifiable way (as the incomplete or substandard performance of their professional responsibilities and obligations). The plaintiffs alleged this injury in their complaint and again on appeal, even though it went unaddressed by the district court.

The second alleged injury — and the only one expressly addressed by the district court — is the “chilling effect” on the overseas contacts’ willingness to communicate with the plaintiffs by telephone or email. Under this claim, the immediate injury results directly from the actions of the overseas contacts who, the plaintiffs contend, fearthat the NSA’s discovery of otherwise private or privileged information (being communicated by telephone or email) will lead to some direct reprisal by the United States government, their own governments, or others. This fear causes the overseas contacts to refuse to com municate with the plaintiffs by telephone or em ail, and this refusal to communicate burdens the plaintiffs in the perform ance of their jobs or other lawful objectives, because, in order to pursue their chosen professionsor organizational objectives, the plaintiffs must travel overseas to meet with these contacts in person. This injury manifests itself as both an added expense and an added burden.

The plaintiffs’ third alleged injury is the NSA’s violation of their legitimate expectation of

privacy in their overseas telephone and em ail communications. Under this claim , the immediate

injury comes directly from the actions ofthe NSA. The plaintiffs assert that the Fourth Amendment,

Title III, and FISA limit the occasions and circumstances in which, and the manner by which, the

government can lawfully intercept overseas electronic communications, giving rise to a legitimate

expectation that their overseas communications will be intercepted only in accordance with these

limits. The plaintiffs conclude that, because the NSA has conducted foreign electronic surveillance

without obtaining FISA warrants (and presumably, without strict adherence to FISA’s minimization

requirements), the NSA has breached their legitimate expectation of privacy, thereby causing them

injury. The plaintiffs court did not mention

aitllaengdedthaeyvihoalavteionnoot fprthesesiredpriitvoancyapripgehatls.1i1n

their

complaint,

but

the

district

This third kind of injury, unlike the other two, is direct and personal; under this theory, the

NSA has directly invaded the plaintiffs’ interest and proof of such invasion is all that is necessary

to establish standing. If, for instance, a plainti ff could demonstrate that her privacy had actually

been breached (i.e., standing to assert a

that her communications Fourth Amendment cause

had actually of action for

bbereeancwh iorfetparpivpaecdy),1.2theInn

she would the present

have case,

the plaintiffs concede that there is no single plaintiff who can show that he or she has actually been

wiretapped. Moreover, due to the State Secrets Docrtine, the proof needed either to make or negate

plaintiffs comply with both obligations, this dual compliance is “tenable”; compliance with both obligationswill simply be more costly, time consuming, and burdensome. The oblig ations are not conflicting or m utually exclusive. The choice is actually between paying the cost ofthis dual compliance or not completing the job, and therefore, the “injury” is the added cost of completing the job, in compliance with the ethical duties, under the present circumstances.
11 At oralargument, the plaintiffs’ counsel conceded that it would be unprecedented for a court to find standing for a person to litigate a Fourth Amendment cause of action without any evidence that the defendant(i.e., government) had actually subjected that particular person to an illegalsearch or seizure. The plaintiffs’ briefs are notto the contrary.
12 As will be discussed in Section IV.A.1, however, she could not — under this scenario — establish standing to litigate a First Amendment cause of action. See Laird v. Tatum, 408 U.S. 1, 10 (1972) (holding that standing is not satisfied “by a complainant who alleges that the exercise of his First Am endment rights is being chilled by the m ere existence, without more, of a governmental investigative and data-gathering activity”).

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 8

such a showing is privileged, and thereforewithheld from discovery or disclosure. See Tenenbaum v. Simonini, 372 F.3d 776, 777 (6th Cir. 2004) (upholding dsimissal because the defendants “cannot defend their conduct . . . without revealing the privileged information [so] the state secrets doctrine thus deprives [the d]efendants of a val id defense to the [plaintiff]s’ claims”). Thi s injury is not concrete or imminent under these circumstances, and this opinion focuses on the plaintiffs’ two other alleged injuries.

One other issue demands attention, namely, that the plaintiffs’ failure to subject themselves

to actual harm does not, by itself, prevent a finding that they have standing — specifically, it does

not deprive them of the right to seek declaratory judgment. See 28 U.S.C. § 2201(a) (empowering

courts to “declare the rights and other legal relations of any interested party seeking such

declaration, whether or not further relief is or could be sought”). Implicit in each of the plaintiffs’

alleged injuries is the underlyingpossibility — which the plaintiffs label a “well founded belief” and

seek to treat as a probability or even a certainty — that the NSA is presently intercepting, or will

eventually intercept, communications to or from one or more of these particular plaintiffs, and that

such interception would be detrimental to the plaintiffs’ clients, sources, or overseas contacts. This

is the premise — based on t

upon which the plaintiffs’ entire heir superior knowledge of thei

theoryis built. But even r contacts’ activities —

mthoauygbhethreeapsloaninatbilfefs, ’13bethlieefs

alternative possibility remains that the NSA m ight not be intercepting, and m ight never actually

intercept, any communication by any of the plaintiffs named in this lawsuit.

A plaintiff’s refusal to engage in potentially harmful activities is the typical substance of a declaratory judgment action and does not, by itselfp, reclude a finding that the plaintiff has standing. See MedImmune, Inc. v. G enetech, Inc., 549 U.S. -- , 127 S. Ct. 764, 772-73 (2007). But it is important to distinguish the two harms that surround a declaratory judgment action. The anticipated harm that causes one to ref rain from th e activities m ay satisf y the “injury-in-f act” elem ent of standing if it is sufficiently imminent and concrete. F or reasons that will b e made clear in the analysis, the other harm — the harm tha t results from refraining from the potentially harm ful activities — is another m atter. In the present case, the plaintif fs anticipate that the NSA’s interception of telephone and email communications might be detrimental to their overseas contacts, and this perceived harm causes the plaintiffs to refrain from that communication (i.e., potentially harmful activity). Because there is no evidence that any plaintiff’s communications have ever been intercepted, and the state secrets privilege prevents discovery of such evidence, see Reynolds, 345 U.S. at 10, there is no proof that interception would be detrimental to the plaintiffs’ contacts, and the anticipated harm is neither im minent nor concrete — it i s hypothetical, conjectural, or speculative. Ther efore, this harm cannot satisfy the “injury in fact” requirem ent of standing. Because the plaintiffs cannot avoid this shortcoming, they do not propose this harm— the harmthat causes their refusal to communicate — as an “injury” that warrants redress. Instead, they propose the injuries that result from their refusal to communicate and those injuries do appear imminent and concrete.

Thus, in crafting their declaratory judgm ent action, the plaintiffs have attem pted (unsuccessfully) to navigate the obstacles to stating a justiciable claim . By r efraining from communications (i.e., the potentially harmful conduct), the plaintiffs have negated any possibility that the NSA will ever actuallyintercept their communications and thereby avoided the anticipated harm — this is typical of declaratory judgment and perfectly permissible. See MedImmune, 127 S. Ct. at 772-73. But, by propos ing only injuries that result f rom this ref usal to engage in communications (e.g., the inability to conduct theipr rofessions without added burden and expense),

13 Note that a legal determination of objective reasonableness would require additional specific information about the mechanics of the TSP, such as the number of communications being intercepted, the percentage of the total that number represents, the actual selection and screening process, the actual retention, dissemination, and disclosure policy, etc. This information is unavailable due to the State Secrets Doctrine. See Reynolds, 345 U.S. at 10.

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 9

they attempt to supplant14 an insufficient, speculative injury with an injury that appears suficiently imminent and concrete, but is only incidental tothe alleged wrong (i.e., the NSA’s conduct) — this is atypical and, as will be discussed, impermissible.

Therefore, the injury that would support a declaratory judgment action (i.e., the anticipated interception of communications resulting in harm to the contacts) is too speculative, and the injury that is im minent and concrete (i.e., the burde n on professional perform ance) does not suppor t a declaratory judgment action. This general proposition — the doctrine of standing — is explained more fully in the sections of the analysis regarding each, individual cause of action.

III.

By claiming six caus es of action, the plaintiffs have actually engaged in a thinly veiled,

though perfectly acceptable, ruse. To call a spa de a s pade, the plaintiffs have only one claim ,

namely, breach of privacy, based ona purported violation of the Fourth Amendment or FISA — i.e.,

the plaintiffs do not want the NSA listening to their phone calls or reading their em ails. That is

rAemalelyndamlletnhte.1r5e

is to The

it. On a problem

straightforwar with asserting

d reading, this claim does not only a breach-of-pri vacy claim

im plicate the First is that, because the

capslleamainrultyicfhfcs.a1nc7annIonnt oeatsntsaahbtotlewismhtphstattatonthdaeivnyogihduantvhdeiesbrpeterhoneboFleromwu,ritlthlhbeAepmslaeuinbndjteimfcftesendhtatoovresFurIerSvcAaesi.l1tl6athnTecihereinpjlpuaeriirnestsoifnafasslcalyom,ntcahetetdeyer

of free speech and association, characterized their calim as a violation of the First Amendment, and

14 To clarify: If the plaintiffs and their overseas contacts were to proceed with the telephone and em ail communications, in disregard of the TSP (thereby inc urring no additional cost, burden, or diminution of professional performance), and none of their com munications were ever actually intercepted by the NSA , then there would be no injury to these plaintiffs due to the NSA’s conduct. Undetrhis scenario, even if the NSA, unbeknownst to the plaintiffs, did intercept a communication, there would be no tangible injury until the NSA disclosed the information (presumably in a manner demonstrating a direct injury to the plaintiffsor their contacts). Therefore, it is only by refraining fromthe communications that the plaintiffs can transmute a speculative future injury into an actual present injury.
15 See Gordon v. Warren Consol. Bd. of Educ. , 706 F.2d 778, 781 n.3 (6th Cir. 1983) (explaining that surveillance, which falls under the Fourth Amendment, “does not violate First Amendment rights, even though it may be directed at com municative or associative activities”). The First Am endment protects public speech and the free exchange of ideas, R.A.V. v. St. Paul, 505 U.S. 377, 382 (1992), while the Four th Amendment protects citizens from unwanted intrusion into their personal lives and effects, Katz v. United States, 389 U.S. 347, 361 (1967). Otherwise stated, the First Amendment protects one’s right to associate and be heard, while the Fourth Amendment protects the right to rem ain unheard. The First Am endment protects one ’s posting of a sign in her front yard, while the Fourth Amendment protects her hiding of the same sign in her basement.
16 See Section IV.A.2 (citing Rakas v. Illinois, 439 U.S. 128, 133-34 (1978) (“Fourth Amendment rights are personal rights which, like som e other constitutiona l rights, m ay not be vicariously asserted.”)) and Section IV.B.3 (citing H.R. Rep. No. 95-1283, at 66 (1978) (Report by thPeermanent Select Comm. on Intel., in support of the proposed FISA bill and amendments) (“[T]he term [aggrieved person] is intended to be coextensive [with], but no broader than, those persons who have standing toraise claims under the Fourth Amendment with respect to electronic surveillance.”)).
17 At oral argument, the plaintiffs’counsel conceded that it would be unprecedented for a court to find standing for a person to litigate a Fourth Amendment cause of action without any evidence that the defendant (i.e., government) had actually subjected that particular person to an illegal searchor seizure. The plaintiffs’ briefs are not to the contrary.

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 10

engaged the First Amendment’s relaxed rules on standing1.8 This argument is not novel, but neither is it frivolous; it warrants consideration, analysis, and an a full explanation by this court.
At this point, it becomes apparent that my analysis of whether the plaintiffs have standing diverges at a fundam ental level from that of the concurring and dissenting opi nions. They each employ a single, broad, all-encompassing analysis, with which they attempt to account for all of the plaintiffs’ alleged injuries, requested remedies, and legal claims. As much as I would prefer that resolution of this question were so simple, I believe the law demands a particularized analysis of the plaintiffs’ three alleged injuries, six asserted legal claims, and two requested forms of relief. See Cuno, 126 S. Ct. at 1867 (“[A] pl aintiff must demonstrate standing for each claim he seeks to press.”); Laidlaw, 528 U.S. at 185 (“[A] plaintiff must demonstrate standing separately for each form of relief sought.”). Therefore, I believe the complexity of this case calls for a far more specific and comprehensive analysis than that offered by my colleagues.
A com prehensive analysis of all six claim s in a single opi nion, however, invites som e overlap of legal doctrine, precedent, and reasoni ng. Such overlap sim ilarly invites am biguity, confusion, and misapplication. To avodi this pitfall, I define the planitiffs’ alleged injuries precisely, confine each cause of action to its own section, and take special care to ensure that I do not improperly carry precedent or l egal doctrine from one cause of action to another. The benefit of precision will, I hope, outweigh any annoyance cr eated by strict com partmentalization or redundancy.
IV.
The analytical approach to the determinati on of standing for constitutional claims differs from the approach to statutory claims. See Sierra Club v. Morton, 405 U.S. 727, 731-32 (1972).
Whether a pa rty has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy is what has traditionally been referred to as the question of standing to sue. Where the party does not rely on any specific statute authorizing invoc ation of the judi cial process, the question of standing depends upon whether the party has allegedsuch a personal stake in the outcome of the controversy, as to ensure that the dispute sought to be adjudi cated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution. W here, however, C ongress has authorized public officials to perform certain functions according to law, and has provided by statute for judicial review of those actions under certain circumstances, the inquiry as to standing must begin with a determination of whether the sattute in question authorizes review at the behest of the plaintiff.
Id. (quotation marks and citations omitted). The Court clarified:
Congress may not confer jurisdiction on Art. III federal courts to render advisory opinions, or to entertain ‘friendly’ suits, or to resolve ‘political questions,’ because suits of this character are inconsistent with the judicial function under Art. III. But where a dispute is otherwise justiciable,the question whether the litigant is a ‘proper

18 See, e.g., Eisenstadt v. Baird, 405 U.S. 438, 445 n.5 (1972) (“Indeed, in First Am endment cases we have relaxed our rules of standing without regard to the relationship between the litigant and those whose rights he seeks to assert precisely because application of thoserules would have an intolerable, inhibitory effect on freedomof speech.”); Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 546-47 (1981) (“The most important exception to this standing doctrine permits some litigants to challenge on First Amendment grounds laws that may validly be applied against them but which may, because of their unnecessarily broad reach, inhibit the protected speech of third parties.”).

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 11

party to request an adjudication of a particular is sue,’ is one within the power of Congress to determine.
Id. at 732 n.3 (cita tions om itted).19 Theref ore, this analysis is separated into two sections — constitutional claims and statutory claim s — and, by happenstance, the six ca uses of action are equally divided, with three in each section.

A. Constitutional Claims

“The irreducible constitutional m inimum of standing contains three requirem ents”: “[ 1] injury in fact, [2] causation, and [3] redressability.” Steel Co., 523 U.S. at 102- 03 (citations and footnotes omitted). “Injury in fact” is a harm suffered by the plaintiff that is “concrete and actual or imminent, not conjectural or hypothetical.”Id. at 103 (quotation marks omitted) (citing Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). “Causation” is“a fairly traceable connection between the plaintiff’s injury and the com plained-of conduct of the defendant.” Id. (citing Simon v. E. Ky. Welfare Rights Org. , 426 U.S. 26, 41- 42 (1976)). “Redre ssability” is “a likelihood that the requested r elief wi ll redress the alleged injury.” Id. ( citing Warth , 422 U.S. at 505). This “irreducible constitutional minimum” applies to every claim sought to be litigated in federal court.

1. First Amendment

The plaintiffs allege that the NSA has, byconducting the warrantless wiretaps, violated the

free speech and free association clauses of the First Amendment. The district court assumed that

the plaintiffs had engaged in certain “protected expression,” apparently referring to the telephone

and em ail com communications

mcounnfiidcaentitoianls.beAliletshothuegchonthteenptiloainntthifafts’thpiasincastsaekiinnvgoelvffeoserxtsptroeskseioenp,2th0eIsneonetheless

assume this is a viable First Amendment cause of action. Standing to litigate this claim requires a

showing of three elements: (1) injury in fact, (2) causation, and (3) redressability. Steel Co., 523

U.S. at 102-03.

19 Sierra Club twice acknowledges that courts reach this analysis only where it is determ ined that th e controversy at issue is “otherwise justiciable.” Sierra Club, 405 U.S. at 73 1-32. Justiciability, of course, includes numerous doctrines, including m ootness, standing, the pr ohibition on advisory opinions, and the political question doctrine. See Flast v. Cohen, 392 U.S. 83, 95 (1968). Sierra Club’s use of the term “otherwise justiciable” thus refers to the doctrines of justiciability “other” than standing. Assuming that these other justiciability doctrines are satisfied, Sierra Club distinguishes between standing analysis for statutory and non-statutory claims. For non-statutory claims, which include the constitutional claim s at issue here, Sierra Club requires the plaintiffs to show that they have a “personal stake in the outcome of the controversy.” Sierra Club, 405 U.S. at 732. The Court used this “personal stake in the outcome” language to define Article III standing prior to its adoption of the three-part test in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). But the standing analysis is different for statutory claims. Sierra Club instructs courts that “the inquiry as to standing m ust begin with a determination of whether the statute in question authorizes review at the behest of the plaintiff.” Sierra Club, 405 U.S. at 732. This instruction to begin standinganalysis with the statutory language makes perfect sense in light of the welle-stablished legal principle that “Congressmay enact statutes creating legal rights, the invasion of which creates standi ng, even though no injury would exist without the statute.” Linda R.S. v. Richard D., 410 U.S. 614, 617 n.3 (1973); see also Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41 n.22 (1976), (recognizing “Congress’ power to create new interests the invasion of which will confer standing”). Thus the analysis of whether the plaintiffs have standing to bring a statutory claim necessarily requires a determ ination of whether the plaintiffs were injured under the relevant statute.
20 There is, in fact, a certainview that this is not a First Amendment issue at all. See Gordon v.Warren Consol. Bd. of Educ., 706 F.2d 778, 781 n.3 (6th Cir. 1983) (noting that surveillance, which falls under the Fourth Amendment, “does not violate First Amendment rights, even though it may be directed at communicative or associative activities”). Ultimately, however, this distinction is a merits issue that I need not — and indeed cannot — address at this stage.

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 12

Injury in Fact

“Art. III requires the party who invokes the court’s authority to show that he personally has suffered some a ctual or threatened injury as a result of the putatively illegal conduct of the defendant.” Valley Forge Christian Coll. v. Ams. United for Sep. of Church & State, Inc,. 454 U.S. 464, 472 (1982) (quotation marks omitted). “Allegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harmor a threat ofspecific future harm[.]” Laird v. Tat um, 408 U.S. 1, 13-14 (1972). The Suprem e Court’s “clear precedent requir[es] that the allegations of future injury be particular and concrete.” Steel Co., 523 U.S. at 109.

The Supreme Court framed the question inLaird, 408 U.S. at 10, as “whether the jurisdiction

oAfmaefneddmereanl tcroiugrhttsm[21a] yisbbeeiinnvgockheildlebdybay

com plainant who alleges that the exercise of his First the m ere existence, without m ore, of a governmental

investigative and data-gathering activity.” The Court held that its plaintiffs, subjects of s ecret

United States Arm y surveillance, m ay have suf fered a “subjective chill,” but did not allege a

sufficiently concrete, actual, and imminent injury to entitle them to standing. Id. at 15. Something

“more” was necessary, and in a passage that is peculiarly applicable to the present case, the Court

explained:

In recent years [we have] found in a number of cases that constitutional violations may arise from the deterrent, or ‘chilling,’ effect of governm ental regulations that fall short of a direct prohibition against the exercise of First Amendment rights. In none of these cases, however, did the chilling e ffect arise m erely from the individual’s knowledge that a governmental agency was engaged in certain activities or from the individual’s concom itant fear that, arm ed with the fruits of those activities, the agency m ight in the future take som e other and additional action detrimental to that individual. Rather, ineach of these cases, the challenged exercise of governmental power was regulatory, proscriptive, or compulsory in nature, and the complainant was either pres ently or prospectively subject to the regulations, proscriptions, or compulsions that he was challenging.

Id. at 11 (citations om itted; em phasis added); accord Sinclair, 916 F.2d at 1114-15 (finding surveillance alone insufficient for standing); United Presb. Church v. Reagan, 738 F.2d 1375, 1380 (D.C. Cir. 1984) (finding no injuryin fact because “no part of the challenged [surveillance] imposes or even relates to any direct governmental constraint upon the plaintiffs”).

I cannot subscribe to a view that the reason the injury inLaird was insufficient was because the plaintiffs alleged “only” chilled speech and that, by something “more,” the Laird Court meant more subjective injury or other injuries that derive from the chilled speech. The plaintiffs inLaird were political activists and the speech being chilled was political speech. Laird, 408 U.S. at 2. In First Amendment jurisprudence, political speech is the most valued type of speech. See R.A.V. v. City of St. Paul , 505 U.S. 377, 422 (1992) (Ste vens, J., concurring) (“Our First Am endment decisions have created a rough hierarchy in the constitutional protection of speech. Core political speech occupies the highest, most protected position. . . .”). To saythat there could be more injury in other circumstances is to suggest that political speech is not valuable in and of itself and that no consequences flow from the chilling of political speech if such consequences ar e not easily articulable. Certain plaintiffs in the present case contend that the “professional injuries” that flow from the chilling of their “professional” speech is enough to satisfy Laird’s r equirement of something “more.” Under such reasoning, if the Laird plaintiffs had alle ged a chilling of some

21 Laird involved a First Amendment claim. I do not assert or imply that Laird’s holding, which I narrowly construe as regarding only a subjective chill on First Amendment rights, extends to any other causes of action.

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 13

commercial speech, they would have had standing because the lost sales would constitute easily articulable injuries resulting f rom the chilli ng, w hich w ould — under th is view — constitute something “m ore.” This is nonsense, as it would effectively value com mercial s peech above political speech and protect the former but not the latter. It is also at odds with the remainder of the Laird opinion and First Am endment doctrine in general. Consequently, it is not the value of the speech that determines the injury but the level of restraint, and “chilling” is not sufficient restraint no matter how valuable the speech.
Therefore, to allege a sufficient injury under teh First Amendment, a plaintiff must establish that he or she is regulated, constrained, or compelled directly by the government’s actions, instead of by his or her own subjective chill. Laird, 408 U.S. at 11; Reagan, 738 F.2d at 1378. The D.C. Circuit’s decision in Reagan, 738 F.2d at 1380, involved a plaintiff’s First Amendment challenge to alleged government surveillance. TheReagan court clarified why mere subjective chill deriving from government surveillance is insufficient to establish a concrete injury, stating:
The harm of ‘chilling ef fect’ is to be di stinguished from the im mediate threat of concrete, harmful action. The former consists of present deterrence [of the plaintiff, by the government,] from First Amendment conduct because of the difficulty [that plaintiff has in] determ ining t he applica tion of a [governm ent practice] to that conduct, and will not by itself support standing.
Id. “‘Chilling effect’ is cited as the reason why the governmental imposition is invalid [under the First Amendment] rather than as theharm which entitles the plaintiffs to challenge it.” Id. at 1378. In an attempt to establish harm, the Reagan plaintiffs claimed that they were “especially likely to be targets of the unlawful [surveillance] authorized by the order,” but the court explained:
Even if it were conceded that . . . the plaintiffs [were] at greater risk than the public at large, that would still fall far short of the ‘genuine threat’ required to support this theory of standing, as opposed to mere ‘speculative’ harm. It must be borne in mind that this order does not direct intelligence-gathering activities against all persons who could conceivably come within its scope, but merely authorizes them.
Id. at 1380 (citations omitted). The Reagan court therefore held that the plaintiffs failed to satisfy the injury-in-fact requirement because they did notallege that “any direct governmental constraint” was “threatened or even contemplated against them.” Id. The present case is no different.
The plaintiffs here contend that the NSA has inflicted First Amendment injury in two ways, both of which prevent themfrom performing their jobs or pursuing other lawful objectives. The first injury, which went unaddressed by the district court, involves the plaintiffs’ own unwillingness to communicate with their overseas contacts by telephone or email. The plaintiffs fear that the NSA may intercept their communications, and therefore, their ethical obligations require them to forgo the com munications in order to a void interception. The injurious consequence of the NSA’s conduct, the plaintiffs contend, is that they must either suffer diminished performance in their jobs for lack of communication, or else bear the cost of traveling overseas to meet with these contacts in person.
Even accepting this as a good faith assertion and assuming the factual statements are true, the plaintiffs’ first injury still involves two purelyspeculative fears: (1) that the NSA will actually intercept the plaintiffs’ par ticular com munications, and (2) that arm ed with the fruit of those interceptions, the N SA w ill take action detrim ental to the contacts. If , on the other hand, the plaintiffs could be assured thathe NSA would not intercept their communications, or, ifinterception occurs, that no harm would befall the overseas contacts, then the NSA could continue the TSP

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 14

wiretapping without harm to the plaintiffs. 22 It is not the m ere e xistence of the TSP, but the possibility that the plaintiffs’ overseas contacts will be subjected to it, that ultimately results in the alleged harm. Even assuming these fears are imminent rather than speculative, this is still a tenuous basis for proving a concrete and actual injury. That is, even if it were certain that the NSA would intercept these particular plaintiffs’ overseas com munications, if the overseas cont acts were nonetheless willing to com municate with the plaintiffs by telephone or em ail in spite of the impending interception, then it is doubtful that the plaintiffs (journalists, academ ics, lawyers, or organizations), who have themselves alleged no personal fear of our government (or basis for fear of our governm ent), would still be unwilling or unable to com municate. The pl aintiffs’ uanndwdilulitnygtnoetshsecior moveesrnseoatsfrcoomntaancyts.a2n3ticipated harm to themselves, but from their apprehension for
Moreover, even if their allegations are true, the plaintif fs still allege only a subjective apprehension and a personal (self-imposed) unwillingness to communicate, which fall squarely within Laird, 408 U.S. at 13-14. In fact, this injury is evenless concrete, actual, or immediate than the injury in Laird. In Laird, the Army was conducting “massive and comprehensive” surveillance of civilians, secretly and (apparently) without warrants. TheLaird plaintiffs alleged that the Army surveillance program caused a chilling efect on theirFirst Amendment rights in that they and others were reluctant to associate or com municate for fear of reprisal, stem ming from their fear that the government would discover or had disc overed them (and their activities) by way of the secret surveillance. The harm alleged in the present cas e is no m ore substantial; the plaintif fs allege a similar chilling effect on their First Amendment rights, in that they are bound by professional and ethical obligations to refrain fromcommunicating with their overseas contacts due to their fear that the TSP surveillance will lead to discovery, exposuer, and ultimately reprisal against those contacts or others. But unl ike t he Laird plaintiffs, the plaintiffs here do not assert that they personally anticipate or fear any direct reprisal by the UnitedStates government, or that the TSP data is being widely circulated or misused. Indeed, the districtcourt stated that, to date, no one has been exposed or prosecuted based on information collected under the TSP. ACLU v. NSA, 438 F. Supp. 2d at 771.
The plaintiffs attem pt to distinguish Laird. They first contend that they have all eged a chilling of their own communications, whereas the Laird plaintiffs did not. But theLaird plaintiffs alleged the same amount (or lack) of personalized surveillance as the present plaintiffs claim, and both alleged a chilling oftheir own communications. Even if this distinction were accurate, it would not alter Laird’s holding that federal courts lack jurisdiction over cases in which the pla intiff “alleges that the exercise of his First Am endment rights is being chilled by the m ere existence, without more, of a governmental investigative and data-gathering activity.” Laird, 408 U.S. at 10. The plaintiffs next argue that they have alleged a present injury, namely, an inability to engage in the communication necessary to perform their professional duties, whereas the plaintiffs in Laird alleged only a speculative future harm. But the injuryalleged here is just as attenuated as theufture

22 As discussed in Section II, this scenario could result in a breach of the plaintiffs’ privacy under the Fourth Amendment, but the present analysisconcerns only the First Amendment cause of action. The Fourth Amendment, and harms attributable to a defendant’s breach of its protections, necessitate a different analysis. See Section IV.A.2.
23 The plaintiffs who are lawyers take this argument one step further, alleging that their concerns render them incapable of communicating with their clients and others, which their duty of zealous representation to these clients demands. Because they assum e with their “well founded be lief” that their communications will be intercepted, they assert that knowingly engaging in such com munications would breach their duty to keep those com munications confidential. Therefore, they argue, their professionally imposed ethical obligations make the alleged effects more acute. As a lawyer, I am certainly m indful of these concerns, but I cannot escape the fact that they are prem ised on the plaintiffs’ duties to their clients, and not on a personal ha rm to them selves. A client, a fter all, can waive such confidentiality, and if a fully inform ed overseas client who does not fear the NSA chooses to com municate with full awareness that the NSA m ight be listening, then th e lawyer would not breach any duty by enga ging in such communication.

