Case3:07-cv-00693-VRW Document46 Filed01/21/10 Page1 of 19

United States District Court For the Northern District of California

1

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6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE NORTHERN DISTRICT OF CALIFORNIA

8

9 CAROLYN JEWEL, TASH HEPTING, GREGORY No C 08-cv-4373 VRW HICKS, ERIK KNUTZEN AND JOICE WALTON,
10 ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
11 Plaintiffs,
12 v
13 NATIONAL SECURITY AGENCY ET AL,
14 Defendants.
15

16 IN RE:
17 NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS
18 LITIGATION

MDL Docket No C 06-1791 VRW Member case No C 07-0693 VRW

19 THIS DOCUMENT RELATES TO:
20 VIRGINIA SHUBERT, NOHA ARAFA, SARAH DRANOFF AND HILARY BOTEIN,
21 INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
22 Plaintiffs,
23 v
24 BARACK H OBAMA ET AL,
25 Defendants.
26

ORDER

27

/

28

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United States District Court For the Northern District of California

1

These two actions are among those filed in response to

2 revelations in the press, beginning in December 2005, that the

3 National Security Agency (NSA), an agency of the United States

4 government, had carried out one or more programs involving

5 warrantless electronic surveillance of telephone and e-mail

6 telecommunications into and out of the United States.

7

The various United States government defendants in these

8 cases (collectively, “the United States”) have moved to dismiss

9 and/or seeks summary judgment as to all claims in both cases,

10 summarizing their arguments in nearly identical fashion thusly:

11 “the Court lacks subject matter jurisdiction with respect to

12 plaintiffs’ statutory claims against the United States because

13 Congress has not waived sovereign immunity, and summary judgment

14 for the Government on all of plaintiffs’ remaining claims against

15 all parties (including any claims not dismissed for lack of

16 jurisdiction) is required because information necessary to litigate

17 plaintiffs’ claims is properly subject to and excluded from use in

18 the case by the state secrets privilege and related statutory

19 privileges.” Jewel, C 08-4373 Doc #18 at 2; see also Shubert,

20 C 07-0693 Doc #680/381 at 2.

21

For the reasons stated herein, the court has determined

22 that neither group of plaintiffs/purported class representatives

23 has alleged an injury that is sufficiently particular to those

24 plaintiffs or to a distinct group to which those plaintiffs belong;

25 rather, the harm alleged is a generalized grievance shared in

26

27

1 Citations to documen ts in the Shubert docket will be in the following

28 format: Doc #xxx/yy, with the first number corresponding to the MDL docket (M:06-
1791) and the second corresponding to the individual docket (C:07-0693).

2

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United States District Court For the Northern District of California

1 substantially equal measure by all or a large class of citizens.

2 “[I]njuries that are shared and generalized —— such as the right to

3 have the government act in accordance with the law —— are not

4 sufficient to support standing.” Seegers v Gonzales, 396 F3d 1248,

5 1253 (DC Cir 2005).

6

Accordingly, these actions must be, and hereby are,

7 DISMISSED with prejudice. The various other grounds advanced by

8 the Unites States are not ruled on herein and form no part of the

9 basis for this order. Judgment shall be entered against plaintiffs

10 in both actions.

11

12

I

13

A

14

In December 2005, news agencies began reporting that

15 President George W Bush had ordered the NSA to conduct, without

16 warrants, eavesdropping of some portion of telecommunications in

17 the United States and that the NSA had obtained the cooperation of

18 telecommunications companies to tap into a significant portion of

19 the companies’ telephone and e-mail traffic, both domestic and

20 international. See, e g, James Risen and Eric Lichtblau, Bush Lets

21 US Spy on Callers Without Courts, NY Times (Dec 16, 2005). A copy

22 of this article is attached.

23

In January 2006, the first of dozens of lawsuits by

24 customers of telecommunications companies were filed alleging

25 various causes of action related to such cooperation with the NSA

26 in warrantless wiretapping of customers’ communications. One such

27 lawsuit was Hepting v AT&T Corp, C 06-0672 VRW (ND Cal filed

28 January 31, 2006). The four plaintiffs in that suit were Tash

3

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United States District Court For the Northern District of California

1 Hepting, Gregory Hicks, Erik Knutzen and Carolyn Jewel. In

2 addition to the dozens of cases filed against telecommunications

3 companies, several were filed against United States government

4 entities by individuals claiming to have been surveilled. In six

5 states, officials with oversight authority over public utilities

6 initiated administrative proceedings to investigate

7 telecommunications companies’ alleged assistance to the NSA.

8

Several of the cases arising from the NSA’s alleged

9 warrantless electronic surveillance were originally venued in the

10 Northern District of California; others were filed in federal

11 district courts throughout the United States. The instant case

12 brought by plaintiff Virginia Shubert and her co-plaintiffs against

13 George W Bush and other government officials was filed May 17, 2006

14 in the Eastern District of New York.

15

In 2006, the United States filed lawsuits seeking to

16 enjoin state officials in Maine, New Jersey, Connecticut, Vermont

17 and Missouri from pursuing their investigations into the alleged

18 disclosure of customer telephone records by various

19 telecommunication carriers to the NSA. These motions were based,

20 in general, on the Supremacy Clause of the United States

21 Constitution, the foreign affairs power of the federal government

22 and the state secrets privilege (SSP).

23

In the Hepting case and the other cases in which

24 individual plaintiffs sought to sue telecommunications companies,

25 the United States moved to intervene and simultaneously to dismiss,

26 asserting the SSP and arguing, in essence, that the SSP required

27 immediate dismissal because no further progress in the litigation

28 was possible without compromising national security. C 06-0672 VRW

4

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United States District Court For the Northern District of California

1 Doc ##122-125. The telecommunications company defendants in the

2 case also moved to dismiss on other grounds. C 06-0672 VRW Doc

3 #86.

4

On July 20, 2006 the court denied the motions to dismiss,

5 holding that: the SSP did not categorically bar plaintiffs’

6 action; the subject matter of the action was not a state secret;

7 the SSP would not prevent the telecommunications company defendants

8 from disclosing whether they had received certifications

9 authorizing the alleged assistance to the government; statutory

10 privileges did not bar the action; plaintiff customers had

11 sufficiently alleged injury-in-fact to establish standing; and

12 neither a purported common law immunity nor the doctrine of

13 qualified immunity prevented plaintiffs from proceeding against the

14 telecommunications company defendants. The court certified its

15 order for an interlocutory appeal pursuant to 28 USC § 1292(b), but

16 denied the United States’ request for a stay of proceedings pending

17 appeal. Hepting v AT&T Corp, 439 F Supp 2d 974 (ND Cal 2006).

18

On August 9, 2006, the Judicial Panel on Multidistrict

19 Litigation ordered all cases arising from the alleged warrantless

20 wiretapping program by the NSA transferred to the Northern District

21 of California and consolidated before the undersigned judge.

22

On July 24, 2007, the court denied the United States’

23 motion for summary judgment in its actions to enjoin the state

24 officials’ investigations. The court determined that the states’

25 investigations into wiretapping activities did not violate the

26 doctrine of intergovernmental immunity, were not preempted by

27 federal statutes and did not infringe on the federal government’s

28 power over foreign affairs to a constitutionally impermissible

5

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United States District Court For the Northern District of California

1 degree. M 06-1791 Doc #334; 2007 WL 2127345. Because the Hepting

2 appeal was then pending, the court refrained from considering the

3 government’s assertion of the SSP.

4

On August 30, 2007, the court heard a number of motions

5 including the United States’ motion to dismiss the Shubert case

6 (Doc #295/yy). Doc #368.

7

On March 14, 2008, the Ninth Circuit entered an order

8 withdrawing the submission in the Hepting case. CA Docket No 06-

9 17132, Doc #109. In light of that order, this court terminated the

10 pending motion to dismiss in Shubert shortly afterward giving the

11 United States leave to petition the court to re-open the motion at

12 the next case management conference in the matter should the

13 circumstances so warrant. Doc #438.

14

On July 10, 2008, Congress amended the Foreign

15 Intelligence Surveillance Act of 1978 (“FISA”), 50 USC §§1801-71,

16 by enacting the FISA Amendments Act of 2008, Pub L No 110-261, 122

17 Stat 2436 (FISAAA), codified at 50 USC §1885a. Of special

18 relevance to these cases, the new law included a provision for the

19 benefit of telecommunications companies that allowed the United

20 States to invoke a newly-created immunity and thus seek dismissal

21 of cases brought against telecommunications companies by certifying

22 that certain narrowly-defined circumstances were present,

23 including, as relevant to this litigation, that the defendant had

24 “provided assistance to an element of the intelligence community

25 * * * in connection with an intelligence activity involving

26 communications that was —— (I) authorized by the President during

27 the period beginning on September 11, 2001, and ending on January

28 17, 2007; and (ii) designed to detect or prevent a terrorist

6

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United States District Court For the Northern District of California

1 attack, or activities in preparation for a terrorist attack,

2 against the United States.” FISAAA also contained a provision

3 (section 803) depriving states of authority to: investigate;

4 require through regulation or any other means the disclosure of

5 information about; impose any administrative sanction for; or

6 commence or maintain a civil action pertaining to “alleged

7 assistance to an element of the intelligence community” into an

8 electronic communication service provider. 50 USC §1885b.

9

On August 28, 2008, the Ninth Circuit remanded Hepting v

10 AT&T without rendering a decision “in light of the FISA Amendments

11 Act of 2008.” CA Docket No 06-17137 (9th Cir) Doc #116.

12

On September 18, 2008, plaintiffs Carolyn Jewel, Tash

13 Hepting, Gregory Hicks, Erik Knutzen and Joice Walton —— all, with

14 the exception of Walton, named plaintiffs in the Hepting action ——

15 filed the instant lawsuit against the NSA and various government

16 officials. Pursuant to Rule of Procedure of the Judicial Panel on

17 Multidistrict Litigation 7.5(a), Jewel was reassigned to the

18 undersigned judge but not added to the MDL docket.

19

On September 19, 2008, the United States filed its motion

20 to dismiss all claims against telecommunications company defendants

21 in these cases, including the pending master consolidated

22 complaints based on section 802 of FISAAA. Doc #469. On December

23 23, 2008, the United States moved for summary judgment in the

24 “state cases” relying on section 803 of FISAAA. Doc #536. On June

25 3, 2009, the court granted both motions, finding the provisions of

26 FISAAA at issue on the motions constitutional and therefore

27 enforceable by the United States in the manner prescribed by

28 statute. Doc ##639, 640.

7

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United States District Court For the Northern District of California

1

The June 3 orders left only five MDL cases —— those

2 brought by private individuals and entities and naming United

3 States government officials and agencies as defendants (Al-Haramain

4 Islamic Foundation, Inc et al v Bush et al, No C 07-0109; Center

5 for Constitutional Rights et al v Bush e al, No C 07-1115; Guzzi v

6 Bush, No C 06-6225; Shubert et al v Bush et al, No C 07-0693) and

7 one “tagalong action” transferred by order of the MDL Panel after

8 the United States’ motions were filed (McMurray et al v Verizon

9 Communications Inc et al, C 09-0131) —— and Jewel v NSA. The

10 motions by the United States and the telecommunications company

11 defendants to dismiss the McMurray case were argued on June 3 and,

12 after reviewing supplemental briefs, the court dismissed McMurray.

13 Doc #661.

14

This concludes the general procedural history; a

15 discussion of the specific motions that are the subjects of this

16 order now follows.

17

18

B

19

Jewel v NSA. In Jewel, meanwhile, the United States

20 “government defendants” in their official capacities filed the

21 instant motion (on April 3, 2009) asking the court to “dismiss

22 plaintiffs’ statutory claims for lack of jurisdiction, uphold the

23 Government’s privilege assertions, enter summary judgment for the

24 Government Defendants, and dismiss the case as to all defendants

25 and all claims.” C 08-4373 Doc #18 at 35. Plaintiffs filed an

26 opposition (Doc #29), and defendants replied (Doc #31).

27

Those defendants sued in their individual capacities ——

28 George W Bush, Richard B Cheney, David S Addington, Keith B

8

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United States District Court For the Northern District of California

1 Alexander, Michael V Hayden, John D McConnell, John

2 D Negroponte, Michael B Mukasey, Alberto R Gonzales, and John D

3 Ashcroft (see Doc #14) —— (some of whom had become private citizens

4 in the intervening months) sought to avoid responding to the

5 complaint pending the outcome of the dispositive motion and moved

6 the court for an order relieving them of the responsibility to

7 respond (Doc #32), a step which prompted plaintiffs to file a

8 counter-motion for “relief from improper motion for reconsideration

9 by individual capacity defendants.” Doc #33. The court heard

10 arguments on the dispositive motion on July 15, 2009, after which

11 plaintiffs requested —— and obtained —— leave to file a

12 supplemental brief on the scope of FISA preemption of the SSP (Doc

13 ##38, 40); the United States responded with its own supplemental

14 brief on September 4, 2009. Doc #46. On September 17, 2009, the

15 court held a hearing on the individual capacity defendants’ request

16 to defer responding to the complaint and the plaintiffs’ counter-

17 motion. Doc #47.

18

The fifty-five-page complaint contains seventeen causes

19 of action. It alleges that plaintiffs are, variously, “an

20 individual residing in Livermore, California [who] has been a

21 subscriber and user of AT&T’s residential long distance telephone

22 service since February 1995; an individual residing in San Jose,

23 California [who] has been a subscriber and user of AT&T’s

24 residential long distance telephone service since February 1995; an

25 individual residing in Petaluma, California [who] has been a

26 subscriber and user of AT&T’s WorldNet dial-up internet service

27 since approximately June 2000; an individual residing in Los

28 Angeles, California [who] has been a subscriber and user of AT&T’s

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United States District Court For the Northern District of California

1 WorldNet dial-up internet service from at least October 2003 until

2 May 2005; and an individual residing in San Jose, California [who]

3 is a current subscriber and user of AT&T’s WorldNet dial-up

4 internet service. Doc #1 at 5, ¶¶20-24.

5

The complaint alleges a factual narrative beginning with

6 President George W Bush’s approval of, and the NSA’s and various

7 government officials’ implementation of, surveillance activities

8 inside the United States without statutory authorization or court

9 approval, including electronic surveillance of Americans’ telephone

10 and internet communications (id ¶¶39-49); these allegations have in

11 some form appeared in a number of books and thousands of print and

12 broadcast media stories and blog posts and, accordingly, can now

13 fairly be characterized as common knowledge to most Americans. The

14 Jewel complaint also contains allegations about AT&T’s involvement

15 in the surveillance activities that are quite similar to those set

16 forth in the complaint in Hepting and discussed in the court’s

17 opinion in that case, to wit, that AT&T and the NSA maintained

18 special rooms at a Folsom Street facility in San Francisco for

19 purposes of carrying out surveillance of AT&T’s communications

20 networks. ¶¶50-81. 439 F Supp 2d at 989-90. Plaintiffs also

21 allege that since October 2001, defendants have “continually

22 solicited and obtained the disclosure” of all information in AT&T’s

23 major databases of stored telephone and Internet records and that

24 these records include the records of plaintiffs’ phone and/or

25 internet use. ¶¶82-97. The complaint contains no other

26 allegations specifically linking any of the plaintiffs to the

27 alleged surveillance activities.

28 \\

10

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United States District Court For the Northern District of California

1

The complaint purports to set forth seventeen causes of

2 action against the United States and defendant government officials

3 in their official and individual capacities, claiming that the

4 alleged actions violate the First and Fourth Amendments of the

5 United States Constitution and the separation of powers doctrine,

6 as well as various statutory provisions —— section 109 of FISA, 50

7 USC §1809; the Wiretap Act, as amended by the Electronic

8 Communications Privacy Act, 18 USC §2511(1)(a), (1)(c), (1)(d)

9 and(3)(a); and the Stored Communications Act, 18 USC §2703(a), (b)

10 and (c). Because the defendants are sued in both their official

11 and individual capacities, the originally-named defendants remain

12 in the suit in their individual capacities only, while new holders

13 of their offices are substituted in as defendants for official-

14 capacity purposes pursuant to FRCP 25(d).2

15

Plaintiffs seek declaratory, injunctive and other

16 equitable relief, including: a declaration that the surveillance

17 program as alleged violates plaintiffs’ rights under the First and

18 Fourth Amendments, 18 USC §2511, 18 USC §2703, 50 USC §1809, the

19 Administrative Procedure Act and the constitutional separation-of-

20 powers principle; an injunction prohibiting defendants’ continued

21 use of the program and requiring the defendants to turn over an

22 inventory of their pertinent stored communications and records;

23 statutory, actual and punitive damages to the extent permitted by

24 law and according to proof; and attorney fees. Doc #1 at 53.

25

26

2 Rule 25(d) provides: “An action does not abate when a public officer who

27 is a party in an official capacity dies, resigns, or otherwise ceasetso hold office
while the action is pending. The officer’s successor is automatically substituted

28 as a party.”

11

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United States District Court For the Northern District of California

1

B

2

Shubert v Bush. The parties held a telephonic status

3 conference on September 3, 2009 in which the United States

4 announced its intention to renew its motion to dismiss. The court

5 offered the parties the opportunity to supplement their earlier

6 submissions on the motion and set a briefing schedule. After a

7 series of stipulated continuances assertedly due to a Department of

8 Justice re-evaluation of the circumstances in which the United

9 States would invoke the SSP in litigation (Doc ##674, 679), the

10 United States filed its motion on October 30. The matter was fully

11 briefed and the court heard arguments and took the matter under

12 submission on December 15, 2009.

13

The Shubert complaint, which has never been amended,

14 alleges that each of the plaintiffs resides and works in Brooklyn,

15 New York and, variously: “frequently calls and sends emails to the

16 United Kingdom, France and Italy and has made similar

17 communications as part of her work”; “frequently calls and sends

18 emails to family and friends in Egypt from her home, and has made

19 telephone calls as a part of her work”; “regularly makes phone

20 calls and sends email both within the United States [and] calls the

21 Netherlands and sends emails to the Netherlands and Norway from her

22 home”; “makes phone calls and sends email both within the United 23 States, and outside the United States.” As to each plaintiff, the 24 complaint alleges “a good faith basis to believe that she, like so 25 many millions of Americans, has been surveilled without a warrant 26 pursuant to the illegal Spying Program.” Doc #1 at 3, ¶¶ 5-8. 27 Defendants named in the complaint are current and former government 28 officials George W Bush, Michael V Hayden, Keith B Alexander,

12

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United States District Court For the Northern District of California

1 Alberto Gonzales, John Ashcroft and Does 1-100. The current

2 holders of the various offices held by the originally-named

3 defendants have been substituted pursuant to FRCP 25(d).

4

Plaintiffs’ factual allegations rely on the above-

5 referenced December 2005 New York Times article, on public

6 statements by the President and on other publicly available

7 information (Complaint ¶ 46-92). The complaint contains no factual

8 allegations specifically linking any of the plaintiffs to the

9 alleged surveillance activities; it contains only the allegations

10 of domestic and international telephone and electronic mail use.

11 The complaint alleges only interception of plaintiffs’

12 communications, but not, as in the other cases in this MDL and in

13 Jewel, collection and storage of records of monitored

14 communications.

15

The complaint purports to set forth causes of action

16 under: FISA’s section 1810 asserting that they, as “aggrieved

17 persons]” are entitled to damages under 50 USC § 1810; the ECPA;

18 the SCA; and the Fourth Amendment. Plaintiffs seek certification

19 of their suit as a class action; a declaratory judgment on all

20 claims; an award of liquidated and/or compensatory damages; an

21 award of punitive damages; and attorney fees and costs.

22

23

II

24

Upon careful consideration of the allegations of both

25 complaints, the court has concluded that neither the Jewel

26 plaintiffs nor the Shubert plaintiffs have alleged facts sufficient

27 to establish their standing to proceed with their lawsuit against

28 \\

13

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United States District Court For the Northern District of California

1 the President, the NSA and the other high-level government

2 officials named as defendants in these lawsuits.

3

Although most of the plaintiffs and nearly all of the

4 relevant factual allegations are the same as in Hepting, the

5 standing problem presented in these cases is markedly different.

6 In Hepting, the court rejected the AT&T defendants’ arguments for

7 dismissal based on lack of standing, noting that plaintiffs’ status

8 as customers of AT&T who used its telecommunications services was

9 sufficient to withstand the motion to dismiss for lack of standing:

10

AT & T also contends ‘‘[p]laintiffs lack standing to

assert their statutory claims (Counts II–VII) because

11

the FAC alleges no facts suggesting that their

statutory rights have been violated’’ and ‘‘the FAC

12

alleges nothing to suggest that the named plaintiffs

were themselves subject to surveillance.’’ * * * But

13

AT & T ignores that the gravamen of plaintiffs’

complaint is that AT & T has created a dragnet that

14

collects the content and records of its customers’

communications. See, e g, FAC, ¶¶ 42–64. The court

15

cannot see how any one plaintiff will have failed to

demonstrate injury-in-fact if that plaintiff

16

effectively demonstrates that all class members have

so suffered. * * * As long as the named plaintiffs

17

were, as they allege, AT & T customers during the

relevant time period (FAC, ¶¶ 13–16), the alleged

18

dragnet would have imparted a concrete injury on each

of them. 19

20 439 F Supp 2d at 1000. Citing FEC v Akins, 524 US 11 (1998), the

21 court also rejected AT&T’s contention that the diffuse nature of

22 the harm from the alleged dragnet deprived individual AT&T

23 customers of standing:

24

This conclusion is not altered simply because the

alleged injury is widely shared among AT & T

25

customers.

26

* * *

27

Here, the alleged injury is concrete even though it is

widely shared. Despite AT&T’s alleged creation of a

28

dragnet to intercept all or substantially all of its

14

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United States District Court For the Northern District of California

1

customers’ communications, this dragnet necessarily

inflicts a concrete injury that affects each customer

2

in a distinct way, depending on the content of that

customer’s communications and the time that customer

3

spends using AT&T services. Indeed, the present

situation resembles a scenario in which “large numbers

4

of individuals suffer the same common-law injury (say,

a widespread mass tort.”

5

6 439 F Supp 2d at 1001.

7

Whereas the gravamen of the Hepting plaintiffs’ complaint

8 was rooted in a contractual relationship between private parties,

9 the Jewel and Shubert cases, boiled to their essence, are both

10 efforts by citizens seeking to redress alleged misfeasance by the

11 executive branch of the United States government.

12

As the court noted in Hepting, “[w]hether styled as a

13 constitutional or prudential limit on standing, the [Supreme] Court

14 has sometimes determined that where large numbers of Americans

15 suffer alike, the political process, rather than the judicial

16 process, may provide the more appropriate remedy for a widely

17 shared grievance.” Id at 1000, quoting FEC v Akins, 524 US 11, 23.

18 This special species of standing problem is directly relevant here.

19

Stated more generally, “[s]tanding will be denied to one

20 alleging only a generalized interest, shared by a large segment of

21 the public. * * * The courts do not want to be viewed as a panacea

22 of all of society’s ills, a task too large and often inappropriate

23 for them to handle. If an injury is far-reaching, it is likely

24 that a better solution would come from a political forum.” Charles

25 H Koch, Jr, 33 Federal Practice and Procedure: Judicial Review of

26 Administrative Action § 8413 at 452.

27

A considerable jurisprudence has developed around United

28 States citizens and taxpayers attempting to challenge government

15

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United States District Court For the Northern District of California

1 actions or the manner in which Congress or the executive branch

2 manages and spends public funds. By and large, these challenges

3 have failed on standing grounds:

4

Because the interests of the taxpayer are, in essence,

the interests of the public at large, deciding a

5

constitutional claim based solely on taxpayer standing

“would be, not to decide a judicial controversy, but

6

to assume a position of authority over the

governmental acts of another and co-equal department,

7

an authority which plainly we do not possess.”

8 Hein v Freedom From Religion Foundation, 551 US 587, 601 (2007),

9 quoting Frothingham v Mellon, 262 US 447, 489 (1923).

10

Cases in which plaintiffs sue the government in order to

11 stop or expose constitutional or other transgressions by government

12 officials present special standing considerations. A citizen may

13 not gain standing by claiming a right to have the government follow

14 the law. Ex parte Levitt, 302 US 633 (1937). The essence of

15 standing is the party’s direct, personal stake in the outcome as

16 opposed to the issues the party seeks to have adjudicated in the

17 litigation:

18

The fundamental aspect of standing is that it focuses

on the party seeking to get his complaint before a

19

federal court and not on the issues he wishes to have

adjudicated. The “gist of the question of standing” is

20

whether the party seeking relief has “alleged such a

personal stake in the outcome of the controversy as to

21

assure that concrete adverseness which sharpens the

presentation of issues upon which the court so largely

22

depends for illumination of difficult constitutional

questions.” 23

24 Flast v Cohen, 392 US 83, 99 (1968), quoting Baker v Carr, 369 US

25 186, 204 (1962).

26

The two cases at bar are, in essence, citizen suits

27 seeking to employ judicial remedies to punish and bring to heel

28 high-level government officials for the allegedly illegal and

16

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United States District Court For the Northern District of California

1 unconstitutional warrantless electronic surveillance program or

2 programs now widely, if incompletely, aired in the public forum.

3 Plaintiffs have attempted to present their complaint as something

4 narrower than a generalized grievance by alleging interference with

5 their telephone and/or broadband internet subscription and/or use.

6 But such allegations do not avoid the problem. Telephone

7 subscribership and internet use are widespread on the scale of the

8 paying of taxes or the holding of United States citizenship: in

9 November 2005, 92.9% of United States households subscribed to

10 telephone service —— 107 million households in all.3 In December

11 2005, there were 51,218,145 high-speed internet connections in the

12 United States; one year later, there were 82,809,845; by the end of

13 2007, there were over 100,000,000.4 Allegations of telephone use

14 for international calls do not fare much better.

15

These cases allege both statutory and constitutional

16 violations. This court has written at length in another case in

17 this MDL, Al-Haramain Islamic Foundation, Inc v Bush et al, about

18 the allegations necessary to make out a prima facie case to

19 establish “aggrieved person” status in a lawsuit based on

20 electronic surveillance (see, for example, 50 USC §1801(k)). 564

21 F Supp 2d 1109(ND Cal 2008); 595 F Supp 2d 1077 (ND Cal 2009). In

22

23

3 Alexander Belinfante, Telephone Subscribership In The United States (Data

24 through November 2006), Industry Analysis and Technology Division Wireline
Competition Bureau, Federal Communications Commission (May 2007)at 6, Table 1

25 http://www.fcc.gov/Document_Indexes/WCB/2007_index_WCB_Report.htm,lDOC-272904A1.pdf
(consulted December 29, 2009).

26

4 “High-Speed Services for Inte rnet Access: Status as of June 30, 2007,”

27 Industry Analysis and Technology Division , Wireline Competition Bureau, Federal
Communications Commission (March 2008)at 7, Table 1. Available at

28 http://www.fcc.gov/Document_Indexes/WCB/2008_index_WCB_Report.html, DOC-280906A1.pdf
(consulted December 29, 2009).

17

Case3:07-cv-00693-VRW Document46 Filed01/21/10 Page18 of 19

United States District Court For the Northern District of California

1 that case, plaintiffs were able to allege in an amended complaint

2 following dismissal of their original complaint “a sequence of

3 events pertaining directly to the government’s investigations of

4 Al-Haramain Oregon” and the court denied the government’s motion to

5 dismiss the amended complaint. 595 F Supp 2d at 1079. While

6 plaintiffs in Jewel and Shubert assert that they are aggrieved,

7 they neither allege facts nor proffer evidence sufficient to

8 establish a prima facie case that would differentiate them from the

9 mass of telephone and internet users in the United States and thus

10 make their injury “concrete and particularized” consonant with the

11 principles articulated in Lujan v Defenders of Wildlife, 504 US

12 555, 560 (1992).

13

As for plaintiffs’ constitutional claims, “when a court

14 is asked to undertake constitutional adjudication, the most

15 important and delicate of its responsibilities, the requirement of

16 concrete injury further serves the function of insuring that such

17 adjudication does not take place unnecessarily.” Schlesinger v

18 Reservists Committee to Stop the War, 418 US 208, 221 (1974). This

19 is especially true when, as here, the constitutional issues at

20 stake in the litigation seek judicial involvement in the affairs of

21 the executive branch and national security concerns appear to

22 undergird the challenged actions. In such cases, only plaintiffs 23 with strong and persuasive claims to Article III standing may 24 proceed. 25

26

III

27

Because the court GRANTS the United States’ motions to

28 dismiss based on the specific standing grounds stated herein, the

18

Case3:07-cv-00693-VRW Document46 Filed01/21/10 Page19 of 19

United States District Court For the Northern District of California

1 court declines to rule on the sovereign immunity, SSP and other

2 issues raised in the United States’ motions.

3

For the reasons stated herein, the government defendants’

4 motion to dismiss in Jewel el al v NSA et al, C 08-4373 Doc #18, is

5 GRANTED. Inasmuch as plaintiffs lack the particularized injury to

6 afford them standing to sue defendants in their official

7 capacities, so also plaintiffs lack standing to pursue claims

8 against defendants as individuals. The substitution of new

9 individuals into certain official positions during the pendency of

10 these actions does not affect this conclusion and hence renders

11 moot the motions at docket numbers 32 and 33 pertaining to the

12 obligation of the defendants sued in their individual capacity to

13 respond to the complaint. The motions at docket numbers 32 and 33

14 are therefore DENIED. Further, the court’s ruling renders moot

15 plaintiffs’ substitution of John C Yoo and Jack L Goldsmith for Doe

16 defendants 1 and 2, respectively. Doc #56. Plaintiffs therefore

17 are DENIED leave to amend the complaint.

18

For the reasons stated herein, the United States’ motion

19 to dismiss in Shubert et al v Obama et al, C 07-0693 Doc #38 (MDL

20 Doc #680) is GRANTED.

21

The clerk is directed to close these two files and to

22 terminate all pending motions. 23

24

IT IS SO ORDERED.

25

26

27

VAUGHN R WALKER

United States District Chief Judge 28

19

Case3:07-cv-00693-VRW Document46-1 Filed01/21/10 Page1 of 11

12/16/05 NYT A1

Page 1

12/16/05 N.Y. Times A1 2005 WLNR 20281359
New York Times (NY) Copyright (c) 2005 The New York Times. All rights reserved.
December 16, 2005
Section: A
Bush Lets U.S. Spy on Callers Without Courts
JAMES RISEN and ERIC LICHTBLAU; Barclay Walsh contributed research for this article.
National Security Agency officials privately voice concern about legality of eavesdropping on Americans and others inside United States without court-approved warrants, as secretly authorized by Pres Bush in wake of 9/11 attacks; at issue is NSA's monitoring of international telephone calls and e-mail messages inside US in search of evidence of terrorist activity under presidential order signed in 2002; dozen current and former agency officials question whether this surveillance has stretched, if not crossed, constitutional limits on legal searches; Bush administration views operation as necessary so agency can move quickly on threats to US; defenders of program say it has been critical tool in helping disrupt terrorist plots and prevent attacks inside US; critics say most people targeted for NSA monitoring have never been charged with crime; it is not clear how much members of Congress were told about presidential order and eavesdropping program; photo; timeline of NSA's half-century of surveillance (L)
WASHINGTON, Dec. 15 Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.
Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.
The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

12/16/05CNaYseT3A:017-cv-00693-VRW Document46-1 Filed01/21/10 Page2 of 11 Page 2
"This is really a sea change," said a former senior official who specializes in national security law. "It's almost a mainstay of this country that the N.S.A. only does foreign searches."
Nearly a dozen current and former officials, who were granted anonymity because of the classified nature of the program, discussed it with reporters for The New York Times because of their concerns about the operation's legality and oversight.
According to those officials and others, reservations about aspects of the program have also been expressed by Senator John D. Rockefeller IV, the West Virginia Democrat who is the vice chairman of the Senate Intelligence Committee, and a judge presiding over a secret court that oversees intelligence matters. Some of the questions about the agency's new powers led the administration to temporarily suspend the operation last year and impose more restrictions, the officials said.
The Bush administration views the operation as necessary so that the agency can move quickly to monitor communications that may disclose threats to the United States, the officials said. Defenders of the program say it has been a critical tool in helping disrupt terrorist plots and prevent attacks inside the United States.
Administration officials are confident that existing safeguards are sufficient to protect the privacy and civil liberties of Americans, the officials say. In some cases, they said, the Justice Department eventually seeks warrants if it wants to expand the eavesdropping to include communications confined within the United States. The officials said the administration had briefed Congressional leaders about the program and notified the judge in charge of the Foreign Intelligence Surveillance Court, the secret Washington court that deals with national security issues.
The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted. Dealing With a New Threat
While many details about the program remain secret, officials familiar with it say the N.S.A. eavesdrops without warrants on up to 500 people in the United States at any given time. The list changes as some names are added and others dropped, so the number monitored in this country may have reached into the thousands since the program began, several officials said. Overseas, about 5,000 to 7,000 people suspected of terrorist ties are monitored at one time, according to those officials.
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

12/16/05CNaYseT3A:017-cv-00693-VRW Document46-1 Filed01/21/10 Page3 of 11 Page 3
Several officials said the eavesdropping program had helped uncover a plot by Iyman Faris, an Ohio trucker and naturalized citizen who pleaded guilty in 2003 to supporting Al Qaeda by planning to bring down the Brooklyn Bridge with blowtorches. What appeared to be another Qaeda plot, involving fertilizer bomb attacks on British pubs and train stations, was exposed last year in part through the program, the officials said. But they said most people targeted for N.S.A. monitoring have never been charged with a crime, including an Iranian-American doctor in the South who came under suspicion because of what one official described as dubious ties to Osama bin Laden.
The eavesdropping program grew out of concerns after the Sept. 11 attacks that the nation's intelligence agencies were not poised to deal effectively with the new threat of Al Qaeda and that they were handcuffed by legal and bureaucratic restrictions better suited to peacetime than war, according to officials. In response, President Bush significantly eased limits on American intelligence and law enforcement agencies and the military.
But some of the administration's antiterrorism initiatives have provoked an outcry from members of Congress, watchdog groups, immigrants and others who argue that the measures erode protections for civil liberties and intrude on Americans' privacy.
Opponents have challenged provisions of the USA Patriot Act, the focus of contentious debate on Capitol Hill this week, that expand domestic surveillance by giving the Federal Bureau of Investigation more power to collect information like library lending lists or Internet use. Military and F.B.I. officials have drawn criticism for monitoring what were largely peaceful antiwar protests. The Pentagon and the Department of Homeland Security were forced to retreat on plans to use public and private databases to hunt for possible terrorists. And last year, the Supreme Court rejected the administration's claim that those labeled "enemy combatants" were not entitled to judicial review of their open-ended detention.
Mr. Bush's executive order allowing some warrantless eavesdropping on those inside the United States -- including American citizens, permanent legal residents, tourists and other foreigners -- is based on classified legal opinions that assert that the president has broad powers to order such searches, derived in part from the September 2001 Congressional resolution authorizing him to wage war on Al Qaeda and other terrorist groups, according to the officials familiar with the N.S.A. operation.
The National Security Agency, which is based at Fort Meade, Md., is the nation's largest and most secretive intelligence agency, so intent on remaining out of public view that it has long been nicknamed "No Such Agency." It breaks codes and maintains listening posts around the world to eavesdrop on foreign governments, diplomats and trade negotiators as well as drug lords and terrorists. But the agency ordinarily operates under tight restrictions on any spying on Americans, even if they are overseas, or disseminating information about them.
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

12/16/05CNaYseT3A:017-cv-00693-VRW Document46-1 Filed01/21/10 Page4 of 11 Page 4
What the agency calls a "special collection program" began soon after the Sept. 11 attacks, as it looked for new tools to attack terrorism. The program accelerated in early 2002 after the Central Intelligence Agency started capturing top Qaeda operatives overseas, including Abu Zubaydah, who was arrested in Pakistan in March 2002. The C.I.A. seized the terrorists' computers, cellphones and personal phone directories, said the officials familiar with the program. The N.S.A. surveillance was intended to exploit those numbers and addresses as quickly as possible, they said.
In addition to eavesdropping on those numbers and reading e-mail messages to and from the Qaeda figures, the N.S.A. began monitoring others linked to them, creating an expanding chain. While most of the numbers and addresses were overseas, hundreds were in the United States, the officials said.
Under the agency's longstanding rules, the N.S.A. can target for interception phone calls or email messages on foreign soil, even if the recipients of those communications are in the United States. Usually, though, the government can only target phones and e-mail messages in the United States by first obtaining a court order from the Foreign Intelligence Surveillance Court, which holds its closed sessions at the Justice Department.
Traditionally, the F.B.I., not the N.S.A., seeks such warrants and conducts most domestic eavesdropping. Until the new program began, the N.S.A. typically limited its domestic surveillance to foreign embassies and missions in Washington, New York and other cities, and obtained court orders to do so.
Since 2002, the agency has been conducting some warrantless eavesdropping on people in the United States who are linked, even if indirectly, to suspected terrorists through the chain of phone numbers and e-mail addresses, according to several officials who know of the operation. Under the special program, the agency monitors their international communications, the officials said. The agency, for example, can target phone calls from someone in New York to someone in Afghanistan.
Warrants are still required for eavesdropping on entirely domestic-to-domestic communications, those officials say, meaning that calls from that New Yorker to someone in California could not be monitored without first going to the Federal Intelligence Surveillance Court.
A White House Briefing
After the special program started, Congressional leaders from both political parties were brought to Vice President Dick Cheney's office in the White House. The leaders, who included the chairmen and ranking members of the Senate and House intelligence committees, learned of the N.S.A. operation from Mr. Cheney, Lt. Gen. Michael V. Hayden of the Air Force, who was then the agency's director and is now a full general and the principal deputy
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

12/16/05CNaYseT3A:017-cv-00693-VRW Document46-1 Filed01/21/10 Page5 of 11 Page 5
director of national intelligence, and George J. Tenet, then the director of the C.I.A., officials said.
It is not clear how much the members of Congress were told about the presidential order and the eavesdropping program. Some of them declined to comment about the matter, while others did not return phone calls.
Later briefings were held for members of Congress as they assumed leadership roles on the intelligence committees, officials familiar with the program said. After a 2003 briefing, Senator Rockefeller, the West Virginia Democrat who became vice chairman of the Senate Intelligence Committee that year, wrote a letter to Mr. Cheney expressing concerns about the program, officials knowledgeable about the letter said. It could not be determined if he received a reply. Mr. Rockefeller declined to comment. Aside from the Congressional leaders, only a small group of people, including several cabinet members and officials at the N.S.A., the C.I.A. and the Justice Department, know of the program.
Some officials familiar with it say they consider warrantless eavesdropping inside the United States to be unlawful and possibly unconstitutional, amounting to an improper search. One government official involved in the operation said he privately complained to a Congressional official about his doubts about the program's legality. But nothing came of his inquiry. "People just looked the other way because they didn't want to know what was going on," he said.
A senior government official recalled that he was taken aback when he first learned of the operation. "My first reaction was, 'We're doing what?' " he said. While he said he eventually felt that adequate safeguards were put in place, he added that questions about the program's legitimacy were understandable.
Some of those who object to the operation argue that is unnecessary. By getting warrants through the foreign intelligence court, the N.S.A. and F.B.I. could eavesdrop on people inside the United States who might be tied to terrorist groups without skirting longstanding rules, they say.
The standard of proof required to obtain a warrant from the Foreign Intelligence Surveillance Court is generally considered lower than that required for a criminal warrant -- intelligence officials only have to show probable cause that someone may be "an agent of a foreign power," which includes international terrorist groups -- and the secret court has turned down only a small number of requests over the years. In 2004, according to the Justice Department, 1,754 warrants were approved. And the Foreign Intelligence Surveillance Court can grant emergency approval for wiretaps within hours, officials say.
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