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 15

harm in Laird; the present injury derives solely fromthe fear of secret government surveillance, not from some ot her form of direct governm ent regulation, prescription, or com pulsion. Id. at 11. Finally, the plaintiffs argue that theLaird plaintiffs’ reactions to the surveillance were unreasonable because there w as no illegal conduct alleged in that case. Laird, however, did not dis cuss t he reasonableness of its plaintif fs’ response; it held that the m ere subjective chill arising f rom the government’s investigative activity — reasona ble or not — is insufficient to establish First Amendment standing. Id. at 15-16; see also Reagan , 738 F.2d at 1378 (rejecting an identical attempt to distinguish Laird). I find these attempts to distinguish Laird unpersuasive.
The plaintiffs have directed us to several other decisions as support for their assertion that their professional injuries constitute som ething “more” than subjective chill. See, e.g., Meese v. Keene, 481 U.S. 465 (1987);Ozonoff v. Berzak, 744 F.2d 224 (1st Cir. 1984)P; aton v. LaPrade, 524 F.2d 862 (3d Cir. 1975). I reiterate taht the something “more” required by Laird is not merely more subjective injury, but is the e xercise of governm ental power that is regulatory, proscriptive, or compulsory in nature, and that directly regulates, proscribes, or compels the plaintiffs. And these three ca ses i nvolve plaintiffs who can show direct injury because the governm ent did directly regulate, order, or constrain them. These cases certainly do not help the present plaintiffs, who are not subject to any direct governm ent regulation, or der, or constraint. Rather, to the extent the plaintiffs claim that they are prevented, required,compelled, or coerced in their actions, it is due not to any direct and immediate order or regulation by the government, but to circumstances stemming from the plaintiffs’ own subjective apprehension that (1) their communications will be intercepted by the NSA and (2) that in terception will be detrimental to their overseas contacts. This is not a concrete, actual, and imminent injury for purposes of establishing standing. See Laird, 408 U.S. at 11; Reagan, 738 F.2d at 1378-80.
In Meese v. Keene, 481 U.S. at 465, the plaintiff, Mr. Keene, a lawyer and a member of the state legislature, wanted to exhibit certainiflms that a federal statute required be labeled as “political propaganda.” Id. at 469-70. The Court found that the harmto Mr. Keene’s personal, political, and professional reputation, that woudl result from his exhibiting films labeled “propaganda,” constituted injury in fact. Id. at 472. It is evident from even a cursory reading of the case, however, that Mr. Keene was subject to a regulatory statute that directly and expressly ordered the labeling of the films in the manner that would cause the harm. Id. at 472-74. The plaintiffs in the present case are not regulated by the NSA’s operation of the TSP inany way, nor are they directly ordered to do or refrain from doing anything. Meese offers no support for the plaintiffs’ position.
In Ozonoff v. Berzak, 744 F.2d at 224, the plaintiff, Dr. Ozonoff, sought employment with the World Health Organization, and the government ordered him to submit to a loyalty investigation as a condition of seeking the job. Id. at 225. The First Circuit found that this requirement created a speech- and associat ion-related qualification for the W HO job, which effectively punished Dr. Ozonoff for j oining certain organizations or expressing certain views. The court held that this requirement created a concrete injury, satisfying the injury-in-fact element. Id. at 229. In contrast, the NSA’s operation of th e TSP does not directly order or require the plaintiffs to do anything; instead, it is the plaintif fs’ subjective apprehension (that the NSA m ight intercept their communication) that compels, coerces, or motivates the plaintiffs to alter their behavior. As with Meese, Ozonoff offers no support for the plaintiffs’ position under the present circumstances.
Finally, in Paton v. LaPrade , 524 F.2d at 862, Ms. Paton challenged the governm ent’s retention of an FBI file on her alleged involvement with the Socialist Workers Party because the existence of that file “endanger[ed] her future educational and employment opportunities.” Id. at 868. The Third Circuit found a sufficeintly concrete future injury deriving from the existence of that file. Id. Ms. Paton was not only subject to government regulation, she knew and could prove that the government had intercepted her specific mail (not just mail of a like kind) and was maintaining an FBI f ile on her particular activities (not just activities of a like kind). In stark contrast, the

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 16

plaintiffs in the present case allege only their suspicion and fear (i.e., their “well founded belief”) that their contacts are likely targets of the TSP or that their com munications a re l ikely to be intercepted. As documented in the present record, the plaintiffs have not demonstrated and cannot demonstrate that the NSA is monitoring their particular personal activities.

I find no basis — either factual or legal — upon which to distinguish Laird from the First Amendment claim raised by the plaintiffs here, and I conclude that Laird controls this claim. But let me reemphasize, just to be perfectly clear, that I do not contend that Laird controls this entire case — it does not. Laird controls the First Amendment claim, based on the first type of injury. The plaintiffs’ first alleged injury, arising from a personal subjective chill, is no more concrete, actual, or imminent than the injury alleged in Laird. The injury in Laird was insufficient to establish standing for a First Amendment cause of action; the plainti ffs’ first injury is less than or, at best, equal to that in Laird; and the plaintiffs’ first injury is likewise insufficient to establish standing.

The plaintiffs’ second injury is the unwillingness of their overseas contacts, clients, witnesses, and sources to communicate by telephone or email, due to their fear that the NSA will intercept the communications. The district court, in its standing analysis,rfamed the issue this way:

T‘chheilPlelda’intthieffms ifnrotmhismcaaksiengarientneornt actliaoimnainlgcaslilms ptolysothuartctehsea[nNdScAli]e’nstss[2u.4r]vReailtlhaenrc,ethheays claim that Defendants’ surveillance has chilled their sources, clients, and potential witnesses fr om c ommunicating with them. The alleged effect on Plaintiffs is a concrete, actual inability to communicate with witnesses, sources, clients and others without great expense which has significantly crippled Plaintiffs, at a minimum, in their ability to report the news and com petently and ef fectively represent their clients.

ACLU v. NSA, 438 their contacts have

F. Supp. 2d at 769 (emphasis been chilled, which prevents

tahdedmedf)r.omUncdoemr mthuisnviciaetwin,gthweipthlatihnetisfefscoclnatiamcttsh.2a5t

In Presbyterian Church v. United States, 870 F.2d 518, 520 (9th Cir1. 989), the Ninth Circuit considered a claim by plaintiff churches that “INS agents entered the churches wearing ‘body bugs’ and surreptitiously recorded church services” in violation ofthe First and Fourth Amendments. The district court had dismissed the claims for lack of standing, based on the plaintiffs’ failure to show injury in fact, opining that the protections of the First Amendment extend not to corporations but to individuals, because “churches don’ t go to heaven.” Id. at 521. On appeal, the Ninth Circuit reversed, finding that the plaintiff churches had pled a sufficient injury:

When congregants are chilled from participating in worship activities [and] refuse to attend church services because they fear the governm ent is spying on them and taping their every utterance, all as allegedin the complaint, we think a church sufers organizational injury because its ability to carry out its ministries has been impaired.

24 In fact, the plaintiffs are claiming that the NSA’s surveillance (coupled with their own ethical obligations) has chilled them from making international calls to sources and clients, as has been discussed throughout this opinion thus far. The district court simply misunderstood the extent of the plaintiffs’ claims.
25 In finding an injury on this theory — the unwillingness of the plaintiffs’ overseas contacts to communicate due to their fear that the NSA is eavesdropping — the district court relied on affidavits subm itted by several of the individual plaintiffs. None of the overseas contacts provided an affidavit or testimony of their alleged fear; the theory is based solely on the plaintiffs’ own testimony, which is self-serving and may be inadmissible as hearsay. Ultimately, however, the questionable character of this evidence has no bearing on this injury-in-fact analysis, because the outcome is the same even if I assume it to be true.

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 17

Id. at 522 (emphasis added). The Ninth Circuit then distinguished Laird:

Although Laird establishes that a litigant’s allegation that it has sufefred a subjective ‘chill’ does not necessarily confer Article III standing, Laird does not control this case. The churches in this case are not caliming simply that the INS surveillance has ‘chilled’ them f rom holding worship services. Rather, they claim that the INS surveillance has chilled individual congregants from attending worship services, and that this effect on the congregants has inturn interfered with the churches’ ability to carry out their ministries. The alleged effect on the churches is not a mere subjective chill on their worship activities; it is a conrcete, demonstrable decrease in attendance at those worship activities. The injury to the churches is ‘distinct and palpable.’ Laird has no application here.

Id. (citations omitted).

In one sense, the Ninth Circui t’s decision could be read as concluding that the churches

suffered supports

injury based on the actions of third parties (i.e., the plaintiffs’ argum ents in favor of standing.

2i6ndIinviadnuoatlhpear rsieshniosen,ehrso)w—evaerr,etahdeinNginththat

Circuit’s decision may be confined to the unique idea of “organizational injury”; a church is, after

all, an organization comprising a congregation of parishioners, and these congregants are properly

viewed as intrinsic to the church organization, ratherthan as separate third parties. This reading of

Presbyterian Church would weaken its application to the present contextebcause the overseas third-

party clients, contacts, and sources in this case are

intrinsic m anner as are “organizational injury”

pinartihsehiporneesresnwt ciothntaexcht.u28rch.

n2o7t

af filiated with the plaintif fs in the same None of the plaintiffs have alleged any

Having acknowledged these alternative i nterpretations of Presbyterian Church , it is unnecessary to resolve that issue definitively on this record. Injury in fact is but one of the criteria necessary to establish standing, and ultim ately, it is not determinative of this case. Either of the other two criteria — causation or redressability — might ultimately defeat the plaintiffs’ claim of standing, even if the plaintiffs’ alleged injury is deemed adequate to state an injury in fact.

Causation

“[F]ederal plaintiffs m ust allege som e threatened or actual injury resulting from the putatively illegal action before a federal court m ay assume jurisdiction.” Simon, 426 U.S. at 41 (citations and footnotes omitted; emphasis added). “In other words, . . . a federal court [may] act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court.” Id. at 4142 (emphasis added). Causation “depends consid erably upon whether the plaintiff is him self an object of the action . . . at issue.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). When causation hinges on independent third parties, the plaintiff has the burden of showing that the third

26 But see the discussion of the causation elem ent in this First Am endment analysis, infra, regard ing the difficulties of obtaining standing based on the conduct of third-party actors.
27 The plaintiffs have not claimed membership in any overriding “organization” that would inculde the plaintiffs and the overseas contacts. There has been no suggestiotnhat the plaintiff journalists, academics, or lawyers are members of al Qaeda, or that their overseas contacts — presum ably suspected by the NSA of being al Q aeda operatives or affiliates — are (or desire to be) members of some organization of American journalists, academics, or lawyers.
28 Certain plaintiffs are organizations (American CivilLiberties Union, Council on American Islamic Relations, Greenpeace) and it is therefore possible that these plaintiffs, on a different record, might assert organizational injury.

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 18

parties’ choices “have been or will be made in such a manner as to produce causation and permit redressability of injury.” Id. at 562.

In the present case, the “putatively illegal action” is the NSA’s interception of overseas

communications without warrants (specifically FISA warrants), and the “threanteed or actual injury”

is the added cost of in-person communication with the overseas contacts (or correspondingly, the

diminished performance resulting from the inability to communicaet). Therefore, to show causation,

the plaintiffs must show that, but for the lack of warrants (or FISA compliance), they would not

incur this added cost. There are two causal pathways based on the two types of alleged injury. In

the first: (1) the NSA’s warrantless wiretapping, (2)creates in the plaintiffs a “well founded belief”

that their overseas telephone and email communications are being intercepted, which (3) requires

the plaintiffs to refrain from these communications (i.e., chills communication), and (4) compels the

plaintiffs to travel overseas to m eet personally with these contacts in order to satisf y their

professional responsibilities, thereby (5) causing the pl aintiffs t o incur additional costs. In the

second: (1) the NSA’s warr antless wiretapping (2) causes the “well founded belief,” which (3)

compels the overseas cont acts to refuse to com municate by telephone or em ail (i.e., chills

communication), thereby (4) requiring in-person communication, with its (5) associated additional

costs. The district court attempted to articulate this relationship: “All of the Plaintiffs contend that

the TSP has caused clients, witnesses and sour ces to discontinue th eir com munications w ith

plaintiffs out of fear that their communications will be intercepted.” ACLU v. NSA, 438 F. Supp.

2d at 767 (footnote omitted). From this, the district court theorized: “ Plaintiffs would be able to

continue using the telephone and email in the execution of their professional responsibilities if the

Defendants were not undisputedly and adm

ittedly conducting wa rrantless wiretaps of

conversations.” Id. at 769. In considering these causal pathways, I question the second step

(whether the “well founded belief” is actually founded on the warrantless wiretapping) and refute

the third step (whether the unwillingness t o communicate is actually caused by the warrantless

character of the wiretaps).

The underpinning of the second step is questionable. The plaintiffs allege that they have a “well founded belief” that their overseas contacts are likely tar gets of the NSA and that their conversations are being intercepted. The plaintiffs have no evidence, however, that the NSA has actually intercepted (or will actually intercept) a ny of their conversations. No ma tter what the plaintiffs and others might find “reasonable,” the evidence establishes only a possibility — not a probability or certainty — that these calls m ight be intercepted, that the inf ormation m ight be disclosed or disseminated, or that this might lead to some harm to the overseas contacts. While this lack of evidence is not, by itself, enough todisprove causation, the absence of this evidence makes the plaintiffs’ showing of causation less certain and the likelihood of causation more speculative.

that

it

The is the

tahbisrdenscteepofisauwnsaurprapnotr(taanbdlea. llInthtahtisgosteespw, etihtphlia2ti9n)titfhfastahllaesgceh, ialnleddthtehedipsltariicntticfosuarntdfotuhneidr,

overseas contacts from communicating by telephone or email. See ACLU v. NSA, 438 F. Supp. 2d

at 769 (“Plaintiffs would be able to continue using the telephone and email in the execution of their

professional responsibilities if the Defendants were not undisputedly and adm ittedly conducting

29 The well-known Fourth Amendment warrant requirement involves interjection of a neutral and detached magistrate, demonstration of probable cause, and description ofthe things to be seized or the place to be searched. See Dalia v. United States, 441 U.S. 238, 255 (1979);United States v. U.S. Dist. Ct.(Keith), 407 U.S. 297, 316 (1972). The more obscure FISA warrant requirem ent involves a peti tion by a federal official, with the approval of the Attorney General, 50 U.S.C. § 1804(a), to a specialFISA Court, § 1803(a), for an order approving the electronic surveillance for foreign intelligence purposes, § 1805, basedupon “probable cause to believe that the target of theelectronic surveillance is a foreign power or the agent of a foreignpower,” § 1805(a)(3)(A). The FISA petition and order must include, among other things, provisions to limit the duration, §§ 1805(a)(10), -(c)(1)(E), -(e), and content, §§ 1804(a)(6), 1805(c)(1)(C), 1806(i), of the surveillance, and provisions to ensure the minimization of the acquisition, retention, and dissemination of the information, §§ 1804(a)(5), 1805(a)(4), -(c)(2(A), 1806, 1801(h).

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 19

warrantless wiretaps of conversations.”). Thisallegation does not stand up under scrutiny, however, and it is not clear whether the chill can fairly be traced to the absence of a warrant, or if the chill would still exist without regard to the presence or absence of a warrant. The insufficiency of this step leads to a breakdown in the causal pathway. See Simon, 426 U.S. at 42-43; Laird, 408 U.S. at 14 n.7 (“Not only have respondents left somewhat unclear the precise connection between the mere existence of the challenged system and their own alleged chill, but they have also cast considerable doubt on whether they themselves are in fact suffering from any such chill.”).

A wiretap is always “secret” — that is its very purpose — and because of this secrecy, neither the plaintiffs nor their overseas contacts would know, with or without a warrant, whether their communications were being tapped. Therefore, the NSA’s secret possession of a warrant would have no more effect on the subjective willingness or unwillingness of these parties to “freely engage in conversations and correspond via email,” see ACLU v. NSA, 438 F. Supp. 2d at 770, than would the secret absence of that warrant. The plani tiffs have neither asserted nor proven any basis upon which to justifiably c onclude that the mere absence of a warrant — rather than som e other reason, such as the prosecution of the W ar on Te rror, in general, or the NSA’s targeting of communications involving suspected al Qaeda terrorists, affiliates, and supporters, in particular — is the cause of the plaintiffs’ (and their overesas contacts’) reluctance to communicate by telephone or email.

The plaintiffs have argued that if the NSA were to conduct its surveillance in compl iance

wcoimthmFuISniAca, ttihoenys.w30ouBldutnaoglaoinng, eervefeneilfctohme NpeSlAledhatod

cease their international telephone (secretly) obtained FISA warrants

and em ail for each of

the overseas contacts, who the plaintiffs themselves assert are likely to be monitored, the plaintiffs

would still not have known their communications were being intercepted, still faced the same fear

of harm to their contacts, still incurred the sa me self -imposed (or contact-im posed) burden on

communications and, therefore, still suffered the same alleged injury. The plaintiffs’ theory relies

on their contention that their ethica l obligations require them to cease telephone or em ail

communications any tim e they believe the private or privileged inform

ation in those

communications m ight be discovered or disclosed to the detrim ent of their clients, sources, or

contacts. Assuming that this contention is true, it must also be true that this ethical obligation would

arise whenever, and continue so long as, the plainftfis believe their contacts to be the types of people

likely to be monitored by the NSA.

The imposition of FISA requirements into thisscenario would not change the likelihood that these overseas contacts are the types of people whothe plaintiffs believe would be monitored. Nor would it change the plaintiffs’ “well founded belief” that the NSA is intercepting their communications with these individuals, the plaintiffs’ ethical obligations, or the overseas contacts’ subjective fears. Even under the plaintiffs’ depictoin, it would merely assure the plaintiffs and their contacts that — while their international tele phone and e mail c ommunications with al Qaeda affiliates are still just as likely to be intercepted — the NSA will obtain FISA Court orders, which will presumably limit the duration and content of the acquisition and the use and dissemination of the acquired information. The plaintiffs, however, have not asserted, explained, or proven how a change in the duration or content of the NSA’isnterceptions — purely hypothetical changes that are unknown and unknowable based on the established record and the State Secrets Doctrine — would alleviate their fear s. Specifically, the plainti ffs have not proffered any types or topics of communication, from which they are currently refraining, but about which — upon the imposition

30 FISA’s applicability (i .e., t he plaintiffs’ standing to bring a cause of action under FISA) is addressed separately in Section IV.B.3, infra. The present discussion, which concerns only the plaintiffs’ assertion that their First Amendment injuries are caused by the NSA’s failure to comply with FISA (or would beredressed by imposing FISA’s requirements), assumes FISA’s applicability and does not address standing vis a vis a FISA cause of action.

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 20

of FISA’s limitations and protections — they would thereafter “freely engage in conversations and correspond[ence] via email.” See ACLU v. NSA, 438 F. Supp. 2d at 770.

Some plaintiffs (especi ally t hose who are lawyers) assert that the im position of FISA

minimization — to limit the use and dissem ination of the information acquired — would relieve

their fears sufficiently to satisfy their et hical obligations because it would ensure that those

communications would remain confidential and privileged in the event of a subsequent c riminal

prosecution, removal proceeding, military tribunal, etc. Therefore, they argue, imposition of FISA

requirements would alter the type and content of their communications. This theory, however, is

predicated on the assumption that their current fears and apprehensions are justified — and there is

no support for this assum ption. First, there is no evidence in the cur rent record from which to

presume that the inf ormation collected by the NSA via warrantless wiretapping will be used or

disclosed for any purpose other than national securiyt. Next, there is no evidence in the record from

which to presume that the NSA is not complying with, or even exceeding, FISA’s restrictions on the

acquisition, retention, use, or disclosure of thisinformation (i.e., FISA’s minimization techniques).

Finally, there is no basis to presum e that traditional post-hoc remedies, such as the Exclusionary

Rule or FI SA’s civil suit provision, 50 U.S.C. § 1810, would not adequately deter the us e or

dissemination of this inf ormation. Consequentl y, this disconnect in th e plaintif fs’ theory is

unavoidable, and the plaintiffs’ injury is not fairly traceable to the m

ere absence of FISA

compliance.

Under the plaintif fs’ second form of injury (i.e., the ref usal by the overseas contacts to communicate by telephone or email), this third step in the causal pathway is further disrupted by the independent decisions of the third-party overseas contacts. InSimon, the Supreme Court held that, due to the independence of third-party actors, its plai ntiffs could not prove a causal connection between the defendant’s misconduct and the alleged injury:

The complaint here alleged only that [the government], by the adoption of Revenue Ruling 69-545, had ‘encouraged’ [the third-party] hospitals to deny services to [the indigent plaintiffs]. . . . [But, it] is purely speculative whether the denials of service [i.e., the alleged harm ] specif ied in the com plaint f airly can be traced to [ the government’s] ‘encouragement’ or instead result from decisions made by the [thirdparty] hospitals without regard to the tax implications [i.e., government conduct].

Simon, 462 U.S. at 42-43. In the present case, as inSimon, it is possible that the overseas contacts’ refusal to communicate with the plaintiffs has norelation to the putatively illegal government action of wiretapping without FISA com pliance. The m ere fa ct t hat the United States governm ent is aggressively prosecuting a worldwide W ar on Te rror — in which, by t he plaintiffs’ own “well founded belief,” these contacts are likely suspects —would appear sufficient to chill these overseas contacts regardless of the absence of FISA protections. Notably, the record contains no testimony, by affidavit or otherwise, from any of the overseas contacts them selves as to the cause of their refusal to communicate; it contains only the plaintiffs’ self-serving assertions and affidavits.

The plaintiffs have not shown a sufficient causal connection between the com plained-of conduct (i.e., the absence of a warrant or FISA protection) and the alleged harm (i.e., the inability to communicate). This inadequacy is further exemplified in the analysis of redressability.