12/16/05CNaYseT3A:017-cv-00693-VRW Document46-1 Filed01/21/10 Page6 of 11 Page 6
Administration officials counter that they sometimes need to move more urgently, the officials said. Those involved in the program also said that the N.S.A.'s eavesdroppers might need to start monitoring large batches of numbers all at once, and that it would be impractical to seek permission from the Foreign Intelligence Surveillance Court first, according to the officials.
The N.S.A. domestic spying operation has stirred such controversy among some national security officials in part because of the agency's cautious culture and longstanding rules.
Widespread abuses -- including eavesdropping on Vietnam War protesters and civil rights activists -- by American intelligence agencies became public in the 1970's and led to passage of the Foreign Intelligence Surveillance Act, which imposed strict limits on intelligence gathering on American soil. Among other things, the law required search warrants, approved by the secret F.I.S.A. court, for wiretaps in national security cases. The agency, deeply scarred by the scandals, adopted additional rules that all but ended domestic spying on its part.
After the Sept. 11 attacks, though, the United States intelligence community was criticized for being too risk-averse. The National Security Agency was even cited by the independent 9/11 Commission for adhering to self-imposed rules that were stricter than those set by federal law. Concerns and Revisions
Several senior government officials say that when the special operation began, there were few controls on it and little formal oversight outside the N.S.A. The agency can choose its eavesdropping targets and does not have to seek approval from Justice Department or other Bush administration officials. Some agency officials wanted nothing to do with the program, apparently fearful of participating in an illegal operation, a former senior Bush administration official said. Before the 2004 election, the official said, some N.S.A. personnel worried that the program might come under scrutiny by Congressional or criminal investigators if Senator John Kerry, the Democratic nominee, was elected president.
In mid-2004, concerns about the program expressed by national security officials, government lawyers and a judge prompted the Bush administration to suspend elements of the program and revamp it.
For the first time, the Justice Department audited the N.S.A. program, several officials said. And to provide more guidance, the Justice Department and the agency expanded and refined a checklist to follow in deciding whether probable cause existed to start monitoring someone's communications, several officials said.
A complaint from Judge Colleen Kollar-Kotelly, the federal judge who oversees the Federal Intelligence Surveillance Court, helped spur the suspension, officials said. The judge questioned whether information obtained under the N.S.A. program was being improperly used as
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

12/16/05CNaYseT3A:017-cv-00693-VRW Document46-1 Filed01/21/10 Page7 of 11 Page 7
the basis for F.I.S.A. wiretap warrant requests from the Justice Department, according to senior government officials. While not knowing all the details of the exchange, several government lawyers said there appeared to be concerns that the Justice Department, by trying to shield the existence of the N.S.A. program, was in danger of misleading the court about the origins of the information cited to justify the warrants.
One official familiar with the episode said the judge insisted to Justice Department lawyers at one point that any material gathered under the special N.S.A. program not be used in seeking wiretap warrants from her court. Judge Kollar-Kotelly did not return calls for comment.
A related issue arose in a case in which the F.B.I. was monitoring the communications of a terrorist suspect under a F.I.S.A.-approved warrant, even though the National Security Agency was already conducting warrantless eavesdropping.
According to officials, F.B.I. surveillance of Mr. Faris, the Brooklyn Bridge plotter, was dropped for a short time because of technical problems. At the time, senior Justice Department officials worried what would happen if the N.S.A. picked up information that needed to be presented in court. The government would then either have to disclose the N.S.A. program or mislead a criminal court about how it had gotten the information.
Several national security officials say the powers granted the N.S.A. by President Bush go far beyond the expanded counterterrorism powers granted by Congress under the USA Patriot Act, which is up for renewal. The House on Wednesday approved a plan to reauthorize crucial parts of the law. But final passage has been delayed under the threat of a Senate filibuster because of concerns from both parties over possible intrusions on Americans' civil liberties and privacy.
Under the act, law enforcement and intelligence officials are still required to seek a F.I.S.A. warrant every time they want to eavesdrop within the United States. A recent agreement reached by Republican leaders and the Bush administration would modify the standard for F.B.I. wiretap warrants, requiring, for instance, a description of a specific target. Critics say the bar would remain too low to prevent abuses.
Bush administration officials argue that the civil liberties concerns are unfounded, and they say pointedly that the Patriot Act has not freed the N.S.A. to target Americans. "Nothing could be further from the truth," wrote John Yoo, a former official in the Justice Department's Office of Legal Counsel, and his co-author in a Wall Street Journal opinion article in December 2003. Mr. Yoo worked on a classified legal opinion on the N.S.A.'s domestic eavesdropping program.
At an April hearing on the Patriot Act renewal, Senator Barbara A. Mikulski, Democrat of
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

12/16/05CNaYseT3A:017-cv-00693-VRW Document46-1 Filed01/21/10 Page8 of 11 Page 8
Maryland, asked Attorney General Alberto R. Gonzales and Robert S. Mueller III, the director of the F.B.I., "Can the National Security Agency, the great electronic snooper, spy on the American people?"
"Generally," Mr. Mueller said, "I would say generally, they are not allowed to spy or to gather information on American citizens."
President Bush did not ask Congress to include provisions for the N.S.A. domestic surveillance program as part of the Patriot Act and has not sought any other laws to authorize the operation. Bush administration lawyers argued that such new laws were unnecessary, because they believed that the Congressional resolution on the campaign against terrorism provided ample authorization, officials said. The Legal Line Shifts
Seeking Congressional approval was also viewed as politically risky because the proposal would be certain to face intense opposition on civil liberties grounds. The administration also feared that by publicly disclosing the existence of the operation, its usefulness in tracking terrorists would end, officials said.
The legal opinions that support the N.S.A. operation remain classified, but they appear to have followed private discussions among senior administration lawyers and other officials about the need to pursue aggressive strategies that once may have been seen as crossing a legal line, according to senior officials who participated in the discussions.
For example, just days after the Sept. 11, 2001, attacks on New York and the Pentagon, Mr. Yoo, the Justice Department lawyer, wrote an internal memorandum that argued that the government might use "electronic surveillance techniques and equipment that are more powerful and sophisticated than those available to law enforcement agencies in order to intercept telephonic communications and observe the movement of persons but without obtaining warrants for such uses."
Mr. Yoo noted that while such actions could raise constitutional issues, in the face of devastating terrorist attacks "the government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties."
The next year, Justice Department lawyers disclosed their thinking on the issue of warrantless wiretaps in national security cases in a little-noticed brief in an unrelated court case. In that 2002 brief, the government said that "the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority."
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

12/16/05CNaYseT3A:017-cv-00693-VRW Document46-1 Filed01/21/10 Page9 of 11 Page 9
Administration officials were also encouraged by a November 2002 appeals court decision in an unrelated matter. The decision by the Foreign Intelligence Surveillance Court of Review, which sided with the administration in dismantling a bureaucratic "wall" limiting cooperation between prosecutors and intelligence officers, cited "the president's inherent constitutional authority to conduct warrantless foreign intelligence surveillance."
But the same court suggested that national security interests should not be grounds "to jettison the Fourth Amendment requirements" protecting the rights of Americans against undue searches. The dividing line, the court acknowledged, "is a very difficult one to administer."
Photo: In 2002, President Bush toured the National Security Agency at Fort Meade, Md., with Lt. Gen. Michael V. Hayden, who was then the agency's director and is now a full general and the principal deputy director of national intelligence. (Photo by Doug Mills/Associated Press)(pg. A16)
Chart: "A Half-Century of Surveillance"
HISTORY -- Created in 1952, the National Security Agency is the biggest American intelligence agency, with more than 30,000 employees at Fort Meade, Md., and listening posts around the world. Part of the Defense Department, it is the successor to the State Department's "Black Chamber" and American military eavesdropping and code-breaking operations that date to the early days of telegraph and telephone communications.
MISSION -- The N.S.A. runs the eavesdropping hardware of the American intelligence system, operating a huge network of satellites and listening devices around the world. Traditionally, its mission has been to gather intelligence overseas on foreign enemies by breaking codes and tapping into telephone and computer communications.
SUCCESSES -- Most of the agency's successes remain secret, but a few have been revealed. The agency listened to Soviet pilots and ground controllers during the shooting down of a civilian South Korean airliner in 1983; traced a disco bombing in Berlin in 1986 to Libya through diplomatic messages; and, more recently, used the identifying chips in cellphones to track terrorist suspects after the 2001 attacks.
DOMESTIC ACTIVITY -- The disclosure in the 1970's of widespread surveillance on political dissenters and other civil rights abuses led to restrictions at the N.S.A. and elsewhere on the use of domestic wiretaps. The N.S.A. monitors United Nations delegations and some foreign embassy lines on American soil, but is generally prohibited from listening in on the conversations of anyone inside the country without a special court order.
OFFICIAL RULES -- Since the reforms of the late 1970's, the N.S.A. has generally been permitted to target the communications of people on American soil only if they are believed to be "agents of a foreign power" -- a foreign nation or international terrorist group -- and a warrant is obtained from the Foreign Intelligence Surveillance Court.
EXPANDED ROLE -- Months after the terror attacks of Sept. 11, 2001, President Bush
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12/16/05CNasYeT3:A017-cv-00693-VRW Document46-1 Filed01/21/10 Page10 of 11Page 10
signed a secret executive order that relaxed restrictions on domestic spying by the N.S.A., according to officials with knowledge of the order. The order allows the agency to monitor without warrants the international phone calls and e-mail messages of some Americans and others inside the United States.
(pg. A16)
December 28, 2005, Wednesday - Because of an editing error, a front-page article on Dec. 16 about a decision by President Bush to authorize the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without warrants ordinarily required for domestic spying misstated the name of the court that would normally issue those warrants. It is the Foreign -- not Federal --Intelligence Surveillance Court.
---- INDEX REFERENCES ---
COMPANY: JUSTICE DEPARTMENT; PENTAGON LTD; STATE DEPARTMENT; CENTRAL INTELLIGENCE AGENCY; DEFENSE DEPARTMENT; UNITED NATIONS
NEWS SUBJECT: (Legal (1LE33); Social Issues (1SO05); Judicial (1JU36); International Terrorism (1IN37); Legislation (1LE97); United Nations (1UN54); Government (1GO80); Crime (1CR87); Civil Rights Law (1CI34); World Organizations (1IN77); Criminal Law (1CR79); Economics & Trade (1EC26); Political Parties (1PO73); Sept 11th Aftermath (1SE05); Public Affairs (1PU31))
INDUSTRY: (Smuggling & Illegal Trade (1SM35); Aerospace & Defense (1AE96); Defense (1DE43); Security (1SE29); Defense Intelligence (1DE90); Homeland Security (1HO11); Aerospace & Defense Regulatory (1AE25))
REGION: (North America (1NO39); Americas (1AM92); USA (1US73))
Language: EN
OTHER INDEXING: (Risen, James; Lichtblau, Eric; Bush, George W (Pres)) (AIR FORCE; BROOKLYN BRIDGE; CENTRAL INTELLIGENCE AGENCY; CONGRESS; CONSTITUTION; DEFENSE DEPARTMENT; DEMOCRATIC; DEPARTMENT OF HOMELAND; FEDERAL INTELLIGENCE SURVEILLANCE COURT; FEDERAL BUREAU OF INVESTIGATION; FOREIGN INTELLIGENCE SURVEILLANCE ACT; FOREIGN INTELLIGENCE SURVEILLANCE COURT; FOREIGN INTELLIGENCE SURVEILLANCE COURT OF REVIEW; HOUSE; HOUSE ON; JUSTICE DEPARTMENT; LEGAL LINE SHIFTS; NATIONAL SECURITY AGENCY; NSA; OSAMA; PATRIOT ACT; PENTAGON; SENATE; SENATE INTELLIGENCE COMMITTEE; STATE DEPARTMENT; SUPREME COURT; US SPY; UNITED NATIONS; USA; USA PATRIOT ACT; WHITE HOUSE) (Abu Zubaydah; Al Qaeda; Alberto R. Gonzales; Barbara A. Mikulski; Bush; Cheney; Colleen Kollar-Kotelly; Dick Cheney; Doug Mills; Faris; Generally; George J. Tenet; Iyman Faris; John D. Rockefeller; John Kerry; John Yoo; Judge Kollar; Kotelly; Mi-
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

12/16/05CNasYeT3:A017-cv-00693-VRW Document46-1 Filed01/21/10 Page11 of 11Page 11 chael V. Hayden; Months; Mueller; Pres Bush; Qaeda; Revisions; Robert S. Mueller; Rockefeller; Traditionally; Yoo) (Terrorism; Surveillance of Citizens by Government; Wiretapping and Other Eavesdropping Devices and Methods; Electronic Mail; Freedom and Human Rights; Terrorism; Terrorism) EDITION: Late Edition - Final Word Count: 4957 12/16/05 NYT A1 END OF DOCUMENT
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

 
 Case3:07-cv-00693-JSW Document47 Filed01/25/10 Page1 of 1

United States District Court For the Northern District of California

1

2

3

IN THE UNITED STATES DISTRICT COURT

4

FOR THE NORTHERN DISTRICT OF CALIFORNIA

5

6

7 IN RE:

MDL Docket No 06-1791 VRW

8 NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS
9 LITIGATION

JUDGMENT

10

11 This document relates to:

12 Shubert et al v Bush et al, No C 07-0693 VRW
13 /
14

15

This action having come before the court and the court having

16 considered the same and ordered entry of judgment in favor of

17 defendants, now therefore:

18

IT IS ORDERED AND ADJUDGED that in accordance with the Court's

19 January 21, 2010 Order, judgment is hereby entered in member case

20 Shubert et al v Bush et al, No C 07-0693 in favor of defendants and

21 against plaintiffs.

22

23 Date: January 25, 2010 24 25 26 27 28

For the Clerk,
______________________________ Cora Klein, DEPUTY CLERK United States District Court

 
 1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE NORTHERN DISTRICT OF CALIFORNIA

8

United States District Court For the Northern District of California

9 CAROLYN JEWEL, TASH HEPTING, GREGORY No C 08-cv-4373 VRW HICKS, ERIK KNUTZEN AND JOICE WALTON,
10 ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
11 Plaintiffs,
12 v
13 NATIONAL SECURITY AGENCY ET AL,
14 Defendants.
15

16 IN RE:
17 NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS
18 LITIGATION

MDL Docket No C 06-1791 VRW Member case No C 07-0693 VRW

19 THIS DOCUMENT RELATES TO:
20 VIRGINIA SHUBERT, NOHA ARAFA, SARAH DRANOFF AND HILARY BOTEIN,
21 INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
22 Plaintiffs,
23 v
24 BARACK H OBAMA ET AL,
25 Defendants.
26

ORDER

27

/

28

United States District Court For the Northern District of California

1

The order filed in these two cases on January 21, 2010

2 (Doc #57 in No C 08-cv-4373 VRW; Doc #703 in MDL No C 06-1791 VRW;

3 and Doc #46 in No 07-0693 VRW) is hereby amended as follows: the

4 word “six” on page 4 line 4 is replaced with the word “five.”

5

6

IT IS SO ORDERED.

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VAUGHN R WALKER

United States District Chief Judge 10

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 CaCsaes:e039:-0176-6c7v-6000639/31-8J/S2W011DoPcaugmee: n1t5o6f 16FileIdD0:47/60866/12163PaDgketE1notfry1:687
FILED

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MAR 18 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

In re: NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS LITIGATION,
TASH HEPTING; et al.,
Plaintiffs - Appellants,

No. 09-16676
D.C. Nos. 3:06-cv-00672-VRW M:06-cv-01791-VRW
Northern District of California, San Francisco

v.

ORDER

AT&T CORPORATION and AT&T, INC.,

Defendants - Appellees,

UNITED STATES OF AMERICA,

Defendant-intervenor Appellee.

SEAN BASINSKI, on behalf of himself and all others similarly situated and ALL PLAINTIFFS,
Plaintiffs - Appellants,
v.

No. 09-16677
D.C. Nos. 3:06-cv-06434-VRW M-06-cv-01791-VRW
Northern District of California, San Francisco

VERIZON COMMUNICATIONS, INC. and VERIZON,

Defendants - Appellees,

UNITED STATES OF AMERICA,

CaCsaes:e039:-0176-6c7v-6000639/31-8J/S2W011DoPcaugmee: n2t5o6f 16FileIdD0:47/60866/12163PaDgketE2notfry1:687

Defendant-intervenor Appellee.

RICHARD D. SUCHANEK, III, on behalf of himself and all others similarly situated and ALL PLAINTIFFS,
Plaintiffs - Appellants, v. SPRINT NEXTEL CORPORATION,
Defendant - Appellee, UNITED STATES OF AMERICA,
Defendant-intervenor Appellee.
CHARLES F. BISSITT; et al., Plaintiffs - Appellants,
v. VERIZON COMMUNICATIONS, INC. and VERIZON,
Defendants - Appellees.

No. 09-16679 D.C. Nos. 3:06-cv-06295-VRW
M:06-cv-01791-VRW Northern District of California, San Francisco
No. 09-16682 D.C. Nos. 3:06-cv-05066-VRW
M:06-cv-01791-VRW Northern District of California, San Francisco

2

CaCsaes:e039:-0176-6c7v-6000639/31-8J/S2W011DoPcaugmee: n3t5o6f 16FileIdD0:47/60866/12163PaDgketE3notfry1:687

CHRISTOPHER BREADY; et al., Plaintiffs - Appellants,
v. VERIZON MARYLAND, INC. and VERIZON,
Defendants - Appellees, Appellee. TOM CAMPBELL; et al., Plaintiffs - Appellants, v. AT&T COMMUNICATIONS OF CALIFORNIA, a corporation and AT&T CORP., a corporation, Defendants - Appellees, UNITED STATES OF AMERICA, Defendant-intervenor Appellee. DENNIS P. RIORDAN; et al., Plaintiffs - Appellants, v. VERIZON COMMUNICATIONS, INC., a

No. 09-16683 D.C. Nos. 3:06-cv-06313-VRW
M:06-cv-01791-VRW Northern District of California, San Francisco
No. 09-16684 D.C. Nos. 3:06-cv-03596-VRW
M:06-cv-01791-VRW Northern District of California, San Francisco
No. 09-16685 D.C. Nos. 3:06-cv-03574-VRW
M:06-cv-01791-VRW Northern District of California, San Francisco

3

CaCsaes:e039:-0176-6c7v-6000639/31-8J/S2W011DoPcaugmee: n4t5o6f 16FileIdD0:47/60866/12163PaDgketE4notfry1:687

corporation and VERIZON, Defendants - Appellees,
UNITED STATES OF AMERICA, Defendant-intervenor Appellee.
GLEN CHULSKY; et al., Plaintiffs - Appellants,
v. CELLCO PARTNERSHIP, DBA Verizon Wireless; et al.,
Defendants - Appellees, UNITED STATES OF AMERICA,
Defendant-intervenor Appellee.

No. 09-16686
D.C. Nos. 3:06-cv-06570-VRW M:06-cv-01791-VRW
Northern District of California, San Francisco

4

CaCsaes:e039:-0176-6c7v-6000639/31-8J/S2W011DoPcaugmee: n5t5o6f 16FileIdD0:47/60866/12163PaDgketE5notfry1:687

CHARMAINE CROCKETT; et al.,

No. 09-16687

Plaintiffs - Appellants, v. VERIZON WIRELESS, (VAW) LLC; et al.,

D.C. Nos. 3:06-cv-06254-VRW M:06-cv-01791-VRW
Northern District of California, San Francisco

Defendants - Appellees,

UNITED STATES OF AMERICA,

Defendant-intervenor Appellee.

TRAVIS CROSS; et al., Plaintiffs - Appellants,
v. AT&T COMMUNICATIONS, INC.; et al.,
Defendants - Appellees, UNITED STATES OF AMERICA,
Defendant-intervenor Appellee.

No. 09-16688
D.C. Nos. 3:06-cv-06222-VRW M:06-cv-01791-VRW
Northern District of California, San Francisco

JOAN DUBOIS; et al., Plaintiffs - Appellants,
v.

No. 09-16690
D.C. Nos. 3:06-cv-06387-VRW M:06-cv-01791-VRW
Northern District of California, San Francisco

5

CaCsaes:e039:-0176-6c7v-6000639/31-8J/S2W011DoPcaugmee: n6t5o6f 16FileIdD0:47/60866/12163PaDgketE6notfry1:687

AT&T CORP.; et al., Defendants - Appellees,
UNITED STATES OF AMERICA, Defendant-intervenor Appellee.

TRAVIS CROSS; et al.,
Plaintiffs - Appellants,
v.
AT&T COMMUNICATIONS OF CALIFORNIA, INC.; et al.,
Defendants - Appellees,
UNITED STATES OF AMERICA,
Defendant-intervenor Appellee.
PAT MAHONEY, individually, and on behalf of all others similarly situated and ALL PLAINTIFFS,
Plaintiffs - Appellants,
v.
AT&T COMMUNICATIONS, INC. and AT&T CORP.,

No. 09-16691 D.C. Nos. 3:06-cv-06224-VRW
M:06-cv-01791-VRW Northern District of California, San Francisco
No. 09-16692 D.C. Nos. 3:06-cv-05065-VRW
M:06-cv-01791-VRW Northern District of California, San Francisco

6

CaCsaes:e039:-0176-6c7v-6000639/31-8J/S2W011DoPcaugmee: n7t5o6f 16FileIdD0:47/60866/12163PaDgketE7notfry1:687

Defendants - Appellees,
UNITED STATES OF AMERICA,
Defendant-intervenor Appellee.

PAMELA A. MAHONEY, on behalf of herself and all others similarly situated and ALL PLAINTIFFS,
Plaintiffs - Appellants,
v.
VERIZON COMMUNICATIONS, INC. and VERIZON,
Defendants - Appellees,
UNITED STATES OF AMERICA,
Defendant-intervenor Appellee.

No. 09-16693
D.C. Nos. 3:06-cv-05064-VRW M:06-cv-01791-VRW
Northern District of California, San Francisco

MARK P. SOLOMON, MD, on behalf of himself and all others similarly situated and ALL PLAINTIFFS,
Plaintiffs - Appellants,
v.
VERIZON COMMUNICATIONS, INC. and VERIZON,
Defendants - Appellees,

No. 09-16694
D.C. Nos. 3:06-cv-06388-VRW M:06-cv-01791-VRW
Northern District of California, San Francisco

7

CaCsaes:e039:-0176-6c7v-6000639/31-8J/S2W011DoPcaugmee: n8t5o6f 16FileIdD0:47/60866/12163PaDgketE8notfry1:687

UNITED STATES OF AMERICA,
Defendant-intervenor Appellee.

RHEA FULLER, on behalf of herself and all others similarly situated and ALL PLAINTIFFS,
Plaintiffs - Appellants,
v.

No. 09-16696
D.C. Nos. 3:06-cv-05267-VRW M:06-cv-01791-VRW
Northern District of California, San Francisco

VERIZON COMMUNICATIONS, INC.; et al.,

Defendants - Appellees, UNITED STATES OF AMERICA,
Defendant-intervenor Appellee. SHELLY D. SOUDER and ALL PLAINTIFFS, Plaintiffs - Appellants, v. AT&T INC. and AT&T CORP., Defendants - Appellees, UNITED STATES OF AMERICA, Defendant-intervenor -
8

No. 09-16697
D.C. Nos. 3:06-cv-05067-VRW M:06-cv-01791-VRW
Northern District of California, San Francisco

CaCsaes:e039:-0176-6c7v-6000639/31-8J/S2W011DoPcaugmee: n9t5o6f 16FileIdD0:47/60866/12163PaDgketE9notfry1:687

Appellee. STEVE DOLBERG, on behalf of himself and all others similarly situated and ALL PLAINTIFFS,
Plaintiffs - Appellants, v. AT&T, INC. and AT&T CORP.,
Defendants - Appellees, UNITED STATES OF AMERICA,
Defendant-intervenor Appellee.
THERESA FORTNASH and ALL PLAINTIFFS,
Plaintiffs - Appellants, v. AT&T CORP.,
Defendant - Appellee, UNITED STATES OF AMERICA,
Defendant-intervenor Appellee.

No. 09-16698 D.C. Nos. 3:06-cv-05269-VRW
M:06-cv-01791-VRW Northern District of California, San Francisco
No. 09-16700 D.C. Nos. 3:06-cv-06385-VRW
M:06-cv-01791-VRW Northern District of California, San Francisco

9

CaCsaes:e039:-0176-6c7v-6000639/31-8J/S2W011DoPcaugmee: n1t056of 1F6iledI0D4:/7068/161263PagDek1tE0notfry1:687

D. CLIVE HARDY and ALL PLAINTIFFS, No. 09-16701

Plaintiffs - Appellants, v. AT&T CORPORATION,

D.C. Nos. 3:06-cv-06924-VRW M:06-cv-01791-VRW
Northern District of California, San Francisco

Defendant - Appellee,

UNITED STATES OF AMERICA,

Defendant-intervenor Appellee.

JAMES C. HARRINGTON; et al., Plaintiffs - Appellants,
v.
AT&T, INC.; et al.,

No. 09-16702
D.C. Nos. 3:06-cv-05452-VRW M:06-cv-01791-VRW
Northern District of California, San Francisco

Defendants - Appellees.

10

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TINA HERRON; et al., Plaintiffs - Appellants,
v. VERIZON GLOBAL NETWORKS, INC.; et al.,
Defendants - Appellees, UNITED STATES OF AMERICA,
Defendant-intervenor Appellee.

No. 09-16704
D.C. No. 3:06-cv-05343-VRW Northern District of California, San Francisco

DARRYL HINES; et al., Plaintiffs - Appellants,
v. VERIZON NORTHWEST, INC., an active Washington corporation; et al.,
Defendants - Appellees, UNITED STATES OF AMERICA,
Defendant-intervenor Appellee.

No. 09-16706
D.C. Nos. 3:06-cv-05341-VRW M:06-cv-01791-VRW
Northern District of California, San Francisco

HOWARD JACOBS, a natural person; et al.,

No. 09-16707 D.C. Nos. 3:07-cv-02538-VRW

11

CaCsaes:e039:-0176-6c7v-6000639/31-8J/S2W011DoPcaugmee: n1t256of 1F6iledI0D4:/7068/161263PagDek1tE2notfry1:687

Plaintiffs - Appellants, v. AT&T CORP., a foreign corporation; et al.,
Defendants - Appellees, UNITED STATES OF AMERICA,
Defendant-intervenor Appellee.

M:06-cv-01791-VRW Northern District of California, San Francisco

CLAUDIA MINK and ALL PLAINTIFFS,
Plaintiffs - Appellants,
v.
AT&T COMMUNICATIONS OF THE SOUTHWEST, INC., a Delaware corporation; et al.,
Defendants - Appellees,
UNITED STATES OF AMERICA,
Defendant-intervenor Appellee.

No. 09-16708
D.C. Nos. 3:06-cv-07934-VRW M:06-cv-01791-VRW
Northern District of California, San Francisco

RICHARD ROCHE and ALL PLAINTIFFS,
Plaintiffs - Appellants,

No. 09-16709
D.C. Nos. 3:07-cv-01243-VRW M:06-cv-01791-VRW

12

CaCsaes:e039:-0176-6c7v-6000639/31-8J/S2W011DoPcaugmee: n1t356of 1F6iledI0D4:/7068/161263PagDek1tE3notfry1:687

v. AT&T CORP.,
Defendant - Appellee, UNITED STATES OF AMERICA,
Defendant-intervenor Appellee.

Northern District of California, San Francisco

BENSON B. ROE; et al., Plaintiffs - Appellants,
v. AT&T CORP., a New York corporation; et al.,
Defendants - Appellees, UNITED STATES OF AMERICA,
Defendant-intervenor Appellee.

No. 09-16710
D.C. Nos. 3:06-cv-03467-VRW M:06-cv-01791-VRW
Northern District of California, San Francisco

13

CaCsaes:e039:-0176-6c7v-6000639/31-8J/S2W011DoPcaugmee: n1t456of 1F6iledI0D4:/7068/161263PagDek1tE4notfry1:687

ELAINE SPIELFOGEL-LANDIS, on behalf of herself and all others similarly situated and ALL PLAINTIFFS,
Plaintiffs - Appellants,
v.

No. 09-16712
D.C. Nos. 3:06-cv-04221-VRW M:06-cv-01791-VRW
Northern District of California, San Francisco

MCI, LLC, a Delaware limited liability company and VERIZON,

Defendants - Appellees,

UNITED STATES OF AMERICA,

Defendant-intervenor Appellee.

STUDS TERKEL, (now deceased); et al.,

No. 09-16713

Plaintiffs - Appellants, v. AT&T CORP.; et al.,

D.C. Nos. 3:06-cv-05340-VRW M:06-cv-01791-VRW
Northern District of California, San Francisco

Defendants - Appellees.

HERBERT WAXMAN, on behalf of himself and all others similarly situated and ALL PLAINTIFFS,
Plaintiffs - Appellants,
v.

No. 09-16717
D.C. Nos. 3:06-cv-06294-VRW M:06-cv-01791-VRW
Northern District of California, San Francisco

AT&T CORP.,

14

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Defendant - Appellee,
UNITED STATES OF AMERICA,
Defendant-intervenor Appellee.

STEVEN LEBOW, Rabbi; et al.,

No. 09-16719

Plaintiffs - Appellants, v. BELL SOUTH CORPORATION; et al.,

D.C. Nos. 3:07-cv-00464-VRW M:06-cv-01791-VRW
Northern District of California, San Francisco

Defendants - Appellees.

RAY ANDERSON; et al.,

No. 09-16720

Plaintiffs - Appellants,
v.
VERIZON COMMUNICATIONS, INC.; et al.,

D.C. Nos. 3:07-cv-02029-VRW M:06-cv-01791-VRW
Northern District of California, San Francisco

Defendants - Appellees,

UNITED STATES OF AMERICA,

Defendant-intervenor Appellee.

JAMES JOLL; et al.,

No. 09-16723

Plaintiffs - Appellants,

D.C. Nos. 3:06-cv-05485-VRW M:06-cv-01791-VRW

15

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v. AT&T CORP.; et al.,
Defendants - Appellees, UNITED STATES OF AMERICA,
Defendant-intervenor Appellee.

Northern District of California, San Francisco

Before: PREGERSON, HAWKINS, and McKEOWN, Circuit Judges. The panel assumes jurisdiction over these appeals.

16

 
 Jewel v. National Security Agency, --- F.Supp.2d ---- (2013)

2013 WL 3829405 Only the Westlaw citation is currently available.
United States District Court, N.D. California.
Carolyn Jewel, et al., Plaintiffs, v.
National Security Agency, et al., Defendants. Virginia Shubert, et al., Plaintiffs, v. Barack Obama, et al., Defendants.
No. C 08–04373 JSW, No. C 07–00693 JSW | Filed 07/23/2013
Synopsis Background: In two related cases, residential telephone customers brought putative class actions against federal government agencies and government officers in their official and personal capacities, alleging that defendants engaged in widespread warrantless eavesdropping in the United States following the September 11, 2001, attacks in violation of the customers’ constitutional and statutory rights. The United States District Court for the Northern District of California, Vaughn R. Walker, J., 2010 WL 235075, granted defendants’ motions to dismiss, and plaintiffs appealed. The Court of Appeals, McKeown, Circuit Judge, 673 F.3d 902, reversed and remanded with instructions. On remand, plaintiffs in first case moved for partial summary judgment. Defendants in both cases moved to dismiss and for summary judgment.
Holdings: The District Court, Jeffrey S. White, J., held that:
[1] state secrets privilege did not protect the very subject matter of the suits, so as to require dismissal;
[2] state secrets privilege applied to significant materials relating to alleged program;
[3] Foreign Intelligence Surveillance Act (FISA) preempts application of state secrets privilege in cases within the reach of its provisions;
[4] the government did not waive sovereign immunity for plaintiffs’ claim for damages under FISA;

[5] the Patriot Act’s waiver of sovereign immunity for damages claims brought under the Stored Communications Act (SCA) and the Wiretap Act is not limited to claims for the use and disclosure of information;
[6] the Patriot Act impliedly limited the authority to sue the United States for injunctive relief; and
[7] assuming the continued existence of the ultra vires exception to sovereign immunity for federal officials, plaintiffs’ claim for injunctive relief did not fit within the doctrine’s narrow scope.
Ordered accordingly.
Order, 2013 WL 3388503, amended and superseded.
Attorneys and Law Firms
James Samuel Tyre, Electronic Frontier Foundation, 815 Eddy Street, San Francisco, CA 94109, Audrey Helena Walton-Hadlock, Keker & Van Nest LLP, 710 Sansome Street, San Francisco, CA 94111, Cindy Ann Cohn, Electronic Frontier Foundation, 815 Eddy Street, San Francisco, CA 94109, Kurt Bradford Opsahl, Electronic Frontier Foundation, 815 Eddy Street, San Francisco, CA 94109, Lee Tien, Electronic Frontier Foundation, 815 Eddy Street, San Francisco, CA 94109, Mark Thomas Rumold, Electronic Frontier Foundation, 815 Eddy Street, San Francisco, CA 94109, Michael S Kwun, Keker & Van Nest LLP, 633 Battery Street, San Francisco, CA 94111-1809, Paula Lenore Blizzard, Keker & Van Nest LLP, 633 Battery Street, San Francisco, CA 94111, Rachael Elizabeth Meny, Keker & Van Nest LLP, 633 Battery Street, San Francisco, CA 94111-1809, Richard R. Wiebe, Law Office Of Richard R. Wiebe, One California Street, Suite 900, San Francisco, CA 94111, Thomas Edward Moore, III, The Moore Law Group, 228 Hamilton Ave., Palo Alto, CA 94304, for Plaintiffs.
Anthony Joseph Coppolino, U.S. Department of Justice, Civil Division, 20 Massachusetts Avenue, N.W. Room 6102, Washington, DC 20530, Marcia Berman, U.S. Dept. of Justice, Civil Division, Federal Programs Branch, 20 Massachusetts Ave., N.W., Room 7204, Washington, DC 20530, Paul Gerald Freeborne, U.S.
1

Jewel v. National Security Agency, --- F.Supp.2d ---- (2013)

Department of Justice, Civil Division, 20 Massachusetts Ave., N.W., Room 6108, Washington, DC 20001, for Defendants.
Matthew Delmont Brinckerhoff, Emery Celli Brinckerhoff & Abady LLP, 75 Rockefeller Plaza, 20th Floor, New York, NY 10019, Ilann Margalit Maazel, Emery Celli Brinckerhoff & Abady LLP, 75 Rockefeller Plaza, 20th Floor, New York, NY 10019, for Plaintiffs.
Alexander Kenneth Haas, United States Department of Justice, Federal Programs Branch, 20 Massachusetts Ave., NW, Washington, DC 20530, Anthony Joseph Coppolino, U.S. Department of Justice, Civil Division, 20 Massachusetts Avenue, N.W. Room 6102, Washington, DC 20530, Paul Edward Ahern, U.S. Department of Justice, Civil Division, Federal Programs Branch, 20 Massachusetts Avenue NW, Washington, DC 20530, for Defendants.
Opinion
AMENDED ORDER
JEFFREY S. WHITE, UNITED STATES DISTRICT JUDGE
*1 In response to the parties’ request for clarification, the Court issues this amended order. This matter comes before the Court upon consideration of the motion for partial summary judgment filed by Plaintiffs Carolyn Jewel, Tash Hepting, Young Boon Hicks, Erik Knutzen and Joice Walton, on behalf of themselves and all others similarly situated (collectively “Jewel Plaintiffs” or “Plaintiffs”) and the cross motion to dismiss and for summary judgment filed by Defendants National Security Agency; Keith B. Alexander, Director of National Security Agency, in his official capacity; United States of America; Barack Obama, President of the United States, in his official capacity; the Department of Justice; Eric Holder, the Attorney General, in his official capacity; and James R. Clapper, Director of National Intelligence, in his official capacity (collectively “Jewel Defendants” or “Defendants”).
This matter also comes before the Court in a related case upon consideration of the motion to dismiss and for summary judgment filed by Defendants Barack Obama, President of the United States, in his official capacity;

Keith B. Alexander, Director of the National Security Agency, in his official capacity; the United States of America; and Eric Holder, the Attorney General, in his official capacity (“Shubert Defendants” or “Defendants”) against Plaintiffs Virginia Shubert, Noha Arafa, Sarah Dranoff, and Hilary Botein, on behalf of themselves and all others similarly situated (collectively “Shubert Plaintiffs” or “Plaintiffs”).
The Jewel Plaintiffs move for partial summary adjudication seeking to have the Court reject the Defendants’ state secret defense by arguing that Congress has displaced the state secrets privilege in this action by the statutory procedure prescribed by 50 U.S.C. § 1806(f) of the Foreign Intelligence Surveillance Act (“FISA”).
The Shubert Plaintiffs filed an amended complaint upon remand of the case and the Shubert Defendants move to dismiss for lack of subject matter jurisdiction on the basis that Congress did not waive sovereign immunity as to the FISA claim. The Shubert Plaintiffs incorporate by reference the arguments made in the Jewel Defendants’ motion.
Defendants in both related cases move to dismiss all of Plaintiffs’ statutory claims for lack of subject matter jurisdiction on the basis that Congress did not waive sovereign immunity as to the statutory claims. Defendants also move for summary judgment on all counts on the grounds that Plaintiffs’ claims would risk or require the disclosure of certain information that is properly protected by the statutory protections and the state secrets privilege asserted in this action by the Director of National Intelligence and by the National Security Agency.
Having thoroughly considered the parties’ papers, Defendants’ public and classified declarations, the relevant legal authority and the parties’ arguments, the Court GRANTS the Jewel Plaintiffs’ motion for partial summary adjudication by rejecting the state secrets defense as having been displaced by the statutory procedure prescribed in 50 U.S.C. § 1806(f) of FISA. In both related cases, the Court GRANTS Defendants’ motions to dismiss Plaintiffs’ statutory claims for damages as to FISA and claims for injunctive relief as to all statutory claims on the basis of sovereign immunity. The Court further finds that the parties have not addressed the viability of the Jewel Plaintiffs’ constitutional claims under the Fourth and First Amendments and the claim for violation of separation of powers and the Shubert Plaintiffs’ fourth cause of action for violation of the
2

Jewel v. National Security Agency, --- F.Supp.2d ---- (2013)

Fourth Amendment. Accordingly, the Court RESERVES ruling on Defendants’ motion for summary judgment on those remaining, non-statutory claims.
*2 The Court shall require that the parties submit further briefing on the course of this litigation going forward.1

1

The Court DENIES Defendants’ request for a stay of

this decision. The subject matter and legal questions

presented by this lawsuit are timely. To the extent

recent events involving the public disclosure of

relevant, and previously classified, information bear on

the future course of the litigation, the Court shall

require that the parties submit further briefing to

address these issues.

BACKGROUND
These cases are two in a series of many lawsuits arising from claims that the federal government, with the assistance of major telecommunications companies, conducted widespread warrantless dragnet communications surveillance of United States citizens following the attacks of September 11, 2001. Plaintiffs filed these putative class actions on behalf of themselves and a class of similarly situated persons described as “millions of ordinary Americans ... who use [ ] the phone system or the Internet” and “a class comprised of all present and future United States persons who have been or will be subject to electronic surveillance by the National Security Agency without a search warrant or court order since September 12, 2001.” (Jewel Complaint at ¶¶ 1, 7, and 9; see also Shubert Complaint at ¶ 1, 2, 20.)2

2

For the remaining facts, the Court refers to the Jewel

Complaint as it is more inclusive. The facts pertinent to

the Court’s analysis are also similarly alleged in the

related Shubert Complaint which was originally filed

May 17, 2006, as part of a multi-district litigation

action also remanded to this Court.

According to the allegations in the Jewel Complaint, a program of dragnet surveillance (the “Program”) was first authorized by Executive Order of the President on October 4, 2001. (Jewel Complaint at ¶¶ 3, 39.) Plaintiffs

allege that, in addition to eavesdropping on or reading specific communications, Defendants have “indiscriminately intercepted the communications content and obtained the communications records of millions of ordinary Americans as part of the Program authorized by the President.” (Id. at ¶ 7.) The core component of the Program is a nationwide network of sophisticated communications surveillance devices attached to the key facilities of various telecommunications companies that carry Americans’ Internet and telephone communications. (Id. at ¶¶ 8, 42.) Plaintiffs allege that Defendants have unlawfully solicited and obtained the private telephone and internal transactional records of millions of customers of the telecommunications companies, including records indicating who the customers communicated with, when those communications took place and for how long, among other sensitive information. Plaintiffs allege these records include both domestic and international communications. (Id. at ¶ 10.) Plaintiffs sue Defendants “to enjoin their unlawful acquisition of the communications and records of Plaintiffs and class members, to require the inventory and destruction of those that have already been seized, and to obtain appropriate statutory, actual, and punitive damages to deter future illegal surveillance.” (Id. at ¶ 14.)
*3 The Jewel Plaintiffs allege seventeen counts against Defendants for: violation of the Fourth Amendment (counts 1 and 2); violation of the First Amendment (counts 3 and 4); violation of FISA, 50 U.S.C. §§ 1809, 1810 (counts 5 and 6); violation of the Wiretap Act, 18 U.S.C. § 2511(1)(a), (b), and (d) (counts 7 through 9); violation of the Electronic Communications Privacy Act or the Stored Communications Act, 18 U.S.C. § 2703(a), (b), and (c) (counts 10 through 15); violation of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (count 16); and violation of separation of powers (count 17). The Shubert Plaintiffs allege four causes of action for violations of FISA, the Wiretap Act, the Stored Communications Act, and the Fourth Amendment.
The Jewel Complaint was originally filed on September 18, 2008. Defendants moved to dismiss and alternatively sought summary judgment as to all claims. Defendants contended that the Court lacked jurisdiction over the statutory claims because the government had not waived its sovereign immunity. Defendants moved for summary judgment on the remaining claims based on the argument that the information necessary to litigate the claims was properly subject to the state secrets privilege. The district court dismissed the claims without leave to amend based
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Jewel v. National Security Agency, --- F.Supp.2d ---- (2013)

on its finding that Plaintiffs failed to make out the prima facie allegations necessary to establish standing.
On appeal, the Ninth Circuit Court of Appeals reversed the district court’s dismissal of the Jewel Complaint on standing grounds. The Ninth Circuit Court of Appeals remanded “with instructions to consider, among other claims and defenses, whether the government’s assertion that the state secrets privilege bars this litigation.” Jewel v. National Security Agency, 673 F.3d 902, 913–14 (9th Cir.2011). Upon remand, Plaintiffs filed their motion for partial summary adjudication urging the Court to reject Defendants’ state secret defense. Defendants cross-moved to dismiss on the basis of sovereign immunity for the statutory claims and for summary judgment on the assertion of the state secrets privilege.
The Court will address additional facts as necessary in the remainder of this Order.
ANALYSIS
A. Applicable Legal Standards.
1. Motion to Dismiss. A motion to dismiss is proper under Federal Rule of Civil Procedure 12(b)(6) where the pleadings fail to state a claim upon which relief can be granted. The Court’s “inquiry is limited to the allegations in the complaint, which are accepted as true and construed in the light most favorable to the plaintiff.” Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir.2008). Even under the liberal pleading standard of Federal Rule of Civil Procedure 8(a)(2), “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). Pursuant to Twombly, a plaintiff must not merely allege conduct that is conceivable but must instead allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft

v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).
2. Motion for Summary Judgment. A principal purpose of the summary judgment procedure is to identify and dispose of factually unsupported claims. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is proper when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most favorable to the non-moving party.” Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir.1997).
*4 The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery, and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548; see also Fed.R.Civ.P. 56(c). An issue of fact is “genuine” only if there is sufficient evidence for a reasonable fact finder to find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is “material” if it may affect the outcome of the case. Id. at 248, 106 S.Ct. 2505. Once the moving party meets its initial burden, the non-moving party must go beyond the pleadings and, by its own evidence, “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e).
In order to make this showing, the non-moving party must “identify with reasonable particularity the evidence that precludes summary judgment.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.1996) (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir.1995) (stating that it is not a district court’s task to “scour the record in search of a genuine issue of triable fact”); see also Fed.R.Civ.P. 56(e). If the non-moving party fails to point to evidence precluding summary judgment, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Fed.R.Civ.P. 56(e)(3).
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B. State Secrets Privilege. [1] [2]The state secrets privilege is a common law privilege that permits the government to bar the disclosure of information if “there is a reasonable danger” that disclosure will “expose military matters which, in the interest of national security, should not be divulged.” United States v. Reynolds, 345 U.S. 1, 10, 73 S.Ct. 528, 97 L.Ed. 727 (1953). The state secrets privilege strikes a delicate balance “between fundamental principles of our liberty, including justice, transparency, accountability and national security.” Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1073 (9th Cir.2010).
[3] [4]The state secrets privilege has two applications: as a rule of evidentiary privilege, barring only the secret evidence from exposure during litigation, and as a rule of non-justiciability, when the subject matter of the lawsuit is itself a state secret, necessitating dismissal. See ACLU v. National Security Agency, 493 F.3d 644, 650 n.2 (6th Cir.2007). The first application of evidentiary withholding can serve to remove only certain specific pieces of evidence or can be applied to compel the removal of a sufficiently broad swath of evidence which then has the consequence of requiring dismissal of the entire suit. Such a dismissal may be necessitated by the instances in which the removal of evidence disables a plaintiff from the ability to establish the prima facie elements of a claim without resort to privileged information or instances in which the removed evidence bars the defendant from establishing a defense. See Kasza v. Browner, 133 F.3d 1159, 1166 (9th Cir.1998).
[5]The analysis of whether the state secrets privilege applies involves three distinct steps. First, the Court must ascertain whether the procedural requirements for invoking the privilege have been satisfied. Second, the Court must make an independent determination whether the information is privileged. In determining whether the privilege attaches, the Court may consider a party’s need for access to the allegedly privileged materials. See Reynolds, 345 U.S. at 11, 73 S.Ct. 528. Lastly, the “ultimate question to be resolved is how the matter should proceed in light of the successful privilege claim.” El–Masri v. United States, 479 F.3d 296, 304 (4th Cir.2007).
[6] [7] [8]With regard to the first step, to ascertain whether the procedural requirements have been met, the assertion of the privilege belongs exclusively to the government. The head of the department which has control over the matter must properly assert a formal and timely claim of

privilege, after actual personal consideration by that officer. See Reynolds, 345 U.S. at 7–8, 73 S.Ct. 528. Such an invocation must be made only after “serious, considered judgment, not simply [as] an administrative formality.” United States v. W.R. Grace, 526 F.3d 499, 507–08 (9th Cir.2008) (en banc). “The formal claim must reflect the certifying official’s personal judgment ... [and] must be presented in sufficient detail for the court to make an independent determination of the validity of the claim of privilege and the scope of the evidence subject to the privilege.” Jeppesen, 614 F.3d at 1080.
*5 [9] [10] [11] [12] [13]Second, the reviewing court must “make an independent determination whether the information is privileged.” Al–Haramain Islamic Foundation, Inc. v. Bush, 507 F.3d 1190, 1202 (9th Cir.2007). The court must “sustain a claim of privilege when it is satisfied, ‘from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose ... matters which, in the interest of national security, should not be divulged.’ ” Jeppesen, 614 F.3d at 1081 (quoting Reynolds, 345 U.S. at 10, 73 S.Ct. 528). In making this determination, the Court must strike the appropriate balance “between protecting national security matters and preserving an open court system.” Al–Haramain, 507 F.3d at 1203. “This inquiry is a difficult one, for it pits the judiciary’s search for truth against the Executive’s duty to maintain the nation’s security.” El–Masri, 479 F.3d at 304. In evaluating the need for secrecy, the court must defer to the Executive on matters of foreign policy and national security. See Jeppesen, 614 F.3d at 1081–82. However, the assertion of the state secrets doctrine does not “represent a complete surrender of judicial control over access to the courts.” El–Masri, 479 F.3d at 312. Rather, in order to ensure that the doctrine is not asserted more frequently and sweepingly than necessary, “it is essential that the courts continue critically to examine instances of its invocation.” Ellsberg v. Mitchell, 709 F.2d 51, 58 (D.C.Cir.1983). However, should the court find that the materials must not be divulged, “the evidence is absolutely privileged, irrespective of the plaintiffs’ countervailing need for it.” See Jeppesen, 614 F.3d at 1081 (citing Reynolds, 345 U.S. at 11, 73 S.Ct. 528).
[14] [15] [16]Lastly, the third step in the analysis requires that the court determine how the matter should proceed once it has sustained a claim of privilege. “The court must assess whether it is feasible for the litigation to proceed without the protected evidence and, if so, how.” Jeppesen, 614 F.3d at 1082. When the government successfully invokes
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the state secrets privilege, “the evidence is completely removed from the case.” Kasza, 133 F.3d at 1166. The court is then tasked with disentangling the nonsensitive information from the privileged evidence. Often, after the privileged evidence is excluded, “the case will proceed accordingly, with no consequences save those resulting from the loss of evidence.” Al–Haramain, 507 F.3d at 1204 (quoting Ellsberg, 709 F.2d at 64). However, there “will be occasions when, as a practical matter, secret and nonsecret information cannot be separated. In some cases, therefore, ‘it is appropriate that the courts restrict the parties’ access not only to evidence which itself risks the disclosure of a state secret, but also those pieces of evidence or areas of questioning which press so closely upon highly sensitive material that they create a high risk of inadvertent or indirect disclosures.’ ” Jeppesen, 614 F.3d at 1082 (quoting Bareford v. Gen. Dynamics Corp., 973 F.2d 1138, 1143–44 (5th Cir.1992); see also Kasza, 133 F.3d at 1166 (“[I]f seemingly innocuous information is part of a ... mosaic, the state secrets privilege may be invoked to bar its disclosure and the court cannot order the government to disentangle this information from other [i.e., secret] information.”)
[17] [18]Thereafter, the case may proceed with the omission of the secret or closely entangled evidence. Alternatively, if application of the state secrets bars too much, the court may be required to dismiss the action in its entirety. Such instances include when, without the secret evidence, a plaintiff is unable to prove the prima facie elements of a claim with nonprivileged evidence. See Kasza, 133 F.3d at 1166. Or the privilege may apply to bar information that would otherwise give the defendant a valid defense to the claim, thus requiring dismissal. See id. Lastly, the court may be compelled to dismiss when, although the claims and defenses may be stated without reference to privileged evidence, “it may be impossible to proceed with the litigation because—privileged evidence being inseparable from nonprivileged information that will be necessary to the claims or defenses—litigating the case to a judgment on the merits would present an unacceptable risk of disclosing state secrets.” Jeppesen, 614 F.3d at 1083 (citations omitted); see also Farnsworth Cannon, Inc. v. Grimes, 635 F.2d 268, 279–80 (4th Cir.1980) (en banc) (per curiam) (Phillips, J., specially concurring and dissenting) (concluding that “litigation should be entirely foreclosed at the outset by dismissal of the action” if it appears that “the danger of inadvertent compromise of the protected state secrets outweighs the public and private interests in attempting formally to resolve the dispute while honoring the privilege”).

*6 [19] [20]Alternatively, the state secrets privilege may be invoked to bar litigation of the matter in its entirety where “the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential, and respecting which it will not allow the confidence to be violated.” Totten v. United States, 92 U.S. 105, 107, 23 L.Ed. 605 (1875). Where the very subject matter of the lawsuit is a matter of state secret, the action must be dismissed without reaching the question of evidence. See Al–Haramain, 507 F.3d at 1197 (citations omitted); see also Sterling v. Tenet, 416 F.3d 338, 345 (4th Cir.2005) (holding that dismissal is proper where “sensitive military secrets will be so central to the subject matter of the litigation that any attempt to proceed will threaten disclosure of the privileged matters.”)
[21]Here, having reviewed the materials submitted for review and having considered the claims alleged and the record as a whole, the Court finds that Defendants have timely invoked the state secrets doctrine. Defendants contend that Plaintiffs’ lawsuits should be dismissed as a result of the application of the privilege because the state secrets information is so central to the subject matter of the suit that permitting further proceedings would jeopardize national security. Given the multiple public disclosures of information regarding the surveillance program, the Court does not find that the very subject matter of the suits constitutes a state secret. Just as in Al–Haramain, and based significantly on the same set of facts in the record here, the Court finds that although there are certainly details that the government has not yet disclosed,
because of the voluntary disclosures made by various officials since December 2005, the nature and purpose of the [Terrorist Surveillance Program], the ‘type’ of persons it targeted, and even some of its procedures are not state secrets. In other words, the government’s many attempts to assuage citizens’ fears that they have not been surveilled now doom the government’s assertion that the very subject matter of this litigation, the existence of a warrantless surveillance program, is barred by the state secrets privilege.
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507 F.3d at 1200; see also Hepting v. AT & T Corp., 439 F.Supp.2d 974, 986–88, 991 (N.D.Cal.2006) (holding that the existence of a program of monitoring the contents of certain telephone communications was no longer a state secret as a result of the public statements made by the President and the Attorney General). Accordingly, the Court does not find dismissal appropriate based on the subject matter of the suits being a state secret. See Totten, 92 U.S. at 107.
[22]However, here, the Court finds there would be significant evidence that would be properly excluded should the case proceed. The Court has thoroughly and critically reviewed Defendants’ public and classified declarations and is persuaded that the evidence submitted thus far that the government seeks to protect from disclosure contain valid state secrets “which, in the interest of national security, should not be divulged.” Reynolds, 345 U.S. at 10, 73 S.Ct. 528; see also Terkel v. AT & T Corp., 441 F.Supp.2d 899, 917 (N.D.Ill.2006) (finding state secrets privilege applies because requiring the telephone company to confirm or deny whether it had disclosed large quantities of telephone records to the federal government could give adversaries valuable insight into the government’s intelligence programs and “requiring such disclosures would therefore adversely affect our national security” and “are barred by the state secrets privilege”). The Court finds the state secrets privilege would apply to bar disclosure of significant materials relating to the alleged Program. However, it may not set out precisely which matters the privilege covers lest the Court jeopardize the secrets it is bound to protect. See Jeppesen, 614 F.3d at 1086 (citing Black v. United States, 62 F.3d 1115, 1119 (8th Cir.1995) (“Care in protecting state secrets is necessary not only during a court’s review of the evidence, but in its subsequent treatment of the question in any holding; a properly phrased opinion should not strip the veil from state secrets even if ambiguity results in a loss of focus and clarity.”)).
*7 Having concluded that Defendants have successfully invoked the state secrets privilege with regard to significant evidence tending to confirm or negate the factual allegations in Plaintiffs’ complaints, the question the Court must address is how to proceed. If the state secrets defense applies to bar disclosure altogether of much of the evidence sought in this suit, Plaintiffs may neither be able to establish standing to sue nor state a prima facie case. Defendants would similarly be without accessible evidence to establish a defense without disclosure of the evidence subject to the privilege. See

Kasza, 133 F.3d at 1166. However, the Court finds that, as a matter of law, the FISA procedural mechanism prescribed under 50 U.S.C. § 1806(f) preempts application of the state secrets privilege.

C. FISA and Preemption. On remand, the Court of Appeals has required this Court to consider “the government’s assertion that the state secrets privilege bars this litigation.” Jewel, 673 F.3d at 913–14. The Ninth Circuit, in a previous matter relating to the Program, also remanded to the district court to consider “whether FISA preempts the state secrets privilege and for any proceedings collateral to that determination.” Al–Haramain, 507 F.3d at 1206. In its opinion on remand in the Al–Haramain matter, this district court found that “FISA preempts the state secrets privilege in connection with electronic surveillance for intelligence purposes....” In re National Security Agency Telecommunications Records Litigation (“In re N.S.A. Telecommunication Records Litig.”), 564 F.Supp.2d 1109, 1111 (N.D.Cal.2008). The undersigned agrees and finds that the in camera review procedure in FISA applies and preempts the determination of evidentiary preclusion under the state secrets doctrine. Section 1806(f) of FISA displaces the state secrets privilege in cases in which electronic surveillance yields potentially sensitive evidence by providing secure procedures under which courts can consider national security evidence that the application of the state secrets privilege would otherwise summarily exclude.

1. FISA. [23]Congress enacted FISA to curb the problem of

unchecked

domestic

surveillance

and

intelligence-gathering abuses undertaken by the executive

branch in the post-World War II era. See S.Rep. No.

95–604, at 8 (Congress enacted FISA in response to

“revelations that warrantless surveillance in the name of

national security ha[d] been seriously abused.”). The

misconduct was exposed by a Congressional task force

known as the Church Committee, which produced a series

of investigative reports documenting unlawful

surveillance pursued in the name of national security. The

Church Committee concluded that “the massive record of

intelligence abuses over the years” had “undermined the

constitutional rights of citizens ... primarily because

checks and balances designed by the framers of the

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Constitution to assure accountability have not been applied.” Book II: Intelligence Activities and the Rights of Americans, S.Rep. No. 94–755, at 291. Accordingly, the Committee urged “fundamental reform,” that would “cover[ ] the field by ... provid[ing] the exclusive legal authority for domestic security activities,” including “warrantless electronic surveillance.” Id. at 299.
[24]Under FISA, before engaging in domestic surveillance, the Executive branch must seek authorization from a special court charged with finding probable cause that the target is an agent of a foreign power as defined by the statute. See50 U.S.C. §§ 1804–05. FISA also establishes a system of review of Executive conduct by setting out specific procedures courts must follow to evaluate evidence where disclosure could endanger national security. See50 U.S.C. § 1806(f).
*8 Section 1806(f) reads in pertinent part:
...whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State ... to discovery or obtain applications or orders or other materials relating to electronic surveillance ... the United States district court ... shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.
Id.
[25] [26]Section 1806(f) of FISA applies “notwithstanding any other law” and is the “exclusive” procedure for reviewing sensitive surveillance materials gathered by the Executive under FISA and other surveillance statutes. See id.; see also18 U.S.C. § 2712(b)(4) (designating Section 1806(f) as “the exclusive means by which materials [designated as sensitive by the government] shall be

reviewed” in suits against the United States under FISA, the Wiretap Act, and the Electronic Privacy Protection Act). Once invoked, the review procedure requires courts to review the potentially sensitive surveillance materials ex parte and in camera. 50 U.S.C. § 1806(f).
The purpose of this provision is to permit courts to determine whether any particular surveillance was lawfully authorized and executed. The provision, which permits courts to review the potentially sensitive materials, strikes a balance between executive action and judicial oversight. The legislative history makes clear that Congress intended to formulate a balanced legislative solution to the national security problems raised in litigation over possibly unlawful executive surveillance programs. The Senate Judiciary Committee explained that litigants were not to evade the provision by invoking other laws or jurisprudential doctrines:
The Committee wishes to make clear that the procedures set in [subsection 1806(f) ] apply whatever the underlying rule or statute referred to in [a party’s] motion. This is necessary to prevent the carefully drawn procedures in [section 1806(f) ] from being bypassed by the inventive litigant using a new statute, rule or judicial construction.
S. Rep. No. 95–604, at 57; see also S.Rep. No. 95–701, at 63 (“When the procedure is so triggered, however, the Government must make available to the court a copy of the court order and accompanying declaration upon which the surveillance was based.”); see also H. Rep. No. 95–1283(I), at 91 (when the legality of surveillance is at issue, “it is this procedure ‘notwithstanding any other law’ that must be used to resolve the question”).
2. Preemption. [27] [28]Based on the legislative history and the plain language of FISA, this Court finds that FISA preempts the common law doctrine of the state secrets privilege. Federal common law applies “[u]ntil the field has been made the subject of comprehensive legislation.” City of Milwaukee v. Illinois and Michigan, 451 U.S. 304, 314, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981). When it passed
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FISA, Congress expressly indicated its intention to replace judge-made federal common law rules:
*9 [T]he development of the law regulating electronic surveillance for national security purposes has been uneven and inconclusive. This is to be expected where the development is left to the judicial branch in an area where cases do not regularly come before it. Moreover, the development of standards and restrictions by the judiciary with respect to electronic surveillance for foreign intelligence purposes accomplished through case law threatens both civil liberties and the national security because the development occurs generally in ignorance of the facts, circumstances, and techniques of foreign intelligence electronic surveillance not present in the particular case before the court.... [T]he tiny window to this area which a particular case affords provides inadequate light by which judges may be relied upon to develop case law which adequately balances the rights of privacy and national security.
H. Rep. No. 95–1283, at 21.
It is clear Congress intended for FISA to displace federal common law rules such as the state secrets privilege with regard to matters within FISA’s purview. The legislative history indicates that Congress intended to “occupy the field through the establishment of a comprehensive regulatory program supervised by an expert administrative agency.” Milwaukee, 451 U.S. at 317, 101 S.Ct. 1784. Through explicit provisions of FISA, Congress “established a comprehensive, detailed program to regulate foreign intelligence surveillance in the domestic context.” In re N.S.A. Telecommunications Records Litig., 564 F.Supp.2d at 1118. In particular, § 1806(f) “is Congress’s specific and detailed description for how courts should handle claims by the government that the disclosure of material relating to or derived from electronic surveillance would harm national security.” Id. at 1119. The specific description leaves no room for

application of the state secrets privilege and is, in effect, a “codification of the state secrets privilege for purposes of relevant cases under FISA, as modified to reflect Congress’s precise directive to the federal courts for the handling of materials and information with purported national security implications.” Id. The Court agrees that “FISA preempts or displaces the state secrets privilege, but only in cases within the reach of its provisions.” Id. at 1124. As in In re National Security Agency Telecommunications Records Litigation, Plaintiffs’ allegations here of warrantless wiretapping and surveillance programs similarly fall within those provisions.
However, because the Court finds that Defendants have not waived sovereign immunity for its statutory claim, Plaintiffs’ claims for violation of FISA fail.
D. Waiver of Sovereign Immunity for Plaintiffs’ Statutory Claims. [29] [30]Defendants also move to dismiss Plaintiffs’ statutory claims on the grounds that sovereign immunity has not been waived. “Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); see also United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (“It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.”). Plaintiffs bear the burden to establish a waiver of sovereign immunity. Prescott v. United States, 973 F.2d 696, 701 (9th Cir.1992)
1. Statutory Claims for Damages. Plaintiffs bring statutory claims for damages under FISA, the Wiretap Act, and the Stored Communications Act (“SCA”). Section 223 of the Patriot Act amended the SCA and added the following provision which waives sovereign immunity for three specific provisions of FISA and more generally for violations of the SCA and the Wiretap Act.
Any person who is aggrieved by any willful violation of this chapter or of chapter 119 of this title or of sections 106(a), 305(a), or 405(a)
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of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) may commence an action in United States District Court against the United States to recover money damages.
*10 18 U.S.C. § 2712. See Pub.L. No. 107–56 § 223, 115 Stat. 272 (2001).
[31]Plaintiffs do not bring any claims under these three enumerated provisions of FISA. Plaintiffs sue Defendants for violating 50 U.S.C. § 1809, and they rely on 50 U.S.C. § 1810 to provide a waiver of sovereign immunity in order to sue for damages. However, as Plaintiffs concede, the Ninth Circuit has explicitly rejected the proposition that § 1810 may be construed as a waiver of sovereign immunity to sue for damages. See Al–Haramain v. Obama, 690 F.3d 1089 (9th Cir.2012) (holding that 50 U.S.C. § 1810 does not waive sovereign immunity against the United States for damages). Therefore, Plaintiffs’ claim for damages under FISA against the United States and against the individual federal defendants in their official capacity is barred.
[32] [33]However, the waiver of sovereign immunity for damages claims against the United States contained with Section 2712 for claims under the SCA and the Wiretap Act is much broader. While the waiver in Section 2712 is limited to three specific provisions of FISA, the waiver for claims under the SCA and the Wiretap Act is not similarly restricted to individual provisions within those statutes. Nevertheless, Defendants contend that the waiver is limited to claims under the SCA and the Wiretap Act for the use and disclosure of information obtained from electronic surveillance, not just its collection. Defendants argue that plain language and the legislative history of Section 223 of the Patriot Act supports this limitation. The Court finds this argument unpersuasive.
[34] [35]In construing the provisions of a statute, courts must “first look to the language of the statute to determine whether it has a plain meaning.” Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir.2009); see also United States v. Chaney, 581 F.3d 1123, 1126 (9th Cir.2009) (“It is well settled that statutory interpretation begins with the plain language of the statute.”) (internal quotation marks and citation omitted). “The preeminent canon of statutory interpretation requires us to presume that [the] legislature says in a statute what it means and

means in a statute what it says there. Thus, our inquiry begins with the statutory text, and ends there as well if the text is unambiguous.” McDonald v. Sun Oil Co., 548 F.3d 774, 780 (9th Cir.2008) (quoting BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004)) (internal quotation marks omitted).
The plain language of Section 2712(a) does not limit the waiver of sovereign immunity for damage claims under the SCA and the Wiretap Act to claims for the use and disclosure of information. In Section 2712(a), Congress specifically limited the waiver for damage claims to three specific sections of FISA and easily could have done the same with respect to the Wiretap Act and the SCA. The fact that Congress did not similarly limit the waiver to specific sections within the Wiretap Act and the SCA has significance. To ignore this distinction would be to ignore the plain language and structure of the statute. Cf. TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) (“It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.”) (internal quotation marks and citation omitted); United States v. Novak, 476 F.3d 1041, 1048 (9th Cir.2007) (“We avoid whenever possible statutory interpretations that result in superfluous language.”).
*11 Defendants argue that reading Section 223 of the Patriot Act as a whole demonstrates that the waiver of sovereign immunity by Section 2712(a) is limited to claims regarding the use and disclosure of information. In support of this argument, Defendants rely upon the fact that Section 223 was titled “Civil Liability for Certain Unauthorized Disclosures” and upon the fact that other provisions of Section 223 specifically addressed claims for the use and disclosure of information. However, the Court finds this argument unpersuasive. Neither the title of the Section 223, nor the fact that Section 223 includes additional provisions that address claims regarding the use and disclosure of information, alters the clear and unambiguous statutory language. Again, the Court emphasizes that Section 2712 explicitly limits the waiver to specific provisions of FISA and does not limit the waiver to specific provisions within the Wiretap Act or the SCA. If Congress intended to limit the waiver to claims regarding the use and disclosure claims within all three statutes, it could have done so. The Court cannot ignore the fact that Congress chose to do so with respect to one of these statutes and did not with respect to the other two. See Botosan v. Paul McNally Realty, 216 F.3d
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827, 832 (9th Cir.2000) (“The incorporation of one statutory provision to the exclusion of another must be presumed intentional under the statutory canon of expressio unius.”)
[36] [37]Next, Defendants invite the Court to read limitations into the waiver of sovereign immunity from the legislative history of this statutory provision. “[E]ven where the plain language appears to settle the question, we may nonetheless look to the legislative history to determine whether there is clearly expressed legislative intention contrary to that language that overcomes the strong presumption that Congress has expressed its intent in the language it chose.” Amalgamated Transit Union Local 1309, AFL–CIO v. Laidlaw Transit Services, Inc., 435 F.3d 1140, 1146 (9th Cir.2006). In addition, the Ninth Circuit has stated that the “plain meaning rule ... does not require a court to operate under an artificially induced sense of amnesia about the purpose of legislation, or to turn a blind eye towards significant evidence of Congressional intent in the legislative history.” Amalgamated Transit Union Local 1309, AFL–CIO v. Laidlaw Transit Services, Inc., 448 F.3d 1092, 1093 (9th Cir.2006) (quoting Heppner v. Alyeska Pipeline Serv. Co., 665 F.2d 868, 871 (9th Cir.1981)). Upon review of the legislative history, the Court does not find “clearly expressed legislative intention contrary to that language that overcomes the strong presumption that Congress has expressed its intent in the language it chose.” Amalgamated Transit Union, 435 F.3d at 1146. Accordingly, the Court finds that Section 2712 waives sovereign immunity for Plaintiffs’ claims for damages under the Wiretap Act and the SCA.
2. Statutory Claims for Injunctive Relief. Section 2712 is inapplicable to Plaintiffs’ claims for injunctive relief. Section 2712 only applies to claims for damages. Therefore, Plaintiffs must turn elsewhere to establish a waiver of sovereign immunity. To do so, Plaintiffs rely on Section 702 of the Administrative Procedure Act (“APA”) and on the common law ultra vires exception set forth in Larson v. Domestic & Foreign Commerce Corporation, 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949).
a. The Administrative Procedures Act.

Section 702 of the APA provides:
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.... Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.
*12 5 U.S.C § 702. Defendants contend that Section 702 is inapplicable because it does not “confer[ ] authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.” See id. Defendants argue that Section 223 of the Patriot Act is such a statute.
[38] [39]“ ‘[W]hen Congress has dealt in particularity with a claim and [has] intended a specified remedy’—including its exceptions—to be exclusive, that is the end of the matter; the APA does not undo the judgment.” Match–E–Be–Nash–She–Wish Band of Pottawatomi Indians v. Patchak, ––– U.S. ––––, 132 S.Ct. 2199, 2205, 183 L.Ed.2d 211 (2012) (quoting Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 U.S. 273, 286, n.22, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983)) (“Pottawatomi Indians ”). Section 223 of the Patriot Act amended the Wiretap Act, the SCA, and FISA to allow suits against the United States for damages. The question presented here is whether, by granting authority to sue the United States for damages, the Patriot Act impliedly
11

Jewel v. National Security Agency, --- F.Supp.2d ---- (2013)

limited the authority to sue the United States for other types of relief, such as injunctive or declaratory relief. The Court finds that it does.
With respect to the SCA and the Wiretap Act, Section 223 of the Patriot Act not only granted consent to sue the United States for damages, but it also explicitly deleted the United States from the provisions that permit an aggrieved person to sue for recovery and obtain relief, including “preliminary and other equitable or declaratory relief.” See Pub.L. No. 107–56 § 223, 115 Stat. 272 (2001) (amending 18 U.S.C. § 2520(a) and 18 U.S.C. § 2707(a) to insert “other than the United States”). Therefore, the Court finds the intent of Congress in passing Section 223 of the Patriot Act was to forbid injunctive and declaratory relief against the United States under the SCA and the Wiretap Act.
[40]Although the additional evidence on Congressional intent regarding the SCA and the Wiretap Act noted above is lacking, the Court finds that the Patriot Act must still be read to restrict the authority to sue the United States to suits for damages for the three specific statutory provisions listed in § 2712. Significantly, any ambiguities must be read in favor of the United States’ immunity from suit. See Federal Aviation Administration v. Cooper, ––– U.S. ––––, 132 S.Ct. 1441, 1448, 182 L.Ed.2d 497 (2012) (“Any ambiguities in the statutory language are to be construed in favor of immunity....”). Moreover, the Court notes that the Patriot Act’s grant of authority to sue under FISA is more restricted than the grant of authority to sue under the Wiretap Act and the SCA. Thus, it would be inconsistent to hold that the waiver of sovereign immunity is broader with respect to FISA than to the Wiretap Act and the SCA.
Relying on Pottawatomi Indians, Plaintiffs argue that the exception to the waiver of sovereign immunity in Section 702 does not bar their FISA claim for injunctive relief because they are “bringing a different claim, seeking different relief” from the specific FISA provisions listed in § 2712(a). 132 S.Ct. at 2209. Plaintiffs’ reliance on this case is misplaced. In Pottawatomi Indians, the Court held that the ban on bringing suit under the Quiet Title Act (“QTA”) did not apply because the plaintiff was not bringing a claim under that statute. Id. at 2208 (finding that the plaintiff was “not bringing a QTA suit at all”). Here, Plaintiffs indisputably bring claims under FISA. Thus, the issue is whether FISA, by allowing suits against the United States only for damages based on three provisions of that statute, impliedly bans suits against the

United States that seek injunctive relief under any provision of FISA. The Court finds that it does. Accordingly, Plaintiffs cannot rely on Section 702 of the APA for a waiver of sovereign immunity.
b. The Ultra Vires Doctrine.
*13 [41]Next, Plaintiffs seek to invoke the ultra vires exception to sovereign immunity of federal officials as set forth in Larson. Under this doctrine, “[i]f an employee of the United States acts completely outside of his governmental authority, he has no immunity.” United States v. Yakima Tribal Court (“Yakima Tribal Court ”), 806 F.2d 853, 859 (9th Cir.1986); see also Larson, 337 U.S. at 689–90, 69 S.Ct. 1457.
There is some question as to whether this doctrine survived the 1976 amendments to the APA. The Ninth Circuit has commented that “Congress observed that before the amendment to Section 702 [of the APA], litigants seeking ... non-monetary relief were forced to resort to the ‘legal fiction’ of naming individual officers, rather than the government, as defendants, ... an approach that was ‘illogical’ and ‘becloud[ed] the real issue whether a particular governmental activity should be subject to judicial review, and, if so, what form of relief is appropriate.’ ” See The Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 524 (9th Cir.1989) (quoting H. Rep. No. 1656, at 5, reprinted in 1976 U.S.Code Cong. & Admin. News 6121, 6125, 6128–29). The Ninth Circuit found it “significant that Congress referred disapprovingly to the Ex parte Young fiction, which permitted a plaintiff to name a government official as the defendant in equitable actions to redress government misconduct, on the pretense that the suit was not actually against the government.” Id. at 525–26 (citing Larson, 337 U.S. at 689–91, 69 S.Ct. 1457). The Circuit Court stated that “Congress’ plain intent in amending Section 702 was to waive sovereign immunity for all such suits, thereby eliminating the need to invoke the Young fiction.” Id. at 526; see also Equal Employment Opportunity Commission v. Peabody Western Coal Co., 610 F.3d 1070, 1085 (9th Cir.2010) (noting that in Presbyterian Church (U.S.A.), the Circuit Court “explained that after § 702 was amended in 1976, it replaced the Ex parte Young fiction as the doctrinal basis for a claim for prospective relief[ ]” and that “since 1976 federal courts have looked to § 702 of the [APA] to serve the purposes of the Ex
12

Jewel v. National Security Agency, --- F.Supp.2d ---- (2013)

parte Young fiction in suits against federal officers.”)
Nevertheless, there is case law in the Ninth Circuit, post-dating the amendments to the APA in 1976, that applies the ultra vires doctrine or at least suggests its continued existence. See, e.g., Yakima Tribal Court, 806 F.2d at 859 (“If an employee of the United States acts completely outside his governmental authority, he has no immunity.”) (citing Larson, 337 U.S. at 689, 69 S.Ct. 1457); De Lao v. Califano, 560 F.2d 1384, 1391 (9th Cir.1977) (noting that courts have recognized two exceptions to sovereign immunity when suits are brought against government officials, including the ultra vires doctrine). The Ninth Circuit has declined to address whether the ultra vires doctrine set forth in Larson exists in light of the wavier provided by Section 702 of the APA and has noted that the decisions in this area are “hopelessly inconsistent.” Beller v. Middendorf, 632 F.2d 788, 797 (9th Cir.1980), overruled on other grounds byBowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986). While noting the confusion, the Ninth Circuit declined to attempt a reconciliation. Id. In the absence of clear authority holding that the ultra vires doctrine is no longer viable, the Court will not dismiss Plaintiffs’ statutory claims for injunctive relief to the extent they are premised on the ultra vires doctrine because the 1976 amendments to the APA invalidated this doctrine.
*14 [42] [43] [44] [45]However, to the extent the ultra vires doctrine survives, its scope is quite narrow. First, the Court notes that an ultra vires claim may only be asserted against officers in their individual or personal capacity. See Larson, 337 U.S. at 687–89, 69 S.Ct. 1457. Moreover, a claim that an officer was acting ultra vires “is different from the situation where an employee acting as a government agent, commits an act that is arguably a mistake of fact or law.” Yakima Tribal Court, 806 F.2d at 859. An “[u]ltra vires claim[ ] rest[s] on the official’s lack of delegated authority.” Id. at 860. As the Supreme Court explained in the context of addressing the viability of the ultra vires doctrine against state officials, the ultra vires exception to sovereign immunity is “very narrow.” Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 114 n.25, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). An officer “may be said to act ultra vires only when he acts ‘without any authority whatever.’ ” Id. at 102 n.11, 104 S.Ct. 900 (quoting Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670, 697, 716, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982)) (White, J., concurring in judgment in part and dissenting in part) (finding that the test is

whether there was no “colorable basis for the exercise of authority by state officials”). “[A]n ultra vires claim rests on ‘the officer’s lack of delegated power. A claim of error in the exercise of that power is therefore not sufficient.’ ” Id. (quoting Larson, 337 U.S. at 690, 69 S.Ct. 1457).
In Pennhurst, the trial court’s undisputed findings were that the residents of the state facility were “often physically abused or drugged by staff members....” Pennhurst, 465 U.S. at 92, 104 S.Ct. 900. The Supreme Court held that the “[p]etitioners’ actions in operating [the] mental health institution plainly were not beyond their delegated authority” and that the “essence” of the respondents’ claims was that the petitioners failed to provide services adequately. Id. at 102 n.11, 104 S.Ct. 900.
[46]Here, it is undisputed that Defendants have authority to conduct electronic surveillance. In their claims for declaratory, injunctive and other equitable relief, Plaintiffs contend that Defendants conducted electronic surveillance improperly, without following the proper procedures, and in violation of FISA, the Wiretap Act and the SCA. In essence, Plaintiffs contend that the individual defendants erred in their exercise of their authority to conduct electronic surveillance. Such a claim does not fit within the narrow exception to sovereign immunity under the ultra vires doctrine.
[47] [48]The fact that Plaintiffs are challenging a government-wide “program” bolsters the Court’s conclusion that Plaintiffs may not proceed under the narrow ultra vires exception. “[T]he key question in addressing the sovereign immunity of the United States is ‘whether the relief sought in a suit nominally addressed to the officer is relief against the sovereign.’ ” Aminoil U.S.A., Inc. v. California State Water Resources Control Board, 674 F.2d 1227, 1234 (9th Cir.1982) (quoting Larson, 337 U.S. at 687, 69 S.Ct. 1457). Here, Plaintiffs seek to obtain relief from the sovereign itself, under the guise of suing officials individually. Plaintiffs allege that beginning in early October 2011, then-President Bush, in concert with the other individual defendants, authorized “a range of surveillance activities inside of the United States without any statutory authorization or court approval.” (Jewel Complaint at ¶ 39.) Plaintiffs label this alleged activity as “the Program.” (Id.; see also Jewel Complaint at ¶ 42 (“The Program of domestic surveillance authorized by the President and conducted by Defendants....”). Plaintiffs seek to halt this alleged governmental “Program.” Plaintiffs cannot obtain
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Jewel v. National Security Agency, --- F.Supp.2d ---- (2013)

effective relief from “the Program” by suing Defendants individually.3

3

The Court’s conclusion that Defendants are essentially

seeking relief from the Government is further bolstered

by the fact that Plaintiffs have not substituted in the

current officials whom they seek to sue in their official

capacity. Pursuant to Federal Rule of Civil Procedure

25, an action against an officer in her or her official

capacity does not abate when that officer ceases to hold

office while the action is pending. Instead, “[t]he

officer’s successor is automatically substituted as a

party.” See Fed.R.Civ.P. 25(d). Although the text of

Rule 25 applies only to actions against officers in their

official capacity, Plaintiffs rely on the notes to the

amendment to Rule 25 in 1961. The notes provide that

“[t]he amended rule will apply to all actions brought by

public officers for the government ...” and to “actions to

prevent officers from acting in excess of their authority

or under authority not validly conferred....” See

Fed.R.Civ.P. 25. Advisory Committee’s Notes (citing

Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed.