Redressability

“Relief that does not rem edy the injury suffe red cannot bootstr ap a plaintiff into federal court; that is the very essence of the redressability requirem ent.” Steel Co. , 523 U.S. at 107. Redressability thus requires “that prospective reliefwill remove the harm,” Warth, 422 U.S. at 505, and the plaintiff m ust show “that he personally would benefit in a tangible way from the court’s intervention,” id. at 508 (footnote om itted). In the prototypical redressability case, Linda R.S. v.

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 21

Richard D., 410 U.S. 614, 615 (1973) , a single mother sought to com pel the State to enforce a criminal statute against the father of her illegitimate child and imprison him for his failure to pay child support. The Supreme Court acknowledged that the mother had “no doubt suffered an injury stemming from the failure of her child’s father to contribute support pa yments.” Id. at 618. The Court reasoned, however, that even if she “were granted the requested relief, it would result only in the jailing of t he child’s father,” and not rem edy the harm caused by his failure to pay child support. Id. The Court thus held that “the ‘direct’ relationship between the alleged injury and the claim sought to be adjudicated, which . . . is a preerquisite of standing,” was absent in that case. Id.

In the present case, the plaintiffs requesteda declaratory judgment and an injunction. They

theorize that their injury (i.e., deficient professional performance or the additional cost of in-person

communication) will be redressed by a declaration that the NSA’s practice of

warrantless

wiretapping is unlawful, because it naturally follows that the unlawful conduct will be prohibited.

The declaratory judgm ent thus f orms the basi s f or an injunction prohibiting interception of

communications without FISA compliance. The district court agreed, declaring the NSA’s conduct

illegal and imposi ng an injunction, on the belief that its injunction would redress the plaintiffs’

injury by assuring them “that they could freely engage in conversations and correspond via email

without concern, at least without notice, thatsuch communications were being monitored.” ACLU

v. NSA, 438 F. Supp. 2d at 770-71. This theory of redressability rests on the preimse that the NSA’s

compliance with FISA’s warrant requirements will entice the plaintiffs and their contacts to “freely

engage in conversations and corerspond via email without concern.” The likelihood of this outcoem,

however, “can, at best, be termed only speculative,” see Linda R.S., 410 U.S. at 618; it is just as

likely (if not more likely) that, even wi th the imposition of a warrant requirem ent, the plaintiffs’

current situation will not change — their fears will not be abated.

The TSP is designed and operated for the prevention of terrorism, and the NSA is interested

only in telephone and email communications in which one party to the communication is located

outside the United States and the NSA has a “reas onable basis to conclude that one party to the

communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization

affiliated with al Qaeda, or working in support of al Qaeda.” It is reasonable to a ssume that the

FISA Court would authorize the interception of this type of communication, see 50 U.S.C. § 1805,

and keeping this likelihood in m ind, the issuance of FISA warrants would not reli eve any of the

plaintiffs’ fears of being overheard;it would relieve themonly of the fear that the information might

b(me idniismseimzaitnioatnedreoqruuirseemdeangtas)in.3s1t

them. See 50 U.S.C. §§ 1804(a)(5); Recall, however, that the NSA has

1801(b)(1)-(4); not disclosed or

1806(a) & (h) disseminated

any of the information obtained via this warrantless wiretapping. This “remedy” would therefore

not alter the plaintiffs’ current situation and, accordingly, would not redress the injuries alleged.

31 FISA does not necessarilyprohibit even the interception of attorney-client communications. Because FISA states that “ [n]o otherwise privileged com munication obtai ned in accordance with [ FISA] shall lose its privileged character,” 50 U.S.C. § 1806(a), it therefore follows that FISA, at least in some instances, authorizes the interception of privileged communications, which presumably includes communications between attorney and client. For example, FISA might not prohibit the interception of attorney-clienct ommunications under circumstances where the NSA adheres to a policy of com plete non-disclosure. Due to the St ate Secrets Doctrine, the plaintiffs do not (and cannot) know whether the NSA actually adheres to a policy of complete non-disclosure, but based on the record evidence, it certainly remains possible. The plaintiffs have never alleged, nor is there evidence in the presen t record to suggest, that the information collected by the NSA under the TSP has been disclosed to anyone for any purpose.See ACLU v. NSA, 438 F. Supp. 2d at 771 (“the perceived need for secrecy has apparetlny required that no person be notifiedthat he is aggrieved by the activity, and there have been no prosecutions, no requests for extensions or retroactive approvals of warrants”). In any event, FISA’s general requirement that electronic surveillance may proceed only upon issuance of a FISA Court warrant is not absolute, as FISAprovides for instances in which a prior warrant may be unnecessary, at leastfor a short period of time. See, e.g., 50 U.S.C. § 1805(f) (emergency situations).

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 22

Neither will the requested injunctive relief increaes the likelihood that the plaintiffs and their overseas contacts will resum e telephone or em ail com munications. As discussed previously, “warrantless” and “secret” are unrelated things. All wiretaps are secret, and the plaintiffs are not challenging the secret nature, but only thewarrantless nature, of the TSP. Because all wiretaps are secret, neither the plaintiffs nor their overseascontacts would know — withor without warrants — whether their communications were being tapped, and the secret possession of a warrant would have no more effect on the subjective willingness or unwillingness of these parties to “freely engage in conversations and correspond via email” than would the secret absence of that warrant. Thus, as a practical matter, the m ere issuance of a warrant w ould not alleviate either the pl aintiffs’ or the contacts’ fears of interception, and consequently, would not redress the alleged injury. Even if the wiretaps were not secret — that is, if the overseascontacts and the plaintiffs were actually notified beforehand that the NSA was tapping their communication — this knowledge would not redress the alleged injury. It is patently unreasonable to think that those who are reluctant to speak when they suspect the NSA of listening would be willing to speak once they know the NSA is listening.
The district court’s injunction is also insufficient to relieve the plaintif fs’ fear of reprisal against their contacts. A warrant requireme nt will not protect the overseas contacts f rom prosecution in all circumstances, see In re Sealed Case, 310 F.3d. 717, 731 (F.I.S.C.R. 2002), which leaves some doubt whether this will allay their fears enough to entice them to resume unreserved communications with the plaintiffs. Ironically, the absence of a warrant would be more likely to prohibit the government from using the intercepted information in a subsequent prosecution, due to the probability that the Exclusionary Rule woudl bar the admission of information obtained without a warrant. See Mapp v. Ohio , 367 U.S. 643, 655 (1961). The warrant requirem ent does m any things; it does not, however, remedy the injuries alleged by the plaintiffs in this case.
Similarly, to the extent the plaintiffs or their contacts fear some misconduct by the NSA (in the discovery, disclosure, or dissemination of the information), the mere requirement of a warrant, FISA or otherwise, will not guarantee the preventioonf that misconduct, and therefore fails to satisfy the redressability elem ent. In Leeke v. Timmerman , 454 U.S. 83, 84-85 (1981), f ederal prison inmates, who had filed criminal charges against prison guards for a beating that occurred during a prison uprising, filed suit in federal court to facilitate the issuance of arrest warrants for the guards. On review, the Supreme Court found that the issuance of an arrest warrant “is simply a prelude to actual pr osecution,” because “the decision to pros ecute is solely within the discretion of the prosecutor [and] issuance of t he arrest warrant in this case would not necessarily lead to a subsequent prosecution.” Id. at 86-87. The Court held that the inm ates lacked standing because there was “no guarantee that issuance of the arre st wa rrant[s] would rem edy claim ed past misconduct of guards or prevent future misconduct.” Id. at 86. Any such guarantee (i.e, that the issuance of a FISA warrant will prevent future FISAmisconduct) is similarly lacking in the present case.
Consequently, the district court’s declaration againstwarrantless wiretaps is insufficient to redress the plaintiffs’ alleged injury because teh plaintiffs’ self-imposed burden on communications would survive the issuance of FISA warrants. Theonly way to redress the injury would be to enjoin all wiretaps, even those for which warrants are issuedand for which full prior notice is given to the parties being tapped. Only then would the plaintiffs be relieved of their fear that their contacts are likely under surveillance, the contacts be relieved of tehir fear of surveillance, and the parties be able to “freely engage in conversations and correspond via em ail without concern.” Because such a broad remedy is unavailable, the plaintiffs’ reque sted relief, which is much narrower, would not redress their alleged injury.
For the foregoing reasons, the plaintiffs in the present action have no standing to pursue their First Amendment claim. Even if they could demonstrate injury, they cannot establish causation, and their alleged injury is not redressable by the remedy they seek.

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 23

2. Fourth Amendment
The plaintiffs allege that the NSA has, byconducting the warrantless wiretaps, violated the “plaintiffs’ privacy rights guaranteed by the Fourth Amendment.” The district court — asserting a heretofore unprecedented, absolute rule that the Fourth Amendment “requires prior warrants for any reasonable search,” ACLU v. NSA, 438 F. Supp. 2d at 775 — agreedand granted the plaintiffs’ motion for summary judgment on this theory, id. at 782.
However, the Supreme Court has made clear that Fourth Amendment rights are “personal rights” which, unlike First Amendment rights, may not be asserted vicariously.See Rakas v. Illinois, 439 U.S. 128, 133-34 (1978). The Court explained in Rakas:
Under petitioners’ target theory, a court could determ ine that a def endant had standing [] without having to inquire into the substantive questi on of whether the challenged search or seizure violated theFourth Amendment rights of that particular defendant. However, having rejected petitioners’ target theory and reaffirmed the principle thatthe rights assured by the Fourth Amendment are personal rights, which may be enforced [] only at the instance of one whose own protection was infringed by the search and seizure, the question necessarily arises whether it serves any useful analytical purpose to consider this principle a matter of standing, distinct from the merits of a defendant’s Fourth Amendment claim. . . . Rigorous application of the principle that the rights secured by this Amendment are personal, in place of a notion of ‘standing,’ will produce no additiona l si tuations in which evidence m ust be excluded. The inquiry under either approach is the sam e. But we think the better analysis forth-rightly focuses on the extent of a particular defendant’s rights under the Fourth Am endment, rather than on any theoretically separate, but invariably intertwined concept of standing.
Id. at 138-39 (quotation marks, citations, footnotes, and edits omitted; emphasis added); see also Ellsberg v. Mitchell, 709 F.2d 51, 65 (D.C. Cir. 1983) (“An essential eleemnt of each plaintiff’s case is proof that he himself has been injured. Membership in a group of people, ‘one or more’ members of which were exposed to surveillance, is insufficient to satisfy that requirement.”).
The plaintiffs do not, and cannot,32 assert that any of their own communications have ever been intercepted. Instead, they allege only a belifethat their communications are being intercepted, based on their own assessment of their overseas contacts as people who are likely to fall within the NSA’s broad, public description of its targets. As acknowledged by plaintiffs’ counsel at oral argument, it would be unprecedented for this court tofind standing for plaintiffs to litigate a Fourth Amendment cause of action without any evidence that the plaintiffs thesmelves have been subjected to an illegal search or seizure. See Rakas, 439 U.S. at 133-34.
3. Separation of Powers
The plaintiffs allege that the NSA has, by conducting the warrantless wiretaps, “violat[ed] the principle of the separation of powers because[the NSA’s conduct] was authorized by President Bush in excess of his Executive authority under Article II of the United States Constitution and is contrary t o l imits im posed by Congress.” Th is two-part accusation — that President Bush (1) exceeded his presidential authority under the Constitution, and (2) violated a statutory lim it imposed upon that authority by Congress — presupposes that the Constitution gives Congress the authority to impose limits on the President’s powers under the present circumstances. The district
32 The plaintiffs’ prospective inability to assert that anoyf their personal communications have been intercepted is due to the State Secrets Doctrine. See Reynolds, 345 U.S. at 10.

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 24

court agreed with the plaintiffs’ allegation in toto, and declared the NSA’s conduct a violation of the Separation of Powers Doctrine. See ACLU v. NSA, 438 F. Supp. 2d at 779-79.

A plaintiff asserting a claim under the Separati on of Powers Doctrine m ust, like all other plaintiffs seeking to bring a claim in federal court, dem onstrate injury in fact, causation, and redressability. INS v. Chadha , 462 U.S. 919, 936 (1983) (requiring an “injury in fact and a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury”); see also Buckley v. Valeo, 424 U.S. 1, 117 (1976) (stating that “litigants with sufficient concrete interests at stake m ay have standing to raise constitutional questions of separation of powers”). Here, the plaintiffs contend that the executive branch(i.e., the NSA at the direction of the President) has, by instituting the TSP’s practice of warrantlses wiretapping, acted in excess of its constitutional or statutory limitations, thereby encroaching upon the powers expressly reserved to another branch (i.e., Congress). The NSA’s violation of the Separation of Powers Doctrine, the plaintiffs say, has caused them to fear that the NSA might intercept their communications with their overseas contacts, preventing them from performing their jobs or pursuing other lawful objectives without incurring additional burden and expense.

To prove causation, the plaintiffs must connect the alleged separation-of-powers violation (“the putatively illegal action”) to the burden on the performance of their professional obligations (the alleged injury). See Simon, 426 U.S. at 41. Six steps separate the putatively illegal conduct from the alleged injury: (1) the President allegedly exceeded his allotted authority by authorizing the NSA to conduct warrantless wiretapping as part ofits enhanced national security (i.e., counterterrorism) operations and the worldwide War on Terror, causing (2) the NSA to institute its practice of warrantless wiretapping under the TSP, causing (3)the plaintiffs’ “well founded belief” that the NSA is intercepting their telephone and em ail communications, causing (4) either the plaintiffs themselves or the overseas contacts to refrain form these communications, causing (5) the plaintiffs either to underperform in their professional capacitie s or to travel to m eet personally with these contacts, causing (6) the additional burden on performance of the plaintiffs’ professional duties.

This record sim ply does not perm it the kind of particularized analysis that is required to

determine causation. Ignoring for a m oment the first two steps in the analysis, it is clear tha t the

third and fourth are problematic. The plaintiffs have presented no evidence to support their alleged

“well founded belief” that their conversations arebeing intercepted. The evidence establishes only

a possibility — not a probability or certainty — that these com munications might be intercepted,

disclosed, or disseminated. Furthermore, the reasonableness of this possibility is indeterminable,

due to the limited record before us and the State Secrets Doctrine. Unlike each of the cases in which

tdhoenSout,parenmd ecaCnonuortt,33haasssfeorutntdhasttathnedyintghefomsrealvSeesphaaravteioanctoufaPlloywbeeresncsluabimje,cttheed

plaintiffs in this case to the conduct alleged

to violate the Separation of Powers. See, e.g., Chadha, 462 U.S. at 923, 930, 935-36 (reviewing

whether one “House of Congress” could order the plaintiff deported); Buckley, 424 U.S. at 117

(reviewing whether the Federal Election Commission could make rulings regarding the plaintiff);

Palmore v. United States, 411 U.S. 389, 390 (1973) (reviewing whether the plaintiff could be tried

before non-Article III courts); Glidden Co. v. Zdanok , 370 U.S. 530, 532-33 (1962) (reviewing

whether the plaintiffs’ cases could be adjudicaetd by judges designated fromnon-Article III courts).

The Supreme Court has been clear that the injury must be “distinct and palpable, and not abstract

or conjectural,” so as to avoid “generalized grievances m ore appropriately addressed in the

representative branches” and the electoral process. Allen, 468 U.S. at 751 (citations omitted).

33 The plaintiffs’ prospective inability to assert that anoyf their personal communications have been intercepted is due to the State Secrets Doctrine. See Reynolds, 345 U.S. at 10.

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 25

It is also unclear from the record whether the plaintiffs’ or their contacts’ refusal to communicate can fairly be traced to the Presid ent’s a uthorization of an am biguous warrantless wiretapping program, or if that same refusal would exist regardlessof the authorization of the TSP. And any wiretap would be m erely one com ponent of counter- terrorist or m ilitary intelligence surveillance. Those such as the present plaintiffs, who choose to com municate with individuals located overseas who are by the plaintiffs’ own reckoning individuals reasonably suspected to be al Qaeda terrorists, affiliates, or supporters, shoudl expect that those communications will be subject to heightened monitoring and surveillance for national security or military purposes. Therefore, the plaintiffs have no evidence to s upport a conclusion that the P resident’s authorization of the TSP would have any m ore effec t on t he parties’ re spective apprehensions than would the broader circumstances of the War on Terror and heightened national security.

Because the plaintiffs cannot dem onstrate that the alleged violation of the Separation of Powers has caused their injury, they lack standing to lit igate their separation-of-powers claim. It is therefore not necessary to address redressability, the third element of standing.

Finally, I note that the district court statedthat, unless it found standing for these plaintiffs, the President’s action would be insulated fromjudicial review. This idea, however, is neither novel nor persuasive. “The assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.” Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227 (1974). Nevertheless, the district coutreditorialized that, if it “were to deny standing based on the unsubstantiated m inor distinctions drawn by Defendants, the President’s actions in warrantless wiretapping, in contravention of FISA,Title III, and the First and Fourth Amendments, would be immunized from judicial scrutiny. It wa s never the intent of the Fram ers to give the President such unfettered control . . . .” ACLU v. NSA, 438 F. Supp. 2d at 771.

The Supreme Court has confronted this suggestion and expressly rejected it, explaining its reasoning at some length:

It can be argued that if respondent is not permitted to litigate this issue, no one can

do so. In a very real sense, the absence of any pa rticular individual or class to

litigate the se claim s gives support to the argum ent that the subject m atter is

committed to the surveillance of Congress, and ultimately to the political process.

Any other conclusion would m ean that the Founding Fa thers intended to set up

something in the nature of an Atheniandemocracy or a New England town meeting

to oversee the conduct of the National Government by means of lawsuits in federal

courts. The Constitution created a

representative Governm ent with the

representatives directly responsible to their constituents at stated periods of two,

four, and six years; that the Constitutiondoes not afford a judicial remedy does not,

of course, completely disable the citizenwho is not satisfied with the ‘ground rules’

established by the Congress for reporting expenditures of the Executive Branch.

Lack of standing within the narrow confines of Art. III jurisdiction does not impair

the right to assert his views in the politicaflorum or at the polls. Slow, cumbersome,

and unresponsive though the traditional electoral process may be thought at times,

our system provides for changing m embers of the poli tical branches when

dissatisfied citizens convince a sufficient number of their fellow electors that elected

representatives are delinquent in performing duties committed to them.

United States v. Richardson, 418 U.S. 166, 179 (1974). The Court noted inLaird: “there is nothing in our Nation’s history or in this Court’s d ecided cases, including our holding today, that can properly be seen as giving any indication that act ual or threatened injury by reason of unlawful activities of the [executive branch] would go unnoticed or unremedied.” Laird, 408 U.S. at 16.

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 26

The plaintiffs allege that the President, as an actor in our tripartite system of government, exceeds his constitutional authority by aut horizing the NSA to engage in warrantless wiretaps of overseas communications under the TSP. But this ocurt, not unlike the President, has constitutional limits of its own and, despite the im portant national interests at stake, cannot exceed its allot ted authority. See Steel Co., 523 U.S. at 125 n.20 (“[O]ur standing doctrine is rooted in separation-ofpowers concerns.”); Flast, 392 U.S. at 97 (stating that Article III standing lim itations “confine federal courts to a role consistent with a system of separated powers”). It would ill behoove us to exceed our authority in order to condemn the President or Congress for exceeding theirs.

B. Statutory Claims

In addition to their three constitutional claims, the plaintiffs present statutory claims under

the APA, Title III, and FISA (or a combination thereof). The first step is to consider whether any

of these statutes “authorize[] review at the behest of the plaintiff[s]” — i.e., whether these statutes

(1) govern the NSA’s challenged conduct and (2) providethe plaintiffs a means of judicial review.

See Sierra Club, 405 U.S. at 732. The availability of a statutory claim, however, does not relieve

the plaintiffs of the need to establish constitutional standing to litigate that claim. See Raines, 521

U.S. at 820 n.3 (“It statutorily granting

is the

sreigtthlet dtothsuateCtooangprleasinstcifafnwnohtoewraosuelAd nrotitcloethIeIIr’wsissteanhdaivnegsrteaqnudiirnegm.”)e.n34ts

by

This standing analysis includes consideration ofboth constitutional and prudential principles.

Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11-12 (2004). The irreducible constitutional

minimum of standing contains t hree requirem ents: (1) injury in fact, (2) causation, and (3)

redressability. Steel Co., 523 U.S. at 102-03. The prudentiasltanding doctrine embodies “judicially

self-imposed limits on the exercise of federal jurisdiction.” Bennett v. Spear, 520 U.S. 154, 161

(1997). Because these prudential principles are“limits” on standing, they do not themselves create

jurisdiction; they exist only to remove jurisdiction where the Article III standing requirements are

otherwise satisfied. A prudential standing principle of particular relevance to statutor y causes of

action is the “zone-of-interest” test, which “limits . . . the exercise of federal jurisdiction” where a

patla7i5n1ti.f3f5’s

claim falls outside “the The APA, Title III, and

zone of interest protected by the law FISA are each addressed separately,

invoked.” Allen, 468 U.S. followed by consideration

of a cause of action which, the plaintiffs theorize, arises from the interaction of Title III and FISA.

34 Raines stands for the proposition that Congress cannot enact a stat ute that directly grants standing to a plaintiff who otherwise does not satisfythe Article III requirements. But Raines does not indicate that Congresscannot provide standing indirectly by enacting a statute that creates a new legal interest, “the invasion of which will confer standing.” See Simon , 426 U.S. at 4 1 n .22. A nalysis o f t he p laintiffs’ st atutory cl aims t hus r equires a d etailed consideration of the statute at issue, to discern whether Congress “create[d] a statutory right or entitlement the alleged deprivation of which can confer standing to sue.” See Warth, 422 U.S. at 514. Thus, in my opinion, the mere fact that these plaintiffs cannot show they were subject to surveillance under the TSP — while sufficient to demonstrate lack of standing for their constitutional claims — does not foreclose them from bringing their statutory claims. Assessment of whether the plaintiffs have standing to litigate their statut ory claims requires m ore — an analysis of t he rights and interests protected therein.
35 The Supreme Court first announced the zone-of-interesttest in a case involving theAPA, stating that “[t]he question of standing . . . concerns .. . whether the interest sought to be protected by the complainant is arguably within the zone of interest to be protected or regulated by the statute or constitutional guarantee in question.” Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970). Although this original formulation implied that the zone-of-interest test may be a means of establishing standing,the Supreme Court has since made it clear that the zone-ofinterest test is a prudential limitation, not an affirmative means of establishing standing. See Allen, 468 U.S. at 751; Valley Forge, 454 U.S. at 474-75. The Court also has distinguished various instances in which thezone-of-interest test applies. Suits brought under the APA are themost prevalent cases employing that test, see Camp, 397 U.S. at 153, and in those cases the zone of interest is broader because of the “ generous review provisions ” enumerated in the APA, Bennett, 520 U.S. at 163. The test also has been listed among the generally applicable prudential limitations of standing, see Allen, 468 U.S. at 751, where the zone of interest, depending upon the statute at issue, is often narrower than under the APA, see Bennett, 520 U.S. at 163.

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 27

1. Administrative Procedures Act

The Administrative Procedures Act (“APA”), 5 U.S.C. §§ 101-913, governs the conduct of

federal administrative agencies, which presumably includes the NSA,see 5 U.S.C. § 701(b)(1). The

APA provides that “ [a] person suffering legal wrong because of any agency action, or adversely

affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to

judicial review thereof.” 5 U.S.C. § 702 (emphasis added). The APA authorizes judicial review for

“[a]gency action adequate remedy

made reviewable by statute in a court.” 5 U.S.C. § 704

and final (emphasis

aagdednecdy).3a6ctiTohnufso, rtowbhriicnhg

there is a cause

no of

other action

under the APA, the plaintiffs, first and foremost, must complain of “agency action.”

“Agency action” is defined in the APA as “the whole or pa rt of a n a gency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13). This definition is divided into th ree parts “begin[ning] with a list of five categories of decisions made or outcomes implemented by an agency — agency rule, order, license, sanction[, or] relief.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 62 (2004) (quotation marks omitted).

All of t hose c ategories involve circumscribed, discrete agency actions , as their definitions make clear: [1] ‘an agency st atement of . . . future effect designed to implement, interpret, or prescribe law or policy’ (rule); [2] ‘a final disposition . . . in a m atter other than rule m aking’ (or der); [3] a ‘perm it . . . or other form of permission’ (license); [4] a ‘prohibition . . . or taking [of] other com pulsory or restrictive action’ (sanction); or [5] a ‘grnat of money, assistance, license, authority,’ etc., or ‘recognition of a claim, right, immunity,’ etc., or ‘taking of other action on the application or petition of, and beneficial to, a person’ (relief).

Id. (quoting 5 U.S.C. §§ 551(4), (6), (8), (10), (11)) (emphasis added). The second part of the “agency action” definition — “the equivalent or denial thereof” — must be a discrete action or the denial of a discrete action, otherwise it would not beequivalent to the five listed categories. Id. And the final part of the definition —a “failure to act” — is “properly understood as a failure to take an agency action.” Id. Under Supreme Court precedent, classic examples of “agency action” include the issuance of an agency opinion, see Bennett, 520 U.S. at 157, or a declaratory ruling, see Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 977-78 (2005).