714 (1908)). The advisory committee explain that the

Rule “will apply whenever effective relief would call

for corrective behavior by the one then having official

status and power, rather than one who has lost that

status and power through ceasing to hold office.” Id.

(citing Larson, 337 U.S. at 682, 69 S.Ct. 1457).

Because the notes do provide that the officers’

successors will be substituted in automatically when

they are sued under the ultra vires doctrine as set forth

in Ex parte Young and Larson, the Court substitutes in

the current office holders.

*15 The Court concludes that Plaintiffs’ statutory claims for injunctive relief may not proceed under the ultra vires doctrine. Therefore, the Court finds that sovereign immunity has not been waived and grants Defendants’ motion to dismiss on Plaintiffs’ statutory claims for injunctive relief.

CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiffs’ motion for partial summary adjudication by rejecting the state secrets defense as having been displaced by the statutory procedure prescribed in 50 U.S.C. § 1806(f) of FISA. The Court GRANTS Defendants’ motions to dismiss Plaintiffs’ claims for damages under FISA and all

statutory claims for injunctive relief on the basis of sovereign immunity. The Court RESERVES ruling on the Defendants’ motions for summary judgment on remaining non-statutory claims (counts 1–4 of the Jewel Complaint and the fourth cause of action in the Shubert Complaint).
The Court shall require that the parties submit briefing on both the scope of FISA preemption on the Plaintiffs’ constitutional claims, specifically, whether the scope of the preemption only provides a procedural mechanism for the review of submitted evidentiary materials or whether the scope of FISA preemption is broader to foreclose altogether the substantive constitutional claims. Should the Court permit the constitutional claims to proceed and find that § 1806(f) merely provides the mechanism for review of submitted materials, Plaintiffs shall be tasked with the burden to establish standing to sue without resulting in impermissible damage to ongoing national security efforts. See Clapper v. Amnesty International USA, ––– U.S. ––––, 133 S.Ct. 1138, 1149 n.4, 185 L.Ed.2d 264 (2013) (noting that, pursuant to hypothetical in camera proceedings permitted under § 1806(f), “the court’s postdisclosure decision about whether to dismiss the suit for lack of standing would surely signal to the terrorist whether his name was on the list of surveillance targets.”) Although the Court finds, at this procedural posture, that Plaintiffs here do not allege the attenuated facts of future harm which barred standing in Clapper, the potential risk to national security may still be too great to pursue confirmation of the existence or facts relating to the scope of the alleged governmental Program.
Further, the Court shall require briefing on the impact on the Defendants’ assertion of such a risk following the recent disclosure of the government’s continuing surveillance activities and the statement by the Director of National Intelligence that certain information related to the “business records” provision of FISA should be declassified and immediately released to the public.
In order to facilitate this process and set the schedule for such further briefing, the Court shall conduct a case management conference on August 23, 2013 at 1:30 p.m. The parties shall submit a joint case management statement by no later than August 16, 2013.
IT IS SO ORDERED.
	  
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CAROLYN JEWEL; TASH HEPTING;



GREGORY HICKS; ERIK KNUTZEN;

JOICE WALTON, on behalf of

themselves and all others similarly

situated,

Plaintiffs-Appellants,

v.

NATIONAL SECURITY AGENCY; KEITH

B. ALEXANDER, Director, in his

official and personal capacities;

MICHAEL V. H AYDEN, in his

personal capacity; U NITED

STATES OF AMERICA; GEORGE W.

 BUSH, President of the United
States, in his official and personal

capacities; RICHARD B. C HENEY, in

his personal capacity; D AVID S.

ADDINGTON, in his personal

capacity; DEPARTMENT OF JUSTICE;

ALBERTO R. G ONZALES, in his

personal capacity; J OHN D.

ASHCROFT, in his personal

capacity; JOHN M. M CCONNELL,

Director of National Intelligence,

in his official and personal

capacities; JOHN D. N EGROPONTE in

his personal capacity; M ICHAEL B.

MUKASEY, Attorney General;

BARACK HUSSEIN OBAMA;



21601

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21602

JEWEL v. N ATIONAL SECURITY AGENCY

ERIC H. H OLDER JR., Attorney



General; DENNIS C. B LAIR,

 Defendants-Appellees,



No. 10-15616 D.C. Nos.
3:08-cv-04373VRW
M:06-cv-01791VRW

VIRGINIA SHUBERT; NOHA ARAFA;



SARAH DRANOFF; HILARY BOTEIN,

individually and on behalf of all

others similarly situated,

Plaintiffs-Appellants,

v.



GEORGE W. B USH; MICHAEL V.

HAYDEN; KEITH B. A LEXANDER;

ALBERTO R. G ONZALES; JOHN

ASHCROFT; UNITED STATES OF

AMERICA,

 Defendants-Appellees.

No. 10-15638 D.C. Nos.
3:07-cv-00693VRW
M:06-cv-01791VRW
OPINION

Appeal from the United States District Court for the Northern District of California
Vaughn R. Walker, District Judge, Presiding
Argued and Submitted August 31, 2011—Seattle, Washington
Filed December 29, 2011
Before: Harry Pregerson, Michael Daly Hawkins, and M. Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown

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JEWEL v. N ATIONAL SECURITY AGENCY

21605

COUNSEL
Cindy Cohn, Lee Tien, Kurt Opsahl, Kevin S. Bankston, James S. Tyre, ELECTRONIC FRONTIER FOUNDATION,

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21606

JEWEL v. N ATIONAL SECURITY AGENCY

San Francisco, California, for the plaintiff-appellant; Rachael E. Meny, Paula L. Blizzard, Michael S. Kwun, Audrey Walton-Hadlock, KEKER & VAN NEST LLP, for the plaintiff-appellant [ 10-15616 ].

Matthew D. Brinckerhoff, Ilann Margalit Maazel, Adam R.

Pulver, EMERY CELLI BRINCKERHOFF & ABADY LLP,

New York, New York, for the plaintiff-appellant. [

10-

15638 ].

H. Thomas Byron, III, DOJ – U.S. Department of Justice, Washington, District of Columbia, for the defendant-appellee. [ 10-15616 and 10-15638 ].

OPINION
McKEOWN, Circuit Judge:
This case is one of many arising from claims that the federal government, with the assistance of major telecommunications companies, engaged in widespread warrantless eavesdropping in the United States following the September 11, 2001, attacks. At issue in this appeal is whether Carolyn Jewel and other residential telephone customers (collectively “Jewel”) have standing to bring their statutory and constitutional claims against the government for what they describe as a communications dragnet of ordinary American citizens.
In light of detailed allegations and claims of harm linking Jewel to the intercepted telephone, internet and electronic communications, we conclude that Jewel’s claims are not abstract, generalized grievances and instead meet the constitutional standing requirement of concrete injury. Nor do prudential considerations bar this action. Although there has been considerable debate and legislative activity surrounding the surveillance program, the claims do not raise a political ques-

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JEWEL v. N ATIONAL SECURITY AGENCY

21607

tion nor are they inappropriate for judicial resolution. Finally, we do not impose, as suggested by the government, a heightened standing requirement simply because the case involves government officials in the national security context. We reverse the district court’s dismissal on standing grounds and remand for further proceedings. We leave for the district court to consider in the first instance the government’s alternative argument that Jewel’s claims are foreclosed by the state secrets privilege.

BACKGROUND

I. COMPLAINT

Jewel filed this putative class action “on behalf of [herself] and a class of similarly situated persons ”: “ordinary Americans who are current or former subscribers to AT&T’s telephone and/or Internet services. ” At this stage, our inquiry focuses on Jewel and the allegations as they pertain to her. Stearns v. Ticketmaster Corp. , 655 F.3d 1013, 1021 (9th Cir. 2011). Jewel sued federal government agencies and government officers in their official and personal capacities. She did not name any telecommunications companies as defendants. 1 Jewel alleged that the “[c]ommunications of Plaintiffs and class members have been and continue to be illegally acquired by Defendants using surveillance devices attached to AT&T’s network.” She claimed that these actions violated the First and Fourth Amendments, the constitutional doctrine of separation of powers, and a variety of statutes—the Foreign Intelligence Surveillance Act ( “FISA”), 50 U.S.C. §§ 1801 et seq., the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. §§ 2510 et seq., the Stored Communications Act ( “SCA”), 18 U.S.C. §§ 2710 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq. The complaint requested both equitable and monetary relief.

1A number of the other multidistrict litigation ( “MDL”) suits name one or more of the telecommunications companies as defendants. See, e.g., Hepting v. AT&T, No. 09-16676 (9th Cir. Dec. 29, 2011).

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21608

JEWEL v. N ATIONAL SECURITY AGENCY

According to the complaint, on October 4, 2001, President Bush and other government defendants issued a secret presidential order that authorized warrantless surveillance within the United States. Jewel asserted that she was specifically affected because AT&T, in collaboration with the National Security Agency ( “NSA”), diverted all of her internet traffic into “SG3 Secure Rooms” in AT&T facilities across the country, including AT&T’s Folsom Street facility in San Francisco, “and information of interest [was] transmitted from the equipment in the SG3 Secure Rooms to the NSA based on rules programmed by the NSA. ” Jewel’s complaint focused on AT&T, its San Francisco facility, and the SG3 Secure Rooms.

Jewel further alleged that the governmental defendants operated a “dragnet collection” of communications records by “continuously solicit[ing] and obtain[ing] the disclosure of all information in AT&T’s major databases of stored telephone and Internet records.” These records “concern[ ] communications to which Plaintiffs and class members were a party.” For example, Jewel claims that,

[u]sing [a] shadow network of surveillance devices, Defendants have acquired and continue to acquire the content of a significant portion of phone calls, emails, instant messages, text messages, web communications and other communications, both international and domestic, of practically every American who uses the phone system or the Internet, including Plaintiffs and class members, in an unprecedented suspicionless general search through the nation’s communications network.

The complaint goes on to allege that defendants were directly involved in the schemes, which were “directly performed, and/or aided, abetted, counseled, commanded, induced, or procured, by Defendants.”

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JEWEL v. N ATIONAL SECURITY AGENCY II. THE DISTRICT COURT’S DECISION

21609

The government defendants moved to dismiss and alternatively sought summary judgment as to all claims. They argued that the court lacked jurisdiction over Jewel’s statutory claims because the government did not waive its sovereign immunity. The government sought summary judgment on the remaining claims “because information necessary to litigate plaintiffs’ claims is properly subject to and excluded from use in the case by the state secrets privilege and related statutory privileges.” Although not argued by the government or briefed by the parties, the district court granted the motion to dismiss because Jewel lacked standing to bring her claims. 2 The district court dismissed the claims with prejudice and without leave to amend. 3

2The district court dismissed Jewel’s action together with a similar action filed by Virginia Shubert. Shubert’s action was consolidated with other wiretapping cases in August 2006 in the Northern District of California under the MDL provisions of 28 U.S.C. § 1407. Jewel’s case was originally filed in the Northern District of California, but was not part of the MDL consolidation. The procedural histories of the Jewel and Shubert actions are not identical, but the district court considered the cases together for purposes of standing.
3The allegations in the Shubert complaint diverge significantly from those in the Jewel complaint, primarily because of their lack of specificity. These deficiencies might well have been ameliorated through an amended complaint. However, the district court sua sponte dismissed the complaint on standing grounds, without leave to amend. Although the district court properly considered standing of its own accord, this dismissal was problematic “because [plaintiffs] only learned that the district court would not allow them an opportunity to remedy any perceived defects in the complaint after . . . the district court summarily signed and entered [its order of dismissal].” Manzarek v. St. Paul Fire & Marine Ins. Co. , 519 F.3d 1025, 1034 (9th Cir. 2008). The district court erred in denying Shubert leave to amend. “Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment.” Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc. , 368 F.3d 1053, 1061 (9th Cir. 2004).

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21610

JEWEL v. N ATIONAL SECURITY AGENCY

The district court carefully reviewed the complicated procedural history, both of the MDL wiretapping cases generally and the motions at issue in this case specifically. The district court held that Jewel failed to make out prima facie allegations necessary to establish that she was an “aggrieved person” under the FISA. The court acknowledged that Jewel’s complaint included specific allegations that the NSA used AT&T’s Folsom Street facility, but found that “[the] complaint contains no other allegations specifically linking any of the plaintiffs to the alleged surveillance activities, ” and therefore held that Jewel lacked standing. We disagree.

ANALYSIS

The central issue on appeal is whether Jewel has standing to sue the government defendants, a question of law that we review de novo. Bernhardt v. Cnty. of Los Angeles , 279 F.3d 862, 867 (9th Cir. 2002). “Because the district court sua sponte dismissed [the] complaint on its face, ” we “review . . . standing as if raised in a motion to dismiss. When reviewing motions to dismiss, [the court] must accept all factual allegations of the complaint as true and draw all reasonable inferences in favor of the nonmoving party.” Id. (internal quotation marks and citation omitted). General factual allegations of injury resulting from the defendant’s conduct may suffice, as we “presum[e] that general allegations embrace those specific facts that are necessary to support the claim. ” Lujan v. Nat’l Wildlife Fed. (“Nat’l Wildlife Fed. ”), 497 U.S. 871, 889 (1990). Because this appeal arises from dismissal under Federal Rule of Civil Procedure 12(b)(6), Jewel’s allegations are accepted as true. 4

4At the motion to dismiss stage, we do not consider the merits of Jewel’s claims. For example, the district court’s determination that Jewel was not an “Aggrieved Person” under the FISA or a qualified plaintiff under the other statutes is a merits determination, not a threshold standing question. Statutory “standing, unlike constitutional standing, is not jurisdictional.” Noel v. Hall, 568 F.3d 743, 748 (9th Cir. 2009). The question

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JEWEL v. N ATIONAL SECURITY AGENCY I. PRINCIPLES OF STANDING

21611

[1] Standing doctrine is well established: “Article III . . . gives the federal courts jurisdiction over only ‘cases and controversies.”’ Whitmore v. Arkansas , 495 U.S. 149, 154-55 (1990). The oft-cited Lujan v. Defenders of Wildlife (“Lujan”) restates the three requirements that must be met for Article III standing: (1) an injury in fact that (2) is fairly traceable to the challenged conduct and (3) has some likelihood of redressability. 504 U.S. 555, 560-61 (1992). Here, the district court determined that this action was “in essence [a] citizen sui[t] seeking to employ judicial remedies to punish and bring to heel high-level government officials,” and that “neither group of plaintiffs/purported class representatives has alleged an injury that is sufficiently particular to those plaintiffs or to a distinct group.” The district court’s decision was based entirely on the first prong of Lujan. Although that requirement is the focus of our analysis, our de novo review also considers the other two prongs.

[2] “[T]he standing question in [this] case is whether the constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff’s position a right to judicial relief. ” Warth v. Seldin, 422 U.S. 490, 500 (1975). The answer here is yes.

whether a plaintiff states a claim for relief typically relates to the merits of a case, not to the dispute’s justiciability, and conflation of the two concepts often causes confusion. See Bond v. United States , 131 S. Ct. 2355, 2362 (2011); see also Steel Co. v. Citizens for Better Env’t. , 523 U.S. 83, 89 (1998) (“It is firmly established in our cases that the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction, i.e., the courts’ statutory or constitutional power to adjudicate the case.” (emphasis in original)).

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II. JEWEL HAS CONSTITUTIONAL STANDING TO SUE

A. JEWEL ALLEGED CONCRETE AND PARTICULARIZED INJURY

To satisfy the “injury in fact ” requirement, Jewel must assert a grievance that is both “concrete and particularized. ” Lujan, 504 U.S. at 560 (citations omitted). We consider each of these requirements in turn, and conclude that Jewel has satisfied them both.

[3] As to Jewel’s statutory claims, the Supreme Court instructs that a concrete “injury required by Art. III may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing. ” Lujan, 504 U.S. at 578 (internal quotation marks, citation, and alteration omitted). Jewel asserts claims under three surveillance statutes—the ECPA, FISA and SCA—and adds an umbrella claim under the APA.

[4] Both the ECPA and the FISA prohibit electronic interception of communications absent compliance with statutory procedures. The SCA likewise prohibits the government from obtaining certain communication records. Each statute explicitly creates a private right of action for claims of illegal surveillance. See 18 U.S.C. § 2520 (the ECPA provides a cause of action to “any person whose . . . communication is intercepted, disclosed, or intentionally used”); 50 U.S.C. § 1801(k) (the FISA provides that “[a]n aggrieved person . . . who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation ”); 18 U.S.C. § 2707(a) (the SCA provides that “any provider of electronic communication service, subscriber, or other person aggrieved by any violation of this chapter” may maintain a civil action if the violation was done knowingly or intentionally).

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[5] In a similar vein, with respect to her constitutional claim, Jewel alleges a concrete claim of invasion of a personal constitutional right—the First Amendment right of association and the Fourth Amendment right to be free from unreasonable searches and seizures. Just last term, the Supreme Court confirmed an individual’s right to challenge the legality of Executive Branch conduct on separation-of-powers grounds, Jewel’s third constitutional claim: “[I]ndividuals sustain discrete, justiciable injury from actions that transgress separation-of-powers limitations. Separation-of-powers principles are intended, in part, to protect each branch of government from incursion by the others. Yet the dynamic between and among the branches is not the only object of the Constitution’s concern. The structural principles secured by the separation of powers protect the individual as well. ” Bond, 131 S. Ct. at 2365.

[6] Satisfied that Jewel sufficiently alleged concrete injury, we turn now to the more difficult question, whether the rights asserted are sufficiently particularized. The breadth of Jewel’s allegations calls into question whether she has a particularized grievance or instead one that “is held in common by all members of the public, ” Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 220 (1974), and thus necessarily an abstract interest shared by all citizens. The critical question is whether she “has alleged such a personal stake in the outcome of the controversy as to warrant . . . invocation of federalcourt jurisdiction.” Summers v. Earth Island Inst. , 555 U.S. 488, 493 (2009) (internal quotation marks omitted).

[7] The Supreme Court observed in Federal Election Commission v. Akins that, “[w]hether styled as a constitutional or prudential limit on standing, the Court has sometimes determined that where large numbers of Americans suffer alike, the political process, rather than the judicial process, may provide the more appropriate remedy for a widely shared grievance.” 524 U.S. 11, 23 (1998). But the fact that a harm is widely shared does not necessarily render it a generalized

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grievance. In Akins, the Court gave context to the notion of a generalized grievance, explaining that petitioners lack standing “in cases where the harm at issue is not only widely shared, but is also of an abstract and indefinite nature—for example, harm to the ‘common concern for obedience of law.’ ” 524 U.S. at 23 (quoting L. Singer & Sons v. Union Pac. R.R. Co., 311 U.S. 295, 303 (1940)); see also Lujan, 504 U.S. at 573-74 ( “We have consistently held that a plaintiff raising only a generally available grievance about government —claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws . . . does not state an Article III case or controversy. ”). The Court in Akins continued “[o]ften the fact that an interest is abstract and the fact that it is widely shared go hand in hand. But their association is not invariable, and where a harm is concrete, though widely shared, the Court has found ‘injury in fact. ”’ 524 U.S. at 24. As examples of widely shared but concrete injuries the Court listed “a widespread mass tort ” or “where large numbers of voters suffer interference with voting rights conferred by law.” Id. Indeed, “it does not matter how many persons have been injured by the challenged action so long as ‘the party bringing suit . . . show[s] that the action injures him in a concrete and personal way.’ ” Massachusetts v. EPA , 549 U.S. 497, 517 (2007) (quoting Lujan, 504 U.S. at 581) (Kennedy, J., concurring in part and concurring in the judgment).

We recently considered the prerequisites for a “sufficiently concrete and specific injury” in Newdow v. Lefevre, an Establishment Clause challenge to the inscription “In God We Trust” on coins and currency. 598 F.3d 638 (9th Cir. 2010), cert. denied 131 S. Ct. 1612 (2011). We held that Newdow met the standing requirement. The fact that his “encounters with the motto are common to all Americans does not defeat his standing, because Newdow has alleged a concrete, particularized, and personal injury resulting from his frequent, unwelcome contact with the motto. ” Id. at 642. This case illustrates that even though the experience at the root of Newdow’s complaint was shared by virtually every American, this

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widespread impact was not dispositive of standing because his grievance was nonetheless concrete and particular.

[8] Following the rationale of Akins and Newdow, we conclude that Jewel alleged a sufficiently concrete and particularized injury. Jewel’s allegations are highly specific and lay out concrete harms arising from the warrantless searches. Jewel described these actions as a “dragnet” and alleged that “[t]his network of Surveillance Configurations ”—“the technical means used to receive the diverted communications ”— “indiscriminately acquired domestic communications as well as international and foreign communications. ” Specifically, Jewel alleged that “[t]hrough this network of Surveillance Configurations and/or other means, Defendants have acquired and continue to acquire the contents of domestic and international wire and/or electronic communications sent and/or received by Plaintiffs and class members. ” In addition to capturing internet traffic, “Defendants and AT&T acquire all or most long-distance domestic and international phone calls to or from AT&T long distance customers, including both the content of those calls and dialing, routing, addressing and/or signaling information pertaining to those calls. ”

[9] The complaint also described in detail the particular electronic communications equipment used ( “4ESS switch” and “WorldNet Internet Room”) at the particular AT&T facility (Folsom Street, San Francisco) where Jewel’s personal and private communications were allegedly intercepted in “a secret room known as the ‘SG3 Secure Room.’ ” Accepting Jewel’s allegations as true, she has pled more than the minimum “general factual allegations ” required to survive dismissal. Bernhardt, 279 F.3d at 867. The court need “not pass upon abstract, intellectual problems, but [can] adjudicate concrete, living contests between adversaries.” Akins, 524 U.S. at 20 (internal quotation marks and alteration omitted). Akins establishes that, where the injury is sufficiently concrete and specific, “that it is widely shared does not deprive Congress

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of constitutional power to authorize its vindication in the federal courts.” 524 U.S. at 25.

Significantly, Jewel alleged with particularity that her communications were part of the dragnet. The complaint focused on AT&T and was not a scattershot incorporation of all major telecommunications companies or a blanket policy challenge. Jewel’s complaint also honed in on AT&T’s Folsom Street facility, through which all of Jewel’s communications allegedly passed and were captured.

Our decision is consistent with the approach in other circuits. The Second Circuit recently determined, after conducting a detailed analysis, that plaintiffs in a similar suit had standing to challenge provisions of the FISA. Amnesty Int’l United States v. Clapper , 638 F.3d 118, 122 (2d Cir. 2011). Amnesty International involved a facial challenge to § 702 of the FISA in which the plaintiffs’ alleged injuries were “fear that the government will intercept their sensitive international communications” and the costs associated with efforts to avoid such anticipated injuries. Id. at 133. Jewel has much stronger allegations of concrete and particularized injury than did the plaintiffs in Amnesty International. Whereas they anticipated or projected future government conduct, Jewel’s complaint alleges past incidents of actual government interception of her electronic communications, a claim we accept as true.5

5The government’s position in Amnesty International appears to be in tension with its argument here. There, the government “argue[d] that the plaintiffs can obtain standing only by showing either that they have been monitored or that it is ‘effectively certain’ that they will be monitored. ” Id. at 135. Shifting its position, the government argues here that Jewel lacks standing even if her communications were in fact captured and monitored. The government does not deny Jewel’s allegations but sidesteps the issue, asserting that “plaintiffs offer nothing other than bare speculation for their assertion that any surveillance is ongoing outside of [FISA Court] authorizations.” That approach conflates the ultimate merits question— whether the surveillance exceeded statutory or constitutional authority— with the threshold standing determination.

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[10] Jewel’s case stands in contrast to two other cases, where our sister circuits held that plaintiffs lacked standing. In United Presbyterian Church v. Reagan , the D.C. Circuit confronted a “generalized challenge” to “the constitutionality of the entire national intelligence-gathering system, ” not the alleged actual impact of a specific program or protocol on the plaintiff. 738 F.2d 1375, 1381 (D.C. Cir. 1984) (internal quotation marks omitted). Jewel’s complaint does not suffer from vague “chilling effect” allegations like those in United Presbyterian nor does it fall in the category of speculative harm. Id. at 1380. While specificity does not necessarily trump speculation, the detail and specificity here are sufficient to support a particularized claim.

Similarly distinguishable is the Sixth Circuit’s denial of standing to challenge the entire NSA wiretapping program. ACLU v. NSA , 493 F.3d 644, 648 (6th Cir. 2007). Although the court reversed on standing grounds, it considered a fullydeveloped summary judgment record. Arguably that case is of “no relevance here,” because our case “involve[s] not a Rule 56 motion for summary judgment but a Rule 12(b) motion to dismiss on the pleadings. ” Nat’l Wildlife Fed. , 497 U.S. at 889. The ACLU plaintiffs—attorneys and other professionals whose communications with overseas individuals were allegedly impacted—were unable to “produce any evidence that any of their own communications have ever been intercepted.” ACLU, 493 F.3d at 653. The court thus faulted them for “assert[ing] a mere belief ” that the NSA eavesdropped on their communications without warrants. Id. This failure of proof doomed standing. Ultimately Jewel may face similar procedural, evidentiary and substantive barriers as the plaintiffs in ACLU, but, at this initial pleading stage, the allegations are deemed true and are presumed to “embrace the ‘specific facts’ needed to sustain the complaint. ” Lujan, 497 U.S. at 888; see also Bennett v. Spear , 520 U.S. 154, 168 (1997) (noting in its discussion of standing, “at the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss

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we presume that general allegations embrace those specific facts that are necessary to support the claim. ”).

B. JEWEL’S ALLEGATIONS MEET THE SECOND AND THIRD PRONGS OF THE TEST FOR CONSTITUTIONAL STANDING

[11] The harms Jewel alleges are “fairly traceable to the challenged action” of the NSA. Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976). It is no secret that in the weeks after the attacks of September 11, 2001, President Bush authorized the NSA to engage in warrantless wiretapping. The President admitted as much: “I authorized a terrorist surveillance program to detect and intercept al Qaeda communications involving someone here in the United States.” President George W. Bush, Speech at the National Security Agency (Jan. 25, 2006) available at http://georgewbushwhitehouse.archives.gov/news/releases/2006/01/200601251.html. Thus, the harms Jewel alleges—invasion of privacy and violation of statutory protections—can be directly linked to this acknowledged surveillance program.

[12] Jewel easily meets the third prong of the standing requirement. There is no real question about redressability. Jewel seeks an injunction and damages, either of which is an available remedy should Jewel prevail on the merits.

C. JEWEL SATISFIES THE PRUDENTIAL REQUIREMENTS FOR STANDING

The heart of the district court’s opinion and the core of the government’s argument on appeal focuses on prudential standing concerns, namely the broad nature of the claims and the role of the courts in addressing intelligence and surveillance issues. It is true, according to the Court in Akins, that the concern about generalized grievances can be characterized as both a constitutional and prudential concern, as there is overlap in the analysis. 524 U.S. at 23. We are satisfied that

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our analysis of this issue as a constitutional standing requirement applies with equal force in the prudential arena.

[13] After labeling Jewel’s claim as an effort “to redress alleged malfeasance by the executive branch, ” the district court stated that “the political process, rather than the judicial process,” may be the appropriate avenue. There is little doubt that Jewel challenges conduct that strikes at the heart of a major public controversy involving national security and surveillance. And we understand the government’s concern that national security issues require sensitivity. That being said, although the claims arise from political conduct and in a context that has been highly politicized, they present straightforward claims of statutory and constitutional rights, not political questions. See Japan Whaling Ass’n v. Am. Cetacean Soc. , 478 U.S. 221, 230 (1986).

The district court’s suggestion that Congress rather than the courts is the preferred forum ignores two important points: To begin, Congress already addressed the issue and spelled out a private right of action in the FISA, ECPA and SCA. And, in 2008, “[p]artially in response to the[ ] [wiretapping] suits, Congress held hearings and ultimately passed legislation that provided retroactive immunity to the companies . . . but expressly left intact potential claims against the government. ” Hepting, slip op. at 21573.

[14] Focusing on the federal statutory causes of action, the prudential analysis is simplified: “prudential standing is satisfied when the injury asserted by a plaintiff arguably falls within the zone of interests to be protected or regulated by the statute.” Akins, 524 U.S. at 20 (internal citations, quotation marks and alterations omitted). In the surveillance statutes, by granting a judicial avenue of relief, Congress specifically envisioned plaintiffs challenging government surveillance under this statutory constellation. Jewel’s statutory claims undoubtedly allege harms “within the zone of interests to be

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protected or regulated by the statute[s], ” alleviating any prudential standing concerns. Id.

[15] The district court effectively imposed a heightened standard for consideration of Jewel’s constitutional claims. See Jewel v. NSA , 2010 U.S. Dist. LEXIS 5110 at *24-25. According to the district court, the reluctance to adjudicate constitutional questions is heightened “when, as here, the constitutional issues at stake in the litigation seek judicial involvement in the affairs of the executive branch and national security concerns appear to undergird the challenged actions.” Jewel v. NSA, 2010 U.S. Dist. LEXIS 5110 at *25. The court went on to hold that “[i]n such cases, only plaintiffs with strong and persuasive claims to Article III standing may proceed.” Id. (emphasis added). This determination was in error. The district court quoted Schlesinger for the proposition that “when a Court is asked to undertake constitutional adjudication, the most important and delicate of its responsibilities, the requirement of concrete injury further serves the function of insuring that such adjudication does not take place unnecessarily.” 418 U.S. at 221. It bears emphasis that the Supreme Court offered that observation in rejecting “citizen standing,” a significantly different scenario than here. Id. at 216-21. Plaintiffs in Schlesinger, who challenged congressional military reserve membership, claimed an interest in “compel[ling] the Executive Branch to act in conformity with the Incompatability Clause, an interest shared by all citizens.”6 Id. at 217 (emphasis added).

[16] In the sentence that follows the passage quoted by the district court, the Supreme Court explained that “concrete injury removes from the realm of speculation whether there is a real need to exercise power of judicial review in order to

6The Incompatability Clause provides that “[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States . . . . ” U.S. Const. art. I, § 6, cl. 2.

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protect the interests of the complaining party. ” 418 U.S. at 221. In short, Schlesinger does not stand for the proposition that there is a stronger, more “persuasive” standing for constitutional questions in national security cases. It represents, instead, an articulation of the basic requirement of concrete injury and the rule against generalized grievances. Article III imposes no heightened standing requirement for the often difficult cases that involve constitutional claims against the executive involving surveillance. See Amnesty Int’l , 638 F.3d at 149 (“We do not see any reason why the law of standing should be stricter or different in the surveillance context. ”). To be sure, prudential concerns may weigh against standing in certain cases affecting national security interests, but the national security context does not, in itself, erect a new or separate prudential bar to standing.

CONCLUSION

We REVERSE the district court’s dismissal of Jewel’s complaint on the ground that she lacked standing. We REMAND with instructions to consider, among other claims and defenses, whether the government’s assertion that the state secrets privilege bars this litigation. We REVERSE the district court’s dismissal of Shubert’s complaint with prejudice and without leave to amend and REMAND with instructions to grant Shubert leave to amend her complaint.

 
 •

• • Case 1:06-cv-02282-FB-MDG Document 1 Filed 05/17/06 Page 1 of 22 PageID #: 3 ORIGINAL

UNITED STATES DISTRJCT COURT EASTERN DISTRJCT OF NEW YORK
~-------------------------------------------------------){
VIRGINIA SHUBERT, NOHA ARAFA, SARAH DRANOFF and HILARY BOTEIN, individually and on behalf of all others similarly situated,
Plaintiffs,
-against-

06 CV
CLASS ACTION COMPLAINT/ DEMAND FOR JURY TRIAL

GEORGE W. BUSH, MICHAEL V. HAYDEN,

KEITH B. ALEXANDER, ALBERTO

GONZALES, JOHN ASHCROFT,

and JOHN/JANE DOES #1-100,

GO,MJ

Defendants.

---------------------------------------------------------){

MAY 11 2006

Plaintiffs Virginia Shubert, Noha Arafa, Sarah Dranoff, and Hilary Botein, by

their attorneys Emery Celli Brinckerhoff & Abady LLP, for their Complaint alleges as follows:

PRELIMINARY STATEMENT

1.

This class action challenges the Bush Administration's secret spying

program pursuant to which, on information and belief, virtually every telephone, internet and/or

email communication that has been sent from or received within the United States since 2001 has

been (and continues to be) mined for information without a warrant, court order or other

authorization in violation of the Foreign Intelligence Surveillance Act of 1979, 50 U.S.C. § 1810.

2. Without the approval of Congress, without the approval of any court, and

without notice to the American people, the current President of the United States authorized a

secret program to spy upon apparently tens of millions of innocent Americans. This program

• • Case 1:06-cv-02282-FB-MDG Document 1 Filed 05/17/06 Page 2 of 22 PageID #: 4
(the "Spying Program")- intercepting, monitoring, gathering, mining and/or analyzing information concerning the personal phone conversations and email of millions of unsuspecting, innocent Americans- is illegal. It violates the plain terms of federal statutes that makes such conduct a crime. 1 It violates the Constitution. It violates the most basic principles of separation of powers.
3. The government's spy agency, the National Security Agency (''NSA"), spied upon Americans at horne. It spied upon Americans at work. And it is spying today, and will continue to spy on millions of innocent, unsuspecting Americans, unless stopped by a federal court.
4. The American people deserve better. The American people should not be subjected to a massive, illegal, covert spying operation by their own government. This class action is brought on behalf of all present and future United States persons who have been or will be subject to electronic surveillance by the National Security Agency without a search warrant or court order since September 12,2001.2 It primarily seeks liquidated damages under the Federal Intelligence Surveillance Act 50 U.S.C. § 1810 et. seq. ("FISA"), which authorizes civil actions for violations ofFISA.
1 E.g. The Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801 et seq. ("FISA"); the Wiretap Act 18 U.S.C. § 2510 et seq.; the Stored Communications Act, 18 U.S.C. § 2701 et seq. ("SCA").
2 "United States persons" and "electronic surveillance" are both defined terms set forth in FISA. 50 U.S.C. § 1801. The Wiretap Act and the SCA similarly define "aggrieved person" and "electronic communication." 18 U.S.C. §§ 2510,2711.
-2-

• • Case 1:06-cv-02282-FB-MDG Document 1 Filed 05/17/06 Page 3 of 22 PageID #: 5
PARTIES 5. Plaintiff Virginia Shubert is an American citizen who resides and works in Brooklyn, New York. Ms. Shubert regularly makes phone calls and sends email both within the United States, and outside the United States. Ms. Shubert, for example, frequently calls and sends ernails to the United Kingdom, France and Italy and has made similar communications as a part of her work. Ms. Shubert has a good faith basis to believe that she, like so many millions of Americans, has been surveilled without a warrant pursuant to the illegal Spying Program. 6. PlaintiffNoha Arafa is an American citizen who resides and works in Brooklyn, New York. She regularly makes phone calls and sends email both within the United States, and outside the United States. Ms. Arafa, for example, frequently calls and sends emails to family and friends in Egypt from her home, and has made telephone calls abroad as a part of her work. Ms. Arafa has a good faith basis to believe that she, like so many millions of Americans, has been surveilled without a warrant pursuant to the illegal Spying Program. 7. Plaintiff Sarah Dranoff is an American citizen who resides and works in Brooklyn, New York. Ms. Dranoff regularly makes phone calls and sends email both within the United States. Ms. Dranoff for example, calls the Netherlands and sends ernails to the Netherlands and Norway from her horne. Ms. Dranoffhas a good faith basis to believe that she, like so many millions ofAmericans, has been surveilled without a warrant pursuant to the illegal Spying Program. 8. Plaintiff Hilary Botein is an American citizen who resides and works in Brooklyn, New York. Ms. Botein makes phone calls and sends email both within the United States, and outside the United States. Ms. Botein has a good faith basis to believe that she, like
-3-

• • Case 1:06-cv-02282-FB-MDG Document 1 Filed 05/17/06 Page 4 of 22 PageID #: 6
so many millions of Americans, has been surveilled without a warrant pursuant to the illegal Spying Program.
9. Defendant George W. Bush is the current President of the United States. Mr. Bush authorized the illegal Spying Program.
10. Defendant Lieutenant General Michael V. Hayden is the former Director of the NSA. While Director, defendant Hayden had ultimate authority for supervising and implementing all operations and functions of the NSA, including the illegal Spying Program. Defendants Hayden also apparently approved the illegal initiation ofthe Spying Program.
11. Defendant Lieutenant General Keith B. Alexander is the current Director of the NSA. Defendant Alexander has ultimate authority for supervising and implementing all operations and functions of the NSA, including the illegal Spying Program.
12. Defendant John Ashcroft is the former Attorney General of the United States. Although, according to some published reports, defendant Ashcroft had reservations concerning the Spying Program, Mr. Ashcroft ultimately approved and authorized the Spying Program.
13. Defendant Alberto Gonzales is the current Attorney General of the United States. Defendant Gonzales approved and authorized the Spying Program and has consistently defended the program before Congress and in other public fora.
14. At all times relevant hereto, defendants John and Jane Does #1-1 00 (the "Doe defendants"), whose actual names plaintiff has been unable to ascertain notwithstanding reasonable efforts to do so, but who are sued herein by the fictitious designation "John Doe" and "Jane Doe," were agents and employees of the NSA, Department of Homeland Security,
-4-

• • Case 1:06-cv-02282-FB-MDG Document 1 Filed 05/17/06 Page 5 of 22 PageID #: 7
Department of Justice, the White House, or other goverrunent agencies, acting in the capacity of agents, servants, and employees of the United States government, and within the scope of their employment as such, who conducted, authorized, and/or participated in electronic surveillance pursuant to the Spying Program.
JURISDICTION AND VENUE 15. This action arises under the Fourth Amendment to the United States Constitution, the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801 et seq., the Wiretap Act 18 U.S.C. § 2510 et seq.; and the Stored Communications Act, 18 U.S.C. § 2701 et seq. 16. The jurisdiction of this Court is predicated upon 28 U.S.C. §§ 1331, 1343(a)(4). 17. Venue is proper in this district pursuant to 28 U.S.C. § 1391 (e).
JURY DEMAND 18. Plaintiffs demand trial by jury in this action.
CLASS ACTION ALLEGATIONS 19. The plaintiff class seeks (i) a judgment declaring that the Spying Program violates FISA, the Wiretap Act, the SCA and the Fourth Amendment, (ii) an order enjoining defendants from engaging in the Spying Program, and (iii ) liquidated damages as set forth in 50 U.S.C. § 1810, and 18 U.S.C. §§ 2520,2707 to redress the extraordinary invasion of privacy caused by the Spying Program.
-5-

• • Case 1:06-cv-02282-FB-MDG Document 1 Filed 05/17/06 Page 6 of 22 PageID #: 8
20. Plaintiffs sue on behalf of themselves and all other similarly situated individuals, and seek to represent a class comprised of all present and future United States persons who have been or will be subject to electronic surveillance by the National Security Agency without a search warrant or court order since September 12, 2001.
21. The members of the class are so numerous as to render joinder impracticable.
22. The questions oflaw and fact common to the class include that the class members were all subject to electronic surveillance without a search warrant or court order pursuant to the Spying Program; all have the common right under FISA, the Wiretap Act and the SCA to be free from electronic surveillance absent a search warrant or court order, the common right under FISA, the Wiretap Act and the SCA to liquidated damages for violations of those rights, and the common right under the Fourth Amendment to be free from electronic surveillance absent a search warrant or court order. Defendants' electronic surveillance without a search warrant or court order violated those rights.
23. The named plaintiffs are adequate representatives of the class. The violations of law alleged by the named plaintiffs stem from the same course of conduct by defendants- failure to seek a search warrant or court order before conducting electronic surveillance- that violated and continue to violate the rights of members ofthe class; the legal theory under which the named plaintiffs seek relief is the same or similar to that on which the class will rely. In addition, the harms suffered by the named plaintiffs are typical ofthe banns suffered by the class members, especially given the common calculation of liquidated damages.
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24. The named plaintiffs have the requisite personal interest in the outcome of this action and will fairly and adequately protect the interests of the class. The named plaintiffs are represented by Emery Celli Brinckerhoff & Abady LLP ("ECBA"). Counsel has the resources, expertise and experience to prosecute this action. Counsel for the plaintiffs knows of no conflicts among members of the class or between ECBA and members of the class.
25. A class action is superior to other available methods for the fair and efficient adjudication of this controversy because: (i) the prosecution of millions of separate actions would be inefficient and wasteful of legal resources; (ii) the members of the class are scattered throughout the United States and are not likely to be able to vindicate and enforce their statutory and constitutional rights unless this action is maintained as a class action; (iii) the issues raised can be more fairly and efficiently resolved in the context of a single class action than piecemeal in many separate actions; (iv) the resolution oflitigation in a single formn will avoid the danger and resultant confusion of possible inconsistent determinations; (v) the prosecution of separate actions would create the risk of inconsistent or varying adjudications with respect to individuals pursuing claims against defendants which would establish incompatible standards of conduct for defendants; and (vi) questions of law and/or fact common to members of the class predominate over any question that affects individual members.
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• • Case 1:06-cv-02282-FB-MDG Document 1 Filed 05/17/06 Page 8 of 22 PageID #: 10
FACTUAL ALLEGATIONS Classwide Allegations
Legal Framework 26. The Fourth Amendment provides that "[t]he 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."
27. 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 the Electronic Communications Privacy Act ("ECPA"), which includes the Wiretap Act and the Stored Communications Act, 18 U.S.C. § 2510 et seq., and the second is the Foreign
Intelligence Surveillance Act, 50 U.S. C. § 1801 et seq. ("FISA").
TheECPA 28. Congress first enacted the predecessor to the ECPA (commonly referred to
as Title III) in response to the U.S. Supreme Court's recognition, in 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 III and then the ECPA, Congress created a statutory framework to govern the surveillance of wire and oral communications in law enforcement investigations.
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• • Case 1:06-cv-02282-FB-MDG Document 1 Filed 05/17/06 Page 9 of 22 PageID #: 11
29. The ECPA authorizes 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.
30. In order to obtain a court order authorizing the interception of a wire, oral, or electronic corrununication, the government must demonstrate that "there is probable cause for belief that an individual is committing, has committed, or is about to commit" one of the enumerated criminal offenses. Id. § 2518(3)(a).
31. It must also demonstrate, among other things, that ''there is probable cause
for belief that particular communications concerning [the enumerated] offense will be obtained
through [the] interception," id. § 2518(3)(b), and that "normal 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).
32. The ECPA specifies civil and criminal penalties for surveillance that is not authorized. See id. §§ 2511,2520, 2701, 2707.
Foreign Intelligence Surveillance Act 33. The government has one and only one other legal avenue to engage in
electronic surveillance: the Foreign Intelligence Surveillance Act. 34. 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 government applications for
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• • Case 1:06-cv-02282-FB-MDG Document 1 Filed 05/17/06 Page 10 of 22 PageID #: 12
electronic surveillance orders in foreign intelligence investigations. See 50 U.S.C. § 1803(a). Congress enacted FISA after the U.S. Supreme Court held, in United S~ates v. United States District Courtfor the Eastern District ofMichigan, 407 U.S. 297 (1972), that the Fourth Amendment does not permit warrantless surveillance in intelligence investigations of domestic
security threats. FISA was a response to that decision and to the Report of the Senate Select
Conunittee 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 warrantless 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 are established by legislation, domestic intelligence activities threaten to undermine our democratic society and fundamentally alter its nature."
35. When Congress enacted FISA, it provided that the procedures set out therein "shall be 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)(f) (emphasis added).
36. FISA provides that no one may engage in electronic surveillance "except as authorized by statute," id. § 1809(a)(1).
37. FISA specifies civil and criminal penalties for electronic surveillance undertaken Without statutory authority, see id. §§ 1809 & 1810.
38. The Senate Judiciary Committee explained that "[t]he basis for this legislation is the understanding- concurred in by the Attorney General- that even if the
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• • Case 1:06-cv-02282-FB-MDG Document 1 Filed 05/17/06 Page 11 of 22 PageID #: 13
President has an 'inherent' Constitutional power to authorize warrantless surveillance for foreign
intelligence purposes, Congress has the power to regulate the exercise of this authority by
legislating a reasonable warrant procedure governing foreign intelligence surveillance." S. Rep.
95- 604(1), reprinted at 1978 U.S.C.C.A.N. at 3917. The Committee further explained that the
legislation was meant to ''spell out that the executive cannot engage in electronic surveillance
within the United States without a prior Judicial warrant." !d. at 3906.
39. FISA defines "electronic surveillance" 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, ifthe 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. "the acquisition by an electronic, mechanical, or other surveillance device ofthe contents of any wire communication to or from a person in the United States, 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 ofthe contents 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 sender and all intended recipients are located within the United States"; and
d. "the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation ofprivacy and a
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• • Case 1:06-cv-02282-FB-MDG Document 1 Filed 05/17/06 Page 12 of 22 PageID #: 14
warrant would be required for law enforcement purposes."
50 u.s.c. § 1801(!).
40. FISA defines "contents" to include "any information concerning the identity of the parties to such cornmllllication or the existence, substance, purport, or meaning of that communication." 50 U.S.C. § 1801(n).
41. FISA defines "United States person" to include United States citizens and lawful pennanent residents. Id. § 180 I(d).
42. In order to obtain an order from the FISA Court authorizing electronic surveillance, the government must demonstrate, among other things, probable cause to believe that "the target of the electronic surveillance is a foreign power or an agent of a foreign power" and that "each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power." Jd. § 1805(a)(3).
43. While FISA generally prohibits surveillance without prior judicial authorization, it includes a provision that allows for warrantless surveillance in "emergency situation[s]." Id. § 1805(£). Where an emergency situation exists and ''the factual basis for issuance of an order under this subchapter to approve such surveillance exists,'' the statute permits the Attorney General to authorize warrantless surveillance "if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to 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." I d.
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44. FISA also permits electronic surveillance without a court order for fifteen days after a formal declaration of war. Jd. § 1811 ("Notwithstanding any other law, the President, 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.").
45. FISA requires the Attorney General to report to the House and Senate Intelligence Committees twice a year regarding "all electronic surveillance" authorized under FISA. !d. § 1808(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; granted approximately 180 applications vvith modifications; and granted the remainder without modifications.
The Spying Program 46. Until December 2005, even the existence ofthe Spying Program was
Wlknown to Congress and to the American people. 47. To the contrary, in a speech on June 9, 2005, President Bush stated: "Law
enforcement officers need a federal judge's permission to wiretap a foreign terrorist's phone, a federal judge's permission to track his calls, or a federal judge's permission to search his property. Officers must meet strict standards to use any ofthese tools. And these standards are fully consistent with the Constitution of the U.S." (Emphasis supplied.)3
3See http://www.whitehouse.gov/news/releases/2005/06/20050609-2.html
'
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• • Case 1:06-cv-02282-FB-MDG Document 1 Filed 05/17/06 Page 14 of 22 PageID #: 16
48. Although it is true that federal law requires law enforcement officers to get
permission from a federal judge to wiretap, track, or search, the President secretly authorized a Spying Program that did none of those things.
49. As revealed in The New York Times in December 2005, and as subsequently revealed, inter alia, by published press reports, whistleblowers, insiders within the United States government, and (after initial equivocation) President Bush himself, in the fall of 2001 the NSA launched a secret electronic surveillance program to intercept, without prior judicial authorization, the telephone and Internet communications of people inside the United States.
50. President Bush approved the Spying Program. 51. President Bush reauthorized the Spying Program more than 30 times. 52. Under the Spying Program, the NSA engages in "electronic surveillance" as defined by FISA and the Wiretap Act. 53. Under the Spying Program, the NSA intentionally accesses electronic communications without authorization and/or exceeds authorization to access electronic communications that are maintained in "electronic storage" as defined by the SCA. 54. Under the Spying Program, the NSA intercepts, gains access to or gathers information concerning (hereafter "Monitors") international telephone communications of people inside the United States, including citizens and lawful permanent residents. 55. Under the Spying Program, the NSA Monitors international internet communications, including email, of people inside the United States, including citizens and lawful permanent residents.
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• • Case 1:06-cv-02282-FB-MDG Document 1 Filed 05/17/06 Page 15 of 22 PageID #: 17
56. Under the Spying Program, the NSA Monitors domestic telephone communications and call data of people inside the United States, including citizens and lawful permanent residents.
57. Under the Spying Program, the NSA Monitors domestic internet communications, including email, of people inside the United States, including citizens and lawful permanent residents.
58. Under the Spying Program, the NSA has Monitored millions of international telephone and internet comnumications (hereinafter collectively "communications") of people inside the United States, including citizens and lawful permanent residents.
59. Under the Spying Program, the NSA has also Monitored purely domestic communications, that is, communications among people all of whom are inside the United States.
60. Under the Spying Program, the NSA Monitors 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.
61. Under the Spying Program, the NSA Monitors the communications of people inside the United States without probable cause to believe that the surveillance targets are foreign powers or agents thereof.
62. Under the Spying Program, the NSA Monitors the communications of people inside the United States without obtaining specific authorization for each interception from the President.
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• • Case 1:06-cv-02282-FB-MDG Document 1 Filed 05/17/06 Page 16 of 22 PageID #: 18
63. Under the Spying Program, the NSA Monitors the communications of people inside the United States without obtaining specific authorization for each interception from the Attorney General.
64. Under the Spying Program, NSA shift supervisors are authorized to approve NSA employees' requests to Monitor the communications of people inside the United States.
65. Under the Spying Program, the NSA uses NSA-controlled satellite dishes to Monitor communications that are transmitted via satellite.
66. Some of these NSA-controlled satellite dishes are located within the United States.
67. The NSA also works with telecommunications companies to Monitor communications that pass through switches controlled by these companies.
68. These switches, which are located inside the United States, serve as primary gateways for conununications going into and out of the United States. The switches connect to transoceanic fiber optic cables that transmit communications to other countries.
69. The NSA also works with internet providers and teleconununications companies to Monitor conununications, including email, telephone and internet including emaiL
70. As part of the Spying Program, and the Monitoring of communications, the NSA uses government computers to search for keywords and analyze patterns in millions of communications at any given time (hereafter "Data-Mining").
71. If, for example, such keywords included "jihad," "Iraq," "Bush is a criminal," or whatever words or phrases the United States government deems of interest, then,
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• • Case 1:06-cv-02282-FB-MDG Document 1 Filed 05/17/06 Page 17 of 22 PageID #: 19
pursuant to the Spying Program, persons at the NSA may target those Americans for further surveillance.
72. The NSA also engages in DataRMining of international communications between persons in the United States and persons outside the United States.
73. The NSA Data-Mines millions, perhaps hundreds of millions, of internet and telephone communications.
74. The NSA Data-Mines the communications of millions of innocent, lawabiding Americans with no connection whatsoever to terrorism.
75. The NSA Data-Mines the communications of Americans in their homes, including private phone conversations, private email, and private internet use.
76. The NSA Data Mines the communications of Americans at their place of work, including private phone conversations, private email, and private internet use.
77. Under the Spying Program, as many as hundreds of millions of phone, email, and internet communications by United States persons have been Monitored and/or DataMined by government spy computers at the NSA.
78. On information and belief, the NSA also Data-Mines purely domestic communications.
79. Under the Spying Program, the NSA does not obtain judicial review before or after intercepting the communications of people inside the United States.
80. Under the Spying Program, the NSA does not obtain a search warrant before or after intercepting the communications of people inside the United States.
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• • Case 1:06-cv-02282-FB-MDG Document 1 Filed 05/17/06 Page 18 of 22 PageID #: 20
81. Under the Spying Program, the NSA does not obtain a court order before or after intercepting the communications of people inside the United States.
82. On information and belief, pursuant to the secret Spying Program, the NSA has Monitored private communications between Americans and their husbands, wives, children, parents, friends, doctors, lawyers, accountants, and others.
83. Defendants never advocated that Congress enact a bill authorizing the illegal Spying Program.
84. Defendants never sought authorization from the FISA Court to conduct the Spying Program.
85. Defendants never received authorization from the FISA Court to conduct the Spying Program.
86. Defendants never sought authorization from any Article III Court to conduct the Spying Program.
87. Defendants were, or should have been, well aware that the Spying Program was a clear violation of the law.
88. Defendants were, or should have been, well aware that the Spying Program is a federal crime.
89. The Spying Program was so blatantly illegal that, according to uncontroverted press reports, even the Acting Attorney General refused to approve the program, forcing defendants to send the White House Counsel and Chief of Staff to seek approval from Attorney General Ashcroft from his hospital bed.
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90. The Spying Program was so blatantly illegal that at least a dozen government officials with knowledge of the Program felt compelled as whistleblowers to report defendants' illegal conduct to The New York Times, notwithstanding substantial risks to their employment and potentially to their liberty.
91. After the revelations to The New York Times, defendant Bush authorized a criminal investigation into the whistleblowing activity.
92. To plaintiffs' knowledge, however, defendants have failed to open any criminal investigation into the Spying Program itself.
FIRST CAUSE OF ACTION Foreign Intelligence Surveillance Act, 50 U.S.C. § 1810 93. Plaintiffs repeat and reallege the foregoing paragraphs as if the same were fully set forth at length herein. 94. Plaintiffs are "aggrieved person[s]" as defined in 50 U.S.C. § 1810, are not foreign powers or agents ofa foreign power, and were subjected to electronic surveillance conducted or authorized by defendants pursuant to the Spying Program in violation of 50 U.S.C. § 1809. 95. Plaintiffs are entitled to the damages set forth in 50 U.S.C. § 1810.
SECOND CAUSE OF ACTION Wiretap Act, 18 U.S.C. § 2510
96. Plaintiffs repeat and reallege the foregoing paragraphs as if the same were fully set forth at length herein.
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• • Case 1:06-cv-02282-FB-MDG Document 1 Filed 05/17/06 Page 20 of 22 PageID #: 22
97. Plaintiffs are "aggrieved person[s]" as defined in 18 U.S.C. § 2510. 98. Plaintiffs were subjected to electronic surveillance conducted or authorized by defendants pursuant to the Spying Program in violation of 18 U.S.C. § 2511. 99. Plaintiffs are entitled to the damages set forth in 18 U.S.C. § 2521.
THIRD CAUSE OF ACTION Stored Communications Act, 18 U.S.C. § 2701
100. Plaintiffs repeat and reallege the foregoing paragraphs as if the same were fully set forth at length herein.
101. Plaintiffs are "aggrieved person[s]"as defined in 18 U.S.C. §§ 2510, 2711. 102. Plaintiffs' stored communications were accessed or authorized to be accessed by defendants pursuant to the Spying Program in violation of 18 U.S.C. § 2701. 103. Plaintiffs are entitled to the damages set forth in 18 U.S.C. § 2707©).
FOURTH CAUSE OF ACTION Bivens/Fourth Amendment
I 04. Plaintiffs repeat and reallege the foregoing paragraphs as if the same were
fully set forth at length herein. 105. By conducting, authorizing, and/or participating in the electronic
surveillance of plaintiffs without reasonable suspicion or probable cause, and failing to prevent their feilow government officers from engaging in this unconstitutional conduct, defendants deprived plaintiff ofrights, remedies, privileges, and immunities guaranteed under the Fourth Amendment of the United States Constitution.
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I 06. In addition, defendants conspired among themselves to deprive plaintiffs of their Fourth Amendment rights, and took numerous overt steps in furtherance of such conspiracy, as set forth above.
107. As a direct and proximate result of the misconduct and abuse of authority detailed above, plaintiffs sustained a shocking loss of privacy, and the damages hereinbefore alleged.
WHEREFORE, plaintiffs respectfully seek:
(A) an order certifying this action as a class action pursuant to Fed. R. Civ. P. 23(b) for the plaintiff class described herein and naming plaintiffs as the class representatives;
(B) a judgment declaring that defendants' Spying Program violates FISA, the Wiretap Act, the SCA, and the Fourth Amendment, and permanently enjoining the Spying Program;
(C) an award of liquidated and/or compensatory damages to the named
plaintiffs and members of the class in an amount to be determined at trial; (D) an award ofpunitive damages to the named plaintiffs and members of the
class against the individual defendants in an amount to be determined at trial; (E) an award of reasonable attorneys' fees, costs, and disbursements, pursuant
to 50 U.S.C. § 1810, 18 U.S.C. § 2520, 18 U.S.C. § 2707, and 28 U.S.C. § 2412. (F) a grant of such other and further relief as this Court shall find just and
proper.
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• • Case 1:06-cv-02282-FB-MDG Document 1 Filed 05/17/06 Page 22 of 22 PageID #: 24

Dated: May 16, 2006 New York, New York

EMERY CELLI BRINCKERHOFF &ABADYLLP
By ~E~~i~e&tJJ llann M. Maazel (IM-5724)
545 Madison Avenue, 3rd Floor New York, N.Y. 10022 (212) 763-5000
Attorneys for Plaintiffs

Of Counsel:
Jonathan S. Abady (JA-5147) Andrew G. Celli, Jr. (AC-3598) Richard D. Emery (RE-5181) Eric Hecker (EH-0989) Mariaan Meier Wang (MW-7417) Sarah Netburn (SN-4223) 0. Andrew F. Wilson (OW-5062) Katherine Rosenfeld (KR-8525) Alba R. Morales (AM-5734)

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 1

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6 FOR THE NORTHERN DISTRICT OF CALIFORNIA
7

8 FIRST UNITARIAN CHURCH OF LOS ANGELES, ET AL.,
9 Plaintiffs,
10 v.
11 NATIONAL SECURITY AGENCY, ET AL.,
12 Defendants.
13

No. C 13-03287 JSW

United States District Court For the Northern District of California

14 CAROLYN JEWEL, ET AL.,

15 16 v.

Plaintiffs,

No. C 08-04373 JSW

17 NATIONAL SECURITY AGENCY, ET AL.,

18

Defendants.

19

20 VIRGINIA SHUBERT, ET AL.,

21

Plaintiffs,

No. C 07-00693 JSW

22 v.

23 BARACK OBAMA, ET AL.,

24

Defendants.

/

25

26

NOTICE OF QUESTIONS FOR

HEARING

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United States District Court For the Northern District of California

1

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD, PLEASE TAKE

2 NOTICE OF THE FOLLOWING QUESTIONS FOR THE HEARING SCHEDULED ON

3 MARCH 19, 2014 AT 2:00 P.M.:

4

The Court has reviewed the parties’ papers and, thus, does not wish to hear the parties

5 reargue matters addressed in those pleadings. If the parties intend to rely on authorities not

6 cited in their briefs, they are ORDERED to notify the Court and opposing counsel of these

7 authorities reasonably in advance of the hearing and to submit copies as soon as possible

8 directly to chambers and to make copies available at the hearing. If the parties submit such

9 additional authorities, they are ORDERED to submit the citations to the authorities only, with

10 reference to pin cites and without argument or additional briefing. Cf. N.D. Civil Local Rule 7-

11 3(d). The parties will be given the opportunity at oral argument to explain their reliance on

12 such authority.

13

The parties shall address the following questions:

14 1. 15 16 17 18 19

Assuming without deciding that the preservation order in Jewel does not cover the retention or destruction of materials subject to orders of the Foreign Intelligence Surveillance Court (“FISC”), what is the fundamental difference in the position of the Government now on the argument that materials subject to FISC orders are not similarly subject to preservation for discovery to Plaintiffs in First Unitarian Church? Having made many of the same arguments which failed to persuade the Court when it issued the preservation order in the MDL and in Jewel, why should the Court be persuaded now that the content of the materials allegedly collected under FISC supervision (and clearly subject to the claims in First Unitarian) should be subject to different preservation treatment than the material allegedly collected under Presidential directive (and clearly subject to the claims in Jewel)?

20 2.
21
22
23 3.
24
25
26
27
28

Must the Court determine the intended scope of the allegations in the Jewel Complaint and the resulting preservation order in that matter or may it issue a similar preservation order in First Unitarian Church and proceed accordingly? Should the Court revisit, in a separate proceeding, the issue of whether the Jewel preservation order covered the currently disputed FISC-related materials with regard to the Plaintiffs’ contention that the Government has failed its retention obligations?
With regard to the NSA’s retention policy:
a. According to the Government’s now partially unclassified submission filed in conjunction with the preservation proceedings before the MDL matter, “NSA’s operational policy is to continue to migrate telephony metadata beyond five years old from an online database to tapes for preservation.” (See Exhibit A to Government’s Opposition at ¶ 25; see also Exhibit B at 9.) Has NSA retention policy changed since those submissions from October 2007?

2

United States District Court For the Northern District of California

1 2 3 4 5
4. 6 7 8 5. 9 10 11 12 13 14 15 16 17 18 19 20 6. 21 22
7. 23 24 25 26 /// 27 /// 28 ///

b. The Government’s most recent submission indicates that “the NSA intended to preserve and/or store the data that would otherwise be destroyed in a format that precludes any access or use by NSA intelligence analysts for any purpose.” (See Exhibit C to Response, Declaration of Teresa H. Shea at ¶ 4.) Is there any reason to treat the materials clearly made relevant in the First Unitarian Church matter differently from the potentially discoverable material covered by the retention order in Jewel?
As the Government argued before the FISC in February and acknowledged before this Court in its joint case management conference statement, what is the scope of the Government’s obligation to preserve relevant evidence under Federal Rules of Civil Procedure 26, 45 and 56(e), regardless of any preservation order?
The Court is persuaded that a targeted retention policy with regard to materials possibly collected pertaining specifically and only to the named Plaintiffs is untenable. The alternative addressed by the Government is the mass retention of all raw data possibly collected by the NSA under the challenged programs. According to both the public and classified declarations of the Director of the Signals Intelligence Directorate at the NSA, this mass data retention would negatively interfere with the NSA’s current mission.
a. Is there some lesser quantum of materials that would satisfy the requirement to preserve evidence relevant to provide possible support for Plaintiffs’ claims? For instance, can the Government satisfy its obligation to preserve evidence by retaining evidence of the challenged surveillance programs and their breadth without retaining all the actual, collected raw data incident to the programs’ implementation?
b. Should the Court find there is no lesser definable quantum of evidence subject to retention, is the scope of Plaintiffs’ request reflected in the first paragraph of their proposed order together with the added sentences from the Plaintiffs’ reply? Does the Government object to the language from the proposed order at ¶ 1 and Plaintiffs’ reply at 4:26-5:1?
c. What is the Government’s response to Plaintiffs’ suggestion that the Government admit or deny that Plaintiffs’ telephone records have been collected and for how long?
Does the Government object to the insertion of the third paragraph in Plaintiffs’ proposed order regarding the FISC’s imposed restriction concerning that court’s required authorization of any review or use of records for intelligence-gathering or any other non-litigation related purposes?
The preservation order in Jewel requires that counsel submit to the Court under seal and pursuant to Federal Rule of Civil Procedure 11, a statement that the Court’s preservation directive has been carried out. Does the Government’s recent and partially declassified submissions regarding its preservation protocol under the Jewel preservation order satisfy this requirement? Does the Government object to this same provision in any preservation order issued in First Unitarian Church?

3

United States District Court For the Northern District of California

1 8. Do the parties have anything further they wish to address?

2

IT IS SO ORDERED.

3 Dated: March 18, 2014 4

JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

5

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4

 
 BETH S. BRINKMANN Deputy Assistant Attorney General
2
DOUGLAS N. LETTER 3 Terrorism Litigation Counsel
JOSEPH H. HUNT 4 Director, Federal Programs Branch 5 VINCENT M. GARVEY
Deputy Branch Director 6 ANTHONY J. COPPOLINO
Special Litigation Counsel 7 MARCIA BERMAN 8 Senior Litigation Counsel
PAUL E. AHERN 9 Trial Attorney
U.S. Department of Justice 10 Civil Division, Federal Programs Branch 11 20 Massachusetts Avenue, NW
Washington, D.C. 20001 12 Phone: (202) 514-4782
Fax: (202) 616-8460
13
14 Attorneys for the Government Defendants

15

UNITED STATES DISTRICT COURT

16
NORTHERN DISTRICT OF CALIFORNIA

17
SAN FRANCISCO DIVISION
18

IN RE NATIONAL SECURITY AGENCY
19
TELECOMMUNICATIONS RECORDS 20 LITIGATION
21
22
This Document Relates Soleiy To:
23
Shubert, et al. v. United States ofAmerica, et al. 24 (Case No. 07-cv-00693-VRW)
25
26

No. M:06-cv-01791-VRW
CLASSIFIED DECLARATION OF DENNIS C. BLAIR DIRECTOR OF NATIONAL INTELLIGENCE
EX PARTE, IN CAMERA
Date: December 15, 2009 Time: 10:00 a.m. Courtroom 6, 17th Floor Chief Judge Vaughn R. Walker

27

Derived From: NSA/CSSM 1-5

Dated: 2009103

28

Declassify On: 2034103

Classified In Camera, Ex Parte Declaration of Dennis C. Blair, Director of National Intelligence Virginia Shubert, et al. v. United States ofAmerica, et al. (No. 07-cv-693-VRW; MDL No. 06-1791)

2
I.
3
II.
4
5 III.

~Introduction

(U) Table of Contents

~Summary

~lassification of Declaration

6 IV. ~ Background on Director of National Intelligence

7 v. ~ Assertion of State Secrets Privilege

8

VI. 'tR) Assertion of Statutory Privilege under National Security Act

9

M 10 VII.

Information Subject to Assertions of Privilege

11 VIII. 'r\1.) Description of Information and Harm of Disclosure

12

A. ~nformation Concerning the al-Qaeda Terrorist Threat

13
1. ~ Al-Qaeda Remains Intent on Striking the Homeland

14
2. lSt/NI4 Al-Qaeda Continues Efforts to Train and Deploy Operatives
15

16

3. ~ Al-Qaeda's Weapons and Tactics

17

B. '"ttf}Information that May Tend to Confirm or Deny Whether the Plaintiffs Have

Been Subject to the Alleged NSA Intelligence Activities
18

19

C. 'tt'Q. Information Concerning NSA Activities, Sources, or Methods

20

D. ~ Allegations that Telecommunications Companies Assisted the NSA

21 IX.
22
X.
23

-tlQ Risk of Litigation
~ Conclusion

24

25

26

27

28

Classified In Camera, Ex Parte Declaration of Dennis C. Blair, Director of National Intelligence

Virginia Shubert, et aJ. v. United States ofAmerica, et al. (No. 07-cv-693-VRW; MDL No. 06-1791)

2

I, Dennis C. Blair, do hereby state and declare as follows:

2

I. (~ INTRODUCTION

3

1. 'M..!_am the Director of National Intelligence (DNI) of the United States. I have
4

5 held this position since January 29, 2009. In 2002, I retired as an Admiral from the United

6 States Navy after a 34-year career, which included my service as Commander-in-Chief of the
7 U.S. Pacific Command. During my naval career, I also served as Director of the Joint Staff and
8
as Associate Director of Central Intelligence for Military Support, as well as in policy positions
9
10 on the National Security Council staff. From 2003 to 2006, I was President and CEO of the

11 Institute for Defense Analyses, an organization that analyzes and makes recommendations on

12 national security policy matters.

13

2. '1f,.Q The purpose of this declaration is to formally assert, in my capacity as the

14

Director of National Intelligence and head of the United States Intelligence Community, the
15

16 military and state secrets privilege (hereafter "state secrets privilege") and a statutory privilege

17 under the National Security Act, see 50 U.S.C. § 403-l(i)(l), in order to protect intelligence

18 sources and methods that are at risk of disclosure in this case. The statements made herein are

19
based on my personal knowledge as well as on information provided to me in my official
20

capacity as the Director of National Intelligence.
21

22

II.~ SUMMARY

23

3.

~n the course of my official duties, I have been advised of this lawsuit and the

24
allegations at issue in the plaintiffs' Amended Complaint. In personally considering this matter,
25
I have executed a separate unclassified declaration dated October 30, 2009. Moreover, I have
26
27 read and personally considered the information contained in the Public and In Camera, Ex Parte

28 Declaration of Lieutenant General Keith B. Alexander, Director of the National Security

Classified In Camera, & Parte Declaration of Dennis C. Blair, Director of National Intelligence

Virginia Shubert, et al. v. United States ofAmerica, et al. (No. 07-cv-693-VRW; MDL No. 06-1791)

3

Agency, executed on October 30, 2009 (hereafter "Classified NSA Declaration"). Disclosure of

2 the information covered by this privilege assertion reasonably could be expected to cause exceptionally grave damage to the national security of the United States and, therefore, the
4 information should be excluded from any use in this case. In addition, it is my judgment that

sensitive state secrets are so central to the subject matter of the litigation that any attempt to
6
proceed in the case will substantially risk the disclosure of the classified privileged national
7
security information described herein and will therefore risk exceptionally grave damage to the

9 national security of the United States.
10
4.
l1
fi 4-7, the allegations in this lawsuit put at risk of disclosure information concerning several
12
13 highly classified and critically important NSA intelligence activities that commenced after the
14 9/11 terrorist attacks, but which are now conducted pursuant to authority of the Foreign

15 Intelligence Surveillance Act ("FISA"), including ongoing activities conducted under orders
16
approved by the Foreign Intelligence Surveillance Court ("FISC"). Specifically, in order to
17
address plaintiffs' allegation that the NSA, with the assistance of telecommunication companies,
18
19 has indiscriminately intercepted the content and obtained the communications records of millions

20 of ordinary Americans as part of an alleged presidentially authorized "Program" after 9/11, see,

21 e.g., Amended Compl.l)[')l 1, 4-8, further litigation risks the disclosure of information concerning

22
several classified NSA intelligence activities, sources and methods
23

24

in connection with: (1)

25 NSA's targeted content1 surveillance aimed at al-Qaeda and affiliated terrorist organizations,

26

27

1 U S77Sb/6CRlF) !fhe term "content" is used in this declaration to refer to the

28 substance, meaning, or purport of a communication, as defined in 18 U.S.C.§ 2510(8), as

opposed to the type of addressing or routing information referred throughout this declaration as

"meta data."

Classified In Camera, Ex Parte Declaration of Dennis C. Blair, Director of National Intelligence

Virginia Shubert, et al. v. United States ofAmerica, et al. (No. 07-cv-693-VRW; MDL No. 06-1791)

4

2 collection and targeted analysis of non-content information about telephone and Internet

3 communications--critically important and highly sensitive activities that are also now conducted

4 pursuant to FISC orders and that enable the NSA to uncover the contacts
5
6

;and(3) . .

7

8

9 ,• • • • • • • • • • • • • • • • • . This lawsuit therefore puts at risk of disclosure

10
information concerning essential ongoing foreign intelligence-gathering activities being utilized
11
to meet the extremely serious threat of another terrorist attack on the U.S. Homeland-
12

13

(a threat which I describe further below based on recent assessments of

14 the National Counterterrorism Center (NCTC) prepared in January 2009 and March 2009.)

15

5.

16
asserting the state secrets privilege and the DNI's authority to protect intelligence sources and
17
methods pursuant to 50 U.S.C. § 403-l(i)(l) to protect against the disclosure of the highly
18

19 classified intelligence sources and methods put at issue in this case and vital to the national

20 security of the United States, including: (1) any information that would tend to confirm or deny
21 whether particular individuals, including the named plaintiffs, have been subject to the alleged
22
NSA intelligence activities; (2) information concerning NSA intelligence sources and methods,
23
including facts demonstrating that the content collection under the TSP was limited to specific
24
25 al-Qaeda and associated terrorist-related international communications and was not a content

26 surveillance dragnet as plaintiffs allege; (3) facts that would tend to confirm or deny the
27
existence of the NSA's bulk non-content (i.e., meta data) collection and use, and any information
28
about those activities; and (4

Classified In Camera, Ex Parte Declaration of Dennis C. Blair, Director of National Intelligence

Virginia Shubert, et al. v. United States ofAmerica, et al. (No. 07-cv-693-VRW; MDL No. 06-1791)

5

2 speculation about alleged NSA activities does not diminish the need to protect intelligence

3 sources and methods from further exposure, and that official confirmation and disclosure of the
4 classified privileged national security information described herein would cause exceptionally
5
grave damage to the national security. For these reasons, as set forth further below, I request tha
6
the Court uphold the state secrets and statutory privilege assertions that I make herein, as well as
7
the statutory privilege assertion made by the NSA, pursuant to Section 6 of the National Security

9 Agency Act, see 50 U.S.C. § 402 (note), and protect the information described in this declaration

lO
from disclosure.
J1
12

III. (~CLASSIFICATION OF DECLARATION

13

6. (Sf/Sft/NF) Pursuant to the standards in Executive Order No. 12958, as amended

14 by Executive Order No. 13292, this declaration is classified as: TOP SECRE I /!f~f/tCOMRff

•15
16

The details concerning these classification

markings are set forth in paragraphs 8-11 of the Classified NSA Declarati<;m and are briefly

17

summarized here. Under Executive Order No. 12958, information is classified "TOP SECRET"
18

19 if unauthorized disclosure of the information reasonably could be expected to cause

20 exceptionally grave damage to the national security of the United States; "SECRET" if
21 unauthorized disclosure of the information reasonably could be expected to cause serious
22
damage to national security; and "CONFIDENTIAL" if unauthorized disclosure of the
23
information reasonably could be expected to cause identifiable damage to national security. At
24
25 the beginning of each paragraph ofthis declaration, the letters "U," "C," "S," and "TS" indicate

26 respectively that the information is either UNCLASSIFIED, or is classified CONFIDENTIAL,
27
SECRET, or TOP SECRET.
28
7. ~ditionally, this declaration also contains Sensitive Compartmented

Classified In Camera, Ex Parte Declaration of Dennis C. Blair, Director of National Intelligence

Virginia Shubert, et at. v. United States ofAmerica, et at. (No. 07-cv-693-VRW; MDL No. 06-1791)

6

Information (SCI), which is subject to special access and handling requirements because it

2 involves or derives from particularly sensitive intelligence sources and methods. This

3 declaration references communications intelligence (COMINT), also referred to as special

4 intelligence (SI), which is a subcategory of SCI that identifies information that was derived from
5
exploiting cryptographic systems or other protected sources by applying methods or techniques,
6
or from intercepted foreign communications. This declaration also references human
7
8 intelligence (HCS), another subcategory of SCI that identifies information derived from

9 individuals who provide intelligence information.
10

11

12

13

8.

14 about the Terrorist Surveillance Program (TSP), a prior controlled access signals intelligence

15 program that operated under presidential authorization in response to the attacks of September

16 17 18

- 11, 2001, until January 2007. Information pertaining to this. program is denoted with the special
marking "TSP."

19

20

21

9. '"(8/lSI/~JF) Finally, information labeled "NOFORN" may not be released to

22
foreign governments, foreign nationals, or non-U.S. citizens without permission of the originator
23

24 and in accordance with DNI policy. The "ORCON" designator means that the originator of the

25 information controls to whom it is released.

26

IV. "'(f:B..BACKGROUND ON DIRECTOR OF NATIONAL INTELLIGENCE

27

10. ~ The position of Director of National Intelligence was created by Congress in

28

the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. 108-458, §§ lOll(a) and

Classified In Camera, Er. Parle Declaration of Dennis C. Blair, Director of National Intelligence

Virginia Shubert, et at. v. United States ofAmerica, et at. (No. 07-cv-693-VRW; MDL No. 06-1791)

7

TOP SECRET/ffSP//COMI:NT -1/IICSHORCON!:NOFOR~M1097, 118 Stat. 3638, 3643-63, 3698-99 (2004) (amending sections 102 through 104 of Title I of

2 the National Security Act of 1947). Subject to the authority, direction, and control of the

3 President, the Director of National Intelligence serves as the head of the U.S. Intelligence

4 Community and as the principal adviser to the President, the National Security Council, and the

5
Homeland Security Council for intelligence matters related to the national security. See 50

6

u.s.c. § 403(b)(l), (2).
7

8

"ttQ 11.

The United States "Intelligence Community" includes the Office of the

9 Director of National Intelligence; the Central Intelligence Agency; the National Security
10
Agency; the Defense Intelligence Agency; the National Geospatial-lntelligence Agency; the
11
National Reconnaissance Office; other offices within the Department of Defense for the
12
13 collection of specialized national intelligence through reconnaissance programs; the intelligence
14 elements of the military services, the Federal Bureau of Investigation, the Department of the
15 Treasury, the Department of Energy, the Drug Enforcement Administration, and the Coast
16
Guard; the Bureau of Intelligence and Research of the Department of State; the elements of the
17
Department of Homeland Security concerned with the analysis of intelligence information; and
18
19 such other elements of any other department or agency as may be designated by the President, or
20 jointly designated by the DNI and heads of the department or agency concerned, as an element o
21 the Intelligence Community. See 50 U.S.C. § 40la(4).
22
12. ~The responsibilities and authorities of the Director of National Intelligence
23
24 are set forth in the National Security Act of 1947, as amended. See 50 U.S.C. § 403-1. These
25 responsibilities include ensuring that national intelligence is provided to the President, the heads
26 of the departments and agencies of the Executive Branch, the Chairman of the Joint Chiefs of
27
Staff and senior military commanders, and the Senate and House of Representatives and
28
committees thereof. See 50 U.S.C. § 403-1(a)(l). The DNI is also charged with establishing the

AHCeNORCO~U~tOFOR~Jh

Classified In Camera, Ex Parte Declaration of Dennis C. Blair, Director of National Intelligence

Virginia Shubert, et al. v. United Stales ofAmerica, et al. (No. 07-cv-693-VRW; MDL No. 06-1791)

8

objectives of, determining the requirements and priorities for, and managing and directing the
2 tasking, collection, analysis, production, and dissemination of national intelligence by elements
3 of the Intelligence Community. ld. § 403-1(t)(l)(A)(i) and (ii). The DNI is also responsible for
4 developing and determining, based on proposals submitted by the heads of agencies and
5
departments within the Intelligence Community, an annual consolidated budget for the National
6
Intelligence Program for presentation to the President, and for ensuring the effective execution o
7
8 the annual budget for intelligence and intelligence activities, and for managing and allotting
9 appropriations for the National Intelligence Program. Id. § 403-1(c)(1)-(5).
10
13. ~addition, the National Security Act of 1947, as amended, provides that
11
"[t]he Director of National Intelligence shall protect intelligence sources and methods from
12
13 unauthorized disclosure." 50 U.S.C. § 403-1(i)(l). Consistent with this responsibility, the DNI
14 establishes and implements guidelines for the Intelligence Community for the classification of
15 information under applicable law, Executive orders, or other Presidential directives and access to
16
and dissemination of intelligence. ld. § 403-1 (i)(2)(A), (B). In particular, the DNI is responsible
17
for the establishment of uniform standards and procedures for the granting of access to Sensitive
18
19 Compartmented Information ("SCI") to any officer or employee of any agency or department of
20 the United States, and for ensuring the consistent implementation of those standards throughout
21 such departments and agencies. Id. § 403-1G)(1), (2).
22
14. ~y virtue of my position as the Director of National Intelligence, and unless
23
24 otherwise directed by the President, I have access to all intelligence related to the national
25 security that is collected by any department, agency, or other entity of the United States. See 50
26 U.S.C. § 403-1(b); Executive Order 12333 § 1.3(a). 46 Fed. Reg. 59941 (Dec. 4, 1981), as
27
amended. Pursuant to Executive Order No. 12958, 3 C.F.R. § 333 (1995), as amended by 28
Executive Order 13292 (March 25, 2003), reprinted as amended in 50 U.S.C.A. § 435 at 93

TOP RBCRI;TA'TSP//COMHf I

/llC9/lORCOf~/NOf'O:Rt41J

Classified In Camera, Ex Pam Declaration of Dennis C. Blair, Director of National Intelligence

Virginia Shubert, et al. v. United States of America, et al. (No. 07-cv-693-VRW; MDL No. 06-1791)

9

(Supp. 2004), the President has authorized me to exercise original TOP SECRET classification

2 authority.