Here, however, the plaintiffs are not complaining of “agency action” as defined in the APA, and the record contains no evidence that would uspport such a finding. The plaintiffs challenge the NSA’s warrantless interception of overseas com munications, the NSA’s f ailure to com ply with FISA’s warrant requirements, and the NSA’s presumed failure to comply with FISA’s minimization procedures. This is conduct, not “agency action.” Furthermore, there is no authority to support the invocation of the APA to challenge generalized conduct.

Looking at the “five categories” of enum erated “agency action,” the NSA’s surveillance activities, as described by the three facts of record, do not constitute, nor are they conducted pursuant to, any agency rule, order, license, sanction, or relief. Although the plaintiffs labeled the NSA’s surveillance activities as “the Program ,” and the district court la beled it the “TSP,” the NSA’s wiretapping is ac tually just general conduct given a label for purposes of abbreviated reference. The plaintiffs do not complain of any NSA rule or order, but m erely the generalized practice, which — so far as has been admitted or disclosed — was not formally enacted pursuant

36 Admittedly, this provision is seldom considered from the present viewpoint, and is generally consideredas merely the means by which Congress waived sovereign immunity in actions seeking relief other than money damages. See Presbyterian Church, 870 F.2d at 524.

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 28

to the strictures of the APA, but merely authorized by the President (albeit repeatedly, and possibly informally). Nor do the plaintiffs challenge any license, sanction, or relief issued by the NSA.
The plaintiffs do not complain of anything equivalent to agency action, which also requires some discrete action by the NSA.See Norton, 542 U.S. at 62. The plaitniffs are not challenging any sort of “circumscribed, discrete” action on the part ofthe NSA, but are seeking to invalidate or alter the NSA’s generalized practice of wiretapping certain overseas communications without warrants. See id. at 64 (“[t]he limitation to discrete agencyaction precludes [a] broad programmatic attack”). Similarly, the plaintiffs have not alleged that the NSA failed to perform a discrete agency action. When challenging an agency’s failure to perform, the APA “empowers a court only to compel an agency to perform a ministerial or non-discretionary act.” Id. The plaintiffs contest the NSA’s failure to adhere t o FISA’s warrant requirem ent and m inimization procedures. Even assum ing, arguendo, that the warrant requirement and minimization procedures are discrete agency actions, those procedures are replete with discretionary considerations, see 50 U.S.C. § 1801(h), thus disqualifying them from this definition of agency action under the APA.
No matter how the plaintiffs’ claims are characterized, they do not challengeagency action ausnditeirsthdeefAinPeAd .i3n7the APA. Ac cordingly, the plaintiffs have not asserted a viable cause of action
2. Title III
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (“Title III”), 18 U.S.C. §§ 2510-22, generally r egulates the governm ent’s interception of wire, oral, and electronic communications. See United States v. Ojeda Rios, 495 U.S. 257, 259 (1990); 18 U.S.C. § 2516. The first relevant question is whether Title III applies to the type of surveillance conducted by the NSA under the TSP, considering Title III’s express limitations:
Nothing contained in this [statute (i.e.,Title III)] . . . shall be deemed to affect [1] the acquisition by the United States Governm ent of foreign intelligence inf ormation from international or foreign communications, or [2] foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic com munications system , utiliz ing a m eans other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and [ 3] procedures in this [ statute (i.e.,Title III)] . . . and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive m eans by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.
18 U.S.C. § 2511(2)(f). When this statutory language is parsed into its three individual clauses, its limitations becom e clear. The f irst clause disclaims Title III applicability generally — acknowledging that Title III does not apply to “theacquisition by the United States Government of foreign intelligence information from international or foreign communications.” The second clause
37 It is noteworthy thatthe plaintiffs’ APA claim fails foran additional reason. To the extent the plaintiffs rely on the APA provision allowing judicial review for “final agency action for which there is no other adequate remedy in a court,” see 5 U.S.C. § 704 (emphasis added), they must demonstrate that the alleged agency action is “final.” “As a general matter, two conditions must be satisfied for agency action to be ‘final.’” Bennett, 520 U.S. at 177. “First, the action must mark the ‘consummation’ of theagency’s decisionmaking process.” Id. at 177-78. “And second,the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.” Id. at 178 (quotation marks omitted). Becausethe NSA’s surveillance activities do not constitute “agency action,” the analysis of whether they are final agency action is strained and awkward. It nevertheless is clear that the NSA’s wiretapping does not consummate any sort of agency decisionmaking process nor does it purport to determine the rights or obligations of others. For this additional reason, the plaintiffs cannot assert a claim for judicial review under the APA.

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 29

disclaims Title III applicability specifically — recognizing that Title III does not govern “foreign

intelligence activities conducted in accordance with otherwise applicable Federal law involving a

foreign electronic communications system, utilizing a means other than electronic surveillance as

defined in [FISA].” The final clause, which isknown as the “exclusivity provision,” recognizes the

respective roles of Title III and FISA, by stating thatthe “procedures in [Title III] and [FISA] shall

be the exclusive means by which electronic the interception of domestic wire, oral, and

esluercvteroilnlaicncceo,mams duenfiicnaetdioinnssmecatyiobne1c0o1ndouf c[FteIdS.A”3]8,

and

The first clause of § 2511(2)(f) — stating that Title III does not govern the acquisition of

“foreign intelligence inf ormation f rom international or f oreign com munications” — expressly

disclaims application of Title III to surveillance activities of the type at issue in the present case.

The NSA monitors international communications for the purpose of acquiring foreign intelligence

about terrorist organizations; this type of surveillance falls squarely under the disclaimer found in

the first clause of § which the plaintiffs

c2o5m1p1l(a2i)n(.f3)9.

By its own terms, then, Title III does not apply to the conduct of Cf. United States v. U.S. Dist. Ct(. Keith), 407 U.S. 297, 306 (1972)

(finding “the conclusion inescapable,” as to the pre-FISA version of Title III, “that Congress only

intended to m ake clear that [ Title III] simply did not legislate with respect to national security

surveillances”).

Because the first clause of § 2511(2)(f) expre ssly disclaims Title III’s application to this case, it is unnecessary to construe the second andthird clauses. But, it is worth acknowledging that these two clauses raise complex legal issues which cannot be resolved on the present record. The second clause explains that Title III does not apply ifour factors are all satisfied: (1) the defendant is engaged in “foreign intelligence activities”; (2) the defendant is acting “in accordance with otherwise applicable Federal law”; (3) the defendant’s surveillance involves a “foreign electronic communications system”; and (4) the deefndant utilizes “a means other than electronic surveillance” as defined in FISA. These factor s r aise a host of intricate issues, such as whether the NSA’s wiretapping actually involves “electronic surveillance” as defined in FISA, and whether the NSA is acting in accordance with federal law, such as t he Aut horization for Use of Military Force (“AUMF”), Pub. L. 107-40, § 2, 115 Stat. 224 (2001). Some of these issues involve sophisticated legal questions or complex factual questions. But,resolving these issues is unnecessary because the first clause of § 2511(2)(f) conclusively disclaims Title III’s application.

It is likewise unnecessary, at this point, to delve into the numerous issues raised by the third clause, i.e., the exclusivity provision. The exclusivity provision differs from the first two clauses of § 2511(2)(f), in that it does not merely disclaim Title III’s application. Instead, it states that Title III and FISA shall be the “exclusive means” by which particular types of surveillance may occur, thus prescribing the separate roles ofTitle III andFISA, rather than the application ofTitle III alone. The plaintiffs assert a statutory cause of action for the NSA’s alleged violation of the exclusivity

38 This third clause is discussed in further detail in Section IV.B.4, infra, titled “The Exclusivity Provision.”
39 Even assuming, arguendo, that Title III applies to the NSA’sinternationally focused surveillance activities, the plaintiffs cannot maintain the action for relief brought in this case. Title III prescribesequitable relief in only afew instances, none of which applies here. Two provisions in Title III authorize injunctive relief for claims brought by the government. See, e.g., 18 U.S.C. § 2521 (“the Attorney General may initiate a civil action . . . to enjoin” a violation of Title III); § 2511(5)(a)(ii)(A) (“the Federal Government shall be entitled to appropriate injunctive relief” when a “person” violates 18 U.S.C. § 2511(5)). Because the plaintiffs are not representatives of or otherwise affiliated with the federal government, neither of these provisions permits injunctive relief in this case. Another Title III provision authorizes “any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of [Title III]” to recover declaratory or equitable relief from a “person or entity, other than the United States, which engaged in that violation.” 18 U.S.C. §2520(a) (emphasis added). This provision does not help the plaintiffs becauseunder these provisions neither declaratory nor injunctive relief is available against the United States government and the plaintiffs cannot prove interception.

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 30

provision, which I address separately in Section IV.B.4i,nfra. It is, therefore, unnecessary to dissect the exclusivity provision at this point in the analysis.

Because the first clause of § 2511(2)(f) stat es that Title III does not apply to the internationally focused surveillance activities challenged in this case, the plaintfisf have not asserted a viable cause of action under Title III.

3. FISA

The Foreign Intelligence Surveillance Act of 1978 (“FISA”), 50 U.S.C. § 1801 et seq., — as the separate and distinct counterpar t t o Title III — governs the interception of electronic communications involving foreign intelligence information. See 50 U.S.C. § 1802(a)(1). FISA is fraught with detailed statutory definitions and is expressly limited, by its own terms, to situations in which the President has authorized “electronic surveillance,” as defined in 50 U.S.C. § 1801(f), for the purposes of acquiring “foreign intelligence information,” as defined in 50 U.S.C. § 1801(e).

First, the surveillance in question m ust acquire “foreign intelligence inform ation,” which includes “information that relates to . . . the ability of the Un ited States to protect against . . . international t errorism.” 50 U.S.C. § 1801(e)(1)(B ). In the present case, the NSA intercepts communications in which it has a r“easonable basis to conclude that one party to the comunication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working insupport of al Qaeda.” See Press Briefing by Att’y Gen. Alberto Gonzales and Gen. Michael Hayden, Principal Deputy Dir. for Nat’l Intellige nce (Dec. 19, 2005), available at http://www.whitehouse.gov/news/releases/2005/12/print/20051219-1. html (last visited July 2, 2007) (emphasis added). The proclaimed purpose is to prevent future terrorist attacks, see id. (“This is a very concentrated, very limited program focused at gaining information about our enemy.”), and thus the NSA’s conduct satisfies this statutory requirement.

Next, the interception must occur by “electronic surveillance.” According to the plaintiffs,

the government’s admission that it intercepts telephone and email communications — which involve

electronic m edia and are generally considered, in com mon parlance, form s of electroni c

communications — is tantamount to admitting that the NSA engaged in “electronic surveillance”

for purposes of FISA. This argument fails upon recognition that “electronic surveillance” has a very

particular, detailed meaning under FISA — a legaldefinition that requires careful consideration of

numerous factors such as the types of communications acquired, the location of the parties to the

acquired com munications, the location where the acqui sition occurred, the location of any

s§u1rv8e0i1ll(af)n.4c0e

device, and the reasonableness of the parties’ expectation of privacy. See 50 U.S.C. The plaintiffs have notshown, and cannot show, that the NSA’s surveillance activities

40 FISA defines “electronic surveillance” in exactly four ways:
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, knownUnited States person who is in the United States, if the contentsare acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or froma person in theUnited States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of title 18, United States Code;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the cnotents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the senderand all

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 31

include the sort of conduct that would satisfy FISA’s definition of “electronic surveillance,” and the present record does not demonstrate that the NSA’s conduct falls within FISA’s definitions.
Finally, even assuming, arguendo, that FISA applies to the NSA’s warrantless wiretapping, the plaintiffs cannot sustain a claim under FISA. FISA’s civil suit provision permits an “aggrieved person” to bring a cause of action for a violation of that statute:
An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in [50 U.S.C. § 1801(a) or (b)(1)(A)], respectively, who has been subjected to an electronic surveillance or about whom inform ation obtaine d by electronic surveillance of such person has been disclosed or used i n violation of [50 U.S.C. § 1809] shall have a cause of action against any person who com mitted such violation and shall be entitled to recover --
(a) actual damages, but not less than liquidated damages of $ 1,000 or $ 100 per day for each day of violation, whichever is greater;
(b) punitive damages; and
(c) reasonable attorney’s fees and otherinvestigation and litigation costs reasonably incurred.
50 U.S.C. § 1810 (em phasis added). There are at least three reasons why the plaintif fs cannot maintain their claims under FISA’s statutory authorziation. First, the plaintfifs have not alleged, and the record does not contain sufficient facts from which to conclude, that they are “aggrieved persons.” FISA defines an “ aggrieved person” as “a person who is the target of an electronic surveillance or any other person whose com munications or activities were subject to electronic surveillance.” 50 U.S.C. § 1801(k). “[T]he term [aggrieved person] is intended to be coextensive [with], but no broader than, those persons who have standing to r aise claims under the Fourth Amendment with respect to electronic surveillance.” H.R. Rep. No. 95-1283, at 66 (1978) (citing Alderman v. United States, 394 U.S. 165 (1969)) (Report by the Perm anent Select Committee on Intelligence, in support of the proposed FISA bill and amendments). The plaintiffs have not shown that they were actually the target of, or subject to, the NSA’s surveillance; thus — f or the same reason they could not maintain their Fourth Amendment claim — they cannot establish that they are “aggrieved persons” under FISA’s statutory scheme. Second, as previously discussed, the plaintiffs have not demonstrated that the NSA’s wiretapping satisfies the statutory definition of “electronic surveillance,” which is also required by FISA’sliability provision. Third, FISA does not authorize the declaratory or i njunctive relief sought by the plaintiffs, but allows only for the recovery of money damages. No matter how these claims are characterized, the plaintiffs have not asserted a viable FISA cause of action.

intended recipients are located within the United States; or
(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for m onitoring to acquire inform ation, other than from a wire or radio com munication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.
50 U.S.C. § 1801(f). The present record, which contains threefacts regarding the TSP,offers no indication as to where the interception may occur or where any surveillance device is located. Nor d oes it offer any basis to conclude that particular people located in the United States are being targeted.

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 32

4. The Exclusivity Provision

The plaintiffs attempt to bring an am biguous statutory cause of action under Title III and

FISA jointly, based on their allegation that the TSP violates the “exclusivity provision”

of

§ 2511(2)(f). The exclusivity provision states thatTitle III and FISA “shall be the exclusive means

by which electronic surveilla nce, a s defined in section 101 of [FISA], and the interception of

domestic wire, oral, and electronic communications may be conducted.” 18 U.S.C. § 2511(2)(f).

This provision contains two separate and independent, albeit parallel, stateemnts: (1) Title III “shall

be the exclusive me ans by which . . . the inte rception of dom estic wire, oral, and electronic

communications m ay be conducted,” and (2) FISA “shall be the exclusive m eans by which

electronic surveillance, as defined in section 101 of[FISA] . . . may be conducted.” This provision

does not foreclose the possibility that the government may engage in certain surveillance activities

that are outside of the strictures of both Title III and FISA.

The plaintiffs cannot assert a viable cause oafction under this provision. It is undisputed that the NSA intercepts international, rather than domestic, communications, so, as already explained, Title III does not apply. Moreover, because the planitiffs have not shown, and cannot show, that the NSA engages in activities satisf ying the statutory def inition of “electronic surveillance,” the plaintiffs cannot dem onstrate that FISA does apply. Consequently, this e ntire provision is inapplicable to the present circumstances.

The plaintiffs, however, read this provision as satting that Title III and FISA are together the

“exclusive means” by which the NSA can interceptany communication, and that these two statutes

collectively govern every interception (i.e., if not FISA then Title III, and if not Title III then FISA

— there are no other options). Spe cifically, the plaintiffs contend that the NSA cannot lawfully

conduct any wiretapping (under the TSP or otherwise) in a manner that is outside both the Title III

and the FISA frameworks; the NSA’s conduct must fall within the governanceof one statute or the

other. Based on this reading, the plaintiffs believe that they need not dem onstrate the specific

applicability of either statute — in “electronic surveillance,” in

othrdaterist,othpelaycneeietdunndoet rdFemISoAnstr,4a1teoeritthheart

that the NSA is engaging the NSA is engaging in

domestic surveillance, in order to place it under Title III.

The plaintif fs’ theory is prem ised on the assertion that FISA and Title III, collectively, require warrants for the legal interception of any and all communications, and appears to be that because the NSA has publicly adm itted to intercepting certain overseas com munications without warrants, one m ust infer that the NSA has violated one or the other of t hese two statutes. The consequence of this inference — the plaintiffs would have us find — is a violation of § 2511(2)(f), which is not a violation of either Title III or FISA individually, but instead a violation of the collective application of the tw o. Thus, according to the plaintiffs, the NSA has violated the “exclusivity provision” of § 2511(2)(f), and basedon this (presumed) violation, the plaintiffs have standing to bring a cause of action under this statutory provision.

The intended inferential “logic” of the plaintfifs’ theory falls apart upon recognition of their faulty premise. As previously explained, “electronic surveillance” under FISA does not cover all types of foreign surveillance, but instead has a veryparticular and detaileddefinition. The plaintiffs point to no provi sion in FISA, Title III, or any ot her statute that states that the f our definitions “electronic surveillance” listed in FISA are the onlkyind of “electronic surveillance” that could ever be conducted. And the fact that the “exclusivity pr ovision” is expressly lim ited to electronic surveillance “as defined in section 101 of [FI SA]” leaves room to infer that other electronic

41 This, of course, begsthe question of why Congress would define “electronic surveillance” — in four explicit ways — if, as the plaintiffs contend, a demonstration that the interception is “electronic surveillance” is unnecessary.

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 33

surveillance is possible. Therefore, the plaintiffcsannot prove that FISA applies. More importantly, this inability to prove that the interceptions are “electronic surveillance” does not, as the plaintiffs theorize, lead to an inescapable conclusion that Title III applies. It simply means that FISA does not apply. On the other hand, it is irrefutable undetrhe first clause of § 2511(2)(f) that Title III does not apply to this case because the NSA’s wiretapping activities are focused oninternational, rather than domestic, communications. To read this entire statute in the way that the plaintiffs suggest is to create an internal contradiction, which courts are loath to do. Rather, the unavailability of the evidence necessary to prove (or disprove) that the NSA is engaging in “electronic surveillance” compels a conclusion that the plaintiffs cannot demonstrate that either statute applies.
But even assum ing, arguendo, that the plaintiffs ha ve posited a proper reading of the exclusivity provision, and that the NSA’s warrantless wiretapping violates that provision, “the fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person.” Cannon v. Univ. of Chicago, 441 U.S. 677, 688 (1979). The question of whether a statute implicitly creates a cause of action “is basically a matter of statutory construction.” Transam. Mortgage Advisors, Inc. v. Lewi s, 444 U.S. 11, 15 (1979). “The ultimate question is one of congressional intent, not one of whether this [c]ourt thinks that it can improve upon the statutory schem e that Congress enacted into law.” Touche Ross & Co. v. Redington, 442 U.S. 560, 578 (1979).
The exclusivity provision does not appear to creaet such an implied cause of action. In cases where a court implies a cause of action, “the statute in question at least prohibit[s] certain conduct or create[s] federal rights in favor of privat e parties.” Id. at 569. This “exclusivity provision,” however, does not proscribe conduct as unlawful or confer rights on private parties. Moreover, the structure of Title III — the statute in which the exclusivity provision is found — suggests that Congress did not intend to create a private cause of action. Ti tle III expressly states that the “remedies and sanctions described in this chapter . . . are the only judicial remedies and sanctions for nonconstitutional violations of [Title III].” 18 U.S.C. § 2518(10)(c). Thus, Title III explicitly lists the only available remedies and means of statutory relief. Because it is unreasonable to assume that Congress implicitly (i.e., silently) intended to create a third avenue of statutory relief with the exclusivity provision (in addition to the express causes of action contained in T itle III and F ISA themselves), the provision does not provide any basis for a cause of action.
When considering statutory claim s, “the inquiry as to sta nding m ust begin with a determination of whether the statute in question authorizes review at the behest of the plaintiff.” Sierra Club, 405 U.S. at 732. The plaintiffs asserted trhee statutory bases — the APA, Title III, and FISA — and none of these three satutes, individually or collectively, provides an express or implied cause of action that “authorizes review” of the plaintiffs claims. See id. Therefore, the plaintiffs cannot establish standing to litigate their statutory claims, and further explanation is unnecessary. The plaintiffs have, however, raised certain other arguments that warrant mention.
C. Additional Considerations
Having proceeded methodically through the standing analysis, I address the plaintiffs’ only remaining arguments, which defy classification under a compartmentalized approach. Under the first of these arguments, the plaintiffs rely heavily on the Supreme Court’s decision in Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167 (2000), as support for their allegation of injury in fact. In Laidlaw, the Court considered whether the plaintiffs had Article III standing to bring a claim under the citizen-suit provision of the Clean W ater Act, 33 U.S.C. § 1365(a). Therefore, Laidlaw is im mediately distinguishable with rega rd to the constitutional claims. See Sierra Club, 405 U.S. at 732 (noting the differencein the standing analysis, as between constitutional and statutory claims). If Laidlaw is to offer the plaintiffs any support at all, it is only with respect to their statutory claims.

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 34

Laidlaw i s a c ase involving particular statutor y claim s and well-defined environm ental injuries, however, and differs significantly from the present context, which involves dramatically different statutory claims and far less palpable alleged injuries. In this sense, it is noteworthy that the Laidlaw Court explicitly confined its injury-in-fact reasoning to environmental cases, stating: “environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity.” Laidlaw, 528 U.S. at 183 (quotation m arks omitted; emphasis added). Because the injuries and claim s in Laidlaw differ in a significant way fr om those alleged by the plaintiffs in the present case, Laidlaw offers only minimal support for the plaintiffs’ position.
Setting aside the fact t hat Laidlaw is an environm ental case involving a particular, statutorily-created claim , the Court’s analysis in Laidlaw rem ains unpersuasive in the pres ent context. TheLaidlaw Court found that the plaintiffs had satnding to challenge Laidlaw’s discharge of pollutants into a river because the discharge “curtail[ed] their recreational use of that waterway and would subject themto other economic and aesthetic harms.” Id. at 184. In its standing analysis, the Court distinguished City of Los Angeles v. Lyons, 461 U.S. 95, 107 n.7 (1983), which had held that a plaintiff lacked standing toseek an injunction against theenforcement of a police choke-hold policy because he could not credibly allege that he faced a realistic threat fr om the policy. The Lyons Court had noted that “‘[t]he reasonableness of Lyons’ fear is dependent upon the likelihood of a recurrence of the allegedly unlawful conduct,’ and his ‘subjective apprehensions’ that such a recurrence would even take place were not enough to support standing.” Laidlaw, 528 U.S. at 184 (quoting Lyons, 461 U.S. at 108 n.8). In contrast, theLaidlaw Court found a concrete, actual injury based on the plaintiffs’ showing that the defenda nt’s unlawful discharge of pollutants into a particular river was ongoing and may reasonably have caused nearby residents to curtail their use of that waterway. The facts of the present case are more analogous to Lyons than Laidlaw. Unlike the plaintiffs in Laidlaw, the present plaintiffs have curtailed their com munications despite the absence of any evidence that the government has intercepted their particular communications — or by analogy to Laidlaw, without any evidence that the defendant has polluted their particular river. Rather, like the plaintifs inLyons, the present plaintiffs claima threat fromthe government’s policy and a re chilled by their subjective apprehension that the governm ent is intercepting their cLoamidmlauwn.i4c2ations. This c onclusion is therefore consistent with the holding and reasoning of
The plaintiffs’ assertion that numerous other district courts have found standing to challenge the TSP is also unpersuasive. Other cases involving non-similarly situated plaintiffs are typically irrelevant to the issue of standing because standni g reflects whether “a particular person is a proper party to maintain the action.” Flast, 392 U.S. at 100; see also Raines, 521 U.S. at 819 (“We have consistently stressed that a plaintiff’s complaint must establish that he has a ‘personal stake’ in the alleged dispute, and that the alleged injury suffered isparticularized as to him.”). In any event, the existing district court decisions r egarding this TSP reveal a wholly different picture from that presented by the plaintiffs. Neither of the two district courts to address claims against the NSA’s operation of the TSP found that their plaintiffs had standing. InAl-Haramain Islamic Foundation, Inc. v. Bush , 451 F. Supp. 2d 1215, 1226 (D. Or. 2006), unlike the present c ase, t he pl aintiffs purported to have evidence proving that their own communications had actually been intercepted.
42 Even assuming, arguendo, thatLaidlaw assists in establishing a cognizableand concrete injury, the obsatcles to causation and redressability present here were absent there. Moreover, Laidlaw’s redressability analysis is entirely inapplicable to the present case. The redressability analysis in Laidlaw considered whether civil penalties paid to the government, rather than the plaintiffs, could redress the plaintiffs’ alleged injuriesL. aidlaw, 528 U.S. at 185. The Court determined that “the civil penalties sought by [the plaintiffs] carried with them a deterrent effect that made it likely, as opposed to merely speculative, that the penalties would redress[the plaintiffs’] injuries by abating currentviolations and preventing future ones.” Id. at 187. This analysis, as to the deterrent effect of civil damages, does not apply in the present case, which does not involve any claims for damages but only for injunctive and declaratory relief.