3

V. MASSERTION OF STATE SECRETS PRIVILEGE

4

15. ~fter careful and personal consideration of the matter, based upon my own

5
knowledge and information obtained in the course of my official duties, including the
6

information contained in the Public and Classified In Camera, Ex Parte Declarations of
7

8 Lieutenant General Keith B. Alexander, Director of the National Security Agency, I have

9 determined that the disclosure of certain information-as set forth herein and described in more
lO
detail in the Classified NSA Declaration-would cause exceptionally grave damage to the
11
national security of the United States and, therefore, must be protected from disclosure and
12
l3 excluded from this case. Thus, as to this information, I formally assert the state secrets privilege.

14 In addition, it is my judgment that sensitive state secrets are so central to the subject matter of th

15 litigation that any attempt to proceed in the case will substantially risk the disclosure of the

16
privileged information described herein and will therefore risk exceptionally grave damage to the
17
national security of the United States.
18

19

VI. AAASSERTION OF STATUTORY PRIVILEGE

UNDER NATIONAL SECURITY ACT

20

21

16. ~Through this declaration, I also hereby invoke and assert a statutory privilege

22 held by the Director of National Intelligence under the National Security Act to protect the

23 information described herein. See 50 U.S.C. § 403-l(i)(l). My assertion of this statutory
24
privilege for intelligence sources and methods is coextensive with and protects the information
25
subject to my state secrets privilege assertion.
26

27

28

Classified In Camera, Ex Parse Declaration of Dennis C. Blair, Director of National Intelligence

Virginia Shubert, et al. v. United States ofAmerica, et al. (No. 07-cv-693-VRW; MDL No. 06-1791)

10

M VII. INFORMATION SUBJECT TO ASSERTIONS OF PRIVILEGE

2

17. ~ general and unclassified terms, the following categories of information are

subject to my state secrets and statutory privilege assertions:
4

5

A. ~Information that may tend to confirm or deny whether

the plaintiffs have been subject to any alleged NSA

6

intelligence activity that may be at issue in this matter; and

7

B. ~Any information concerning NSA intelligence

8

activities, sources, or methods that may relate to or be

necessary to adjudicate plaintiffs' allegations, including

9

allegations that the NSA, with the assistance of

lO

telecommunications carriers, indiscriminate!y intercepts the

content of communications and also, to the extent

11

applicable to plaintiffs' claim, the cori:mmnications records

of millions of Americans as part of an alleged "Program"

12

authorized by the President after 9/11. See, e.g., Amended

13

Compl. <JI<J[ 1-8, 58.

14

AA The scope of this assertion includes but is not limited

to:
15

16

(i) ~Information concerning the scope and

operation of the now inoperative "Terrorist Surveillance

17

Program" ("TSP") regarding the interception of the content

of certain one-end international communications

18

reasonably believed to involve a member or agent of al-

19

Qaeda or an affiliated terrorist organization, and any other

information related to demonstrating that the NSA does not

20

otherwise engage in the content surveillance dragnet that

the plaintiffs allege; and
21

22

(ii)~ Any other information concerning NSA

intelligence activities, sources, or methods that would be

23

necessary to adjudicate the plaintiffs' claims, including, to

the extent applicable, information that would tend to
24
confirm or deny whether or not the NSA obtained from

25

telecommunications companies communication

transactional records; and
26

27

(iii)~Information that may tend to confirm or

deny whether any telecommunications carrier has provided

28

assistance to the NSA in connection with any alleged

activity.

Classified In Camera, Ex Parte Declaration of Dennis C. Blair, Director of National Intelligence

Virginia Shubert, et al. v. United States ofAmerica, et al. (No. 07-cv-693-VRW; MDL No. 06-1791)

11

2

VIII. ~ DESCRIPTION OF INFORMATION AND HA~ OF DISCLOSURE

A. (U) Information Concerning the al-Oaeda Terrorist Threat

4

18. 'iUJ...To the extent specific information about the al-Qaeda threat is relevant to

5
litigation of plaintiffs' allegations as to post-9111 actions taken to meet that threat, such
6

information could not be disclosed without revealing intelligence sources, methods, and
7

information of the United States and thereby causing exceptionally grave damage to the national

9 security. Therefore, I assert the state secrets and statutory privilege to protect such information
10
from disclosure.
II
19. ~he intelligence activities, sources, and methods that are implicated
12
13 by this lawsuit, and put at risk of disclosure in further proceedings, must be viewed and
14 understood in the context of the extremely serious threat faced by the United States. In sum, the
15 Intelligence Community assesses that al-Qaeda remains intent on conducting terrorist attacks
16
inside the United States. This is so notwithstanding a series of setbacks to the al-Qaeda terrorist
17
network.
18

19

20
111••• 21 Preventing such attacks is the U.S. Intelligence Community's highest priority, and the
22
Intelligence Community is collecting information aggressively against the al-Qaeda network to
23
uncover indications of credible threats.2
24

25

26

27

28
2 ~The following summary of the current al-Qaeda threat is drawn from an Intelligence Community assessment made in January 2009 and more current reporting.

Classified in Camera, Ex Parte Declaration of Dennis C. Blair, Director of National Intelligence

Virginia Shubert, et al. v. United States ofAmerica, et al. (No. 07-cv-693-VRW; MDL No. 06-1791)

12

2

20.

I

I

I

I

I

I

I
• leaders,

A body of reporting-including public statements from senior highlights the persistent and evolving

I

threat the group poses to the United States and our allies.

12

13

• In June and September 2009, al-Qaeda leader Usama bin Laden warned the American

14

people to be prepared to continue reaping what was sowed by the White House durin

15

the coming years~ and al-Qaeda's third-in-command, Shaykh Sa'id al-Masri, also

16
reiterated in June the group's strategy of attacking the United States to drain the U.S.

17

economy.
18

19

•

•

I

• • •

·-

25

• The plot to bring down airliners between the United Kingdom and North America

26

that was disrupted in August 2006 demonstrated al-Qaeda's continued emphasis on

27 28

-large scale, high-profile attacks against the West,

Classified In Camera, Ex Parte Declaration of Dennis C. Blair, Director of National Intelligence

Virginia Shuben, et al. v. United States ofAmerica, et al. (No. 07-cv-693-VRW; MDL No. 06-1791)

13

21. (TS/IHC."QCINF) 'fhe bulk of al-Qaeda's Western attack plans since 2001 have

2 relied on operatives with citizenship or personal knowledge of their target location. -

3

4

5

6

7

I

8

9

10

11

12

13

14

15

16

17

18

19

20

I

21

22

23

24

25

26

I

27

28

Classified In Camera, Ex Parte Declaration of Dennis C. Blair, Director of National Intelligence

Virginia Shubert, et al. v. United States ofAmerica, et al. (No. 07-cv-693-VRW; MDL No. 06-1791)

14

2

22.

I

I

I I

I

I

I

•

I

• • •

I I

I

• • • • • • • • •

II
I

25

•

26

27

28

Classified In Camera, Ex Parte Declaration of Dennis C. Blair, Director of National Intelligence

Virginia Shubert, et al. v. United States ofAmerica, et al. (No. 07-cv-693-VRW; MDL No. 06-1791)

15

.. - --- ; - i T. "' .._

2
25. ~death or detention of more than a dozen al-Qaeda 4 senior leaders and their deputies since early 2008 represent significant losses for the group.
5 6 7

9

10

11

12

-13
14

15

26. ~Internet is a contributing factor in the radicalization of some

16
individuals, increasing the risk of self-selecting fighters attempting to establish affiliations with
17
extremist organizations or engaging in operations independent of formal terrorist groups.
18

19 Additionally, al-Qaeda and like-minded Sunni extremists are attempting to use the Internet to

20 radicalize and recruit individuals to promote and conduct violent acts, perhaps contributing to the

21 spread of al-Qaeda -inspired violent extremism across the globe. The number of Sunni extremist

22
Web sites continues to grow, possibly contributing to Islamic radicalization while inspiring
23

individuals in the United States to act on behalf of al-Qaeda or its ideology.
24

25

3~0aeda's Weapons and Tactics

26
• •

27 .

Classified In Camera, Ex Parte Declaration of Dennis C. Rlair, Director of National Intelligence

Virginia Shubert, et al. v. United States ofAmerica, et al. (No. 07-cv-693-VRW; MDL No. 06-1791)

16

2

4 5 6 7

I
•

I
• • •

I
• • • • •

• • • • • I

27

30. ~These various examples of some of our intelligence information

28

demonstrate that the al-Qaeda network continues to plan ways to inflict a catastrophic attack.

/IICSHORCOtV!qQFORH'/,

Classified In Camera, Ex Parte Declaration of Dennis C. Blair, Director of National Intelligence

Virginia Shubert, et al. v. United States ofAmerica, et al. {No. 07-cv-693-VRW; MDL No. 06-1791)

17

The severity of that threat and the difficulty of tracking al-Qaeda is precisely the reason the

2 Government is utilizing all lawful intelligence gathering capabilities. I set forth this information 3 not only to provide the Court with crucial background as to why the intelligence activities 4 implicated by or directly at issue in this case are being undertaken, but also to assert a claim of

privilege over this threat information. Although the foregoing threat assessment demonstrates
6
why the Government undertakes the activities described herein, the Government cannot disclose
7
this threat information in defending the legality of the intelligence activities, sources, and

9 methods being challenged, since to do so obviously would disclose to our adversaries what we
10
know of their plans and how we may be obtaining information about them. Such disclosures
11
would lead our adversaries not only to alter their plans, but also to implement greater security for
12
13 their communications, thereby increasing the risk of non-detection. In addition, disclosure of

14 threat information might reveal human sources for the United States and, thus compromise those

15 sources and put lives in danger. Accordingly, although I believe this threat information is crucial
16
to understanding the NSA intelligence activities, sources, and methods implicated by the
17
plaintiffs' allegations, I must assert the states secrets privilege and the DNI's statutory privilege
18
19 over this classified threat information because of the exceptionally grave danger to national

20 security that could reasonably be expected to result from its disclosure.

21 B. ~nformation That May Tend to Confirm or Deny Whether the Plaintiffs Have Been

22

Subject to the Alleged NSA Intelligence Activities

23

31. ~Next, I am also asserting privilege over information that would reveal

24
whether particular individuals, including the named plaintiffs in this lawsuit, have been subject
25
to the alleged NSA intelligence activities. Disclosure of such information would cause
26

27 exceptionally grave damage to the national security.

28

Classified In Camera, Ex Parte Declaration of Dennis C. Blair, Director of National Intelligence

Virginia Shubert, et al. v. United States ofAmerica, et al. (No. 07-cv-693-VRW; MDL No. 06-1791)

18

2
4
5 6
7
9 10 II
33. ~e NSA cannot publicly confirm or deny whether any particular individual
12
13 is subject to surveillance activities. If the NSA were to reveal that an individual is the target of 14 surveillance, the collection capability of that individual would certainly be compromised. On 15 other hand, if the NSA were to reveal that an individual is not the target of surveillance,
16
adversaries would know that a particular individual has avoided surveillance and is a secure
17
source for communicating. Moreover, providing assurances to those individuals that are not
18
19 being targeted quickly becomes unworkable when faced with a case in which the individual has 20 in fact been targeted. If the NSA were to confirm that any specific individual is not the target of 21 surveillance, but later refuse to confirm or deny that information in a case involving an actual
22
target, it would be apparent that surveillance was occurring in the latter case. The only recourse
23
24 for NSA is to neither confirm nor deny whether someone has been targeted or subject to NSA 25 activities, regardless of whether the individual has been targeted or not. To say otherwise when 26 challenged in litigation would result in the frequent, routine exposure of NSA information,
27
sources, and methods, and would severely undermine surveillance activities in general.
28

Classified In Camera, Ex Parte Declaration of Dennis C. Blair, Director of National Intelligence

Virginia Shubert, et al. v. United States ofAmerica, etal. (No. 07-cv-693-VRW; MDL No. 06-1791)

19

c.

2

34. ~am also asserting privilege over any other facts concerning NSA intelligence

activities, sources, or methods that may relate to or be necessary to adjudicate the plaintiffs'

4 claims, including, but not limited to, allegations that the NSA, with the assistance of

telecommunication companies, has indiscriminately intercepted the content and obtained large
6
quantities of communications records as part of the Program authorized by the President after
7
8 9/11. See, e.g., Amended Compl. B 1-4, 58. As noted above, my privilege assertion
9 encompasses (1) facts concerning the operation of the now-defunct Terrorist Surveillance
10
Program, including any facts needed to demonstrate that the TSP was limited
II
to the interception of the contene of one-end foreign communications reasonably believed to
12
13 involve a member or agent of al-Qaeda or an affiliated terrorist organization, and that the NSA
14 does not otherwise conduct a dragnet of content surveillance as the plaintiffs allege; and
15 (2) information concerning whether or not the NSA obtains communication transactional records
16
from telecommunications companies.
17
35. ~As the NSA indicates, see Public NSA Decl. Cj[ 19, the NSA's collection of the
18
19 content of communications under the TSP was directed at international communications in whic
20 a participant was reasonably believed to be associated with al-Qaeda or an affiliated
21 organization. Thus, as the Government has previously stated, plaintiffs' allegation that the NSA
22
has indiscriminately collected the content of millions of communications sent or received by
23
24 people inside the United States after 9/11 under the TSP is false. I concur with the NSA that to
25 the extent it must demonstrate in this case that the TSP was not the content dragnet plaintiffs
26 allege, or demonstrate that the NSA has not otherwise engaged in the alleged content dragnet,
27
28
3~The term "content" is used herein to refer to the substance, meaning, or purport of a communication, as defined in 18 U.S.C.§ 2510(8).

Classified In Camera, Ex Parte Declaration of Dennis C. Blair, Director of National Intelligence

Virginia Shubert, et al. v. United States ofAmerica, et al. (No. 07-cv-693-VRW; MDL No. 06-1791)

20

highly classified NSA intelligence sources and methods about the operation of the TSP and other

2 NSA intelligence activities would be disclosed or at risk of disclosure which would cause

3 exceptionally grave harm to national security.

4

36. ~o the extent implicated by the plaintiffs' allegations in this case, I am also

5
asserting privilege over information concerning whether or not the NSA obtained from
6
telecommunications companies transactional records of those companies' customers, including
7

8 the plaintiffs. See Amended Compl. <Jrl[ 5-8, 58; Classified NSA Decl. ft 32 & n.17, 33. I concu

9 with the NSA that confirmation or denial of any information concerning this allegation would

10
cause exceptionally grave harm to national security, including by risking disclosure of whether
11
or not the NSA utilizes particular intelligence sources and methods and, thus, the NSA' s
12
13 capabilities or lack thereof.

14

37. (TSUX~PNSit;()QNF') In particular, as set forth in the NSA's Classified

15 Declaration, the United States faced urgent and immediate intelligence challenges after the
16
September 11 attacks, and undertook signals intelligence activities pursuant to presidential
17
authorization that were designed to meet those challenges and to detect and prevent future
18
19 terrorist attacks by al-Qaeda and its affiliates. Those activities include the TSP and similar

20 content surveillance that later became subject to orders of the Foreign Intelligence Surveillance

21 Court, as well as the bulk collection of telephony and Internet non-content meta data currently

22
authorized by the FISC, which is used to discover contacts
23

24

See Classified NSA Decl. fl39-66.

25

38. (TSttrSPil~lfl6e1NF) Based on my personal consideration and judgment as to

26 the harm disclosure would cause to national security, my privilege assertion includes, but is not
27
limited to, the following activities discussed in the NSA classified declaration:
28

Classified In Camera, Ex Parte Declaration of Dennis C. Blair. Director of National Intelligence

Virginia Shubert, et al. v. United States ofAmerica, etal. (No. 07-cv-693-VRW; MDL No. 06-1791)

21

2 operation of the Terrorist Surveillance Program and any other NSA intelligence activities needed 3 to demonstrate that the TSP was limited to the interception of one-end foreign communications 4 reasonably believed to involve a member or agent of al-Qaeda or an affiliated terrorist

organization, and that the NSA does not otherwise conduct a dragnet of content surveillance as
6
the plaintiffs allege. Such facts include those concerning (1) how targets were selected under the
7
TSP; (2) how specific methods were used under the TSP to intercept telephone and Internet

9 communications and to minimize the risk of collecting non-target communications and purely
10
domestic communications; (3) the nature and identity of the targets under the T S P , -
11
(4) additional classified details about the operation of the TSP that
12
l3 would be necessary to adjudicate the plaintiffs' allegations (to the extent relevant) including facts

14 concerning the operational swiftness and agility of the TSP, particularly in conjunction with met

15 data analysis,

; and the

16
effectiveness and success of the TSP; and (5) other NSA surveillance activities that may be
17
needed to address and disprove the content dragnet allegations,
18

19

. See Classified NSA Decl. <JI 47. In

20 my judgment, revealing or risking disclosure of the foregoing NSA intelligence activities,
21
sources, and methods in order to show that NSA is not conducting the "dragnet" on the content
22
of communications that plaintiffs allege would cause exceptional harm to national security by
23
24 disclosing to our adversaries the ability of the United States to monitor and track their activities
25 and communications.

26

40. (TSIITSP//Sf//6CINF) Second, I also assert privilege over facts that would

27
disclose or describe the NSA's non-content meta data collection activities, including over
28
whether or not the plaintiffs have been subject to those activities. See Classified NSA Decl.

Classified In Camera, Ex Parte Declaration of Dennis C. Blair, Director of National Intelligence

Virginia Shubert, et al. v. United States ofAmerica, et al. (No. 07-cv-693-VRW; MDL No. 06-1791)

22

2 operation of the NSA' s bulk collection or targeted analysis of Internet or telephony meta data

3 without causing exceptionally grave harm to national security. These are among the most

4 important intelligence tools the NSA uses, and they have never been officially confirmed or
5
denied by the United States. Disclosing or confirming these activities would seriously
6
undermine an essential tool for tracking possible terrorist plots and would help foreign
7
8 adversaries evade detection. Such a disclosure would also undermine ongoing intelligence

9 operations authorized by the FISC.
10 41.
]]
activities conducted pursuant to various FISC orders and under the authority of the FISA
12
13 described by the NSA. See Classified NSA Decl. f}[<J[ 57-66. In my judgment, disclosure of

14 current surveillance activities under orders and supervision of the FISC and authority of the

15 FISA, either directly or indirectly, would seriously compromise, if not destroy, vital ongoing
16
intelligence operations. My privilege assertion extends to the existence of and any information
17
concerning the (i) FISC Pen Register Order, as subsequently reauthorized, see id. <J[ 58; (ii) FISC
18
19 Telephone Business Records Order, as subsequently reauthorized, see id. <J[<J[ 5 9 - 6 2 ; -

20

• • (iv) FISC Foreign Telephone and Email Order, see id.

21 <J[ 64; and (v) NSA activities conducted pursuant to the Protect America Act and the Foreign
22
Intelligence Surveillance Act Amendments Act of 2008, including directives issued to
23
24 telecommunication carriers under those Acts, see id. <J[<J[ 65-66.

25

42. ~oncur with the NSA that the activities discussed herein and

26 described further by the NSA-in particular the meta data collection activities-are among the
27
most important intelligence tools available to the United States for protecting the Homeland
28
another catastrophic terrorist attack. I also concur that

TOP SECRETHTSP//COMfH'f' •

/HC:s/J OiteON7 I~Of!Oitl'\1/;

Classified In Camera, Ex Parte Declaration of Dennis C. Blair, Director of National Intelligence

Virginia Shubert, et al. v. United States ofAmerica, et at. (No. 07-cv-693-VRW; MDL No. 06-1791)

23

2

3

. In my judgment, after personal

4
consideration of the matter, disclosing the information described herein and by the NSA would

5
compromise these critical activities, sources, and methods, thereby helping our adversaries evade
6

detection and causing exceptionally grave damage to the national security of the United States.
7
8 D. ~negations that Telecommunications Companies Assisted the NSA

9

43. ~addition, I am asserting privilege over information that may tend to

10
confirm or deny whether or not any telecommunications provider has assisted the NSA with
]]
alleged intelligence activities. The disclosure of any information that would tend to confirm or
12
13 deny allegations of such assistance would cause exceptionally grave harm to the national

14 security. Confirming or denying such allegations, again, would reveal to foreign adversaries

15 whether or not the NSA utilizes particular intelligence sources and methods and, thus, would
16
either compromise actual sources and methods or disclose that the NSA does not utilize a 17
particular source or method. Such confirmation or denial would also replace speculation with
18
19 certainty for hostile foreign adversaries who are balancing the risk that a particular channel of

20 communication may not be secure against the need to communicate efficiently.

21

44.

22

23

24

25

26

27

28

Classified In Camera, Ex Pane Declaration of Dennis C. Blair, Director of National Intelligence

Virginia Shubert, et al. v. United States ofAmerica, et al. (No. 07-cv-693~VRW; MDL No. 06-1791)

24

2 3 4

6

7

8

9

10

11

12

13

14

15

16

17

••••••••• addition, I have reviewed the classified

certification of then-Attorney

Mukasey submitted to the Court pursuant to Section 802

• of the FISA Amendments Act of 2008 and assert privile e over s ecific information described

• therein,

Classified In Camera, Ex Parte Declaration of Dennis C. Blair, Director of National Intelligence

Virginia Shubert, et al. v. United States ofAmerica, et at. (No. 07-cv-693-VRW; MDL No. 06-1791)

25

2 3 4

6 7

9

10

11

-• • • • • • • •

20

48.

IX. ~RISK OF LITIGATION

21
case will inherently risk the disclosure of highly classified activities. While plaintiffs wrongly
22
allege that the NSA is conducting a dragnet program of content surveillance, disproving
23
24 plaintiffs' speculation would risk or require revealing NSA intelligence activities, sources and
25 methods, including bulk meta data collection activities. The stakes we face in the U.S.

26 Intelligence Community are of the highest magnitude. We know that al-Qaeda continues to plan
27
a mass casualty "spectacular" attack inside the United States again that would cause catastrophic
28
loss of life, severe economic harm, or threaten the continuity of government. The NSA' s

Classified In Camera, & Pane Declaration of Dennis C_ Rlair, Director of National Intelligence

Virginia Shubert, et al. v. United States ofAmerica, et al. (No. 07-cv-693-V RW; MDL No. 06-1791)

26

2 utilized under authority of the FISA, are all directed at this terrible threat.

X. (~CONCLUSION

4

49. ~n sum, I am asserting the state secrets privilege and the DNI's statutory

5
privilege set forth in 50 U.S.C. § 403-l(i)(l) to protect the classified national security
6

information described herein and in the Classified NSA Declaration. Moreover, because
7

8 proceedings in this case risk disclosure of privileged and classified intelligence-related

9 information, I respectfully request that the Court not only protect that information from
10
disclosure, but to take all steps necessary, including dismissal of this action, to protect the
11
intelligence information, sources, and methods described herein in order to prevent exceptionally
12
13 grave harm to the national security of the United ·states.

14

15 I declare under penalty of perjury that the foregoing is true and correct.
16

17
18 DATE: ~CJ OcJ
19
20

J~1a~v
DENNIS C..BLAIR Director of National Intelligence

21

22

23

24

25

26

27

28

/MC:SI/OitCOt~/I~OflORI~/ I

Classified In Camera, Ex Parte Declaration of Dennis C. Blair, Director of National Intelligence

Virginia Shubert, et al. v. United States ofAmerica, et al. (No. 07-cv-693-VRW; MDL No. 06-1791)

27

 
 STUART F. DELERY

2 Assistant Attorney General

3 JOSEPH H. HUNT

4 Director, Federal Programs Branch

5 ANTHONY J. COPPOLINO

6 Deputy Branch Director

7 JAMES J. GILLIGAN

8 Special Litigation Counsel

9 MARCIA BERMAN

10 Senior Trial Counsel

II BRY AN DEARINGER

12 RODNEY PATION

13 Trial Attorneys

14 U.S. Department of Justice

15 Civil Divi sion, Federal Programs Branch

16 20 Massachusetts Avenue, NW

17 Washington, D.C. 20001 18 Phone, (202) 514-2205

19 Fa" (202) 616-8470 20 Altorneysfor the United States and Governmenl

21 Defendants Sued in their Official Capacities

22

21

UNITED STATES DISTRICT COURT

24

NORTHERN DISTRICT OF CALIFORNIA

25

SAN FRANCISCO DIVISION

26
27 CAROLYN JEWEL, et al.

) Case No. 08-cv-4373-JSW

28

)

29

Plaintiffs,

)

30

)

31 v.

)

12

)

33 NATIONAL SECURITY AGENCY, el al.

)

l4

)

35

Defendants.

)

J6 J7

- - - - - - - - - - - - - - - - - - - - - - - ))

38 VIRGIN IA SHUBERT, et al.

)

39

)

40 Plaintiffs,

)

41

)

Case No. 07-cv-693-JSW
UNCLASSIFLED DECLARATION OF FRANCES J . FLEISCH, NATIONAL SECURITY AGENCY

42 v.
41
44 BARACK OBAMA, et al.
45
46 Defendants.

) ) ) No Hearing Scheduled ) Courtroom 11, 19th Floor ) Judge Jeffrey S. White

47 - - - - - - - - - -- - - - - - - - - - )
48

Unclassi fied Declaration of Frances J. Fleisch, National Security Agency Jewel. v. NSA. (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)

UNCLASSIFIED DECLARAT10N OF FRANCES J. FLEISCH

2

NATIONAL SECURITY AGENCY

3

4

I, Frances J. Fleisch, do hereby state and declare as follows:

5

6

I. INT RODUCTION

7

I. I am the Acting Deputy Director for the National Security Agency ("NSA" or

8 "Agency"), an intelligence agency within the Department of Defense. I have held this position

9 since December 9, 20t3. Prior to holding the position of Acting Deputy Director, I was the

10 Agency's Executive Director from June 2010 to December 8, 2013. Before moving into the

II Executive Director position, I served in a number of leadership and management positions since

12 joining the agency in 1980. As Acting Deputy Director, I serve as the senior civilian leader of

13 the NSA and act as the Agency's chief operating officer, responsible for guiding and directing

14 strategies, operations, and policy. Under our internal regulations, and in the absence of the

15 Director of the NSA, I am responsible for directing the NSA, overseeing the operations

16 undertaken to carry out its mission and, by specific charge of the President and the Director of

17 National Intelligence, protecting NSA activities and intelligence sources and methods. I have

18 been designated an original TOP SECRET classification authority under Executive Order ("EO"

19 No. 13526, 75 Fed. Reg. 707 (2009), and Department of Defense Manual No. 5200.1 , Vol. I,

20 Information and Security Program (Feb. 24, 2012).

21

2. The purpose of this declaration is to support an assertion of the military and state

22 secrets privilege (hereafter, "state secrets privilege") by the Director of National Intelligence

23 ("DN I") as the head of the Intelligence Community, as well as the DNI's assertion of a statutory

24 privilege under the National Security Act, to protect information related to the NSA activities

25 described below that may be necessary to adjudicate the claims at issue in this litigation.

26 Through this declaration, I also hereby invoke and assert the NSA's statutory privilege set forth

Unclass ified Declaration of frances J. Fleisch, National Security Agency Jewel. v. NSA. (No. 08-cy-4873-JSW); Shubert v. Obama (07-cY-0693-JSW) (M :06-cY-1791)

in Section 6 of the Nationa1 Security Agency Act of 1959, Public Law No. 86-36 (codified at 50

2 U.S.c. 3601 el seq.) (" NSA Act"), to protect the information related to the NSA activities

J described herein below. General Keith B. Alexander, the Director of the NSA, has been sued in

4 his official and individual capacities in the above-captioned litigation and has recused himself

5 from the decision on whether to assert privilege in his official capacity. As the Acting Deputy

6 Director, and by specific delegation of the Director, I am authorized to review the material s

7 associated with this litigation, prepare whatever declarations I determine are appropriate, and

8 determine whether to assert the NSA's statutory privilege. The statements made herein are base

9 on my personal knowledge ofNSA activities and operations, and on infonnation made available

10 to me as the Acting Deputy Director of the NSA. Contemporaneous with this declaration, I have

II executed a classified declaration solely for the Court' s in camera, ex parle review, concerning

12 the same matters addressed in this public declaration.

J3 II. SUMMARY

14

3.

In the course of my official duties, I have been advised that plaintiffs in this

15 litigation allege that, following the terrorist attacks of September 11 , 200 I, the NSA, pursuant to

16 presidential authorization and with the assistance of plaintiffs ' telecommunications companies

17 (namely, AT&T and Verizon), indiscriminately intercepted the content and obtained the

18 communications records of millions of ordinary Americans as part of an alleged " dragnet"

19 communications surveillance. The Government has previously asserted the state secrets

20 privilege in these cases, most recently in September 2012, to protect from disclosure highly

21 sensitive intelligence-gathering infonnation relevant to confirming or negating plaintiffs'

22 allegations. This declaration responds to the Court' s order that the Government explain the

23 impact ofrecent official di sclosures about NSA intelligence-gathering activities on the national

Unclassified Declaration of Frances J. Fleisch, National Security Agency Jewel. v. NSA . (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M :06-cv- 1791)

security issues in the litigation, as reflected in its state secrets privilege assertion. July 23, 2013

2 Amended Order (EeF No.1 53 at 25); Sept. 27, 2013 Transcript of Proceedings at 7.'

J

4.

The Government's recent official disclosures follow a series of unprecedented,

4 unauthorized, and unlawful disclosures, by a fonner NSA contractor, of Top Secret documents

5 concerning certain classified NSA surveillance programs. The media revealed those

6 unauthorized disclosures beginning in June 2013. These disclosures are now risking, and in

7 some cases causing, the exceptionall y grave damage to national security that the Government ha

8 previously identified to the Court, including the loss of valuable intelligence and, specifi cally,

9 information that may assist in detecting or preventing a future mass casualty terrorist attack.

'0

5.

The Government responded to the recent unlawful disclosures by officially

11 acknowledging the existence of certain programs because of the importance of correcting

12 inaccurate information to the public about those programs, despite the hann to national security

13 that such an official acknowledgement would cause. In sum, the Government confirmed the

14 existence and some information concerning (1) the telephony metadata program, in which the

15 NSA obtains, pursuant to orders issued by the Foreign Intelligence Surveillance Court ("FISC"),

16 telephone company business records in bulk containing certain non-content information about

17 phone calls made, such as the phone numbers dialed, and the date, time, and duration of the calls,

18 and uses that information to identify unknown terrorist operatives; (2) a previous program of

19 bulk collection of certain Internet metadata, such as the "to" and "from" lines of an email and the

20 date and time the email was sent, also authorized by the FISC and also for counter-terrorism

1 This declaration supplants all prior privilege assertions. In order to focus on the information which remains subject to this privilege assertion, this declaration does not repeat or address all topics that were addressed in prior declarations. The Court is respectfully referred to prior declarations for additional background.
Unclassified Declaration of Frances J. Fleisch, National Security Agency Jewel. v. NSA . (No. 08-cv-4873-JSW); Shubert v. Oboma (07-cv-0693-JSW) (M:06-cv-1791)

purposes; and (3) certain information about the Government's use of authority conferred by

2 Section 702 of the Foreign Intelligence Surveillance Act ("FISA"), to collect, for foreign

3 intelligence purposes, certain communications of non-U.S. persons located outside the United

4 States, pursuant to approval of the FISC.

l

6. In addition, the Government has now declassified the existence of the two

6 metadata collection activities that were conducted prior to FISC authorization, under presidential

7 authorizations issued by President Bush in the wake of the September 11 attacks. But for many

8 reasons vital to national security, the classified so urces and methods (many of which the NSA

9 continues to utilize today), intelligence gathered, and operational details of what has been called

10 the President' s Surveillance Program ("PSP") must remain protected from public disclosure to

I 1 avoid even greater damage to national security than is already occurring as a result of the

12 unlawful disclosures. To the extent this information is at risk of disclosure in litigating

13 plaintiffs' claims, the Government continues to assert the state secrets privilege and applicable

14 statutory privileges over that information. In particular, and in unclassified terms, the privilege

15 applies to information about whether plaintiffs themselves have been subject to any of the

16 surveillance activities they complain about; classified intelligence sources and methods of the

17 NSA programs at issue, such as the identities of any telecommunications carriers and facilities

18 that provided assistance to the NSA; and intelligence collected under the programs..

19

7. For the reasons detailed below and further detailed in my classified declaration,

20 the Government continues to assert the state secrets privilege in these cases, as described in my

21 declaration, notwithstanding the Government's recent official disclosures.

22

23

24

Unclassified Declaration of Frances J. Fleisch, National Securiry Agency Jewel. v, NSA , (No. 08-cv-4873-JSW); Shubert v. Ohama (07-cv-0693-JSW) (M:06-cv-1791)

III. BACKGROUND

2

A. The National Security Agency

J

8. The NSA was established by Presidential Directive in 1952 as a separately

4 organized agency within the Department of Defense. The NSA's foreign intelligence mission

5 includes the responsibility to collect, process, analyze, produce, and disseminate signals

6 intelligence ("SIGfNT" ) information, of which COMINT is a significant subset, for (a) national

7 foreign intelligence purposes, (b) counterintelligence purposes, and (c) the support of military

8 operations. See Executive Order 123 33, § 1.7(c), as amended ?

9

9. SIGINT consists of three subcategories: (I) COMINT; (2) electronic intelligence

10 ("ELlNT'"); and (3) foreign instrumentation signals intelligence (" FISlNT'"). COMlNT is

II defined as "all procedures and methods used in the interception of communications and the

12 obtaining of information from such communications by other than the intended recipients." 18

13 U.S.c. § 798. COMINT includes information derived from the interception of foreign and

14 international communications, such as voice, facsimile, and computer-to-computer information

15 conveyed via a number of means. ELlNT is technical intelligence information derived from

16 foreign non-communications electromagnetic radiations except atomic detonation or radioactive

17 sources---in essence, radar systems affiliated with military weapons platforms (e.g. , anti-ship)

18 and civilian systems (e.g ., shipboard and air traffic control radars). FISINT is deri ved from the

2 Executive Order 12333, reprinted as amended in 50 U.S.C § 300 1 note, generally describes the NSA's authority to collect foreign intelligence that is not subject to the FISA definition of electronic survei llance, including activities undertaken abroad. Section 1.7(c) of E.O. 12333, as amended, specifically authorizes the NSA to "Collect (including through clandestine means), process, analyze, produce, and disseminate signals intelligence information for foreign intelligence and counterintelligence purposes to support national and departmental missions. "
Unclassified Declaration of Frances J. Fleisch, National Security Agency Jewel. v. NSA. (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-179 1)

intercept of foreign electromagnetic emissions associated with the testing and operational

2 deployment of non-U .S. aerospace, surface, and subsurface systems.

3

10. The NSA ' s SIGINT responsibilities include establishing and operating an

4 effective unified organization to conduct SIG INT activities set forth in EO 12333, § 1.7(c)(2), as

5 amended. In performing its SIGINT mission, the NSA has developed a sophisticated worldwide

6 SIGINT co ll ection network that acquires, among other things, foreign and international

7 electronic communications and related information. The technological infrastructure that

8 supports the NSA ' s foreign intelligence information collection network has taken years to

9 develop at a cost of billions of dollars and untold human effort It relies on sophi sticated

10 collection and processing technology.

II

II. There are two primary reasons for gathering and analyzing foreign intelligence

12 information. The first, and most important, is to gain information required to direct U.S.

13 resources as necessary to counter external threats and in support of military operations. The

14 second reason is to obtain information necessary to the formulation of U.S. foreign policy.

15 Foreign intelligence information provided by the NSA is thus relevant to a wide range of

16 important issues, including military order ofbaUle; threat warnings and readiness; anns

17 proliferation; international terrorism; counter-intelligence; and foreign aspects of international

18 narcotics trafficking.

19

12. The NSA ' s ability to produce foreign intelligence information depends on its

20 access to foreign and international electronic communications. Foreign intelligence produced by

21 COMINT activities is an extremely important part of the overall foreign intelligence information

22 available to the United States and is often unobtainable by other means. Public disclosure of

23 either the capability to co llect specific communications or the substance of the information

24 derived from such collection itself can easily alert targets to the vulnerability of their

Unclassified Declaration of Frances J. Fleisch, National Security Agency Jewel. v. NSA . (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M :06-cv-179 1)

communications. Di sclosure of even a single communication holds the potential of revealing

2 intelligence collection techniques that are applied against targets around the world. Once alerted

3 targets can frustrate COM INT col lection by using different or new encryption techniques, by

4 disseminating disinformation, or by utili zing a different communications link. Such evasion

5 techniques may inhibit access to the target' s communications and therefore deny the United

6 States access to information crucial to the defense of the United States both at home and abroad.

7 COMINT is provided special statutory protection under 18 U.S.C. § 798, which makes it a crime

8 to knowingly disc lose to an unauthorized person classified information "concerning the

9 communication intelligence activities of the United States or any foreign government."

10

B. Se ptembe r 11, 200 1. an d t he a l Qaed a T hreat

II

13. On September 11 , 2001, the 81 Qaeda terrorist network launched a set of

12 coordinated attacks along the East Coast of the United States. Four commercial jetliners, each

J3 carefully selected to be fully loaded with fuel for a transcontinenta1 flight, were hijacked by al

14 Qaeda operatives. Those operatives targeted the Nation's financial center in New York with two

15 of the jetliners, which they deliberately flew into the Twin Towers of the World Trade Center.

16 Al Qaeda targeted the headquarters of the Nation's Armed Forces, the Pentagon, with the third

17 jetliner. Al Qaeda operatives were apparently headed toward Washington, D.C. with the fourth

18 jetliner when passengers struggled with the hijackers and the plane crashed in Shanksville,

19 Pennsylvania. The intended target of this fourth jetliner was most likel y the White House or the

20 Capitol, strongly suggesting that al Qaeda's intended mi ssion was to strike a decapitating blow t

21 the Government of the United States- to kill the President, the Vice President, or Members of

22 Congress. The attacks of September 11 resulted in approximately 3,000 deaths- the highest

23 single-day death toll from hostile foreign attacks in the Nation's hi story. In addition, these

Unclassified Declaralion of Frances J. Fleisch. National Security Agency Jewel. v. NSA. (No. 08-cv-4873-JSW); ShuberJ v. Obama (07-cv-0693-JSW) (M:06-cv-1791)

attacks shut down air travel in the United States, disrupted the Nation's financial markets and

2 government operations, and caused billions of dollars of damage to the economy.

3

14. On September 14, 2001, a national emergency was declared "by reason of the

4 terrorist attacks at the World Trade Center, New York, New York, and the Pentagon, and the

5 continuing and immediate threat of further attacks on the United States." Presidential

6 Proclamation No. 7463, 66 Fed. Reg. 48199 (Sept. 14,2001). On September 14,2001 , both

7 Houses of Congress passed a Joint Resolution authorizing the President of the United States "to

8 use all necessary and appropriate force against those nations, organizations, or persons he

9 determines planned, authorized, committed, or aided the terrorist attacks" of September 11.

10 Authorization for Vse of Military Force, Pub. L. No. 107-40 § 2 I(a), 115 Stat. 224, 224 (Sept.

11 18, 2001) ("Cong. Auth."). Congress also expressly acknowledged that the attacks rendered it

12 " necessary and appropriate" for the United States to exercise its right "to protect United States

13 citizens both at home and abroad," and acknowledged in particular that " the President has

14 authority under the Constitution to take action to deter and prevent acts of international terrorism

15 against the United States." Jd. pmbl?

) Following the 9/ 11 attacks, the United States also immediately began plans for a military response directed at al Qaeda's training grounds and havens in Afghanistan. A Military Order was issued stating that the attacks of September II "created a state of armed conflict," see Military Order by the President § I(a), 66 Fed. Reg. 57833, 57833 (Nov. 13,2001), and that al Qaeda terrorists "possess both the capability and the intention to undertake further terrorist attacks against the United States that, if not detected and prevented, will cause mass deaths, mass injuries, and massive destruction of property, and may place at risk the continuity of the operations of the United States Government," and concluding that " an extraordinary emergency exists for nati onal defense purposes." Military Order, § I(c), (g), 66 Fed. Reg. at 57833-34. Indeed, shortly after the attacks, NATO took the unprecedented step of invoking article 5 of the North Atlantic Treaty, which provides that an "armed attack against one or more of [the parties] shall be considered an attack against them all. " North Atlantic Treaty, Apr. 4, 1949, art. 5, 63 Stat. 2241, 2244, 34 V.N.T.S. 243, 246.
Unclassified Declaration of Frances J. Fleisch, National Security Agency Jewel. v. NSA. (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-179 1)

15. As a result of the unprecedented attacks of September 11 ,2001 , the United States

2 found itself inunediately propelled into a conflict with al Qaeda and its associated forces, a set of

3 groups that possesses the evolving capability and intention of inflicting further attacks on the

4 United States. That conflict is continuing today, at home as well as abroad. Moreover, the

5 conflict against al Qaeda and its allies is a very different kind of conflict, against a very different

6 enemy, than any other conflict or enemy the Nation has pre viously faced. Al Qaeda and its

7 affiliates operate not as a traditional nation-state but as a diffuse, decentralized network of

8 indi viduals, cells, and loosely associated, often disparate groups, that act sometimes in concert,

9 sometimes independently, and sometimes in the United States, but always in secret- and their

10 mission is to destroy li ves and to di srupt a way of life through terrorist acts. AI Qaeda works in

11 the shadows; secrecy is essential to al Qaeda's success in plotting and executing its terrori st

12 attacks.

IJ

16. The 9/ 11 attacks posed significant challenges for the NSA's signals intelligence

14 mi ssion. Global telecommunications networks, especially the internet, have developed in recent

15 years into a loosely interconnected system- a network of networks- that is ideall y suited for the

16 secret conununications needs ofloosely affiliated terrorist cells. Hundreds oflnternet service

17 provi ders, or " ISPs," and other providers of communications services offer a wide variety of

18 global conun unications options, often free of charge.

19

17. Our efforts against al Qaeda and its affiliates therefore present critical challenges

20 for the Nation's communications intelligence capabilities. First, in this type of conflict, more so

21 than in any other we have ever faced, communications intelligence is essential to our ability to

22 identify the enemy and to detect and disrupt its plans for further attacks on the United States.

23 Communications intelligence often is the only means we have to learn the identities of particular

24 individuals who are involved in terrorist activities and the existence of particular terrori st threats.

Unclassified Declaration of Frances J. Fleisch, National Security Agency Jewel. v. NSA . (No. 08-cv-4873-JSW); Shubert v. Ohama (07-cv-0693-JSW) (M :06-cv-179 1)

Second, at the same time that communications intelligence is more important than ever, the

2 decentralized, non-hierarchical nature of the enemy and their sophistication in exploiting the

3 agility of modern telecommunications make successful communications intell igence more

4 difficult than ever. It is against this backdrop that the ri sks presented by this litigation should be

5 assessed, in particular the risks of disclosing NSA sources and methods implicated by the claims

6 being rai sed.

7

C. Plaintiffs' Allegations and the Government 's Pr ior Assertions of Privilege

8

18. In the course of my official duties, I have been advised of the Jewel and Shubert

9 cases, and I have reviewed the allegations raised in this litigation, including the Complaint filed

10 in the Jewel action on September 18,2008 , and the Second Amended Complaint ("SAC") filed

11 in the Shubert action on May 8, 2012. In sum, plaintiffs allege that, after the 9/ 11 anacks, the

12 NSA received presidential authorization to engage in "dragnet" communications surveillance in

13 concert with major telecommunications companies. See, e.g., Jewel Compl. ~, 2-3, Shubert

14 SAC ~~ 1-7. Plaintiffs allege that, pursuant to presidential authorization and with the assistance

15 of telecommunication companies (including AT&T and Verizon), the NSA indiscriminately

16 intercepted the content and obtained the communications records of millions of ordinary

17 Americans. Plaintiffs seek relief in this litigation that would prohibit such collection activities,

18 even though they were later transitioned to FISC-authorized programs and remain so to the

19 extent the programs continue.

20

19. In addition, 1 am familiar with the previous classified deciarations filed in these

21 cases in September and November 2012. In those declarations, the ONI and the NSA asserted

22 the state secrets pri vilege over the following broad categories of information: (I) any

23 information that may tend to confirm or deny whether particular individuals, including plaintiffs,

24 have been subject to the alleged NSA intelligence activities; and (2) any infonnation concerning

Unclassified Declaration of Frances J. Fleisch, National Security Agency

II

Jewel. v. NSA. (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv- 1791)

NSA intelligence activities, so urces, or methods that may relate to or be necessary to adjudicate

2 plaintiffs' allegations, including allegations that the NSA, with the assistance of

3 telecommunications carriers such as AT&T and Verizon, indiscriminately intercepts the content

4 of communications and collects the communication records of millions of Americans as part of

:5 an all eged program authorized by the President after 9/11. This latter category included (i)

6 information concerning the scope and operation of the now inoperati ve Terrori st Surveillance

7 Program ("TSP") regarding the interception of the content of certain international

8 communications reasonably believed to in volve a member or agent of al Qaeda or an affiliated

9 terrori st organization,4 and any other information related to demonstrating that the NSA does not

10 otherwi se engage in the content surveillance "dragnet" alleged by plaintiffs; (ii) information

11 concerning whether or not the NSA obtained from telecommunications companies such as

12 AT&T and Verizon communication transactional records as alleged in the complaints; and (iii)

J3 information that may tend to confinn or deny whether AT&T, Verizon, or other

14 telecommunications carriers have provided assistance to the NSA in connection with an y of the

15 alleged activities.

16

D. Official Disclosures Since September 2012

17

20. In the wake of unauthorized di sc losures, beginning in June 20 13, about

18 intelligence-gathering activities conducted by the NSA , the ONI , at the direction of the President

19 and in light of the President' s transparency initiati ve, has declassified and made public certain

4 In December 2005, then-President Bush publicl y acknowledged the existence ofa presidentially-authorized NSA activity that later came to be called the TSP under which the NSA was authori zed to intercept the content of specific international communications (i.e., to or from the United States) involving persons reasonabl y beli eved to be associated with al Qaeda and affi liated terrorist organizations. The term "content" is used herein to refer to the substance, meaning, or purport of a communication, as defined in 18 U.S.C . § 25 J0(8), as di stingui shed from the type of add ressing or routing information referred to herein as "metadata."
Unclassified Declaration of Frances J . Fleisch, National Security Agency Jewel. v. NSA. (No. 08-cv-4873-JSW); Sh ubert v. Obama (07-cv-0693 -JSW) (M :06-cv-1791)

information about a number of sensitive programs undertaken under the authority of the FlSA.

2 Certain of the information that the ONI has declassified concerns the allegations raised in this

3 litigation, and th is infonnation has been descri bed in great detail in the classified declarations

4 referenced above. In addition, the President has declassified the fact of the existence of two
s portions of the discontinued President' s Surveillance Program, which also concern the

6 allegations at issue in this litigation. I summarize these various official disclosures below.

7

1. Collection of Bulk T elephony Metadata Under Section 215 oftbe FISA

8

21. First, since May 2006, under a provision of the FISA known as Section 215 and

9 codified at 50 U.S.c. § 1861 , the NSA obtains, pursuant to orders of the FISC, bulk telephony

10 metadata - business records created by telecommunications service providers that include such

11 information as the telephone numbers placing and receiving calls, and the time and duration of 12 those calls. 5 The Government has declassified and publicly disclosed a number of "primary"

13 orders of the FISC to the Government authorizing it to carry out the bulk telephony metadata

14 program . The Government has acknowledged only one "secondary" FISC order, however, to

IS one telecommunications service provider (Verizon Business Network Services, Inc. ("VBNS")),

16 and for only one approximately 90-day period of time (from April 25, 20 13 to July 19, 20 13).

17 The Government acknowledged this secondary order only after the order was disclosed

18 unlawfully and without authorization. This is the only FISC order identifying any particular

19 provider that has been declassified and, since the disclosure of thi s order in June 20 13, the

20 United States has conti nued to protect against any further disclosures of FISC orders directed at

5 Under the terms of the FISC ' s orders, the NSA is authorized to collect information including, as to each ca1J, the telephone numbers that placed and received the call, other sessio nidentifying information (e.g., International Mobile Subscriber Identity (IMSI) number,
International Mobile stalion Equipment Identity (lMEI) number, etc.). trunk identifier, telephone
calling card number, and the date, time, and duration of a call.
Unclassified Declaration of Frances J. Fleisch, National Security Agency Jewel. v. NSA. (No. 08-cv-4873-JSW); Shubert v. Obam(J (07-cv-0693 -JSW) (M :06-cv-1791)

any provider under the telephony metadata program. While the authentication of that order

2 means that the identity of one participating provider has been officially acknowledged for the

3 particular time period of that order, the order was limited to YBNS , did not identify any other

4 provider, did not relate to any other corporate component ofVerizon other than VBNS, and was
s of limited duration (expiring on July 19, 2013). There has been no official acknowledgement of

6 whether or not VBNS assisted the NSA with the FISC telephony metadata program either before

7 or after the period covered by the Apri l 2013 order, or whether VBNS continues to participate in

8 the program. The identities of the providers that furnish assistance to the NSA under the

9 telephony metadata program, including VBNS , as to any other time period other than the

10 approximately 90-day duration of that order, have not been declassi fied and remains currently

II and properly classified.

12

22. The Government also disclosed that it does not collect, listen to, or record the

13 content of any call under this program, nor does it collect the name, address, or financial

14 information of any subscriber, customer, or party to a call, or cell site loeational information.
l' The Government obtains FISC orders under this program by submitting detailed applications

16 from the Federal Bureau of Investigation (" FBI") explaining that the records are sought for

17 investigations to protect against international terrorism that concern specified foreign terrorist

18 organizations identified in the application. As required by Section 215, each application contain

19 a statement of facts showing that there are reasonable grounds to believe that the metadata as a

20 whole are relevant to the investigations of these organizations.

21

23. The NSA stores and analyzes this information under carefully controlled

22 circumstances and under stringent supervi sion and oversight by all three branches of

23 Government. The vast majority of the metadata are never seen by any person. Rather, the NSA

24 has been authorized to query the archived data solely with identifiers, typically telephone

Unclassified Declaration of Frances J. Fleisch, National Security Agency Jewel. v. NSA. (No. 08-cv-4873-JSW); Shubert v. Oboma (07-cv-0693-JSW) (M:06-cv-1791)

numbers. for which there are facts giving ri se to a reasonable, aniculable suspicion ("RAS") that

2 the number is associated with one or more of the foreign terrorist organizations that are the

3 subject of FBI investigations previously identified to the FISC. Where the identifier is

4 reasonably believed to be used by a U.S. person, the NSA may not make the RAS determination

5 so lely based on activities protected by the First Amendment.

•

24. The accessible results of an approved query are limited to records of

7 communications within three "hops" from the seed identifier.6 That is, the query results may

8 only include identifiers having a direct contact with the seed (the first " hop"), identifiers having

9 direct contact with the first " hop" identifiers (the second " hop"), and identifiers having a direct

JO contact with second "hop" identifiers (the third "hop"). By querying the metadata using the RAS

II standard, NSA intelligence analysts are able to : (1) detect domestic identifiers calling foreign

12 identifiers associated with one of the foreign terrorist organizations and discover identifiers that

13 the foreign identifiers are in contact with; (2) detect foreign identifiers associated with a foreign

14 terrorist organization calling into the U.S. and discover which domestic identifiers are in contact

15 with the foreign identifiers; and (3) detect possible terrorist-related communications occurring

16 between communicants located inside the U.S.

17

25. The Government has also publicly disclosed FISC orders and opinions concemin

18 various failures to fully implement and comply with FISC-ordered procedures for the telephony

19 metadata collection program. These compliance incidents were due to human error and

20 technological issues. In 2009, the Government reported these problems to the FISC (and

21 Congress) and remedied them, and the FISC (after temporari ly suspending the Government's

6 A "seed" is an initial identifier used to generate a query.
Unclassifi ed Declaration of Frances J. Fleisch, National Sec urity Agency Jewel. v. NSA. (No. 08-cv-4873-JSW); Shubertv. Obama (07-cv-0693-JSW) (M:06-cv-1791)

authority to query the database without the court 's approval) reauthorized the program in its

2 current form.

3

2. Bulk Collection of Internct Metadata

4

26. Second, the Government has recently declassified and acknowledged the

.5 existence of FISC-authorized bulk collection of Internet metadata carried out under the "pen

6 register, trap and trace" (" PRIT') provision of the FISA. The data col lected included certain

7 routing, addressing, and signaling information such as the "to" and "from" lines of an email and

8 the date and time the email was sent, but not the content of an email or the subject line. Certain

9 telecommunications service providers were compelled to provide this transactional information,

10 which the NSA analyzed to obtain foreign intelligence information. The FISC's orders

11 authorizing thi s collection required the Government to comply with minimization procedures

12 limiting the retention and dissemination of the metadata, including a requirement of a reasonable,

13 articulable suspicion that selection terms used to query the bulk data were associated with 14 foreign terrori st organizations. 7 1bis program of bulk Internet metadata collection was

IS terminated in 20 11 , because it did not meet the operational expectations the NSA had for it.

16

3. Collection of Communication s Content Pursuant to Section 702 of FISA.

17

27. Third, the Government has publicly revealed certain information about its use of

18 authority conferred by Section 702 of the FISA to collect, for foreign intelligence purposes,

19 certain communications of non-U.S. persons located outside the United States, pursuant to

20 approval of the FISC. Section 702 facilitates the targeted acquisition of foreign intelligence

7 Similar to the telephony metadata program (see supra 34). the Government has also publicly disclosed FISC orders and opinions concerning various fai lures to fuUy implement and comply with FISC-ordered procedures for the Internet metadata collection program. These compli ance incidents were due to human error and technological issues. In 2009, the Government reported these problems to the FISC (and Congress) and remedied them.
Unclassified Declaration of Frances J. Fleisch, National Security Agency
Jewel. v. NSA . (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv- 1791 )

information concerning foreign targets located outside the United States under court oversight.

2 Electronic communication service providers are compelled to supply information to the

3 Government pursuant to authorized directives issued by the Attorney General and the ON!.

4

28. Once targeted surveillance under Section 702 has been authorized, the NSA takes

!l the lead in tasking relevant telephone and electronic communications selectors to target spec ific

6 non- U.S. persons reasonably believed to be located outside the United States. Consistent with

7 the statute, the NSA's targeting procedures require that there be an appropriate, documented

8 foreign intelligence purpose for the acquisition and that the selector be used by a non-U .S.

9 person reasonably believed to be located o utside the United States.

10

29. Once a target has been approved, the NSA uses two means to acquire the target' s

11 electronic communications. First, it acquires such communications directly from compelled

12 U.S. -based providers. This has been publicl y referred to as the NSA's PRISM coll ection.

13 Second, in addition to collection directly from providers, the NSA performs " upstream

14 collection" of Internet communications. The NSA has strict minimization and disseminati on

15 procedures, and as is the case with the telephony metadata program, the NSA's Section 702

16 collection acti vities are subject to extensive oversight by all three branches of the Government.

17

30. As with the telephony metadata program, the Government has also disclosed

18 compliance incidents involving its Section 702 collection activities. In an opinion issued on

19 October 3, 201 1, the FISC found the NSA 's proposed minimization procedures as applied to the

20 NSA's upstream collection of Internet transacti ons containing multiple communications, or

21 "MCTs," deficient. Oct. 3, 2011 FISC Op., 2011 WL 10945618. In response, the NSA modified

22 its proposed procedures and the FISC subsequently determined that the NSA adequately

23 remedied the deficiencies such that the procedures met the applicable statutory and constitutional

Unclassified Declaration of Frances J. Fleisch. National Security Agency Jewel. \I. NSA, (No. Og-cv-4873-JSW); Shubert v. Oboma (07-cv-0693-JSW) (M:06-cv-179 1)

requirements, and allowed the collection to continue. Aug. 24,2012 FISC Op., 2012 WL

2 9189263, at '2-3; Nov. 30, 20 11 FISC Op., 20 11 WL 10947772.

3

4. Presidentia lly Authorized NSA Activities After 9/11

, 4

31. In December 2005 then-President Bush acknowledged the existence of a

6 presidentially-authorized NSA activity called the TSP under which NSA was authorized to

7 intercept the content of specific international communications (i.e., to or from the United States)

8 involving persons reasonably believed to be associated with a1 Qaeda and affi liated terrorist

9 organizations. Other intelligence activities were authorized by the President after the 9/ 11

10 attacks in a single authorization and were subseq uently authorized under orders issued by the

II FISC. In light of the declassification decisions described above concerning the NSA's

12 collection of tel ephony and Internet metadata and targeted content collection under FISC orders,

13 the President has detennined to publicly di sclose the fact of the existence of those activities prio r

14 to the FISC orders, pursuant to presidential authorization. Accordingly. certain limited

15 information concerning these activities has now been declassified:

16

32. Starting on October 4, 200 1, President Bush authorized the Secretary of Defense

17 to employ the capabilities of the Department of Defense, incl uding the NSA, to coll ect foreign

18 intelligence by electronic surveillance in order to detect and prevent acts of terrori sm within the

19 United States. President Bush authorized the NSA to collect: ( 1) the contents of certain

20 internationa1 communi cations, a program that was later referred to as the TS P; and (2) telephony

21 and Internet non-content metadata in bulk, subject to various conditions.

22

33. President Bush issued authorizations approximately every 30-60 days. Although

23 the precise terms changed over time, each presidential authorization required the minimization 0

24 information collected concerning American citizens to the extent consistent with the effective

Unclassified Declaration of Frances J. Fleisch, Nationa l Security Agency
Jewel. v. NSA. (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)

accomplishment of the mission of detection and prevention of acts of terrorism within the Uni ted

2 States. The NSA applied additional internal constraints on the presidentially-authorized

3 activities.

4

34. Over time, the presidentially-authorized activities transitioned to the authority of

.5 the FISA. The collection of communications content pursuant to presidential authorization

6 ended in January 2007 when the Government transitioned the TSP to the authority afthe FlSA

7 and under the orders afthe FISC. In August 2007, Congress enacted the Protect America Act

8 ("PAA") as a temporary measure. The PAA, which expired in February 2008, was replaced by

9 the FISA Amendments Act of2008 ("FAA"), which was enacted in July 2008 and remains in

10 effect today. Today, content collection is conducted pursuant to section 702 of the FlSA The

I I metadata activities al so were transitioned to orders of the FISC. The bulk collection oftelephon

12 metadata transitioned to the authority of the FISA in May 2006 and is collected pursuant to

13 Section 2 15 of FlSA. The bulk collection of Internet metadata was transitioned to the authority

14 of the FISA in July 2004 and was collected pursuant to Section 402 of FISA. In December 20 II ,

1~ the Government decided not to seek reauthorization af the bulk collection of Internet metadata.

16 IV. INFORMATION SUBJECT TO ASSERTIONS OF PRIVILEGE

17

35. While information about the existence of the components afthe PSP has now

18 been declassified, speci fic operational detail s concerning the program' s scope, operation, the

19 sources and methods it utilized, and intelligence it produced remain properly classified and are

20 subject to the DNI's state secrets privilege assertion and my own asserti on ofNSA's statutory

21 pri vil ege in this declaration. In general and unclassified terms, the DNI's assertion of the state

22 secrets privilege and my statutory privilege assertion encompasses the foll owing categories of

23 still-classifi ed information and properly protected national security informati on concerning NSA

24 activities:

Unclassified Declaration of Frances J. Fleisch, National Security Agency Jewel. v. NSA. (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)

I

A. Person s Subject to Intelligence Activities: information that would tend to confirm

2

or deny whether particular individuals, including the named plaintiffs, have been

3

subject to any NSA intelligence activities;

, 4

B. Operational Information Concerning NSA Intelligence Activities: information

6

concerning the scope and operational details ofNSA intelligence activities that may

7

relate to or be necessary to adjudicate plaintiffs' allegations, including:

8

9

(1) Communicalioru Content Col/ee/ion: information concerning the

10

scope or operational detail s ofNSA intelligence activities that may relate

"

to or be necessary to adjudicate plaintiffs' claims that the NSA

12

indiscriminately intercepts the content of commun ications, see, e.g. , Jewel

13

Complaint 9, 10, 73-77; Shubert SAC 1,2, 7,64-70, including:

14

"16

(a)

TSP Information: information concerning the scope

and operation of the now inoperative TSP regarding the

17

interception of the content of certain international

18

communications reasonably believed to involve a

19

member or agent of al Qaeda or an affiliated terrorist

20

organization;

21

22

(b)

FISA Section 702: information concerning

23

operational details related to the collection of

24

communications under FISA section 702; and

"26

(e)

Any other information related to demonstrating that

27

the NSA has not otherwise engaged in the content-

28

surve illance dragnet that the plaintiffs allege.

29

30

(2) Communications Records Collection: information concerning the

31

scope or operational detail s ofNSA intelligence activities that may relate

32

to or be necessary to adjudicate plaintiffs' claims regarding the NSA 's

JJ

bulk collection of telephony and Internet non-content communications

J4

records ("metadata"), see, e.g., Jewel Complaint 10, II, \3 , 73-77, 82-

"

97; Shubert SAC 102;

Unclassified Declaration of Frances J. Fleisch, National Security Agency

2

Jewel. v. NSA. (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M :06-cv- 1791)

2

C. Telecommunication Provider Identities: information that may tend to

J

confirm or deny whether AT&T or Verizon (and to the extent relevant or necessary,

, 4

any other telecommunications carrier) has provided assistance to the NSA in connection with any intelligence activity, including the collection of communications

6

content or non-conlent transactional records alleged to be at issue in this litigation.

7
8 V. HARM OF DISCLOSU R E O F PRI VILEGE D INFORM AT ION

9

A. Info r mation CODcernine; Whether Plaintiffs Have BecDSubj ect

10

to th e Alleged NSA Activities

II

36. The first major category of information as to which I am supporting the DNI ' s

12 assertion of privilege, and asserting the NSA 's own statutory privilege, concerns information as

13 to whether particular individuals, including the named plaintiffs in this lawsuit, have been

14 subject to alleged NSA intelligence activities. As set forth below and in my classified

15 declaration, confirmation or denial of such information by the NSA reasonably could be

16 expected to cause exceptionally grave damage to the national security. l1te named plaintiffs in

17 the Jewel and Shubert cases allege that the content of their own telephone and Internet

18 communications has been and continues to be subject to unlawful search and seizure by the 19 NSA, along with the content of communications of millions of ordinary Americans. 8 Further,

8 Specifically, the Jewel plaintiffs allege that pursuant to a presidentially authorized program after the 9/ 11 attacks, the NSA, with the assistance of AT&T, acquired and continues to
acquire the content of phone calls, emaiis, instant messages, text messaged, web and other communications, both international and domestic, of mi llions of ordinary Americans " practically every American who uses the phone system or the Internet" - including the
plaintiffs. See Jewel Compl. ., 7. 9. 10; see also id. at~' 39-97. The Shubert plaintiffs allege
that the contents of "virtually every telephone, Internet and email communication sent from or received within the United States since shortly after September I I, 2001 ," including plaintiffs' communications, are being "searched, seized, intercepted, and subject to surveillance without a warrant, court order or any other lawful authorization in violation of the Foreign Intell igence
Surveillance Act of 1978, 50 U.S.C. § 1810." See Shubert SAC VI; see also id. 5, 7.

Unclassified Declaration of Frances J. Fleisch, National Security Agency

21

Jewel. v. NSA. (No. 08-cv-4873-JSW); Shubert v. Obomo (07-cv-0693 -JSW) (M :06-cv-1791)

the named plaintiffs allege that the NSA has been and is continuing to collect and analyze the

2 private telephone and Internet transaction records of millions of Americans, with the assistance

3 of telecommunication carriers, again including information concerning the plaintiffs' telephone

4 and Internet communications.9

,

37. As a matter of course, the NSA cannot publicly confirm or deny whether any

6 individual is or has been subject to intelligence-gathering activities because to do so would tend

7 to re veal actual targets or s ubjects. The harm of revealing the identities of persons who are the

8 actual targets or subjects of foreign intelligence gathering is relati vely straightforward. Ifan

9 indi vidual knows or suspects he is a target or subject of U.S. intelligence acti vities, he would

10 naturally tend to alter hi s behavior to take new precautions against such scrutiny. In addition,

II revealing who is not a target or subject of intelligence gathering would indicate who has avoided

12 surveillance or collection and what may be a sec ure channel for communication. Such

13 information could lead an actual or potential adversary, secure in the knowledge that he is not

14 under government scrutiny, to help a hostile foreign adversary convey information; alternatively,

15 such a person may be unwittingly utilized or even forced to convey information through a secure

16 channel to a foreign adversary. Revealing which channels are free from surveillance and which

17 are not would also reveal sensitive intelli gence methods and thereby could help any adversary

18 evade detection and capitalize on limitations in NSA's capabilities. Similar hanns would result

19 from confirming or denying whether a person's communications have been subject to collection

9 Specifically, the Jewel plaintiffs allege that the NSA has " unlawfull y solicited and obtained from telecommunications companies the complete and ongoing di sclosure of the pri vat tele phone and internet transactional records" of millions of ordinary Americans, including
plainti ffs. See Jewel Compl. " 7, 10, I I, 13, 82-97. They further claim the NSA aoal yzes this information. Id.' 11 . The Shubert plaintiffs allege that "NSA now monitors huge volumes of records of domestic emails and Internet searches ... [and] receives this so-called ' transactional' data from ... pri vate companies... " See Shubert SAC ~ 102.

Unclassified Declaration of Frances J. Fleisch, National Security Agency

2

Jewel. v. NSA . (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv- 179 1)

even where it may be assumed a person is law-abid ing and not likely to be an actual target or

2 subject of such activity. For example, if the NSA were to confirm that specific individuals have

3 not been targets of or subject to collection (i.e., whether their communications have been

4 intercepted), but later refuse to comment (as it would have to) in a situation involving an actual
s target or subject, an actual or potential adversary of the United States could likewi se seek such

6 confirmation or denial and then easily deduce by comparing such responses that the person in the

7 latter instance is or has been a target of or subject to surveillance or other intelligence-gathering

8 activity. In addition, disclosure of whether a person's communications have or have not been

9 targeted or intercepted through the targeting of a third party would reveal whether a particular

10 channel of communication is secure and also reveal to third-party targets whether their own

11 communications may be secure.

12

B. O perational In fo r mation Concernine; NSA Intelligence

IJ

Activ it ies

14

38. I am also supporting the DNl 's assertion of pri vilege and asserting the NSA's

IS statutory privilege over any other still-classified facts concerning NSA intelligence activities,

16 sources, or methods that may relate to or be necessary to litigate the plaintiffs' claims and

17 allegations, including that: (1) the NSA is indiscriminate ly intercepting the content of

18 communications of millions of ordinary Americans, see e.g. , Jewel Complaint 7,9, 10;

19 Shubert SAC I, 5, 7; and (2) that the NSA is collecting the private telephone and Internet

20 transactional records of Americans with the assistance of telecommunications carriers, again

21 including information concerning the plaintiffs' telephone and Internet communications. See

22 Jewel Complaint ~~ 7, 10, II , 13, 82-97; see Shubert SAC 1102. As described above, the scope

23 of the Government's privilege assertion includes but is not limited to still-classified information

24 concerning (I) th e collection of communication content under the now inoperative TSP as well

Unclassified Declaration of Frances J. Fleisch, National Security Agency

2

Jewel. v. NSA. (No. 08-cv-4873-JSW); Shubert v. Ohama (07-cy-0693-JSW) (M:06-cY· 1791)

as pursuant to authority of FlSA Section 702, and any other NSA activities that would be at risk

2 of disclosure or required in demonstrating that the NSA has not engaged in content "dragnet"

3 surveillance activities that plaintiffs allege; and (2) information that may relate to or be necessary

4 to adjudicate plaintiffs' claims regarding the NSA 's bulk collection of telephony and Internet

5 communication records. As set forth below and in my classified declaration, the disclosure of

6 such information would cause exceptionally grave harm to national security.

7

1. In fo rmation Concerning Plaintiffs' Content Surveillance Allegations

8

39. After the existence of the TSP was officiall y acknowledged in December 2005,

9 the Government stated that thi s activity was limited to the interception of the content of certain

10 communications for which there were reasonable grounds to believe that: (I) such

II communication originated or terminated outside the United States; and (2) a party to such

12 communication is a member or agent of al Qaeda or an affiliated terrorist organization.

I] Nonetheless, plaintiffs' allege that the NSA indiscriminately intercepts the content of

14 communications of millions of ordinary Americans. See e.g., Jewel Complaint 7. 9, 10; see

15 Shubert SAC I, 5, 7. As the Government has also previously stated,]Oplaintiffs' allegation

16 that the NSA has undertaken indiscriminate surveillance of the content11 of millions of

17 communications sent or received by people inside the United States after 9/ 11 under the TSP is

18 false . But in order to disprove plaintiffs ' claim that the NSA indi scriminately collected the

10 See Public Declaration of Dennis Blair, Director of Nationa1 Intelligence, 15 (April 3,2009) (Ok!. 18-3 in Jewel action (08-cv-4373); Public Declaration of Deborah A. Bonanni, National Security Agency ~ 14 (Dkt. 18-4 in Jewel action (08-cv-4373); Public Declaration of Dennis Blair, Director of National Intelligence, ' 115 (October 30, 2009) (Ok!. 680- 1 in Shubert action (MD L 06-cv-1791); Public Declaration of Lt. Gen. Keith B. Alexander, Nationa1 Security Agency 19 (Ok!. 680-1 in Shubert action (MOL 06-cv-1791).
11Again, the term "content" is used herein to refer to the substance, meaning, or purport ofa communication as defined in 18 U.S.c. § 2510(8).

Unclassified Declaration of Frances J. Fleisch, National Security Agency

2

Jewel. v. NSA. (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M :06-cv-1791)

content afthe communications of millions of Americans, the NSA would have to disclose the

2 specifics of its content collection activities. Under the TSP, the NSA was directed pursuant to

3 presidential authorization to intercept the content of o nly those international telephone and

4 Internet communications for which there were reasonable grounds to believe that such
s communications involved a member or agent oral Qaeda or an affiliated terrori st organization.

6 To the extent the NSA must demonstrate that content surveillance under the TS P was so limited,

7 and was not plaintiffs' alleged content " dragnet," or demonstrate that the NSA has not otherwise

8 engaged in the alleged content "dragnet," highly classified NSA intelligence sources and

9 methods about the operation of the TSP and current NSA intelligence activities (incl uding under

10 FlSA Section 702) would be subject to disclosure or th e risk of disclosure. The disclosure of

II whether and to what extent the NSA utilizes certain intelligence sources and methods would

12 reveal to foreign adversaries the NSA's capabilities, or lack thereof, enabling them to either

]J evade particular channels of communications that are being monitored, or exploit channels of

14 communication that are not subject to NSA activities, in either case risking exceptionally grave

IS damage to national security. As set forth below and in my classified declaration, a range of

16 operational details concerning the TSP, as well as other NSA sources and methods, remains

11 properly classified and privileged from disclosure, and could not be revealed to address

18 plaintiffs' content " dragnet" allegations.

19

40. Authorization afthe TSP was intended to address an important gap in NSA's

20 intelligence co ll ection activities---namely, that significant changes in communications

21 technolog y since the enactment of the FISA in 1978 meant that the NSA faced great difficulties

22 in identifying foreign terrorist operatives who were communicating with individual s within the

23 United States. FISA establi shed the framework for court approval of the U.S. Government 's

24 efforts to conduct fo rei gn intelligence surveillance of individuals in the United States. When

Unclassified Declaration of Frances J. Fleisch, National Security Agency

2

Jewel. v. NSA. (No. 08-cv-4873-JSW); Shuberl v. Oboma (07-cv-0693-JSW) (M :06-cv-179 1)

FISA was enacted in 1978, most internationaJ communications to or from the United States were

2 transmitted via satellite or radio technology. Congress intentionally excluded the vast majority

3 of satellite or radi o communications from the definition of "electronic surveillance" in the FISA.

4 See 50 U.S.C. § J80J(I).

,

41. Since the time FISA was enacted, sweeping advances in modem

6 telecommunications technology upset the ba1ance struck by Congress in J978. By 200 I, most

7 international communications to or from the United States were carri ed on a wire and many

8 domestic communications had increasingly become wireless. As a result of this change in

9 communications technology. the NSA 's collection from inside the United States of international

10 communications (previously carried primarily via radio transmission) had shrunk considerably

II and the Government was forced to prepare FISA applications if it wished to collect the

12 communications of non-U.S. persons located overseas. These circumstances presented a

13 significant concern in the exceptional circumstances after 9/ 11 .

14

2. Information Concerning Plaintiffs' Comm unications Rccords Collection

1.5

Allceations

16

17

42. Plaintiffs also allege that the NSA is collecting the private telephone and Internet

18 transaction records of millions of Americans, again including information concerning plaintiffs'

19 telephone and Internet communications. See, e.g., Jewel Complaint 7, 10, II, J3, 8, 13, 82-

20 97; see Shubert SAC 102. To address these allegations would ri sk or require disclosure of

21 NSA sources and methods and reasonably co uld be expected to cause excepti onally grave

22 damage to national security. While the Government has declassified the existence of the

23 telephony and Internet metadata collecti ons, and some information concerning those programs as

24 authorized by the FISC, significant operational details concerning these acti vities remain

2S properl y classified, incl uding the identity of communication providers who may have assisted in

Unclassified Declarat ion of Frances J. Fleisch, National Security Agency

2

Jewel. v. NSA . (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)

this collection, and other sources and method of collection and analysis. As set forth below and

2 in my classified declaration, disclosure of this infonnation reasonably could be expected to cause

3 grave damage to national security.

, 4

(a) Collection of Bulk Telepbony Metadata

6

43. As with the operational detail s concerning the NSA's collection of

7 communications content, I am supporting the DNI's state secrets privi lege assertion, and

8 asserting NSA's statutory privi lege, over still-classified infonnation that may relate to or be

9 necessary to litigate plaintiffs' claims as they relate to the alleged collection of te lephony

10 metadata.

11

44. The still classified operational details concerning the collection of telephony

12 metadata include, but are not necessarily limited to, whether metadata of plaintiffs ' telephone

13 comm unications were actually collected by the NSA from plaintiffs ' particu lar communications

14 providers; whether any metadata ofplaintifTs' telephone communications, if collected, were

IS viewed or analyzed by anyone at the NSA; infonnation demonstrating the scope of the telephony

16 metadata collection program; and infonnation demonstrating the need for and effectiveness of

17 the program

18

45. As set forth in this declaration, following the unauthorized di sclosure in June

19 2013 of one FISC order iss ued as part of the telephony metadata program, the Government

20 confinned the authenticity of one order, iss ued on April 25, 2013 , by the FISC to a particular

21 Verizon Communications subsidiary, Verizon Business Network Services (VBNS), thereby

22 confinning the participation ofVBNS in the program fo r the duration of that order

2] (approximately 90 days). This is the only FISC order identifying any particular provider under

24 this program that has been declassified. and since the disclosure of this order in June 2013, the

Unclassified Declaration of Frances J. Fleisch, National Security Agency

2

jewel. v. NSA. (No. 08-cv-4873-JSW); Shubert v. Oboma (07-cv-0693-JSW) (M:06-cv- 179 1)

United States has nol continned or denied the past or current participation of any specific

2 provider in the telephony metadata program apart from the participation of VBNS for the

3 approximately 90 day duration of the now·expired April 25, 2013, FISC order. As explained in

4 my classified declaration, the continued protection of whether or not, or to what extent, a
s particular telecommunications provider assisted the NSA under FISC order or otherwise remains

6 an extraordinarily sensitive and signi ficant matter that the Government continues to protect to

7 avoid even greater hann to national sec urity than has already occurred since June 2013.

8

46. (b) Inte rnet Metadata Co llection

9

47. J am also supporting the DNl's privilege assertion, and asserting the NSA ' s

10 statutory privilege, over still-classified operational details concerning the NSA's bulk collection

II of Internet metadata under presidential authorization .. Disclosure of these detail s, which are set

12 forth in my classified declaration, reasonably could be expected to cause exceptionally grave

1] damage to national security, for the reasons set forth in my classified deciaration.

I.

3. Informatio n Concerning Wbetber or Not Any Specific Carrier Provided

15

Assistance to tbe NSA

16

17

48. I am also s upporting the DNI' s state secrets privilege assert ion, and asserting

18 NSA's statutory pri vilege, over information relating to which carriers have assisted the NSA

19 under presidential authorization and other authorities. The Jewel plaintiffs and three of the

20 Shubert plaintiffs allege that they are customers of AT&T, and that AT&T participated in the

21 alleged intelligence-gathering activities that the plaintiffs seek to challenge. Additionally, at

22 least one Shubert plaintiff also ciaims to be a customer of Verizon, and that Verizon similarly

23 participated in the alleged intelligence-gathering activities that the plaintiffs seek to challenge.

24 The hann from officially acknowledging whether or not any specific carrier has assisted the NS

25 is significant, as set forth in my classified declaration, and continues to exist notwithstanding the

Unclassified Declaration of Frances J. Fleisch, National Security Agency

2

Jewel. v. NSA . (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)

recent official disclosures. While the Government has declassified some information concerning

2 the nature and scope of the programs described above and in my classified declaration --

3 including that it collects telephony and Internet metadata in bulk, from multiple

4 telecommunication providers -- and has also confirmed the authenticity of a single now-expired

5 FISC order issued to a single carrier that had been unlawfully disclosed, it has not otherwise

6 declassified information concerning the identities of companies that are or were subject to FISC

7 orders under NSA intelligence-gathering programs, or have otherwise assisted the NSA.

8

IV. CONCLUSION

9

49. The United States has an overwhelming interest in detecting and thwarting further

10 plots to perpetrate mass-casualty attacks by al Qaeda and other terrorist organizations. The

J1 United States has already suffered one massive attack that killed thousands, disrupted the

12 Nation's financial center for days, and successfully struck at the command and control center for

I ] the Nation's military. It remains a key objective ofal Qaeda and other terrorist groups to carry

14 out a massive attack in the United States that could result in a significant loss of life, as well as

IS have a devastating impact on the U.S. economy.