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 35

Based in part on that evidence, the district cout rfound that the “plaintiffs should have an opportunity to establish standing and m ake a prima facie case, even if they must do so in camera.” Id. The court did not, however, definitive ly decide the sta nding issue at that stage of its proceeding. In Tooley v. Bush, No. 06-306, 2006 U.S. Dist. Lexis92274, 2006 WL 3783142, at *24 (D.D.C. Dec. 21, 2006), the district court found thatthe plaintiff lacked standingbecause he did not provide “any factual basis for his conclusion that he ha[d] been the subject of illegal wiretaps.” Two other cases challenged a telecommunications provider’s (rather than the NSA’s) participation in the TSP. In Terkel v. AT&T Corp., 441 F. Supp. 2d 899, 919-20 (N.D. Ill. 2006)t,he district court found that the plaintiffs were unable to establish standing agani st AT&T because they could not show that AT&T had disclosed their records to the government. InHepting v. AT&T Corp,. 439 F. Supp. 2d 974, 9991000 (N.D. Cal. 2006), the district court found that the plaintiffs had standing against AT&T, but refused to consider the governm ent’s actions in its standing inquiry. Consequently, these cases provide no support for the plaintiffs’ position in the present case.
Based on t he evidence in the record, as applied in the foregoing analysis, none of the plaintiffs in the present case is able to establis h standing for any of the asserted claim s. At oral argument, we asked the plaintiffs’ counsel if weshould remand for further proceedings on the issue of standing. Counsel asserted that the plaintiffs’ ijnuries were clear and undisputed in the record and there was no need to remand for a hearing or admission of additional evidence on this issue. But even to the extent that additional evidence may exist, which might establish standing for one or more of the plaintiffs on one or m ore of their cl aims, discovery of such e vidence would, under the circumstances of this case, be prevented by the State Secrets Doctrine.See, e.g., Reynolds, 345 U.S. at 10-11; Tenenbaum, 372 F.3d at 777; Halkin v. Helms, 690 F.2d 977, 981 (D.C. Cir. 1982).
V.
The district court dismissed the data mining aspect of the plaintiffs’ claim, finding that the plaintiffs could not establish aprima facie case without resorting to privileged information. ACLU v. NSA, 438 F. Supp. 2d at 765. The plaintiffs press this issue as a cross-appeal.
A thorough review of the complaint, the district court opinion, and the arguments presented on appeal, makes it clear that the plaintiffs allegeno separate injury in connection with the alleged data-mining aspect of the TSP. Therefore, thisstanding analysis applies equally, and the plaintiffs’ cross-appeal must be dismissed for lack of jurisdiction. See Steel Co., 523 U.S. at 109-10.
VI.
We hold that the plaintiffs do not have standi ng to assert their clai ms in federal court. Accordingly, we VACATE the order of the distr ict court and REMAND this case to the district court with instructions to DISMISS for lack of jurisdiction.

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 36

____________________________________

CONCURRING IN THE JUDGMENT _____________________________________

JULIA SMITH GIBBONS, Circuit uJ dge, concurring. The disposition ofall ofthe plaintiffs’

claims depends upon the single fact that the plaintiffs have failed toprovide evidence that they are

personally subject to the TSP. W ithout plaintiffs cannot establish standing for a

this evidence, on a ny of their claims,

cmonosttiiotuntifoonrasluomr mstaatruytojruyd.g1mFeonrt,ththise

reason, I do not reach the myriad other standing and merits issues, the complexity of which is ably

demonstrated by Judge Batchelder’s and Judge Gilman’s very thoughtful opinions, and I therefore

concur in the judgment only.

The case or controversy requirement in Article III of the Constitution determines the power

of the f ederal courts to entertain a suit, es tablishing an “irreducible constitutional m inimum of

standing” that is required for both constitutional and statutory claims. See Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992);Warth v. Seldin, 422 U.S. 490, 498 (1975);O’Shea v. Littleton,

414 U.S. 488, 493 n.2 (1974). The Constitution “r equires the party who invokes t he c ourt’s

authority to show that he personally has suffered some actual or threatened injury as a result of the

putatively illegal conduct of the defendant.” Valley Forge Christian Coll. v. Ams. United for

Separation of Church & State, Inc,. 454 U.S. 464, 472 (1982) (quotatoi n marks omitted) (emphasis

added). This persona l i njury m ust be “an invasion of a legally protected interest which is (a)

concrete and particularized and (b) actual and imminent, not conjectural or hypothetical.” Defenders

of Wildlife, 504 U.S. at 560 (citations and quotation marks omitted); see also Friends of the Earth,

Inc. v. Laidlaw Envtl. Servs. T( OC), Inc., 528 U.S. 167, 181 (2000) (noting that the relevant showing

is the injury to the plaintiff, not the environm ent). In order for a plaintiff to show that the injur y

from a government policy is actual and imminent, a plaintiff must demonstrate that he personally

would be subject to the future application of that policy.City of Los Angeles v. Lyons, 461 U.S. 95,

106 n.7 (1983); see Laidlaw, 528 U.S. at 184; Davis v. Scherer, 468 U.S. 183, 189 n.7 (1984). A

plaintiff’s fear that he repeated injury that is

will be subject relevant to the

to the policy is standinignquiry,

insufficient; “[i]t not the plaintiff’s

issutbhjeecrteiavleitaypopfrethheenthsiroenats.o”2f

Lyons, 461 U.S. at 107 n.8; see Laidlaw, 528 U.S. at 184.

Judge Gilman’s opinion arrives at the opposite ocnclusion, relying exclusively on its reading of Laidlaw. It concludes that the attorney-plaintiffs need not show that they have ever been or will

1 Although Judge Batchelder clearly disagrees about the depth of treatment required, at least with respect to the plaintiffs’ constitutional claims and FISA claim, she appears to agree that the plaintiffs’ failure to demonstrate that they have been subject to the TSP is fatal to their constitutional standing. (See Batchelder Op. 9-10 (discussing all the claims generally and FISA specifically); id. at 13-14, 18 (First Amendment); id. at 23 (Fourth Amendment); id. at 24 (Separation of Powers).) We may differ, however, with respect to the plaintiffs’ other statutory claims because Judge Batchelder determines that the statutes do not apply without reaching the issue of constitutional standing. My reading of Supreme Court precedent suggests that we m ust reach the constitutional standing issue first with respect to all the claims. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89, 92-93 (1998) (warning that a court must determine constitutional standing before addressingthe “existence of a cause of action”);see also Sierra Club v. Morton, 405 U.S. 727, 732 & n.3 (1972) (noting that the inquiry as to “whether the statute in question authorizes review at the behest of the plaintiff” occurs where a dispute is “otherwise justiciable” because Article III jurisdiction is present). Because in my view the plaintiffs have no constitutional standing to raise any of their claims, I find it unnecessary to discuss the applicability of the other statutes.
2 This is not to say that a plaintiff lacks standing until a defendant has acted. A “genuine threat” of enforcement of a policy against a plaintiff who is demonstrably subject to that policy supports standing. See Steffel v. Thompson, 415 U.S. 452, 475 (1974). But that case differs from one in which a plaintiff cannot establish that he is subject to the policy but merely fears that he is subject tothe policy that may be enforced, which cannot support standing. See, e.g., United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375, 1380 (D.C. Cir. 1984).

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 37

ever be actual subjects ofsurveillance but rather onyl the “reasonableness oftheir fear” that they will be subjects of surveillance. (Gilman Op. 44, 50.) In doing so, JudgeGilman transforms the holding in Laidlaw, under which the plaintiffs who werein fact subject to defendant’s conducthad standing because they reasonably feared harm from that conduct, into a m uch broader proposition, under which plaintiffs may establish standing by showing merely that they possess a reasonable fear of being subject to defendant’s allegedly harmful conduc.t This distinction is critical to “t[]he relevant showing for purposes of Article III standing, . . . injury to the plaintiff,” Laidlaw, 528 U.S. at 181, as the Supreme Court made clear in distinguishingLaidlaw fromLyons. InLaidlaw, the Court noted that in Lyons, a policy of chokehold use existed, but theplaintiff’s “‘subjective apprehensions’ that such a re currence [of the unlawful conduct] would even take place were not enough to support standing.” Laidlaw, 528 U.S. at 184. The plaintiff’s fear of being subject to conduct of the defendant under the chokehold policy was insuffici ent to support standing. The Supreme Court further explained that standing was present in Laidlaw because “in contrast, it is undisput ed that Laidlaw’s unlawful conduct . . . wasoccurring . . . . [T]hen, the only‘subjective’ issue here is ‘the reasonableness of the fear’ that led the affiants to respond to that concededly ongoing conduct” by refraining from use of the polluted areas. Id. (brackets omitted). The Court noted that it differed from the dissent in seeing nothing “‘improbable’ about the proposition that a company’s continuous and pervasive illegal discharges of pollutants into a river would cause nearby residents to curtail their recreational use of that waterway and would subject them to other econom ic and ae sthetic harms.” Id. Thus, in Laidlaw, the plaintiff’s fear of har m from the defendant’s undisputed conduct—conduct that would also undisputably affect plaintiffs personally if they undertook their desired activities—was sufficient to support standing. Id. at 184-85. In summary, I read Laidlaw to require that plaintiffs demonstrate that they (1) are in fact subject to the defendant’s conduct, in the past or future, and (2) have at least a reasonable fear of harm from that conduct.
The Laidlaw majority’s discussion ofLyons and its observations about theLaidlaw plaintiffs explain exactly why plaintiffs here are like the plaintiff in Lyons, who lacked standing, and unlike those in Laidlaw, who had standing. Like the plaintiffs in Laidlaw and Lyons, the plaintiffs in the present case may have a reasonable fear of harm from the defendants’ conduct. See id. at 184-85 (finding plaintiffs’ fear of “economic and aesthetic harms” from “illegal discharges of pollutants” to be “entirely reasonable”);Lyons, 461 U.S. at 100 (describing the daeths of those who were subject to chokeholds). But Laidlaw and Lyons differ in outcom e based on whether the plaintiffs have established that they are in fact subject to the conduct of the defendants. Here, plaintiffs fear being subject to a government policy of surveillance and have alleged that they and those with whomthey communicate have ceased their norm al communication. If they i nstead continued their norm al activities, they would still be fearful, but whether they would actually be subject to surveillance is purely speculative. They are like theLyons plaintiff who can show nothing more than a fear of the use of a chokehold. See Laidlaw, 528 U.S. at 184 (discussing the “‘subjective apprehensions’ that such a recurrence would even take place” in Lyons). By contra st, if the Laidlaw plaintiffs had resumed their abandoned activities, they would definitely have been subject to the defendant’s conduct—illegal discharges into the river. See id. (contrasting Laidlaw’s “concededly ongoing conduct” of “continuous and pervasive illegal discharges of pollutants into a river . . . nearby”).
Judge Gilman’s attempt to distinguish Lyons from the case at bar is directly contrary to the Supreme Court’s own reading of that case. It isimmaterial that the likelihood that Lyons would be subject to the chokehold policy m ay be f ar m ore remote than the likeli hood that the attorneyplaintiffs in this case may be subjectto the warrantless surveillance policy. S(ee Gilman Op. 45-46.) As Laidlaw makes clear, a plaintiff must be actually subject to the defendant’s conduct, not simply afraid of being subject to it, regardless of how reasonable that fear may be. The Supreme Court’s distinction between Laidlaw and Lyons was one of kind, not degree. See Laidlaw, 528 U.S. at 184 (distinguishing between the “subjective apprehensions that such arecurrence would even take place” in Lyons and the “subjective issue [of] the reasonableness of the fear” that pollutants would cause “economic and aesthetic harms” in Laidlaw) (internal quotation marks and brackets omitted). Here,

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 38

the attorney-plaintiffs lack st anding because they have failed to present evidence that they are personally subject to the warrantless surveillance policy; that is, the attorney-plaintiffs have failed to present evidence as to whether, in the governm ent’s vie w, “ there are reasonable grounds to believe that a party to the [attorney-plaintiffs’] communication[s] is affiliated with al Qaeda.”
Judge Gilm an attem pts to distinguish United Pr esbyterian Church on its facts by confounding the different injuries alleged in that case. The plaintiffs in that case alleged three different kinds of injuries: (1) “the ‘ch illing’ of constitutionally protected activities,” United Presbyterian Church , 738 F.2d at 1377; (2) “the im mediate threat of being targeted for surveillance,” id.; and (3) direct injury from surveillance taken against them, id. at 1380 & n.2. As the plaintiffs in this case have no evidence that they have ever been subject to the TSP, Judge Gilman correctly distinguishes the D.C. Circuit’sreasoning on the third alleged injury. (Gilman Op. 46 (discussing the “direct injury” and quoting in parUt nited Presbyterian Church, 738 F.3d at 138081 (“The third kind of harm [the plaintiffs] allege is . . . too generalized and nonspecific to support a complaint. . . . The re is no allegation or even suggestion that any unlawful action to which the [plaintiffs] have been subjected in the past wasthe consequence of the presidential action they seek to challenge.”)).) Judge Gilman ignores the D.C. Circuit’s reasoning on the second alleged injury, for which it found that the plaintiffs lacked standing based upon the same distinction made by the Supreme Court in Laidlaw. The D.C. Circuit noted that the plaintiffs would have standing if they were subject to an “immediate threat of concrete, harmful action.” United Presbyterian Church, 738 F.2d at 1380. However, it concluded that the plainftfis’ allegations that “their activities are such that they are especially likely to be tragets of the [surveillance] authorized by the order” were insufficient to support standing because those allegations only “place[d] the plaintiffs at greater risk” of being subject to surveillance. Id. There is no relevant factual difference between thUe nited Presbyterian Church plaintiffs, whose activities the D.C. Circuit conceded made them more likely to be subject to surveillance, id., and the attorney-plaintifs in this case, whose representatino of “exactly the types of clients” targeted by the TSP makes them more likely to be targeted by the TSP, (Gilman Op. 47).
Unlike the plaintiffs in United Presbyterian Church and this ca se, in every case cited by Judge Gilman in which standing was found, the plaintiff was cle arly subject to conduct of the defendant about which the plaintiff com plained. See Meese v. Keene , 481 U.S. 465, 473 (1987) (noting that the three films the plaintiff sought to show were identified as “political propaganda”); Steffel, 415 U.S. at 459 (noting that the plaintiff’s fear of prosecution was not speculative because he had been personally threatened with prosecution);Ozonoff v. Berzak, 744 F.2d 224, 228 (1st Cir. 1984) (noting that “[a]s one w ho ha s worked for the W HO in the past and who has filed an employment application again seeking work,” the palintiff felt constrained by the loyalty standards); Paton v. La Prade, 524 F.2d 862, 865, 870-71, 873 (3d Cir. 1975) (noting that “Paton’s name and address were ascertained as a result of the m ail cover” and concluding the plaintiff had standing because “she m ay have sustained or be im mediately in danger of sustaining a direct injury as a result” of the FBI investigation directed against her, which resulted from the mail cover).
In applying any understanding of constitutional standing, it is im portant to recognize the burden of proof required. “Theparty invoking federal jurisdiction bears the burden of establishing the[] elements” of standing. Defenders of Wildlife , 504 U.S. at 561. “[E]ach elem ent must be supported in the same way as any other matter on which the plaintiff bears the burden of proof,i.e., with the manner and degree of evidence requiredat the successive stages of the litigation.” Id. As this case was decided on the government’s motion for summary judgment, the plaintiffs “must ‘set forth’ by affidavit or other evidence ‘specific facts,’ which for purposes of the summary judgment motion will be taken to be true.” Id. (quoting Fed. R. Civ. P. 56(e)). Applying my formulation of the standing requirements, the plaintiffs have failed to meet this burden because there is no evidence in the record that any of the plaintiffs are personally subject to the TSP. Judge Gilman frequently refers to the attorney-plaintiffs ’ allegations, (Gilm an Op. 44, 47, 48), and concludes that the “attorney-plaintiffs have alleged a[] . . . concrete and particularized injury,” (Gilman Op. 47). On

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 39

summary j udgment, however, the plaintiffs’ m ere allegations are insufficient, and although the publicly admitted information about the TSP “supports” them, (Gilman Op. 48), it does not satisfy the plaintiffs’ burden. In applying his formulation of the standing requirement, the reasonableness of plaintiffs’ fear, Judge Gilman concludes that “[t]he likelihood that [the plaintiff in Lyons] would again find himself in a chokehold by the Los Angeles police seems to me far more remote than the ongoing concern of the attorney-plaintiffs here that their telephone or email communications will be intercepted by the TSP.” (Gilman Op. 45-46.) Unfortunately for the plaintiffs’ position, besides Judge Gilman’s subjective assessment, there is no evidence as to the likelihood the plaintiffs will be surveilled for this court to consider on summary judgment.

from

Under any understanding of establishing standing because

ocfotnshtietusttioatnealsesctarentdsinpgri,vtihleegpel.a3intAifsfsJuardegeulBtimatactheellydeprrenvoetnetse,d

plaintiffs have not challenged the government’s invocation of the privilege or its application. All

three members of the panel have reviewed the documents filed by the government under seal that

arguably are protected by the privilege. The state secrets privilegeoperates as a bar to the admission

of evidence to which the privilege attaches, and the plaintiff must proceed without the benefit of

such evidence. See United States v. Reynolds, 345 U.S. 1, 11 (1953);see also Ellsberg v. Mitchell,

709 F.2d 51, 65 (D.C. Cir. 1983). W here the privilege prevents the plaintif f f rom producing

sufficient evidence to establish his or herprima facie case, the court must dismiss the claim. Kasza

v. Browner, 133 F.3d 1159, 1166 (9th Cir. 1998). In this way, the state secrets privilege has

prevented the plaintiffs from conducting discovery that might allow them to establish that they are

personally subject to the TSP, as I believe cons titutional standing requires. However, where the

privilege deprives the governm ent of a valid defens e to the plaintiff’s claim , the court must also

dismiss the claim. Tenenbaum v. Simonini, 372 F.3d 776, 777 (6th Cir. 2004); Kasza, 133 F.3d at

1166. avoid

thEevesntataeppselycirnegtsJpurdivgieleGgiel.m4

an’s formulation of Evidence arguably

the standing protected by

requirem ent, the court cannot the state secrets privilege m ay

well be relevant to the reasonableness of the plaintiffs’ fear. Whether that evidence is favorable to

plaintiffs or defendants, its unavailability requires dismissal. That it may be unsatisfying that facts

pertinent to the standing inquiry are unavailable canhave no bearing on the disposition of this case.

If t he state secrets privilege prevents the plaintiffs from presenting adequate evidence of thei r

3 Judge Batchelder’s decision does notdiscuss the implications of the state secrets privilegebecause, under her reading ofLaird v. Tatum, 408 U.S. 1 (1972),the plaintiffs can establish standing only if they are “regulated, constrained, or compelled directly by the government’s actions,” (Batchelder Op. at 13), not if their injury “aris[es]from a personal subjective chill” caused by the existence of government surveillance, (Batchelder Op. 16; see Batchelder Op. 14-15). The implication of this reasoning is that even if the plaintfifs had evidence that they were personally subjectto the TSP, they would not have standing if the government was only conducting surveillance.
It is not clear to me that Laird must be read this way. The language inLaird about regulation, proscription, and compulsion to me seems merely descriptive of the facts in prior cases in which the Supreme Court had found standing. Laird could be read as holding that when the only harm alleged is chilled speec h, then the exercise of governm ental power must be regulatory, proscriptive, or compulsory in nature. See Laird, 408 U.S. at 11, 13-14. Here, the plaintiffs’ professional injuries are arguably a harm beyond chilled speech. Furthermore, because the plaintiffs in Laird alleged only chilled speech, Laird does not directly address whether other injuries that derive from the chilled speech must be discounted. See id. at 13-14. Given this am biguity, I see no need to express an opinion as to the extent of Laird’s holding and whether the plaintiffs could establish standing were they to provide evidence that they were personally subject to surveillance.
In any event, even under Judge Batchelder’s reasoning, the state secrets privilege plays a prominent role that must be acknowledged. Because of the statesecrets privilege, the plaintiffs are unable to conduct discovery tdoetermine if information from the TSP is used in such a way as to satisfy the requirements that Judge Batchelder finds in Laird.
4 Judge Gilman’s opinion does not dispute the majority opinion’s contention that the plaintiffs’ standing would be undermined if the NSA hypotheticallyadhered to a policy ofcomplete nondisclosure, but rather criticizes the analysis as speculation. (Gilman Op. 51.) It correctly notes that we cannot knowwhether such a policy exists “[a]bsent a public revelation from the NSA.” (Gilman Op. 51.) However, it misapprehends the impact of this observation. The plaintiffs’ claims fail not because of the majority’s speculation that sucha policy exists but rather because the statseecrets privilege precludes the NSA from disclosing whether it exists.

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 40

standing, we must dismiss their claims. If the state secrets privilege prevents the government from presenting evidence that might refute the plaintiffs’ allegations that they are likely to be surveilled and undercut the reasonableness of their asserted fear, we must also dismiss the plaintiffs’ claims.

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 41

_______________
DISSENT _______________
RONALD LEE GILMAN, Circuit Judge, dissent ing. My colleagues conclude that the plaintiffs have not established standing to bring their chall enge to the Bush Adm inistration’s so-called Terrorist Surveillance Program (TSP). A fundamental disagreement exists between the two of them and myself on what is required to show standing and whether any of the plaintiffs have met that requirem ent. Because of that di sagreement, I respectfully dissent. Moreover, I would affirm the judgm ent of the district court becau se I am persuaded that the TSP a s or iginally implemented violated the Foreign Intelligence Surveillance Act of 1978 (FISA).
I. ANALYSIS
A. Procedural posture
This case comes to us in a relatively unique procedural postur e. In the district court, the plaintiffs m oved for partial sum mary judgm ent. They filed a statem ent of undisputed facts in support of that motion. The government then filed its own motion to dismiss or, in the alternative, a motion for summary judgment. In this motion, the government asserted that the plaintiffs could not establish standing and that the state-secrets privilege barred their claims. But the government did not contest the plaintiffs’ statem ent of undisput ed facts or provide its own statem ent of undisputed facts. The district court was therefore bound by the requirements of Rule 56(e) of the Federal Rules of Civil Procedure, which provides as follows:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party m ay not rest upon t he me re a llegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adveres party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
After reviewing the affidavits and related supporting material submitted in support of t he plaintiffs’ motion, the district c ourt found that they had set f orth the necessary facts to meet the prerequisites for standing. The court then consideredthe plaintiffs’ claims on the merits and granted their motion as to all but their datamining claim.
Despite this procedural posture, the lead opinion asserts that the record presently before us contains only “three publicly acknowledged fact s about the TSP—(1) it eavesdrops, (2) without warrants, (3) on international telephone and em ail communications in which at least one of the parties is a suspected al Qaeda affiliate.” Lead Op. at 3. For the reasons both stated above and set forth below, I believe that this description si gnificantly understates the m aterial in the record presently before us.
B. Standing
1. Injury in fact
Article III of the U.S. Constitution “requires the party who invokes the court’s authority to show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc. , 454 U .S. 464, 472 (1982) (quotation m arks omitted). This is som etimes referred to as the “direct injury” or the “distinct and palpable injury” requirement. Laird v. Tatum,

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 42

408 U.S. 1, 13 (1972); Valley Forge, 454 U.S. at 475. The Supreme Court has defined “injury in fact” as “an invasion of a legally protected intere st which is (a) concrete and particularized and (b) actual and imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations and quotation m arks omitted). An association has standing t o sue on behalf of its members when “its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000) (citation omitted).
Moreover, as the lead opinion acknowledges, only one plaintiff need establish standing to satisfy Article III’s case-or-controversy requirement. Mass. v. Envtl. Prot. Agency, 127 S. Ct. 1438, 1453 (2007) (“Only one of the petitioners needs to ha ve st anding to perm it us to consider the petition for review.”); see also Bowsher v. Synar, 478 U.S. 714, 721 (1986) (finding the Article III requirement satisfied where at least one plaintiff could establish standi ng). The position of the attorney-plaintiffs, in my opinion, is the strongest for the purpose of the standing analysis. This is not to say that the journalists and the scholars do not have standing. They might. But because only one plaintiff need establish standing, I will focus my discussion on the attorney-plaintiffs.
The lead opinion criticizes the attorney-plainti ffs for asserting m ultiple causes of action despite “hav[ing] one claim,” but this is hardly a “ruse,” whether “perfectly acceptable” or not as the lead opinion would have it. Lead Op. at 9. The Suprem e Cour t’s r ecent decision in DaimlerChrysler Corp. v. Cuno, 126 S. Ct. 1854, 1868 n.5 (2006), indeed reiterates that a litigant cannot “by virtue of his standing to challenge one government action, challenge other governmental actions that did not injure him.” In the present case, however, the plaintiffs seek to challenge the only action that has injured them —the NSA’s im plementation of the TSP—and they do so by “identifying all grounds” against that action. Id. at 1868 n.5. Thus, I do not believe that this case requires “a particularized analysis of the plaintiffs’ three alleged injuries, six asserted legal claims, and two requested forms of relief.” Lead Op. at 10.
I now return to the first element of the standing analysis. Despite the willingness of the lead opinion to assume that the attorney-plaintiffs’ asserted injuries could be “deemed adequate to state an injury in fact,” Lead Op. at 17, its analysis suggests the opposite. I have accordingly set forth below the reasons why I conclude that the attorney-plaintiffs have dem onstrated that no such assumption is needed because they have actually stated an injury in fact.
The attorney-plaintiffs assert a claim for the injuries flowing from the failure of the TSP to comply with FISA’s requirements that “minimization procedures” be utilized to protect privileged communications—such as between attorneys and theri clients—from interception or, ifintercepted, from s ubsequent disclosure. Contrary to the lead opinion’s characterization of the attorney-plaintiffs’ assertions, the harm alleged here in fact “causes the plaintiffs to refrain from” potentially harmful conduct. Lead Op. at 8. I findthat the distinction the lead opinion attempts to draw between a harm that causes an injury and a harm that results from an injury is ultim ately unpersuasive. To m y mind, the attorney-plaintiffs have art iculated an actual or im minent harm flowing from the TSP.
The lead opinion’s contrary view is largely based on its reading of the D.C. Circuit’s interpretation of Laird; nam ely, that “a plaintiff m ust establish that he or she is regulated, constrained, or com pelled directly by the govern ment’s actions, instead of by hi s or her own subjective chill.” Lead Op. at 13 (citing Laird, 408 U.S. at 11, and United Presbyterian Church v. Reagan, 738 F.2d 1375, 1378 (D.C. Cir. 1984)). In fact, the lead opinion says thatLaird controls, and that the injury alleged here is atbest no more concrete than that in Laird. Lead Op. at 16. The lead opinion then analogizes the injury to the attorney-plaintfisf’ ability to perform their professional duties as a chill on “com mercial speech.” Drawing on this com mercial-speech analogy—an

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 43

argument never raised by the governm ent—the lead opinion rejects the plaintiffs’ contention of having suffered an injury in fact because, as socharacterized by the lead opinion, the consequence “would effectively value commercial speech above political speech.” Lead Op. at 13. But there is no legal support offered for the lead opinion’s contention that the plaintiffs’ inability to perform their jobs is nothing more than the equivalent of a chill on commercial speech. Lead Op. at 12-13. In addition, the lead opinion’s commentary on the relative value of different forms of speech is not a point raised by either of the parties or, to my mind, in any way relevant to the resolution of this case. For this reason, I find the lead opinion’sdiscussion ranking the value of political speech over commercial speech puzzling. I instead believe that Laird is distinguishable because the attorneyplaintiffs have in fact alleged a concrete, imminent, and particularized harm flowing from the TSP.

On appeal, the government contends that any litigation about the TSP must be premised on the three general facts that the government has publicly disclosed: (1) the TSP exists, (2) it operates without warrants, and (3) it intercepts “only communications that originate or conclude in a foreign country, and only if there are reas onable grounds to believe that a party to the com munication is affiliated with al Qaeda.” According to the government, the plaintiffs cannot demonstrate that they were actually target s of t he TSP and thus cannot show m ore than a “subjective chill” on their activities. The governm ent asse rts t hat the plaintiffs cannot establish standing because the state-secrets privilege prevents us rfom testing the plaintifs’ allegations that they have been or likely will be subject to surveillance under the TSP. Moreover, the government argues that the plaintiffs improperly seek to assert the rights of thi rd parties, such as their overseas contacts, clients, and sources, who are not presently before the court.

The attorney-plaintiffs respond that they have suffered concrete, particularized injuries as a result of the TSP. Specifically, they contend that the TSP puts them in the position of abrogating their duties under applicable professional-responsibility rules if they communicate with clients and contacts via telephone or email. The TSP, in short, allegedly prevents them from doing their jobs. Specifically, the attorney-plaintif fs contend that they have had to travel internationally f or face-to-face meetings at a significant expense in te rms of time and money. They claim that their ability to conduct research and factfinding has been limited, if not entirely thwarted, as a result.

The attorney-plaintiffs, as part of their re presentation of clients accused of being enem y combatants or of providing aid to organizations dseignated as terrorist groups, declare that they have conducted internet research on terrorism, religion, politics, and human-rights issues in parts of the Middle East and South Asia. They further state that they have reviewed web sites where topic s including jihad, kidnapping, and other terrorist acts are discussed. As part of their work on behalf of their clients, these attorneys have communicated with potential witnesses, experts, lawyers, and other individuals who l ive and work outside the United States about subjects such as terrorism , jihad, and al-Qaeda. The attorney-plaintiffs cont end that because of the TSP, they have ceased telephone or email communications about substantive issues with their overseas contacts. This is because the TSP, unlike FISA, provides no m inimization procedures to protect attorney-client communications.

Under FISA, an application for an order authorizing surveillance must include a description

of the minimization procedures that will be utilized to protect privileged comunications. 50 U.S.C.

§ 1804(a)(5). “Minimization procedures” are “specific procedures . . . that are reasonably designed

. . . to m inimize the acquisition and retention, and prohibit the di ssemination, of nonpublicly

available information concerning unconsenting United States persons.” 50 U.S.C. § 1801(h)(1)s;ee

also 50 U.S.C. §§1801(h)(2)-(4) (providing a further definition of t

he term ). Privileged

communications rem ain such under FISA. 50 U.S.C. § 1806(a) (“No otherwise privileged

communication obtained in accordance with, or in vi olation of, the provisions of this subchapter

shall lose its privileged character.”); id. § 1806(h).

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 44

As noted above, the lead opinion finds that Laird controls this case. Lead Op. at 16. Although the lead opinion then asserts that it lim its its application of Laird to only the attorneyplaintiffs’ First Amendment claim, its analysis suggests otherwise. Laird addressed the question of “whether the jurisdiction of a federal court properly may be invoked by a complainant who alleges that the exercise ofhis First Amendment rights is being chilled by themere existence, without more, of a governmental investigative and data-gathering activity that is alleged t o be broader in scope than is reasonably necessary for the accomplishment of a valid governmental purpose.” 408 U.S. at 10 (emphasis added). The case stands for theproposition that “[a]llegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.” Id. at 13-14. In Laird, the Court found that the U.S. Arm y, in its ca pacity as a domestic peacekeeping body, had collected information on “public activities that were thought to have at least some potential for civil disorder.” Id. at 6. “The information itself was collected by a variety of means, but it is significant that the pirncipal sources of information were the news media and publications in general circulation.” Id.
I believe that the attorney-plaintif fs here allege a distinct set of f acts that is legally distinguishable from those set forth inLaird. Unlike in the present case, theLaird plaintiffs simply articulated “speculative apprehensiveness that th e A rmy ma y a t s ome fu ture d ate mi suse t he information in some way that would cause direct harm to [them].” 408 U.S. at 13-14. The Court stated that the plaintiffs “freely admit that they complain of no specific action of the Army against them . . . . There is no evidence of illegal or unlawful surveillance activities.” Id. at 9.
In contrast to Laird, the attorney-plaintif fs here com plain of specific present harm s, not simply of som e generalized fear of the future misuse of intercepted com munications. T he TSP forces them to decide between breaching their dutyof confidentiality to their clients and breaching their duty to pr ovide zealous representation. Neither position is tenable. The attorney-plaintiffs must travel to meet in person with clients and soucres in order to avoid the risk ofTSP surveillance. Unlike the situation in Laird, the attorney-plaintiffs in the present case allege that the government is listening in on private person-to-person communications that are not open to the public. These are com munications that any rea sonable person would understand to be private. The attorney-plaintiffs have thus identified concrete harms to themselves flowing from their reasonable fear that the TSP will intercept privileged communications between themselves and their clients.
To survive the government’s standing-to-sue challenge, the attorney-plaintiffs do not have to demonstrate that their past communications have in fact been intercepted by the TSP. ILnaidlaw, for example, the Supre me Court found that environm ental groups had standing to sue a polluter where their members declared “that they would use the nearby North Tyger River for recreation if Laidlaw were not discharging pollutants into it.” 528 U.S. at 184. The C ourt did not require the plaintiffs to show that the pollutants had actually harmed the environment, instead finding that their members’ “reasonable concerns about the effects of [Laidlaw’s] discharges directly affected those affiants’ recreationa l, a esthetic, and econom ic interests,” and that these concerns “present[ed] dispositively more than the mere general averments and conclusory allegations found inadequate” in prior cases. Id. at 183-84 (citation and quotation marks omitted).
A similar conclusion was reached by the Fourth Circuit in Friends of the Eart h, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149 (4th Cir. 2000). InGaston Copper, the court found that the plaintiff had standing basedon his assertion that he used the affected lake less than he would have ot herwise as a result of the ongoing pollu tion, despite the lack of evidence showing an objective environmental change in the lake. Id. at 156, 159.
Both the Laidlaw and the Gaston Copper plaintiffs asserted more than “a mere academic or philosophical interest,” Gaston Copper, 204 F.3d at 159, or “an ingeniousacademic exercise in the conceivable.” United States v. Students ChallengingRegulatory Agency Procedures (SCRAP), 412

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 45

U.S. 669, 688 (1973). The attorney-plaintiffs in thecase before us likewise have alleged a harmfar beyond the academic in their challenge to the TSP.
In reaching the opposite conclusion, the l ead opinion attempts to distinguish Laidlaw by noting that the plaintiffs there brought their complaint under the citizen-suit provision of the Clean Water Act, a fact that the lead opinion asserts “offers only minimal support” for the plaintiffs in the present case. Lead Op. at 34. Although the plainti ffs in that case did indeed base their cause of action on an environm ental statute, the Suprem e Court still analyzed whether they satisf ied the constitutional standing requirements of Article III. See Laidlaw, 528 U.S. at 180-89. The fact that the Clean Water Act contained a citizen-suit provision did not absolve the courts of examining the constitutional standing of the particular plaintiffs before them. I therefore find the lead opinion’s treatment of Laidlaw unpersuasive. As in Laidlaw, I have analyzed the att orney-plaintiffs’ assertions of Article III standing and have concluded that they satisfy those requirements.
The concurring opinion also criticizes m y interpretation of Laidlaw, describing it as “transform[ing] the holding” in that case. C oncurring Op. at 37. I do not belie ve t hat this characterization holds up under scrutiny. In discussing the case, the concurring opinion describes the Laidlaw plaintiffs as “in fact subject to defendan’ts conduct” of discharging pollutants in excess of permitted amounts into the North Tyger River. Id. (emphasis omitted). The Supreme Court, to be sure, noted that “it is undisputed that Laidlaw’s unlawf ul conduct . . . was occurring,” but nonetheless found nothing “im probable about th e proposition that a com pany’s continuous and pervasive illegal discharges of pollutants into a river would cause nearby residents to curtail their recreational use of that waterway and would subject them to other economic and aesthetic harms.” Laidlaw, 528 U.S. at 184 (citation and quotation marks omitted).
The concurring opinion then argues, in reference to the Laidlaw plaintiffs, that their “fear of harm from the defendant’s undisputed conduct—conduct that would also undisputably affect plaintiffs personally if they undertook their desired activities—was sufficient to support standing.” Concurring Op. at 37 (emphasis in original). Similarly, the concurring opinion acknowledges that “the plaintiffs in the present case may have a reasonable fear of harmfrom the defendants’ conduct.” Id. It goes on to state, however, that the attorney-plaintiffs lack standing because they “m ust be actually subject to the defendant’s conduct, not simply afraid of being subject to it.” Id. Because I believe that the plaintiffs in the present case are “actually subject t o the defendant’s conduct” within the meaning of Laidlaw, I respectfully disagree with my colleague’s conclusion.
To my mind, the concurring opinion describes, rather than distinguishes, the situation of the attorney-plaintiffs. The concurring opinion would hodl that the attorney-plaintiffs must demonstrate that they have personally been subject to surveillnace under the TSP in order to have standing to sue. This is akin to Laidlaw’s argument that the plaintiffs should have been required to demonstrate that Laidlaw’s mercury discharge violations caused themto “sustain[] or face[] the threat of any ‘injury in fact’ from Laidlaw’s activities.” Laidlaw, 528 U.S. at 181. But the Supreme Court rejected such an argument, stating that the plaintiffs need only show “the reasonableness of the fear that led the affiants to respond to that c oncededly ongoing conduct . . . .” Id. at 184 (brackets and quotation marks omitted).
Both the lead and concurring opinions proceedto analogize the present case to two cases that I find distinguishable. One is Los Angeles v. Lyons, 461 U.S. 95 (1983), where the Supreme Court denied standing for injunc tive relief to a Los Angeles m otorist who had been subjected to a chokehold by the police duringa routine traffic stop. Id. at 100. The Court reasoned in part that the plaintiff’s “subjective apprehensions” that “a recurrence of the allegedly unlawful conduct” would occur were insufficient to support standing. Id. at 107 n.8. But the likelihood that Lyons would again find himself in a chokehold by the Los Angeles police seems to me far more remote than the ongoing concern of the attorney-plaintiffs here that their telephone or email communications will

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 46

be intercepted by the TSP. Based upon the principles set forth in Laidlaw, the “reasonableness of the fear” of the attorney-plaintiffsin the present case strikes me as being well beyond what is needed to establish standing to sue. See Laidlaw, 528 U.S. at 184.

Pushing the lead opinion’s reasoning still f urther, the concurring opinion argues that the attorney-plaintiffs “can show nothing more than a fear” of “being subject to a government policy of surveillance.” Concurring Op. at 37. “By contrast, if the Laidlaw plaintiffs had resumed their abandoned activities, they would definitely have been subject to the defendant’s conduct—illegal discharge into the river.” Id. The concurring opinion the n asserts that “[t]he Suprem e Court’s distinction between Laidlaw and Lyons was one of kind, not degree.” Id. But I find no support for this assertion, and my colleague’s reliance on a quotation fromLaidlaw for this point strikes me as unpersuasive.

In fact, the Laidlaw plaintiffs were personally affected by the defendant’s conduct whether they used the waterway or not. Nothing inLaidlaw required that the plaintiffs demonstrate that they were all equally likely to be af fected by the pollutants, that the pollutants were evenly dispersed through the w aterway, or that a plaintif f swimming in the river w as more likely than a plaintiff canoeing on the river to be injured. All that was required was that they dem onstrate that, given Laidlaw’s undisputed conduct, they possessed a reasonable fear of harm. This holds equally true for the attorney-plaintiffs in the present case. The existence of t he TSP i s undisputed and these plaintiffs are personally afected by the TSP whether they engage in targeted communications or not. In sum, I believe that the distinction between Laidlaw and Lyons is in fact one of degree, and that the attorney-plaintiffs here occupy a position far closer to the former than to the latter.

The other case to which the lead opinion analogizes the present suit is United Presbyterian

Church v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984). In United Presbyterian Church, a group of

religious and political organizations, academics, journalists, and a member of Congress challenged

the constitutionality of a n Executive Order that “specif[ied] the organization, procedures and

limitations applicable to the foreign intelligence and counterintelligence activities of the Executive

Branch.” Id. at 1377. TheUnited Presbyterian Churchplaintiffs sought a declaratory judgment that

this Executive Order violated the First, Fourt h, and Fi fth Ame ndments to the Constitution, the

separation-of-powers doctrine, and the National Security Act of 1947.

Id. Unlike the

attorney-plaintiffs in the present case, however, theUnited Presbyterian Church plaintiffs “fail[ed]

to allege that any plaintiff has suffered any injury in fact under the Or der.” Id. (discussing the

district court opinion). The D.C. Circuit therefor e affirmed the distric t court’s dismissal of the

complaint for lack of standing to sue, but that fact-driven result has no bearing on the present case

with its dramatically different facts.

In dismissing the complaint, the D.C. Circuit of llowed Laird in concluding that the plaintiffs had alleged no m ore than a subjective chill. Id. at 1378-81. The facts in the present case are substantially different, however, with even the concurring opinion acknowledging that “[h]ere the plaintiffs’ professional injuries are arguably aharm beyond chilled speech.” Concurring Op. at 39 n.3. To be sure, several of the groups in United P resbyterian Church claim ed that they had experienced direct injury, such as interception of their m ail, disruption of their events, and infiltration of their m eetings. United Presbyterian Chur ch, 738 F.3d at 1381 n.2. But these allegations were deemed “too generalized” and insufficient because “[t]here is no allegation or even suggestion that any unlawful action to which the appellants have been subjected in the past was the consequence of the presidential action they seek to challenge here.” Id. at 1380-81. The D.C. Circuit thus concluded that, “[w]ithout such connection, standing to pursue the present suit does not exist.” Id. at 1381.

Here, in contrast, the attorney-plaintifs have provided a connection between their injury and the TSP. Specifically, officials in the Bush Ad ministration have publicly stated that the TSP

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 47

involves “intercepts” of “international calls” and “communications” where the government “ha[s] a reasonable basis to conc lude t hat one party to the com munication is a m ember of al Qaeda, affiliated with al Qaeda, or a mem ber of an organization affiliated with al Qaeda, or working in support of al Qaeda.” Press Bierfing by Alberto Gonzales, Att’y Gen., and Gen. Michael Hayd en, P rincipal D eputy D ir. f or N at’l Intelligence (Dec. 19, 2005), http://www.whitehouse.gov/news/releases/2005/12/print/20051219-1.html. These are exactly the types of clients that the attorney-plaintif fs represent. The TSP theref ore constitutes a “genuine threat” of harm to the attorney-plaintiffs, see Steffel v. Thompson, 415 U.S. 452, 475 (1974), the absence of which doomed the United Presbyterian Church plaintiffs’ action.
A number of cases have distinguished Laird in situations such as this where the plaintif fs have suffered professional injuries. In Meese v. Keene, 481 U.S. 465 (1987), for example, a state legislator wished to publicly screen three Canadian-made films about the effects of acid rain and nuclear winter. Under a f ederal statute, the f ilms would have had to be designated as “political propaganda” in order to be shown in this country.Keene sued for injunctive relief, contending that the statute violated his First Amendment rights. The Supreme Court held that Keene had standing to raise a First Amendment claim on the ground thatidentifying the films as “political propaganda” threatened to cause himcognizable professional injury. Id. at 473. Keene had not in fact shown the films, but alleged that he had standing based onhis anticipated harm. The Court agreed, convinced that voters would be less likely to support a candidate associated with propaganda. Id. at 475.
Another example is Ozonoff v. Berzak, 744 F.2d 224 (1st Cir. 1984),where the First Circuit found standing for a physician who wished to workfor the World Health Organization (WHO). An Executive Order required that a U.S. citizen undegr o a loyalty check before the WHO could extend an offer of employment to that person, notwithstanding the fact that the WHO was not an entity of the U.S. government. The First Circuit distinguishedLaird because Ozonoff was alleging more than “the mere existence” of a governm ental investigative and data-ga thering activity. Id. at 229-30. Instead, Ozonoff’s alleged injury was that the loyalty check would deter him from joining certain organizations or expressing certain views. Because of the Executive Order, Ozonoff had chosen to limit his organizational af filiations, m uch as the existence of the TSP has caused the attorney-plaintiffs to limit their telephone and email communications. Unlike Ozonoff, however, the attorney-plaintif fs are stym ied in their ef forts to do their jobs by the need t o l imit their communications. I thus believe that the attorney-plaintiffs have alleged an even more concrete and particularized injury than Ozonoff alleged.
A final example comes from the Third Circuit case of Paton v. LaPrade, 524 F.2d 862 (3d Cir. 1975), where the court found standing for high-school student Lori Paton, who alleged that the existence of an FBI investigative file about her oculd impair her future educational and professional opportunities. Id. at 868. As part of a high school social studies class on “the contem porary political spectrum,” Paton had requested information from the Socialist Workers Party (SWP). Id. at 865. The FBI was monitoring mail received and sent by the SWP, resulting in Paton’s name and address being recorded and placed in an FBI inve stigative file. This “m ail cover” was in fact directed at the SWP. Like the TSP, the mail cover did not directly compel, proscribe, or regulate Paton. But its effect, like that of the TSP, was to injure her. Paton learned of the file after an FBI agent visited her high school to inquire about her. On these facts, the Third Circuit found that she had standing to challenge the postal regulation auht orizing the recording of information about mail going to or from an organi zation such as the SW P because “she m ay have sustained or be immediately in danger of sustaining a direct in jury” to her present and fut ure e ducational or professional activities as a result. Id. at 871-73.
The lead opinion attempts to distinguish these cases and others like them on the basis that they challenged the “regulatory, proscriptive, or compulsory” exercise of governmental power to which the complainants were presently or prospectively subject. Lead Op. at 12 (quoting United

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 48

Presbyterian Church, 738 F.2d at 1378). But that type of gover nment power is precisely what is being challenged here. The attorney-plaintiffs havemade credible allegations that the operation of the TSP has compelled them to cease telephone and em ail communication about sensitive topics with their clients and contacts. Publicly admitted information about the TSP supports them.
What I believe distinguishes Meese, Ozonoff, Paton, and the like from Laird is that the plaintiffs in the first-named cases successfully explained the “precise connection between the mere existence of the challenged system and their alleged chill.” Laird, 408 U.S. at 13, n.7. Unlike the Laird plaintif fs who conceded that they them selves were not suf fering f rom any chill, the attorney-plaintiffs here have established a reasonable fear that has generated “actual,” “imminent,” “concrete,” and “particularized” harmresulting from the operation of the TSP, a programthat lacks any minimization procedures to protect their privileged communications. See Lujan, 504 U.S. at 560.
Finally, the concurring opi nion would find that the state-secrets privilege prevents the attorney-plaintiffs from establishing an injury in fact. Concurring Op. at 39 (“[T]he state secrets privilege has prevented the plaintiffs fromconducting discovery that might allow them to establish that they are personally subject to the TSP, asI believe constitutional standing requires.”). But this reading expands the reach of the privilege in ways that the caselaw does not support. Because the state-secrets privilege “operates t o for eclose re lief for violations of rights that m ay well have occurred by foreclosing the discovery of evidence th at they did oc cur, it is a privilege not to be lightly invoked.” Halkin v. Helms, 690 F.2d 977, 990 (D.C. Cir. 1982) (citation and quotationamrks omitted); see also Ellsberg v. Mitchell, 709 F.2d 51, 57 (D.C. Cir. 1983)(“[T]he privilege may not be used to shield any m aterial not strictly nece ssary to prevent injury to national s ecurity; and, whenever possible, sensitive inform ation must be disentangled from nonsensitive information to allow for the release of the latter.”).
The privilege is typically invoked with respect to specific requests for discovery. See, e.g., Jabara v. Kelley, 75 F.R.D. 475, 478-79 (E.D. Mich. 1977). I,fhowever, the state-secrets privilege “deprives the [d]efendants of a valid defense to the [pl aintiffs’] claims,” then summary judgment may be granted to the defendant. Tenenbaum v. Simonini, 372 F.3d 776, 777-78 (6th Cir. 2004).
But unlike inJabara orTenenbaum, the attorney-plaintiffs here seek no additional discovrey from the defendants. Instead, the attorney-plaintifs argue that they have established standing based on the facts in the public record. This issue highlight s what I believe to be the key difference between the lead and concurring opinions on th e one hand and m y opinion on t he other. My colleagues believe that the attorney-plaintif fs m ust establish that they were actually subject to surveillance under the TSP, whereas I conclude that a demonstration of a reasonable, well-founded fear that has resulted in actual and particularized injury suffices. My reading of the caselaw leads me to conclude that the state-secrets privilege is not so broad as to bar the attorney-plaintiffs from making such a showing.
In short, the critical question in this case isnot whether the attorney-plaintiffs have actually been surveilled—because, as the lead opinion aptly notes, a wiretap by its nature is m eant to be unknown to its targets—but whether the “reasonabl eness of the fear” of suc h surveillance is sufficient to establish that they have suffered actual, imminent, concrete, or particularized harm from the government’s alleged unlawful action. See Laidlaw, 528 U.S. at 184. For the reasons discussed above, I believe that the plaintiffs have established such an injury i n fact. I therefore turn to the remaining factors in the Article III constitutional-standing analysis.
2. Causation
The plaintiffs must next demonstrate a causal connection between the injury asserted and the government’s alleged conduct. This means that “a federal court [can] act only to redress injury that

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 49

fairly can be traced to the cha llenged action of the defendant, and not . . . that results from the independent action of some third party not before the court.” Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976). The “fairly traceable” st andard, however, does not r equire that the defendant’s conduct be the sole cause of the plaintiff’s injury. See, e.g., Am. Canoe Ass’n, Inc. v. City of Louisa Water & Sewer Comm’n, 389 F.3d 536, 543 (6th Cir. 2004) (finding the causation prong satisfied despite the absence of evidenc e proving “to a scientific certainty” that the defendant’s pollution caused the plaintiff’s injury).
In the present case, the lead opinion finds thathe attorney-plaintiffs have failed to establish causation due to its characterization of their “twocausal pathways based on the two types of alleged injury.” Lead Op. at 18. These two pathways are then described as (1) the plaintiffs’ decision to cease certain communications as a result of the TSP, and (2) the decision by overseas contacts of the plaintiffs to cease certain com munications as a result of the TSP. Id. The lead opinion concludes that the plaintiffs “have no evidence . . . that the NSA has actually intercepted (or will actually intercept) any of their conversations.” Id. Rather, the lead opinion characterizes the evidence in the record as establishing “only a possibility — not a probability or certainty — that these calls might be intercepted, that the inofrmation might be disclosed or disseminated, or that this might lead to som e harm to the [plaintiffs’] overseas contacts.” Id. (emphasis in original). This “possibility” is too indeterminate, according to the lead opinion, and thus renders “the plaintiffs’ showing of causation less certain and the likelihood of causation more speculative.” Id. The lead opinion also concludes that the absence of a warrant for the alleged surveillance is insufficient to establish causation because “it is not clear whether the chill can fai rly be traced to the absence of a warrant, or if the chill would still exist without regard to the presence or absence of a warrant.” Lead Op. at 19.
Based upon my reading of the com plaint and the subsequent m otion for partial sum mary judgment, I believe that the lead opinion has mischaracterized the attorney-plaintiffs’ allegations. What the attorney-plaintiffs themselves allege, in fact, is that the existence of the TSP outside of FISA’s minimization procedures has prevented them from communicating by t elephone and by email with their clients, contacts, and sources, thus either compelling them to violate their ethical obligations, or requiring them to undertake costly overseas trips; in short, the TSP ha s prevented them from doing their jobs. In response, the lead opinion asserts that “there is no evidence in the record from which to presum e that the NSA i s not com plying with, or even exceeding, FISA’s restrictions on the acquisition, retention, use, or dislcosure of [the information acquired] (i.e., FISA’s minimization techniques).” Lead Op. at 20.
This unsupported assert ion is belied by statem ents on the public record from Executive Branch officials. W ith respect to the acquisition of inform ation, the TSP has been described as having a “softer trigger” than FISA, Prses Briefing by Alberto Gonzales, Att’y Gen., and Gen. Michael Hayde n, Pr incipal Dep’y Dir. for Nat’l Intel. (Dec. 19, 2005), http://www.whitehouse.gov/news/releases/2005/12/print/20051219-1.html, an d o ne that uses a “reasonable belief ” standard rather than FISA’s probable cause standard for surveillance. See Remarks by Gen. Michael V. Hayden, Pirncipal Dep’y Dir. ofNat’l Intel., Address to the Nat’l Press Club, Jan. 23, 2006, http://www.dni.gov/speeches/20060123_speech.htm. A senior official in the Department of Justice further inform ed Congress in 2006 that, “[a]lthough the [TSP] does not specifically target the com munications of attorneys or physicians, calls invol ving such persons would not be categorically excluded f rom in terception . . . .” Le tter f rom W illiam E. Moschella, Assistant Att’y Gen., to the Honorable F. James Sensenbrenner, Jr. (Mar. 24, 2006), at 55, http://www.fas.org/irp/agency/doj/fisa/doj032406.pdf.
To be sure, the Bush Administration has also asserted that “procedures are in place to protect U.S. privacy rights, including applicable procedures required by Execut ive Order 12333 and approved by the Attorney General, that govern acquisition, retention, and dissem ination of

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 50

information relating to U.S. persons.” Id. A review of this Executive Order, however, reveals that it makes no mention of protecting privileged communications. See Exec. Order No. 12,333, 46 Fed. Reg. 59, 941 (Dec. 4, 1981). Furthermore, the Administration has claimed that “[b]ecause collecting foreign intelligence information without a warrant does not violate the Fourth Am endment and because the [TSP] is lawful, there appears to be no legal barrier against introducing this evidence in a criminal prosecution.” Letter from William E. Moschella, Assistant Att’y Gen., t o t he Honorable F. Jam es Sensenbrenner, Jr. (Mar. 24, 2006), at 54, http://www.fas.org/irp/agency/doj/fisa/doj032406.pdf.
Which characterization of injury one acceptswill largely determine the causation prong (as well as the redressability prong discussed below ) of the standing analysis. A s one distinguished commentator has noted,
[t]he central problem in the causation cases is not whether there is a causal nexus among injury, remedy, and illegality; it is how to characterize the relevant injury. Whether the injury is due to the defendant’s conduct, or likely to be remedied by a decree in his favor, depends on how the injury is described.
Cass R. Sunstein , Standing and the Privatization of Public Law, 88 Colum. L. Re v. 1432, 1464 (1988).
The lead opinion focuses prim arily on the l ack of evidence that “the NSA has actually intercepted (or will actually intercept) any of [the plaintiffs’] conversations,” and on the “the absence of a warrant (and all that goes with it).” Lead Op. at 18 (footnote and emphasis omitted). But as I discussed earlier in Part I.A.1., the attorney-plaintiffs need show only the reasonableness of their fear, not that their fearhas in fact been realized. See, e.g., Laidlaw, 528 U.S. at 184;Meese, 481 U.S. at 475. I thus find the attorney-plain tiffs’ characterization of their injury the m ore persuasive.
Since learning of the existence and operation ofthe TSP, the attorney-plaintiffs contend that they have ceased communicating by telephone or email about sensitive subjects with their clients and contacts. W hether t he pot ential surveillance is conducted pursuant to a warrant is not the gravamen of their complaint. Their concern is directed at the impact of the TSP on their ability to perform their jobs. The causation requirement does not demand that the government’s conduct be the “sole cause” of the attorney-plaintiffs’ injury, only that the injury be “fairly traceable” to that conduct. See Simon, 426 U.S. at 41; Am. Canoe Ass’n, 389 F.3d at 543. If the TSP did not exist, the attorney-plaintiffs would be protected by FISA’s minimization procedures and would have no reason to cease telephone or email communication with their international clients and contacts. I therefore conclude that the attorney-plaintiffs have demonstrated a causal connection between their asserted injury and the government’s alleged actions.
3. Redressability
This leaves the issue of whether the attorn ey-plaintiffs’ injury “will be redressed by a favorable decision.” Laidlaw, 528 U.S. at 181. The lead opinion’s redressability analysis appears to make two basic points. First, the lead opinion cites 50 U.S.C. § 1806(a) for the proposition that “the issuance of FISA warrants would not relieve any of the plaintiffs’ fears of being overheard; it would relieve them only of the fear that the infor mation might be dissem inated or used against them.” Lead Op. at 21. The lead opinion also asserts that
FISA might not prohibit the interception of attorney-client communications under circumstances where the NSA adheres to apolicy of complete non-disclosure. Due to the State Secrets Doctrine, the plaintiffs do not (and cannot) know whether the

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 51

NSA actually adheres to a policy of complete non-disclosure, but based on the record evidence, it certainly remains possible.
Lead Op. at 21 n.31. That proposition, however, isitself speculation, as the lead opinion concedes. Absent a public revelation fromthe NSA, the attorney-plaintiffs (or anyone else, for that matter) will simply never know whether a nondisclosure policy in fact exists.
In the face of this uncertainty, the attorney-p laintiffs must presume the absence of such a policy. Their ethical obligations require them to do so, lest they run the risk of reveal ing confidential and possibly incrim inating information directly to the governm ent. The reasonable concern about the possibility of disclosure—not th e disclosure itself—triggers those obligations. Similarly, the simple assertion that
[t]he TSP is designed and operated for the prevention of terrorism, and the NSA is interested only i n telephone and email communications in which one party to the communication is located outside the United States and the NSA has a ‘reasonable basis to conclude that one party to the com munication is a m ember of[, affiliated with,] or working in support of al Qaeda,’
Lead Op. at 21, doe s not mean that the TSP is not and could not be used to facilitate crim inal investigation. Cf. In re Sealed Case, 310 F.3d 717, 727 (For. Intel. Surv. Ct. Rev. 2002) (stating that FISA does not “precl ude or limit the governm ent’s use or proposed use of foreign intelligence information . . . in a criminal prosecution.”).
The lead opinion contends that there is a lack of “evidence in the present record to suggest[] that the inf ormation collected by the NSA under the TSP has been disclosed to anyone f or any purpose.” Lead Op. at 21 n.31.But seeAl-Haramain Islamic Found. v. Bush, 451 F. Supp. 2d 1215, 1223-25, 1228-30 (D. Or. 2006) (discussing the effect of the government’s inadvertent disclosure of a sealed docum ent that arguably described surveillance of the plaintiffs under the TSP) . Notwithstanding the lead opinion’s contention, a pl ain reading of the FISA statute provides no support for the speculati ve assertion that a “polic y of complete non-disclosure” exists within the NSA. FISA’s explicit provisions regarding minimization procedures and privileged communications in fact strongly support the opposite conclusion.
The lead opinion’s second point is pr emised on 50 U.S.C. § 1805(f), which sets forth the emergency-based exceptions to the norm al FISA procedures. It cites this subsection for the proposition that “FISA’s general requirement that electronic surveillance may proceed only upon issuance of a FISA Court warrant is not absolute, as FISA provides for instances in which a prior warrant may be unnecessary, at least for a short period of time.” Lead Op. at 21 n.31. I agree that FISA’s warrant requirement is “not absolute.” But the “warrant requirement” is besides the point. Instead, FISA’s minimization procedures regarding the use of wiretapped information are the only FISA protections that ultim ately bear on the redressability prong of the standing analysis in the present case. The point is that these m inimization pr ocedures are “absolute” even though the warrant requirement is not. See 50 U.S.C. § 1805(f) (“If the Attorney General authorizes such emergency employment of electronicsurveillance, heshall require that the minimization procedures required by this subchapter for the issuance of a judicial order be followed.”) (emphasis added).
Admittedly, the Suprem e Court has f urnished little guidance regarding the scope of the redressability inquiry beyond requiring a “‘direct’ relationship between the alleged injury and the claim sought to be adjudicated.” Linda R.S. v. Richard D., 410 U.S. 614, 618 (1973). But I believe that the present case clearly demonstrates such a direct link between the attorney-plaintiffs’ injury and their claim. The attor ney-plaintiffs’ redressability arguments revolve around their very real ongoing ethical obligations to their clients, to ther iprofession, and to themselves. These obligations,

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 52

as noted above, exist independently of whether the attorney-plaintiffs’ communications with their clients have actually been wiretapped through theTSP, independently of whether the NSA actually adheres to a “policy of com plete non-disclosure” for all TSP-wireta pped inform ation, and independently of whether a judicially authorized warrant has actually been procured in advance of the alleged wiretapping. This is where the Supreme Court’s 2000 decision inLaidlaw again comes directly into play.
The Court in Laidlaw found that the plaintiffs had satisfie d the redressability prong even though the defendant, during the course of the appeal, had voluntarily ceased the conduct that had initially given rise to the lawsuit. 528 U.S. at 188-89. Here , too, the NSA has allegedly ceased conducting the TSP independently of the FISA court, as discussed in greater depth i n Part I.D. below. But as the government’s counsel conceded at oral argument, the Executive Branch views itself as free to unilaterally “opt out” of the FISA court’s oversight at any time. The civil penalties imposed on the de fendant in Laidlaw, the Suprem e Court held, redressed the plaintiffs’ alleged injuries from the prior unauthorized pollutant discharges because those injuries were ongoing and the penalties would generally deter not only that particular def endant, but also others sim ilarly situated to it, from engaging in similar conduct in the future. See id. at 187.
Deterrence, in short, is an especially appropriate consideration where, as here, the alleged harm is not “wholly past” but, as publicly acknowledged by the government, instead “ongoing at the tim e of the com plaint and . . . could continue into the f uture.” Laidlaw, 528 U.S. at 188 (distinguishing the holding inSteel Co. v. Citizens for a Better Env’,t523 U.S. 83, 108 (1998)). The Court’s holding in Laidlaw could not be m ore applicable than it is to the present case: “It can scarcely be doubt ed that, for a plaintiff who is injured or faces the threat of future injury due to illegal conduct ongoing at the tim e of sui t, a sancti on that effectively abates that conduct and prevents its recurrence provides a form of redress.” Id. at 185-86.
The facts alleged by the attorney-plaintiffs here fit this language to a “T.” Each of them “faces the threat” that the TSP will harm them in the future, the TSP was undisputedly ongoing at the time that the attorney-plaintifs filed their lawsuit, and the district court’s injunction “effectively abates” the TSP and “prevents its recurrence.” Thelead opinion’s parting assertion that “[t]he only way to redress the injury would be to enjoinall wiretaps, even those for which warrants are issued and for which full prior notice is given to the parties being tapped,” L ead Op. at 22, provides rhetorical flourish but significantly overstates theattorney-plaintiffs’ allegations. Simply requiring that the Executive Branch conformits surveillance-gathering activities to governing law, including the requirem ents of FISA, will redress the attorney-plaintif fs’ injury. More is not needed. I therefore conclude that the attorney-plaintiffs have satisfied the redressability prong of the standing analysis.
4. Prudential requirements
The attorney-plaintiffs must satisfy the requirements of prudential standing in addition to satisfying the Article III constitutional requirements. Specifically, they must demonstrate that they are asserting their own interests rather than those of a third partys,ee Allen v. Wright, 468 U.S. 737, 751 (1984), and that they are asserting a personalized claimrather than a generalized grievance.See Fed. Election Comm’n v. Akins, 524 U.S. 11, 23-25 (1998). Othepr rudential-standing requirements exist t hat a re not universally applied in all cases. One such requirem ent is the so-called zone-of-interests test. See Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 400 n.16 (1987) (noting that the zone-of-interests test “is most usefully understood as a gloss on the meaning of § 702” of the Administrative Procedures Act). This test requiresplaintiffs to show thatthey are “within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit.” Bennett v. Spear, 520 U.S. 154, 162 (1997).

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 53

a. Generalized grievance and personal interest
Prudential-standing requirements preclude litigation in efderal court “when the asserted harm is a ‘generalized grievance’ shared in substantiallyequal measure by all of alarge class of citizens,” or where a plaintiff seeks to “rest his claimto relief on the legal rights or interests ofthird parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975). The fact that aharm is widely shared, however, will not by itself preclude standing if the harmis also concrete and particularized.Mass. v. Envtl. Protection Agency, 127 S. Ct. 1438, 1456 (2007) (“[W]here a harmis concrete, though widely shared, the Court has found ‘injury in fact.’”) (quoting Fed. Election Comm’n v. Akins, 524 U.S. 11, 24 (1998))).
In the present case, the attorney-plaintif fs have alleged specif ic and concrete injuries to themselves and to their ability to engage in their proefssional work due to the operation ofthe TSP. They allege that they are unable to engage intelephone and email communications with clients and contacts because the identity of those clients and contacts, some of whom have been charged with links to terrorism or terrorist organizations, fa ll within the am bit of the TSP. Because the government has adm itted that the TSP has opera ted outside of FISA and does not distinguish attorneys from any other person whose t elephone or em ail com munications m ight be under electronic surveillance, the attorney-plaintif fs ha ve been unable, consistent with their ethical responsibilities to their clients and to the bar, toengage in privileged communications. They must instead incur the significant financial and professional burden of traveling to meet in person with clients and contacts.
The TSP ha s thus injured the attorney-plaintiffs both personally and professionally. For these reasons and for the reasons previously discussedin my analysis of injury in fact in Part I.B.1. above, I conclude that the attorney-plaintiffs araesserting personalized, individual harms rather than generalized grievances or the rights of a third party.
b. Zone of interests
The zone-of-interests t est i s the other prudential standing requirem ent that the attorney-plaintiffs must satisfy. They must show that they are arguably within the zone of interests of “a relevant statute.” 5 U.S.C. § 702; Clarke, 479 U.S. at 396. The Supreme Court has clarified “that the breadth of the zone of interests varies according to the provisions of law at issue, so that what comes within the zone of i nterests of a st atute for purposes of obtaining judicial review of administrative action under the generous review provisions of t he APA ma y not do so for other purposes.” Id. at 163 (quotation marks omitted).
In the present case, the attorney-plaintiffs donot raise a cause of action under FISA or under Title III; instead, their cause of action arises under the APA. Under § 702 of the APA, “[a] person suffering legal wrong because of agency action, ordaversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. A plaintiff must therefore “identify som e agency action that affects him in the specified fashion.” Lujan v. Nat’l Wildlife Fed’n , 497 U.S. 871, 882 (1990) (quotation m arks omitted). Second, the plaintiff must show that he has suffered a “legal wrong” because of that agency action or that he is “adversely affected or aggrieved by that action within the meaning of a relevant statute.” Id. at 883 (quotation marks omitted).
The Supreme Court said in Lujan “that to be adversely affected or aggrieved . . . within the meaning of a statute, the plaintiff must establish that the injury he complains of . . . falls within the zone of interests sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” Id. (quotation marks omitted). “In determining whether the petitioners have standing under the zone-of-interests test to bring their APA claims, we look not to the terms of the [relevant statute’s] citizen-suit provision, buto the substantive provisions of the [statute], the alleged violations of which serve asthe gravamen of the complaint.” Bennett, 520 U.S. at 175. The

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 54

attorney-plaintiffs here m aintain that the T SP violates FISA and Ti tle III by functioning as an electronic surveillance program outside the “exclusive means” of those statutes.
FISA includes a civil-liability provision, which states that
[a]n aggrieved person, other than a foreignpower or an agent of a foreign power, as defined in section 1801(a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic surveillance or about w hom inf ormation obtained by electronic surveillance of such person has been disclosed or us ed in violation of section 1809 of this title shall have a cause of action against a ny person who committed such violation and shall be entitled to recover [actual and punitive damages and reasonable attorney fees and costs].
50 U.S.C. § 1810. The lead opinion asserts that the attorney-plaintiffs c annot establish that they have a right to sue because they are not “aggrieved persons” under FISA. An “aggrieved person” is defined as “a pe rson who is the target of an electronic surveillance or any other person whose communications or activities were subject to el ectronic surveillance.” 50 U.S.C. § 1801(k). According to the lead opinion, because the plaintiffs “have not shown that they were actually the target of, or subject to, the NSA’s surveillance,”they cannot establish a cause of action under FISA. Lead Op. at 32.
The attorney-plaintiffs’ challenge, however, is precisely that the TSP has operated outside of FISA despite the fa ct t hat Congress has decl ared FISA to be the “exclusive m eans” for the government to engage in electronic surveillance for foreign intelligence purposes in this country. 18 U.S.C. § 2511(2)(f). They rely on provisions of FISA and of Title III of the Om nibus Crime Control and Safe Streets Act, which criminalizes the interception and/or disclosure of wire, oral, or electronic communications other than pursuant to those statutes.See 50 U.S.C. § 1809(a); 18 U.S.C. § 2511(2)(f).
The lead opinion contends that Title III cannost upport standing because the statute provides that “[n]othing contained in this chapter or ch apter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deem ed to affe ct the acquisition by the United States Government of foreign intelligence inf ormation from international or f oreign communications.” 18 U.S.C. § 2511(2)(f). Lead Op. at 29. But thiserading of the statute ignores the remainder of the sentence. In full, section (2)(f) states as follows:
Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall bedeemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law invovling a foreign electronic communications system, utilizing a means other than electronic surveillance as deifned in section 101 of the Foreign Intelligence Surveillance Act of 1978,and procedures in this chapter or chapter 121 and the Fore ign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wir,eoral, and electronic communications may be conducted.
(Emphasis added.) In l ight of the fact that Title III deals only with dom estic wiretaps to obtain intelligence inf ormation relating to certain specif ied offenses, see 18 U.S.C. § 2516, the above-quoted subsection m akes quite clear that FISA “shall be the exclusive means by which electronic surveillance [for foreign intelligence purposes] . . . may be conducted.” Id. (emphasis added).

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 55

The lead opinion contends, however, that the “exclusive means” provision of Title III and FISA should be read “as two separate and independent, albeit parallel, statements.” Lead Op. at 32. Accordingly, the lead opinion asserts, “[ t]his provision does not foreclose the possibility that the government may engage in certain surveillance activities that are outside of the strictures of both Title III and FISA.” Id. But the lead opinion provides no le gal support for this novel statutory interpretation and none is apparent to me. This, in my opinion, flies directly in the face of the plain language of FISA and its legislative history. I note, moreover, that the government announced in January of this year that the TSP would hencefotrh be conducted under the aegis of the FISA Court of Review.

The language of both the FISA statute and its l egislative history is explicit: FISA was specifically drafted “to curb the practice by which the Executive [B]ranch may conduct warrantless electronic surveillance on its own unilateral determination that national security justiifes it.” S. Rep. No. 95-604, pt. I, at 8, reprinted at 1978 U.S.C.C.A.N. 3904, 3910; see also id. at 3908. W hen debating FISA, Congress made clear that it intended to prevent the Executive Branch fromengaging in electronic surveillance in the United States without judicial oversight, even during times of war. See S. Rep. No. 95-701, at 47,reprinted at 1978 U.S.C.C.A.N. 3973, 4016 (“This bill will establish the exclusive United States law governing electronic surveillance in the United States for foreign intelligence purposes.”).

Congress explicitly refuted the “inherent authority” argument on which the government seeks to justify the TSP’s existence:

Finally, S. 1566 spells out taht the Executive cannot engage in electronic surveillance within the United States without a prior judicial warrant. This is accom plished by repealing the so-called executive “inherent power” disclaimer clause currently found in section 2511 (3) of Title 18, United States Code. S. 1566 provides instead that its statutory procedures (and those found in chapter 119 of title 18) “shall be the exclusive means” for conducting electronic surveillance, as defined in the legislation, in the United States. The highly controversial disclaim er has often be en cited as evidence of a congressional ratificati on of the President’s inherent constitutional power to engage in electronic surveillan ce in order to obtain f oreign intelligence information essential to the national security. Despite the adomnition of the Supreme Court that the language of the disclaimer was “neutral” and did not reflect any such congressional recognition of inherent power, the section has been a major source of controversy. By repealing section 2511(3) and expressly stating that the stat utory warrant procedures spelled out in the law must be followed in conducting electronic surveillance in the United States, this legislation ends the eight-year debate over the meaning and scope of the inherent power disclaimer clause.

S. Rep. No. 95-604, pt. I, at 6-7, reprinted at 1978 U.S.C.C.A.N. 3904, 3908. In fact, Congres s rejected language that would have made FISA and Title III the “exclusive statutory means” under which electronic surveillance could be conducte d, inste ad a dopting language that m ade those statutes simply the “exclusive means” governing such surveillance. See H.R. Conf. Rep. No. 951720, at 35, reprinted at 1978 U.S.C.C.A.N. 4048, 4064 (emphasis added).

More to the point, the government has publicly admitted that the TSP has operated

outside of the FISA and Title III statutor y f ramework, and that the TSP engages in

“electronic surveillance.” Press Briefing by Alberto Gonzales, Att’y Gen., and Gen.

Michael Hayden, Principal Deputy Dir.

for Nat’l Intellige nce ( Dec. 19, 2005),

http://www.whitehouse.gov/news/releases/2005/12/print/20051219-1.html (General Hayden: “I can

say unequivocally that we have used this programin lieu of [the FISA processes] and this program

has been successful.”). In January of 2007, in fact, the Bush Administration announced that it had

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 56

reached a secret agreement with the Foreign Intelligence Surveillance Court (FISC) whereby the

TSP would com ply with FISA, a further acknow ledgment that the TSP had pr eviously been

operating without FISA approval. See Letter from Alberto Gonzales, Att’y Gen., to the Honorable

Patrick Leahy & the Honorable Arlen Specter (Jan. 17, 2007), at 1 (“[A]ny electronic

surveillance that was occurring as part of the Terrorist Surveillance Program will now be

conducted subject to the approval of the Fo

reign Intelligence Surveillance Court.”),

http://leahy.senate.gov/press/200701/1-17-07%20AG%20to%20PJL%20Re%20FISA%20Court.pdf;

see also Dan Eggen, Spy Court’s Orders Stir Debate on Hill , Wash. Post, Jan. 19, 2007, at A06

(reporting on the reaction to the B ush administration’s announcement “that it will dism antle the

controversial counterterrorism surveillance program run by the National Security Agency and

instead conduct the eavesdropping under the authority ofthe secret Foreign Intelligence Surveillance

Court, which issues warrants in spy and terrorism cases”).

The lead opinion, however, repeats the governm ent’s assertion that none of the plaintiffs have shown “that the NSA’s surveill ance activities include the sort of conduct that would satisfy FISA’s def inition of ‘electronic surveillance,’” and declares that “the present record does not demonstrate that the NSA’s conduct falls within FISA’s definitions.” Lead Op. at 31. As an initial matter, this argument has been waived because the government failed to raise it before the district court. See, e.g., United States v. Abdi, 463 F.3d 547, 563 (6th Cir. 2006) (“It is fundamental, and firmly established by Supreme Court precedent, that appellate courts generally are not to consider an issue brought for the first time on appeal.”).

Moreover, the governm ent’s contention lacks m erit. The Attorney General has publicly

acknowledged that FISA “requires a court order befor

e e ngaging in this kind of

surveillance . . . unless otherwise authorized by Congr ess.” Press Briefing by Alberto Gonzales,

Att’y Gen., and Gen. Michael Hayden, Principal Dep’y Dir. f or Nat’l Intel. (Dec. 19, 2005),

http://www.whitehouse.gov/news/releases/2005/12/print/20051219-1.html. (Em phasis added.)

Other Administration officials have similarly characterized the TSP as being used “in lieu of” FISA.

Id. These statem ents indicate that the TSP in f act captures electronic su rveillance as defined by

FISA, despite the belated effort of Executive Branch officials to disavow this acknowledgment.

There is no doubt in m y mind that the attorney -plaintiffs have established that the injury complained of falls wi thin t he zone of inte rests sought to be protected by these statutes. Accordingly, I conclude that they have satisfied the prudential-standing requirements.

5. Standing summary

For all of the reasons discussed above, I believe that the attorney-plaintiffs have satisfied both the constitutional and prudential requirements for standing to sue. I thereofre conclude that the attorney-plaintiffs are entitled to proceed with their claims against the government for the injuries allegedly flowing from the operation of the TSP.

C. Mootness

The last procedural hurdle that the plaintiffs m ust overcome is the question of m ootness. Article III of the Constitution lim its t he jurisdic tion of the federal courts to “actual, ongoing controversies.” Honig v. Doe, 484 U.S. 305, 317 (1988). Federal coutrs have “neither the power to render advisory opinions nor to decide questions that cannot affect the rights of litigants in the case before them.” Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (quotatoi n marks omitted). Mootness became an issue in this case in January of 2007, when the government publicly announced that a judge of the Foreign Intelligence Surveillance Court had issued orders authorizing the government to conduct electronic surveillance of “internationalcommunications into or out of the United States where there is probable cause to believe” that one party to the communication is “a member or agent

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 57

of al Qaeda or an associated te rrorist organization.” Letter from Alberto Gonzales, Att’y Gen., previously cited on p. 56, at 1.
As a result of these orders, electronic surveillance that had been occurring under the TSP “will now be conducted subject to the approval” ofthe FISC, and “the President has determined not to reauthorize” the TSP. Id. at 1-2. The governm ent, in short, decided t o vol untarily cease electronic surveillance of international com munications in this country outside of FISA. On the ground that such surveillance would henceforth be FISA-compliant, the government argues that we should dismiss this case as moot and vacate the judgment below. To be sure, if we could be satisfied that the TSP would never be reinstituted, then the government’s argument would have merit. We must therefore determine whether the present situation fits into the voluntary-cessation exception to the mootness doctrine.
Under well-established Supr eme Court preceden t, the “voluntary cessation of allegedly illegal conduct does not deprive the tribunal of powerto hear and determine the case, i.e., does not make the case moot,” United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953), because “courts would be compelled to leave the defendant . . . free to r eturn to his old ways.” United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203 (1968) (quotation marks omitted). The test is demanding: “A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasona bly be expected to recur,” Concentrated Phosphate, 393 U.S. at 203, and if “interim relief or events have com pletely and irrevocably eradicated the effects of the alleged violation.” Los Angeles County v. Davis, 440 U.S. 625, 631 (1979). Moreover, the “heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up againlies with the party asserting mootness.” Laidlaw, 528 U.S. at 189 (brackets and quotation marks omitted). The government urges us to find that there is “no longer any live genuine controversy to adjudicate” because the TSP ceased to exist when the President’s last authorization for it expired, thus resolving and mooting the plaintiffs’ claims.
But the government continues to assert that the TSP did not violate the Constitution or any federal statute prior to the January 2007 FISC orders. Instead, it contends that “[a]n independent judicial body—the FISA court—has now acted to provide additional and wholly sufficient legal authority for the activity in question.” The government accordingly argues that it “has in no sense terminated its conduct in response to plaintiffs’ sui”t,but rather that the FISCorders “provide[] legal authority that plaintiffs claimed was absent.” Both in its briefsand at oral argument, the government insisted that the FISC orders represent an inde pendent “intervening act of a coordinate branch of government” that suffices to render the voluntary-cessation exception inapplicable.
But the government acknowledged at oral argument that the President maintains that he has the authority to “opt out” of the FISA framework at any time and to reauthorize the TSP or a similar program. The government also conceded that theFISC orders were actively sought by the Executive Branch, and that the President decided that he would comply with the orders only “after determining that the [FISC] order[s] provide[d] the necessary speed and agility” of r TSP-style surveillance. Most recently, the Director of National Intelligence stated duri ng a congressional hearing that the government continued to believe that t he President has the authority under Article II of the Constitution to order the N SA to conduct w arrantless electronic surveillance. Jam es R isen, Administration Pulls Back on Surveillance Agreement, N.Y. Times, May 2, 2007, at A18. These facts do not support a conclusion that it is “absolut ely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Concentrated Phosphate, 393 U.S. at 203. Indeed, the government’s insistence that the TSP was perfectly lawful and the reservation of its ability to opt out of the FISC orders at any time lend credence to the opposite position.

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 58

I therefore conclude that the government has failed to meet its heavy burden of showing that the challenged conduct cannot reasonably be expected to start up again. Accordingly, I conclude that this case is not moot and that this court may properly continue to exercise jurisdiction over it.
D. Merits
Without expressing an opinion concerning the analysis of the district court, I would affirm its judgment because I conclude that the TSP violaets FISA and Title III and that the President does not have the inherent authority to act in disregadr of those statutes. The clearest ground for deciding the merits of this appeal is the plaintiffs’ statutory claim, just as the clearest argument for standing is presented by the attorney-plaintiffs. This is not to say that the plaintiffs’ other causes of action lack merit, but simply that this case can, andtherefore should, be decided on the narrowest grounds possible. See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 457 (1985) (“When a lower court correctly decides a case, albeit on what this Court concludes are unnecessary constitutional grounds, our usual custom i s . . . t o affirm on the narrower, dispositive ground available.”) (quotation marks omitted).
1. The TSP violated FISA and Title III
The government contends that “it would be imprudent . . . to addressplaintiffs’ FISA claim without a district court decision addressing the preidcate questions necessary to the resolution of that claim in the first instance.” This argument overlooks the fact that an appellate court possessed of proper jurisdiction can affirm on any ground fairly supported by the record. See In re Cleveland Tankers, Inc., 67 F.3d 1200, 1205 (6th Cir. 1995). Moreover, as the following analysis indicates, no predicate findings fromthe district court are needed to resolve the plaintiffs’ statutory argument.
Both FISA and Title III expressly prohibit electronic surveillance outside of their statutory frameworks, as set forth in Part I.B.4.b. above. The language used is unequivocal. In ena cting FISA, Congress directed that electronic surveillance conducted inside the United States for foreign intelligence purposes was to be undertaken only as athuorized by specific federal statutory authority. See 50 U .S.C. § 1809. Title III crim inalizes the interception and disclosure of w ire, oral, and electronic communications except under certain specified exceptions. See 18 U.S.C. § 2511(2)(f). The statute clearly states that chapter 119 and FISA “s hall be the exclusive means by which electronic surveillance . . . a nd th e in terception o f d omestic w ire, o ral, a nd e lectronic communications may be conducted.” Id. (emphasis added).
In construing statutory language, we assum e that “Congress said what it m eant.” United States v. LaBonte , 520 U.S. 751, 757 (1997). W here the text of a statute is clear, “we need not assess the legislative history of the . . . provision.”Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 119 (2001). I nonetheless reiterate that the l egislative history of FISA clearly reinforces the conclusion that FISA and Title III constitute the sole means by which electronic surveillance may lawfully be conducted. During a conference sessoi n on the FISA legislation, members of Congress rejected language that would have described FISA and Title III as the “exclusivestatutory means” by which electronic surveillance was perm itted, pref erring instead the broader construction, “exclusive means.” H.R. Conf. Rep. No. 95-1720, at 35 (1978), reprinted in 1978 U.S.C.C.A.N. 4048, 4064.
Congress has thus unequivocally declared that FISA and Title III are the exclusive means by which electronic surveillance is perm itted. No other authorization can com ply with the law. Congress further emphasized this point by criminalizing the undertaking of electronic surveillance not authorized by statute in two separate places in the U.S. Code.See 50 U.S.C. § 1809; 18 U.S.C. § 2511(1) & (2)(e). The government, however, contends that Congress authorized the TSP in the aftermath of the September 11, 2001 attacks by enactnig the Authorization for Use of Military Force

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 59

(AUMF), Pub. L. No. 107-40, 115 Stat. 224 (Sept. 18, 2001). In addition, the governemnt notes that “foreign intelligence gathering is . . . vital to the successful prosecution of war.”

But FISA itself expressly and specifically restricts the President’s authority even in times of war. The statute provides that “[n]otwithst anding any other law, the Pr esident, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.” 50 U.S.C. § 1811. FISA thus limits warrantless electronic surveillance to the first 15 days following a declaration of war, a more formal action than even the enactment of an authorization for the use of force. This 15-day period of warrantless surveillance was enacted to permit “consideration of any amendment to this Act that may be appropriate during a wartime emergency.” H.R. Conf. Rep. 95-1720, at 34, reprinted at 1978 U.S.C.C.A.N. 4048, 4063.

To be sure, Congress in 1978 likeyl did not contemplate a situation such as the one that arose with the attacks of September 11, 2001. But in theaftermath of those attacks, Congress has shown itself both willing and abl e to consider appropriate amendments to FISA. Congress has in fact amended FISA multiple times since September 11, 2001, increasing the President’s authority by permitting “roving” wiretaps and expanding the permissible use of pen-register devices. See USA PATRIOT Act of 2001, Pub. L. No. 107-56 §§ 206, 214, as amended by Pub. L. No. 109-177, §§ 108, 128 (codified as amended at 50 U.S.C. § 1805 and 18 U.S.C. § 1842).

But Congress has never suspended FISA’s application nor altered the 15-day limit on warrantless electronic surveillance. Id. The Attorney General has in fact acknowledged that the Bush Administration has never sought an am endment to FISA that m ight have provided authorization for the TSP or a similar program because certain members of Congress allegedly informed the Administration that such an amendment would be “difficult, if not im possible” to obtain. Press Briefing by Alberto Gonzales, Att’y Gen., http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html.

Yet the TSP is precisely the type of program that FISA was enacted to overs ee. A senior

Department of Justice official has conceded that the TSP involved warrantless electronic

surveillance of communications into and out ofthe United States. Letter from William Moschella,

Assistant Att’y Gen., to the Honorable Pat Roberts, the Honorable John D. Rockefeller, IV,

the Honorable Peter Hoekstra, & the Honorable Jane Harm

an (Dec. 22, 2005), at 1-3,

http://www.nationalreview.com/pdf/12%2022%2005%20NSA%20letter.pdf. The TSP, in addition,

operated without a court order. Press

Briefing by Alberto Gonzales, At t’y Gen.,

http://www.whitehouse.gov/news/releases/2005/12/print/20051219-1.html.

In arguing that the TSP did not violate FISA, the governm ent contends that Congress authorized such warrantless electronic surveillance when it passed the AUMF. The AUMF states in pertinent part

[t]hat the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determ ines planned, authorized, committed, or aided the terrorist attacks that occurred on Septem ber 11, 2001, or harbored such organizations or persons, in order to pre vent a ny future acts of international terrorism against the United States by such nations, organizations or persons.

Pub. L. No. 107-40, 115 Stat. 224 (Sept. 18, 2001).

According to the governm ent, the AUMF provides the authorization ne cessary to satisfy FISA’s prohibition on electronic surveillan ce “except as authorized by statute.” See 50 U.S.C.

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 60

§ 1809(a). No reference to surveillance, howeve,ris found in the AUMF. Instead, the governemnt’s argument rests on a general inference to be drawnfrom the AUMF; in other words, that the phrase “all necessary and appropriate force” encompasses electronic surveillance by implication. But this interpretation of the AUMF directly conflicts withthe specific statutory language of both FISA and Title III.
In particular, the government’s argument requires us to accept that the AUMF has implicitly repealed the “exclusive means” provision of Title III. See 18 U.S.C. § 2511(2)(f). The problem with this position is that neither the caselaw nor the rules of s tatutory construction support the government’s argum ent. Certainly the expre ss language of t he AUM F cannot sustain such an interpretation because, as noted above, it says nothing about electronic surveillance. In 18 U.S.C. § 2511, Congress crim inalized the undertaking of el ectronic surveillance except as “specifically provided in this chapter” or as authorized by FISA. The AUMF is neither “in this chapter” nor designated as an amendment to FISA. In order to give the government’s argument effect then, the AUMF m ust either repeal the “excl usive m eans” provision of the original FISA legislation as codified in Title III or work in conjunction with FISA.
“Repeals by implication are not favored,” Ex parte Yerger, 75 U.S. 85, 105 (1868), and are appropriate only when established by “overwhelming evidence” that Congress intended the repeal and “when the earlier and later stat utes are irreconcilable.” J.E.M. Ag. Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 137, 141-42 (2001). In the present situation, the statutes are easily reconciled: FISA places limits on the means by which the President may fulfill his duties under the AUMF. The President is fre e to engage in surveillance without a warrant up to the lim its set by Congress when it enacted FISA, which is in keeping with Congress’s stated purpose “to curb the practice by which the Executive Branch may conduct warrantless electronic surveillance on its own unilateral determination that national securityjustifies it.” S. Rep. No. 95-604, pt. I, at 8r, eprinted at 1978 U.S.C.C.A.N. 3904, 3910.
FISA, as noted previously, includes explicit provisions for wartime usage. The government argues that if the AUMF has not implicitly repealed the exclusive-means provision, then the AUMF and FISA must be in conflict, and that the AUMF should trump FISA. This disregards the fact that shortly af ter enacting the AUMF, Congress am ended certain provisions of FISA through its enactment of the USA PATRIOT Act, as described above. Congress thus saw no conflict between FISA and the AUMF. Cf. al-Marri v. Wright, No. 06-7427, — F.3d — , —, 2007 WL 1663712, at *22 (4th Cir. Jun. 11, 2007) (concluding that Congress’s enactment of the USA PATRIOT Act, with specific provisions relating to the detention of “terrorist aliens”such as the plaintiff, “provides still another reason why we cannot assume that Congress silently empowered the President in the AUMF to order the indefinite military detention without any criminal process of civilian ‘terrorist aliens’ as ‘enemy combatants’”).
In addition, the government’s argument completely ignores two fundamental principles of statutory construction. The first relevant principle is that when interpreting potentially conflicting statutes, “a more specific statute will be given precedence over a more general one, regardless of their temporal sequence.” Busic v. United States, 446 U.S. 398, 406 (1980); see also Morales v. TWA, Inc., 504 U.S. 374, 384-85 (1992) (noting that a spefciic and “carefully drawn” statute prevails over a more general one). FISA’s provisions regarding wartime electronic surveillance are detailed and specific. The AUMF, in contrast, sweeps broadly, m aking no reference at all to electronic surveillance.
To read the statutes as the government suggests would render FISA’s provisions relating to wartime usage mere surplusage. Such a reading would run counter to the second relevant principle of statutory construction that requires courts to “give effect, if possible, to every clause and word of a statute.” Montclair v. Ramsdell, 107 U.S. 147, 152 (1883);see also United States v. Perry, 360

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 61

F.3d 519, 538 (6th Cir. 2004) (discussi ng the rule against surplusage in statutory construction). Thus, FISA prevails over the AUMF with respect to electronic surveillance in the context of this case.
In addition, the government’s reading of the phrase “except as authorized by statute” strains the legislative record. See El izabeth B. Bazan & Jennifer K. Elsea, Cong. Research Serv., Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information, at 40 (Jan. 5, 2006), http://www.fa.sorg/sgp/crs/intel/m010506.pdf (noting that “the legislative history appears to reflect anintention that the phrase ‘authorized by statute’ was a reference to chapter 119 of Title 18 of the U.S. Code (Title III) and to FISA itself, rather than having a broader meaning”). I accordingly believe that the legislative history does not support the government’s reading.
The government also contends that the AUMF can be read as a more specific statute than FISA based on recent Suprem e Court jurisprudence. In Hamdi v. Rumsfeld , 542 U.S. 507, 519 (2004), a plurality of the Court concluded that “[b]ecause detentionto prevent a combatant’s return to the battlefield is a fundamental incident of waging war, in permitting the use of ‘necessary and appropriate force,’ Congress has clearly and unm istakably authorized detention i n t he narrow circumstances considered here.” The plurality then reached the conclusion that “the AUMF is explicit congressional authorization for the detention of individuals in the na rrow category we describe,” namely individuals who were “part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there.” Hamdi, 542 U.S. at 516-17 (plurality) (quotation m arks om itted). Despite the stated narrowness of this holding, the governm ent argues that Hamdi allows us to read the AUMF as authorizing “signals intelligence” gathering on al-Qaeda and other suspected terrorists, and to construe such signals intelligence as including electronic surveillance targeting U.S. persons inside this country.
But FISA’s wartime provision distinguishes the present situation fromthat raised inHamdi. Congress had not enacted a law at the time of the Hamdi decision that specifically authorized the unlimited detention of American citizens during wartime, and the effect of that legislative omission was the subject of the analysis in the Hamdi decision. 542 U.S. at 516-25. In contrast, Congress has enacted a law (FISA) that specif ically authorizes electronic surveillance within the U.S. f or foreign intelligence purposes, and has specifically included a provision dealing with times of war. 50 U.S.C. § 1811. What was thus found to be a reasonable exercise of authority where Congress had been silent become s an unreasonable exercise where Congress has plainly spoken. See also Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring) (discussing the authority of the President and how it relates to congressional enactments).
Finally, the Supreme Court’s more recent decision in Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), clearly rejected the government’s theory of the AUMF. The Court in Hamdan declined to read the AUMF as implicitly authorizing the President to override a provision in the Uniof rm Code of Military Justice (UCMJ) that sets forth theconditions for convening military commissions in lieu of courts-martial. “[T]here is nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization set f orth in Article 21 of the UCMJ.” Hamdan, 126 S. Ct. at 2775.
The same observation holds true in the present case. Nothing in the AUMF suggests that Congress intended to “expand or alter the authorization” set forth in FISA. Moreover, the text and the legislative history of FISA and Title III make quite clear that the TSP or a similar program can be authorized only through those two statutes. The TSP plainly violated FISA and Title III and, unless there exists som e authority f or the Presid ent to supersede this statutory aut hority, was therefore unlawful.

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 62

2. Inherent authority
The government’s final defense is that the Constitution gr ants the President the “inherent authority” to “intercept the international com munications of those af filiated with al Qaeda.” A contrary position would, according to the government, “present a grave constitutional question of the highest order.” For that reason, the governm ent contends that we should follow the canon of constitutional avoidance and construe FISA a nd the AUMF to avoid any constitutional conf lict. See Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) (discussing the canon of constitutional avoidance).
But the canon of constitutional avoidance “is not a method of adjudicating constitutional questions by other means.” Clark v. Martinez, 543 U.S. 371, 381 (2005) (discussing the role played by the canon of constitutional avoidance in statutoryinterpretation). Instead, its purpose is to allow courts to construe a statute so as to avoid serious constitutional problesm, “unless such construction is plainly contrary to the intent of Congress.” DeBartolo, 485 U.S. at 575 (emphasis added).
The Constitution divides the nation’s war powesr between the Executive and the Legislative Branches. See U.S. Const. art. I, § 8 (setting forth the powers of Congress) & art. II, § 2 (setting forth the powers of the President); see also Youngstown, 343 U.S. at 635 (Jackson, J., concurring) (noting that the powers of the President “depend[] upon their disjunction or conjunction with those of Congress”). In contrast to the government’s suggestion, the President does not have exclusive war powers. U.S. Const. art. I, § 8 (setting forth the affirmative powers of the Congress, including the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”).
The Constitution expressly grants Congress the powetro make laws in the context of national defense. Id. Moreover, the Constitution requires the President to conform to duly enacted laws. U.S. Const. art. II, § 3 (“[ H]e shall take Care that the Laws be f aithfully executed.”). This requirement endures even in times of war. In Little v. Barreme , 6 U.S. (2 Cranch) 170, 177-78 (1804), for example, the Supreme Court held that duirng the “Quasi War” with France, the President could not give instructions that ran counter to a validly ena cted statute, despite the fact that the President’s construction seemed to give the law better effect. The Supreme Court reiterated this principle in Ex Parte Milligan, 71 U.S. (4 Wall) 2 (1866), holding that the Habeas Corpus Act of 1863 barred the President fromdenying habeas corpus rights to a detainee who was captured outside the area of battle. More recently, the Court held in Hamdan that the President “may not disregard limitations that Congress has, in proper exercise of its own war powers , placed on his powers.” Hamdan, 126 S. Ct. at 2774 n. 23 (citing Youngstown, 343 U.S. at 637 (Jackson, J., concurring)).
The Supreme Court fully addressed the question of the inherent authority of the President in Youngstown. There, the Court struck down PresidetnTruman’s executive order to seize domestic steel-production facilities during the Korean war.In his famous concurring opinion, Justice Jackson described our tripartite system as one of “s eparateness but interdependence, autonomy but reciprocity.” Youngstown, 343 U.S. at 635 (Jackson, J., concurring). “Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” Id. He then laid out the three so-called zones of presidential power as follows:
1. When the President acts pursuant to an express or im plied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. . . .
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon hisown independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. . . .

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 63

3. When the President takes m easures incom patible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powersminus any constitutional powers of Congress over the matter.
Id. at 635-37.
When the President acts in Zone 3, “[c]ourts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential c laim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.” Id. at 637-38 (footnote omitted).
We must thus determine into which zone the TSP fits. Fromthat determination, the program will stand or fall. The governm ent argues that th e TSP fits into Zone 1, where the President’s authority is at its zenith. But this argument ignores Congress’s clear directive that FISA and Title III constitute the exclusive means for undertaking electronic surveillance within the United States for foreign intelligence purposes. The result might not be what the President would prefer, but that does not give him license to “disregard lim itations” that Congress has “placed on his powers.” Hamdan, 126 S. Ct. at 2774 n.23. In light of FISA and Title III, I have no doubt that the TSP falls into Zone 3, where the President’s authority is at its lowest ebb.
The government, however, turns to a case fromthe Foreign Intelligence Surveillance Court of Review as support for its a rgument that the President has “inherent constitutional authority to conduct warrantless foreign intelligence surveillance.” See In re Sealed Case, 310 F.3d 717, 746 (For. Intel. Surv. Ct. Rev. 2002) (per curiam). To be sure, theSealed Case court stated in dicta that “[w]e take for granted that the President does have” the “inherent authority to conduct warrantless searches to obtain foreign intelligence inform ation.” Id. at 742. This dicta, however, is unpersuasive because theSealed Case court relied on a Fourth Circuit decision from 1980 that dealt with a challenge to pre-FISA surveillance. Id. (discussing United States v. Truong Dinh Hung, 629 F.2d 908, 914 n.4 (4th Cir. 1980)).
The Sealed Case court discussed Truong for the purpose of determining whether the Fourth Circuit had articulated the proper constitutional standard f or evaluating a Fourth Am endment challenge to FISA. Id. at 742-44. Finding thatTruong did set forth the proper standard, theSealed Case court applied the same standard to uphold the post-PATRIOT Act version of FISA against a Fourth Amendment challenge. Id. at 742. In sum, the dicta inSealed Case cannot overcome the fact that Congress has unequivocally acted within its constitutional power to l imit the President’s authority over warrantless electronic surveillance within this country.
Finally, all of the courts to have consideredthe question ofwhether FISA was constitutional before the statute was amended by the USA PATRIOT Act of 2001 have in fact upheld the statute. See Uni ted States v. Nicholson , 955 F. Supp. 588, 590 n.3 (E.D. Va. 1997) (collecting case s upholding FISA against various constitutional challenges). Those courts that have considered the constitutionality of FISA since it was amended by the USA PATRIOT Act have likewise upheld the statute against constitutional challenges. See United States v. Ning Wen, 477 F.3d 896, 898-99 (7th Cir. 2007) (finding no conflict with the FourthAmendment where evidence obtained pursuant to a FISA court order was used in a criminal prosecution); United States v. Damrah, 412 F.3d 618, 625 (6th Cir. 2005) (noting that “FISA has uniform ly been held to be consistent with the Fourth Amendment”); In re Sealed Case, 310 F.3d at 746. In light of these persuasive authorities, I find no merit to the government’s “inherent authority” argument.

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.

Page 64

E. Plaintiffs’ datamining cross-appeal
The plaintiffs raise a cross-appeal fromthe district court’s grant of summary judgment to the government on the plaintiffs’ datamining claim. After a careful review of the record, I conclude that the district court’s analysis of this issue and ofthe preclusive effect of the state-secrets privilege is persuasive. I would therefore not disturb the disrtict court’s judgment on the plaintiffs’ datamining claim.
II. CONCLUSION
The closest question in this case, in my opinion, is whether the plaintiffs have the standing to sue. Once past that hurdle, however, the resgtets progressively easier. Mootness is not a problem because of the government’s position that it retains the right to opt out of the FISA regime whenever it chooses. Its AUMF and inherent-authority arguments are weak in lightof existing precedent and the rules of statutory construction. Finally, when faced with the clear wording of FISA and Title III that these statutes provide the “exclusive m eans” for the governm ent to engage in electronic surveillance within the United States f or foreign intelligence purposes, the conclusion becom es inescapable that the TSP was unlawful. I would therefore affirm the judgment of the district court.

Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al.
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Nos. 06-2095; 06-2140

Page 65

AMERICAN CIVIL LIBERTIES UNION, et al., Plaintiffs - Appellees/Cross-Appellants,
v. NATIONAL SECURITY AGENCY, et al.,
Defendants - Appellants/Cross-Appellees.

Filed: July 6, 2007 Before: BATCHELDER, GILMAN, and GIBBONS, Circuit Judges.

JUDGMENT
On Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
THIS CAUSE was heard on the record from the district court and was argued by counsel.
IN CONSIDERATION WHEREOF, it is ORDERED that the order of the district court is VACATED and the case is REMANDED with instructions to DISMISS the case for lack of jurisdiction.

ENTERED BY ORDER OF THE COURT

/s/ Leonard Green ___________________________________
Clerk