16

50. As set forth above, terrorist organizations around the world seek to use our own

17 communications infrastructure against us as they secretly attempt to infiltrate agents into the

18 United States, waiting to attack at a time of their choosing. One of the greatest challenges the

19 United States confronts in the ongoing effort to prevent another catastrophic terrorist attack

20 against the U.S. Homeland is the critical need to gather intelligence quickly and effectively.

21 Time is of the essence in preventing terrorist attacks, and the Government faces significant

22 obstacles in finding and tracking terrorist operatives as they manipulate modem technology in an

23 attempt to communicate while remaining undetected. The NSA sources, methods, and activities

24 described herein are vital tool s in this effort.

Unclassified Declaration of Frances J. Fleisch, National Security Agency

2

Jewel. v. NSA . (No. 08-cv-4873-JSW); Shubert v. Oboma (07-cv-0693-JSW) (M:06-cv- 1791)

51. For the foregoing reasons, I support the DNJ ' s assertion of the state secrets

2 privilege and statutory privilege to prevent the disclosure of the information described herein and

3 detailed herein. 1also assert a statutory privilege under Section 6 of the National Security Act

.. with respect to the information described herein which concerns the funclions of the NSA. 5 respectfull y request that the Court protect that infonnation frol11 disclosure to prevent

6 exceptionally grave damage to the national security of the United States.

7
I declare under penalty of perjury that the foregoing is true and correct.

9

10

DATE: 1';/. dO. 13

11

"

IJ

..J.JUL-M..·£J
Frances J. Fleisch National Security Agency

Unclassified Declaration of Frances J. Fleisch, National Security Agency

3

Jewel. v. NSA. (No. 08-cv-4873-JSW); Shubert v. Obama (07-cv-0693-JSW) (M:06-cv-1791)

 
 Case3:08-cv-04373-JSW Document148 Filed07/08/13 Page1 of 26

United States District Court For the Northern District of California

1

2

3

4

IN THE UNITED STATES DISTRICT COURT

5 FOR THE NORTHERN DISTRICT OF CALIFORNIA
6

7 CAROLYN JEWEL, ET AL.,

8

Plaintiffs,

No. C 08-04373 JSW

9 v.

10 NATIONAL SECURITY AGENCY, ET AL.,

11

Defendants.

12 13 VIRGINIA SHUBERT, ET AL.,

No. C 07-00693 JSW

14

Plaintiffs,

ORDER

15 v.

16 BARACK OBAMA, ET AL.,

17

Defendants.

/

18

19

This matter comes before the Court upon consideration of the motion for partial

20 summary judgment filed by Plaintiffs Carolyn Jewel, Tash Hepting, Young Boon Hicks, Erik

21 Knutzen and Joice Walton, on behalf of themselves and all others similarly situated

22 (collectively “Jewel Plaintiffs” or “Plaintiffs”) and the cross motion to dismiss and for summary

23 judgment filed by Defendants National Security Agency, Keith B. Alexander, Michael V.

24 Hayden, United States of America, George W. Bush, Richard B. Cheney, David S. Addington,

25 the Department of Justice, Alberto R. Gonzales, John D. Ashcroft, John M. McConnell, John D.

26 Negroponte, Michael B. Mukasey, Barack Obama, Eric Holder, Dennis C. Blair, John C. Yoo,

27 and Jack L. Goldsmith (collectively “Defendants”).

28

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United States District Court For the Northern District of California

1

This matter also comes before the Court in a related case upon consideration of the

2 motion to dismiss and for summary judgment filed by Defendants Barack Obama, Keith B.

3 Alexander, the United States of America, and Eric Holder against Plaintiffs Virginia Shubert,

4 Noha Arafa, Sarah Dranoff, and Hilary Botein, on behalf of themselves and all others similarly

5 situated (collectively “Shubert Plaintiffs” or “Plaintiffs”).

6

The Jewel Plaintiffs move for partial summary adjudication seeking to have the Court

7 reject the Defendants’ state secret defense by arguing that Congress has displaced the state

8 secretes privilege in this action by the statutory procedure prescribed by 50 U.S.C. § 1806(f) of

9 the Foreign Intelligence Surveillance Act (“FISA”).

10

The Shubert Plaintiffs filed an amended complaint upon remand of the case and the

11 Shubert Defendants move to dismiss for lack of subject matter jurisdiction on the basis that

12 Congress did not waive sovereign immunity as to the FISA claim and incorporates by reference

13 the arguments made in the Jewel Defendants’ motion.

14

Defendants in both related cases move to dismiss all of Plaintiffs’ statutory claims for

15 lack of subject matter jurisdiction on the basis that Congress did not waive sovereign immunity

16 as to the statutory claims. Defendants also move for summary judgment on all counts on the

17 grounds that Plaintiffs’ claims would risk or require the disclosure of certain information that is

18 properly protected by the statutory protections and the state secrets privilege asserted in this

19 action by the Director of National Intelligence and by the National Security Agency.

20

Having thoroughly considered the parties’ papers, Defendants’ public and classified

21 declarations, the relevant legal authority and the parties’ arguments, the Court GRANTS the

22 Jewel Plaintiffs’ motion for partial summary adjudication by rejecting the state secrets defense

23 as having been displaced by the statutory procedure prescribed in 50 U.S.C. § 1806(f) of FISA.

24 In both related cases, the Court GRANTS Defendants’ motions to dismiss Plaintiffs’ statutory

25 claims on the basis of sovereign immunity. The Court further finds that the parties have not

26 addressed the viability of the only potentially remaining claims, the Jewel Plaintiffs’

27 constitutional claims under the Fourth and First Amendments and the claim for violation of

28 separation of powers and the Shubert Plaintiffs’ fourth cause of action for violation of the

2

Case3:08-cv-04373-JSW Document148 Filed07/08/13 Page3 of 26

United States District Court For the Northern District of California

1 Fourth Amendment. Accordingly, the Court RESERVES ruling on Defendants’ motion for

2 summary judgment on the remaining, non-statutory claims.

3

The Court shall require that the parties submit further briefing on the course of this

4 litigation going forward.1

5

BACKGROUND

6

These cases are two in a series of many lawsuits arising from claims that the federal

7 government, with the assistance of major telecommunications companies, conducted

8 widespread warrantless dragnet communications surveillance of United States citizens

9 following the attacks of September 11, 2001. Plaintiffs filed these putative class actions on

10 behalf of themselves and a class of similarly situated persons described as “millions of ordinary

11 Americans ... who use[] the phone system or the Internet” and “a class comprised of all present

12 and future United States persons who have been or will be subject to electronic surveillance by

13 the National Security Agency without a search warrant or court order since September 12,

14 2001.” (Jewel Complaint at ¶¶ 1, 7, and 9; see also Shubert Complaint at ¶ 1, 2, 20.)2

15

According to the allegations in the Jewel Complaint, a program of dragnet surveillance

16 (the “Program”) was first authorized by Executive Order of the President on October 4, 2001.

17 (Jewel Complaint at ¶¶ 3, 39.) Plaintiffs allege that, in addition to eavesdropping on or reading

18 specific communications, Defendants have “indiscriminately intercepted the communications

19 content and obtained the communications records of millions of ordinary Americans as part of

20 the Program authorized by the President.” (Id. at ¶ 7.) The core component of the Program is a

21 nationwide network of sophisticated communications surveillance devices attached to the key

22 facilities of various telecommunications companies that carry Americans’ Internet and

23

24

1 The Court DENIES Defendants’ request for a stay of this decision. The subject

matter and legal questions presented by this lawsuit are timely. To the extent recent events 25 involving the public disclosure of relevant, and previously classified, information bear on the

future course of the litigation, the Court shall require that the parties submit further briefing 26 to address these issues.

27

2 For the remaining facts, the Court refers to the Jewel Complaint as it is more

inclusive. The facts pertinent to the Court’s analysis are also similarly alleged in the related 28 Shubert Complaint which was originally filed May 17, 2006, as part of a multi-district

litigation action also remanded to this Court.

3

Case3:08-cv-04373-JSW Document148 Filed07/08/13 Page4 of 26

United States District Court For the Northern District of California

1 telephone communications. (Id. at ¶¶ 8, 42.) Plaintiffs allege that Defendants have unlawfully

2 solicited and obtained the private telephone and internal transactional records of millions of

3 customers of the telecommunications companies, including records indicating who the

4 customers communicated with, when those communications took place and for how long,

5 among other sensitive information. Plaintiffs allege these records include both domestic and

6 international communications. (Id. at ¶ 10.) Plaintiffs sue Defendants “to enjoin their unlawful

7 acquisition of the communications and records of Plaintiffs and class members, to require the

8 inventory and destruction of those that have already been seized, and to obtain appropriate

9 statutory, actual, and punitive damages to deter future illegal surveillance.” (Id. at ¶ 14.)

10

The Jewel Plaintiffs allege seventeen counts against Defendants for: violation of the

11 Fourth Amendment (counts 1 and 2); violation of the First Amendment (counts 3 and 4);

12 violation of FISA, 50 U.S.C. §§ 1809, 1810 (counts 5 and 6); violation of the Wiretap Act, 18

13 U.S.C. § 2511(1)(a), (b), and (d) (counts 7 through 9); violation of the Electronic

14 Communications Privacy Act or the Stored Communications Act, 18 U.S.C. § 2703(a), (b), and

15 (c) (counts 10 through 15); violation of the Administrative Procedure Act, 5 U.S.C. § 701 et

16 seq. (count 16); and violation of separation of powers (count 17). The Shubert Plaintiffs allege

17 four causes of action for violations of FISA, the Wiretap Act, the Stored Communications Act,

18 and the Fourth Amendment.

19

The Jewel Complaint was originally filed on September 18, 2008. Defendants moved to

20 dismiss and alternatively sought summary judgment as to all claims. Defendants contended that

21 the Court lacked jurisdiction over the statutory claims because the government had not waived

22 its sovereign immunity. Defendants moved for summary judgment on the remaining claims

23 based on the argument that the information necessary to litigate the claims was properly subject

24 to the state secrets privilege. The district court dismissed the claims without leave to amend

25 based on its finding that Plaintiffs failed to make out the prima facie allegations necessary to

26 establish standing.

27

On appeal, the Ninth Circuit Court of Appeals reversed the district court’s dismissal of

28 the Jewel Complaint on standing grounds. The Ninth Circuit Court of Appeals remanded “with

4

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United States District Court For the Northern District of California

1 instructions to consider, among other claims and defenses, whether the government’s assertion

2 that the state secrets privilege bars this litigation.” Jewel v. National Security Agency, 673 F.3d

3 902, 913-14 (9th Cir. 2011). Upon remand, Plaintiffs filed their motion for partial summary

4 adjudication urging the Court to reject Defendants’ state secret defense. Defendants cross-

5 moved to dismiss on the basis of sovereign immunity for the statutory claims and for summary

6 judgment on the assertion of the state secrets privilege.

7

The Court will address additional facts as necessary in the remainder of this Order.

8

ANALYSIS

9 A. Applicable Legal Standards.

10

1. Motion to Dismiss.

11

A motion to dismiss is proper under Federal Rule of Civil Procedure 12(b)(6) where the

12 pleadings fail to state a claim upon which relief can be granted. The Court’s “inquiry is limited

13 to the allegations in the complaint, which are accepted as true and construed in the light most

14 favorable to the plaintiff.” Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).

15 Even under the liberal pleading standard of Federal Rule of Civil Procedure 8(a)(2), “a

16 plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than

17 labels and conclusions, and a formulaic recitation of the elements of a cause of action will not

18 do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 478

19 U.S. 265, 286 (1986)). Pursuant to Twombly, a plaintiff must not merely allege conduct that is

20 conceivable but must instead allege “enough facts to state a claim to relief that is plausible on

21 its face.” Id. at 570. “A claim has facial plausibility when the plaintiff pleads factual content

22 that allows the court to draw the reasonable inference that the defendant is liable for the

23 misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at

24 556).

25

2. Motion for Summary Judgment.

26

A principal purpose of the summary judgment procedure is to identify and dispose of

27 factually unsupported claims. Celotex Corp. v. Cattrett, 477 U.S. 317, 323-24 (1986).

28 Summary judgment is proper when the “pleadings, depositions, answers to interrogatories, and

5

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United States District Court For the Northern District of California

1 admissions on file, together with the affidavits, if any, show that there is no genuine issue as to

2 any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.

3 Civ. P. 56(a). “In considering a motion for summary judgment, the court may not weigh the

4 evidence or make credibility determinations, and is required to draw all inferences in a light

5 most favorable to the non-moving party.” Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir.

6 1997).

7

The party moving for summary judgment bears the initial burden of identifying those

8 portions of the pleadings, discovery, and affidavits that demonstrate the absence of a genuine

9 issue of material fact. Celotex, 477 U.S. at 323; see also Fed. R. Civ. P. 56(c). An issue of fact

10 is “genuine” only if there is sufficient evidence for a reasonable fact finder to find for the non-

11 moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A fact is

12 “material” if it may affect the outcome of the case. Id. at 248. Once the moving party meets its

13 initial burden, the non-moving party must go beyond the pleadings and, by its own evidence,

14 “set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).

15

In order to make this showing, the non-moving party must “identify with reasonable

16 particularity the evidence that precludes summary judgment.” Keenan v. Allan, 91 F.3d 1275,

17 1279 (9th Cir. 1996) (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995)

18 (stating that it is not a district court’s task to “scour the record in search of a genuine issue of

19 triable fact”); see also Fed. R. Civ. P. 56(e). If the non-moving party fails to point to evidence

20 precluding summary judgment, the moving party is entitled to judgment as a matter of law.

21 Celotex, 477 U.S. at 323; Fed. R. Civ. P. 56(e)(3).

22 B. State Secrets Privilege.

23

The state secrets privilege is a common law privilege that permits the government to bar

24 the disclosure of information if “there is a reasonable danger” that disclosure will “expose

25 military matters which, in the interest of national security, should not be divulged.” United

26 States v. Reynolds, 345 U.S. 1, 10 (1953). The state secrets privilege strikes a delicate balance

27 “between fundamental principles of our liberty, including justice, transparency, accountability

28

6

Case3:08-cv-04373-JSW Document148 Filed07/08/13 Page7 of 26

United States District Court For the Northern District of California

1 and national security.” Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1073 (9th Cir.

2 2010).

3

The state secrets privilege has two applications: as a rule of evidentiary privilege,

4 barring only the secret evidence from exposure during litigation, and as a rule of non-

5 justiciability, when the subject matter of the lawsuit is itself a state secret, necessitating

6 dismissal. See ACLU v. National Security Agency, 493 F.3d 644, 650 n.2 (6th Cir. 2007). The

7 first application of evidentiary withholding can serve to remove only certain specific pieces of

8 evidence or can be applied to compel the removal of a sufficiently broad swath of evidence

9 which then has the consequence of requiring dismissal of the entire suit. Such a dismissal may

10 be necessitated by the instances in which the removal of evidence disables a plaintiff from the

11 ability to establish the prima facie elements of a claim without resort to privileged information

12 or instances in which the removed evidence bars the defendant from establishing a defense. See

13 Kasza v. Browner, 133 F.3d 1159, 1166 (9th Cir. 1998).

14

The analysis of whether the state secrets privilege applies involves three distinct steps.

15 First, the Court must ascertain whether the procedural requirements for invoking the privilege

16 have been satisfied. Second, the Court must make an independent determination whether the

17 information is privileged. In determining whether the privilege attaches, the Court may

18 consider a party’s need for access to the allegedly privileged materials. See Reynolds, 345 U.S.

19 at 11. Lastly, the “ultimate question to be resolved is how the matter should proceed in light of

20 the successful privilege claim.” El-Masri v. United States, 479 F.3d 296, 304 (4th Cir. 2007).

21

With regard to the first step, to ascertain whether the procedural requirements have been

22 met, the assertion of the privilege belongs exclusively to the government. The head of the

23 department which has control over the matter must properly assert a formal and timely claim of

24 privilege, after actual personal consideration by that officer. See Reynolds, 345 U.S. at 7-8.

25 Such an invocation must be made only after “serious, considered judgment, not simply [as] an

26 administrative formality.” United States v. W.R. Grace, 526 F.3d 499, 507-08 (9th Cir. 2008)

27 (en banc). “The formal claim must reflect the certifying official’s personal judgment ... [and]

28 must be presented in sufficient detail for the court to make an independent determination of the

7

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United States District Court For the Northern District of California

1 validity of the claim of privilege and the scope of the evidence subject to the privilege.”

2 Jeppesen, 614 F.3d at 1080.

3

Second, the reviewing court must “make an independent determination whether the

4 information is privileged.” Al-Haramain, 507 F.3d at 1202. The court must “sustain a claim of

5 privilege when it is satisfied, ‘from all the circumstances of the case, that there is a reasonable

6 danger that compulsion of the evidence will expose ... matters which, in the interest of national

7 security, should not be divulged.’” Jeppesen, 614 F.3d at 1081 (quoting Reynolds, 345 U.S. at

8 10). In making this determination, the Court must strike the appropriate balance “between

9 protecting national security matters and preserving an open court system.” Al-Haramain, 507

10 F.3d at 1203. “This inquiry is a difficult one, for it pits the judiciary’s search for truth against

11 the Executive’s duty to maintain the nation’s security.” El-Masri, 479 F.3d at 304. In

12 evaluating the need for secrecy, the court must defer to the Executive on matters of foreign

13 policy and national security. See Jeppesen, 614 F.3d at 1081-82. However, the assertion of the

14 state secrets doctrine does not “represent a complete surrender of judicial control over access to

15 the courts.” El-Masri, 479 F.3d at 312. Rather, in order to ensure that the doctrine is not

16 asserted more frequently and sweepingly than necessary, “it is essential that the courts continue

17 critically to examine instances of its invocation.” Ellsberg v. Mitchell, 709 F.2d 51, 58 (D.C.

18 Cir. 1983). However, should the court find that the materials must not be divulged, “the

19 evidence is absolutely privileged, irrespective of the plaintiffs’ countervailing need for it.” See

20 Jeppeson, 614 F.3d at 1081 (citing Reynolds, 345 U.S. at 11).

21

Lastly, the third step in the analysis requires that the court determine how the matter

22 should proceed once it has sustained a claim of privilege. “The court must assess whether it is

23 feasible for the litigation to proceed without the protected evidence and, if so, how.” Jeppesen,

24 614 F.3d at 1082. When the government successfully invokes the state secrets privilege, “the

25 evidence is completely removed from the case.” Kasza, 133 F.3d at 1166. The court is then

26 tasked with disentangling the nonsensitive information from the privileged evidence. Often,

27 after the privileged evidence is excluded, “the case will proceed accordingly, with no

28 consequences save those resulting from the loss of evidence.” Al-Haramain, 507 F.3d at 1204

8

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1 (quoting Ellsberg, 709 F.3d at 64). However, there “will be occasions when, as a practical

2 matter, secret and nonsecret information cannot be separated. In some cases, therefore, ‘it is

3 appropriate that the courts restrict the parties’ access not only to evidence which itself risks the

4 disclosure of a state secret, but also those pieces of evidence or areas of questioning which press

5 so closely upon highly sensitive material that they create a high risk of inadvertent or indirect

6 disclosures.’” Jeppesen, 614 F.3d at 1082 (quoting Bareford v. Gen. Dynamics Corp., 973 F.2d

7 1138, 1143-44 (5th Cir. 1992); see also Kasza, 133 F.3d at 1166 (“[I]f seemingly innocuous

8 information is part of a . . . mosaic, the state secrets privilege may be invoked to bar its

9 disclosure and the court cannot order the government to disentangle this information from other

10 [i.e., secret] information.”)

11

Thereafter, the case may proceed with the omission of the secret or closely entangled

12 evidence. Alternatively, if application of the state secrets bars too much, the court may be

13 required to dismiss the action in its entirety. Such instances include when, without the secret

14 evidence, a plaintiff is unable to prove the prima facie elements of a claim with nonprivileged

15 evidence. See Kasza, 133 F.3d at 1166. Or the privilege may apply to bar information that

16 would otherwise give the defendant a valid defense to the claim, thus requiring dismissal. See

17 id. Lastly, the court may be compelled to dismiss when, although the claims and defenses may

18 be stated without reference to privileged evidence, “it may be impossible to proceed with the

19 litigation because – privileged evidence being inseparable from nonprivileged information that

20 will be necessary to the claims or defenses – litigating the case to a judgment on the merits

21 would present an unacceptable risk of disclosing state secrets.” Jeppesen, 614 F.3d at 1083

22 (citations omitted); see also Farnsworth Cannon, Inc. v. Grimes, 635 F.2d 268, 279-80 (4th Cir.

23 1980) (en banc) (per curiam) (Phillips, J., specially concurring and dissenting) (concluding that

24 “litigation should be entirely foreclosed at the outset by dismissal of the action” if it appears

25 that “the danger of inadvertent compromise of the protected state secrets outweighs the public

26 and private interests in attempting formally to resolve the dispute while honoring the

27 privilege”).

28

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1

Alternatively, the state secrets privilege may be invoked to bar litigation of the matter in

2 its entirety where “the trial of which would inevitably lead to the disclosure of matters which

3 the law itself regards as confidential, and respecting which it will not allow the confidence to be

4 violated.” Totten v. United States, 92 U.S. 105, 107 (1875). Where the very subject matter of

5 the lawsuit is a matter of state secret, the action must be dismissed without reaching the

6 question of evidence. See Al-Haramain, 507 F.3d at 1197 (citations omitted); see also Sterling

7 v. Tenet, 416 F.3d 338, 345 (4th Cir. 2005) (holding that dismissal is proper where “sensitive

8 military secrets will be so central to the subject matter of the litigation that any attempt to

9 proceed will threaten disclosure of the privileged matters.”)

10

Here, having reviewed the materials submitted for review and having considered the

11 claims alleged and the record as a whole, the Court finds that Defendants have timely invoked

12 the state secrets doctrine. Defendants contend that Plaintiffs’ lawsuits should be dismissed as a

13 result of the application of the privilege because the state secrets information is so central to the

14 subject matter of the suit that permitting further proceedings would jeopardize national security.

15 Given the multiple public disclosures of information regarding the surveillance program, the

16 Court does not find that the very subject matter of the suits constitutes a state secret. Just as in

17 Al-Haramain, and based significantly on the same set of facts in the record here, the Court finds

18 that although there are certainly details that the government has not yet disclosed,

19

because of the voluntary disclosures made by various officials since December 2005,

the nature and purpose of the [Terrorist Surveillance Program], the ‘type’ of persons

20

it targeted, and even some of its procedures are not state secrets. In other words, the

government’s many attempts to assuage citizens’ fears that they have not been

21

surveilled now doom the government’s assertion that the very subject matter of this

litigation, the existence of a warrantless surveillance program, is barred by the state

22

secrets privilege.

23 507 F.3d at 1200; see also Hepting v. AT&T Corp., 439 F. Supp. 2d 974, 986-88, 991 (N.D. Cal.

24 2006) (holding that the existence of a program of monitoring the contents of certain telephone

25 communications was no longer a state secret as a result of the public statements made by the

26 President and the Attorney General). Accordingly, the Court does not find dismissal

27 appropriate based on the subject matter of the suits being a state secret. See Totten, 92 U.S. at

28 107.

10

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1

However, here, the Court finds there would be significant evidence that would be

2 properly excluded should the case proceed. The Court has thoroughly and critically reviewed

3 Defendants’ public and classified declarations and is persuaded that the evidence submitted thus

4 far that the government seeks to protect from disclosure contain valid state secrets “which, in

5 the interest of national security, should not be divulged.” Reynolds, 345 U.S. at 10; see also

6 Terkel v. AT&T Corp., 441 F. Supp. 2d 899, 917 (N.D. Ill. 2006) (finding state secrets privilege

7 applies because requiring the telephone company to confirm or deny whether it had disclosed

8 large quantities of telephone records to the federal government could give adversaries valuable

9 insight into the government’s intelligence programs and “requiring such disclosures would

10 therefore adversely affect our national security” and “are barred by the state secrets privilege”).

11 The Court finds the state secrets privilege would apply to bar disclosure of significant materials

12 relating to the alleged Program. However, it may not set out precisely which matters the

13 privilege covers lest the Court jeopardize the secrets it is bound to protect. See Jeppesen, 614

14 F.3d at 1086 (citing Black v. United States, 62 F.3d 1115, 1119 (8th Cir. 1995) (“Care in

15 protecting state secrets is necessary not only during a court’s review of the evidence, but in its

16 subsequent treatment of the question in any holding; a properly phrased opinion should not strip

17 the veil from state secrets even if ambiguity results in a loss of focus and clarity.”)).

18

Having concluded that Defendants have successfully invoked the state secrets privilege

19 with regard to significant evidence tending to confirm or negate the factual allegations in

20 Plaintiffs’ complaints, the question the Court must address is how to proceed. If the state

21 secrets defense applies to bar disclosure altogether of much of the evidence sought in this suit,

22 Plaintiffs may neither be able to establish standing to sue nor state a prima facie case.

23 Defendants would similarly be without accessible evidence to establish a defense without

24 disclosure of the evidence subject to the privilege. See Kasza, 133 F.3d at 1166. However, the

25 Court finds that, as a matter of law, the FISA procedural mechanism prescribed under 50 U.S.C.

26 § 1806(f) preempts application of the state secrets privilege.

27

28

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1 C. FISA and Preemption.

2

On remand, the Court of Appeals has required this Court to consider “the government’s

3 assertion that the state secrets privilege bars this litigation.” Jewel, 673 F.3d at 913-14. The

4 Ninth Circuit, in a previous matter relating to the Program, also remanded to the district court to

5 consider “whether FISA preempts the state secrets privilege and for any proceedings collateral

6 to that determination.” Al-Haramain, 507 F.3d at 1206. In its opinion on remand in the Al-

7 Haramain matter, this district court found that “FISA preempts the state secrets privilege in

8 connection with electronic surveillance for intelligence purposes ....” In re National Security

9 Agency Telecommunications Records Litigation (“In re N.S.A. Telecommunication Records

10 Litig.”), 564 F. Supp. 2d 1109, 1111 (N.D. Cal. 2008). The undersigned agrees and finds that

11 the in camera review procedure in FISA applies and preempts the determination of evidentiary

12 preclusion under the state secrets doctrine. Section 1806(f) of FISA displaces the state secrets

13 privilege in cases in which electronic surveillance yields potentially sensitive evidence by

14 providing secure procedures under which courts can consider national security evidence that the

15 application of the state secrets privilege would otherwise summarily exclude.

16

1. FISA.

17

Congress enacted FISA to curb the problem of unchecked domestic surveillance and

18 intelligence-gathering abuses undertaken by the executive branch in the post-World War II era.

19 See S. Rep. No. 95-604, at 8 (Congress enacted FISA in response to “revelations that

20 warrantless surveillance in the name of national security ha[d] been seriously abused.”). The

21 misconduct was exposed by a Congressional task force known as the Church Committee, which

22 produced a series of investigative reports documenting unlawful surveillance pursued in the

23 name of national security. The Church Committee concluded that “the massive record of

24 intelligence abuses over the years” had “undermined the constitutional rights of citizens . . .

25 primarily because checks and balances designed by the framers of the Constitution to assure

26 accountability have not been applied.” Book II: Intelligence Activities and the Rights of

27 Americans, S. Rep. No. 94-755, at 291. Accordingly, the Committee urged “fundamental

28

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1 reform,” that would “cover[] the field by . . . provid[ing] the exclusive legal authority for

2 domestic security activities,” including “warrantless electronic surveillance.” Id. at 299.

3

Under FISA, before engaging in domestic surveillance, the Executive branch must seek

4 authorization from a special court charged with finding probable cause that the target is an

5 agent of a foreign power as defined by the statute. See 50 U.S.C. §§ 1804-05. FISA also

6 establishes a system of review of Executive conduct by setting out specific procedures courts

7 must follow to evaluate evidence where disclosure could endanger national security. See 50

8 U.S.C. § 1806(f).

9

Section 1806(f) reads in pertinent part:

10

... whenever any motion or request is made by an aggrieved person pursuant to any

other statute or rule of the United States or any State . . . to discovery or obtain

11

applications or orders or other materials relating to electronic surveillance . . . the

United States district court ... shall, notwithstanding any other law, if the Attorney

12

General files an affidavit under oath that disclosure or an adversary hearing would

harm the national security of the United States, review in camera and ex parte the

13

application, order, and such other materials relating to the surveillance as may be

necessary to determine whether the surveillance of the aggrieved person was

14

lawfully authorized and conducted.

15 Id.

16

Section 1806(f) of FISA applies “notwithstanding any other law” and is the “exclusive”

17 procedure for reviewing sensitive surveillance materials gathered by the Executive under FISA

18 and other surveillance statutes. See id.; see also 18 U.S.C. § 2712(b)(4) (designating Section

19 1806(f) as “the exclusive means by which materials [designated as sensitive by the government]

20 shall be reviewed” in suits against the United States under FISA, the Wiretap Act, and the

21 Electronic Privacy Protection Act). Once invoked, the review procedure requires courts to

22 review the potentially sensitive surveillance materials ex parte and in camera. 50 U.S.C.

23 § 1806(f).

24

The purpose of this provision is to permit courts to determine whether any particular

25 surveillance was lawfully authorized and executed. The provision, which permits courts to

26 review the potentially sensitive materials, strikes a balance between executive action and

27 judicial oversight. The legislative history makes clear that Congress intended to formulate a

28 balanced legislative solution to the national security problems raised in litigation over possibly

13

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1 unlawful executive surveillance programs. The Senate Judiciary Committee explained that

2 litigants were not to evade the provision by invoking other laws or jurisprudential doctrines:

3

The Committee wishes to make clear that the procedures set in [subsection

1806(f)] apply whatever the underlying rule or statute referred to in [a party’s]

4

motion. This is necessary to prevent the carefully drawn procedures in [section

1806(f)] from being bypassed by the inventive litigant using a new statute, rule

5

or judicial construction.

6 S. Rep. No. 95-604, at 57; see also S. Rep. No. 95-701, at 63 (“When the procedure is so

7 triggered, however, the Government must make available to the court a copy of the court order

8 and accompanying declaration upon which the surveillance was based.”); see also H. Rep. No.

9 95-1283(I), at 91 (when the legality of surveillance is at issue, “it is this procedure

10 ‘notwithstanding any other law’ that must be used to resolve the question”).

11

2. Preemption.

12

Based on the legislative history and the plain language of FISA, this Court finds that

13 FISA preempts the common law doctrine of the state secrets privilege. Federal common law

14 applies “[u]ntil the field has been made the subject of comprehensive legislation.” City of

15 Milwaukee v. Illinois and Michigan, 451 U.S. 304, 314 (1981). When it passed FISA, Congress

16 expressly indicated its intention to replace judge-made federal common law rules:

17

[T]he development of the law regulating electronic surveillance for national

security purposes has been uneven and inconclusive. This is to be expected where

18

the development is left to the judicial branch in an area where cases do not

regularly come before it. Moreover, the development of standards and restrictions

19

by the judiciary with respect to electronic surveillance for foreign intelligence

purposes accomplished through case law threatens both civil liberties and the

20

national security because the development occurs generally in ignorance of the

facts, circumstances, and techniques of foreign intelligence electronic surveillance

21

not present in the particular case before the court . . . . [T]he tiny window to this

area which a particular case affords provides inadequate light by which judges

22

may be relied upon to develop case law which adequately balances the rights of

privacy and national security.

23

H. Rep. No. 95-1283, at 21.

24

It is clear Congress intended for FISA to displace federal common law rules such as the

25

state secrets privilege with regard to matters within FISA’s purview. The legislative history

26

indicates that Congress intended to “occupy the field through the establishment of a

27

comprehensive regulatory program supervised by an expert administrative agency.”

28

Milwaukee, 452 U.S. at 317. Through explicit provisions of FISA, Congress “established a

14

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1 comprehensive, detailed program to regulate foreign intelligence surveillance in the domestic

2 context.” In re N.S.A. Telecommunications Records Litig., 564 F. Supp. 2d at 1118. In

3 particular, § 1806(f) “is Congress’s specific and detailed description for how courts should

4 handle claims by the government that the disclosure of material relating to or derived from

5 electronic surveillance would harm national security.” Id. at 1119. The specific description

6 leaves no room for application of the state secrets privilege and is, in effect, a “codification of

7 the state secrets privilege for purposes of relevant cases under FISA, as modified to reflect

8 Congress’s precise directive to the federal courts for the handling of materials and information

9 with purported national security implications.” Id. The Court agrees that “FISA preempts or

10 displaces the state secrets privilege, but only in cases within the reach of its provisions.” Id. at

11 1124. As in In re National Security Agency Telecommunications Records Litigation, Plaintiffs’

12 allegations here of warrantless wiretapping and surveillance programs similarly fall within

13 those provisions.

14

However, because the Court finds that Defendants have not waived sovereign immunity

15 for its statutory claims, Plaintiffs’ claims under FISA fail.

16 D. Waiver of Sovereign Immunity for Plaintiffs’ Statutory Claims.

17

Defendants also move to dismiss Plaintiffs’ statutory claims on the grounds that

18 sovereign immunity has not been waived. “Absent a waiver, sovereign immunity shields the

19 Federal Government and its agencies from suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994);

20 see also United States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is axiomatic that the United

21 States may not be sued without its consent and that the existence of consent is a prerequisite for

22 jurisdiction.”). Plaintiffs bear the burden to establish a waiver of sovereign immunity. Prescott

23 v. United States, 973 F.2d 696, 701 (9th Cir. 1992)

24

1. Statutory Claims for Damages.

25

Plaintiffs bring statutory claims for damages under FISA, the Wiretap Act, and the

26 Stored Communications Act (“SCA”). Section 223 of the Patriot Act amended the SCA and

27 added the following provision which waives sovereign immunity for three specific provisions of

28 FISA and more generally for violations of the SCA and the Wiretap Act.

15

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1

Any person who is aggrieved by any willful violation of this chapter or of

chapter 119 of this title or of sections 106(a), 305(a), or 405(a) of the Foreign

2

Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) may commence

an action in United States District Court against the United States to recover

3

money damages.

4 18 U.S.C. § 2712. See Pub. L. No. 107-56 § 223, 115 Stat. 272 (2001).

5

Plaintiffs do not bring any claims under these three enumerated provisions of FISA.

6 Plaintiffs sue Defendants for violating 50 U.S.C. § 1809, and they rely on 50 U.S.C. § 1810 to

7 provide a waiver of sovereign immunity in order to sue for damages. However, as Plaintiffs

8 concede, the Ninth Circuit has explicitly rejected the proposition that § 1810 may be construed

9 as a waiver of sovereign immunity to sue for damages. See Al-Haramain v. Obama, 690 F.3d

10 1089 (9th Cir. 2012) (holding that 50 U.S.C. § 1810 does not waive sovereign immunity against

11 the United States for damages). Therefore, Plaintiffs’ claim for damages under FISA against

12 the United States and against the individual federal defendants in their official capacity is

13 barred.

14

However, the waiver of sovereign immunity for damages claims against the United

15 States contained with § 2712 for claims under the SCA and the Wiretap Act is much broader.

16 While the waiver in § 2712 is limited to three specific provisions of FISA, the waiver for claims

17 under the SCA and the Wiretap Act is not similarly restricted to individual provisions within

18 those statutes. Nevertheless, Defendants contend that the waiver is limited to claims under the

19 SCA and the Wiretap Act for the use and disclosure of information obtained from electronic

20 surveillance, not just its collection. Defendants argue that plain language and the legislative

21 history of Section 223 of the Patriot Act supports this limitation. The Court finds this argument

22 unpersuasive.

23

In construing the provisions of a statute, courts must “first look to the language of the

24 statute to determine whether it has a plain meaning.” Satterfield v. Simon & Schuster, Inc., 569

25 F.3d 946, 951 (9th Cir. 2009); see also United States v. Chaney, 581 F.3d 1123, 1126 (9th Cir.

26 2009) (“It is well settled that statutory interpretation begins with the plain language of the

27 statute.”) (internal quotation marks and citation omitted). “The preeminent canon of statutory

28 interpretation requires us to presume that [the] legislature says in a statute what it means and

16

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1 means in a statute what it says there. Thus, our inquiry begins with the statutory text, and ends

2 there as well if the text is unambiguous.” McDonald v. Sun Oil Co., 548 F.3d 774, 780 (9th Cir.

3 2008) (quoting BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183 (2004)) (internal

4 quotation marks omitted).

5

The plain language of § 2712(a) does not limit the waiver of sovereign immunity for

6 damage claims under the SCA and the Wiretap Act to claims for the use and disclosure of

7 information. In § 2712(a), Congress specifically limited the waiver for damage claims to three

8 specific sections of FISA and easily could have done the same with respect to the Wiretap Act

9 and the SCA. The fact that Congress did not similarly limit the waiver to specific sections

10 within the Wiretap Act and the SCA has significance. To ignore this distinction would be to

11 ignore the plain language and structure of the statute. Cf. TRW Inc. v. Andrews, 534 U.S. 19, 31

12 (2001) (“It is a cardinal principle of statutory construction that a statute ought, upon the whole,

13 to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous,

14 void, or insignificant.”) (internal quotation marks and citation omitted); United States v. Novak,

15 476 F.3d 1041, 1048 (9th Cir. 2007) (“We avoid whenever possible statutory interpretations

16 that result in superfluous language.”).

17

Defendants argue that reading Section 223 of the Patriot Act as a whole demonstrates

18 that the waiver of sovereign immunity by Section 2712(a) is limited to claims regarding the use

19 and disclosure of information. In support of this argument, Defendants rely upon the fact that

20 Section 223 was titled “Civil Liability for Certain Unauthorized Disclosures” and upon the fact

21 that other provisions of Section 223 specifically addressed claims for the use and disclosure of

22 information. However, the Court finds this argument unpersuasive. Neither the title of the

23 Section 223, nor the fact that Section 223 includes additional provisions that address claims

24 regarding the use and disclosure of information, alters the clear and unambiguous statutory

25 language. Again, the Court emphasizes that Section 2712 explicitly limits the waiver to specific

26 provisions of FISA and does not limit the waiver to specific provisions within the Wiretap Act

27 or the SCA. If Congress intended to limit the waiver to claims regarding the use and disclosure

28 claims within all three statutes, it could have done so. The Court cannot ignore the fact that

17

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1 Congress chose to do so with respect to one of these statutes and did not with respect to the

2 other two. See Botosan v. Paul McNally Realty, 216 F.3d 827, 832 (9th Cir. 2000) (“The

3 incorporation of one statutory provision to the exclusion of another must be presumed

4 intentional under the statutory canon of expressio unius.”)

5

Next, Defendants invite the Court to read limitations into the waiver of sovereign

6 immunity from the legislative history of this statutory provision. “[E]ven where the plain

7 language appears to settle the question, we may nonetheless look to the legislative history to

8 determine whether there is clearly expressed legislative intention contrary to that language that

9 overcomes the strong presumption that Congress has expressed its intent in the language it

10 chose.” Amalgamated Transit Union Local 1309, AFL-CIO v. Laidlaw Transit Services, Inc.,

11 435 F.3d 1140, 1146 (9th Cir. 2006). In addition, the Ninth Circuit has stated that the “plain

12 meaning rule . . . does not require a court to operate under an artificially induced sense of

13 amnesia about the purpose of legislation, or to turn a blind eye towards significant evidence of

14 Congressional intent in the legislative history.” Amalgamated Transit Union Local 1309, AFL-

15 CIO v. Laidlaw Transit Services, Inc., 448 F.3d 1092, 1093 (9th Cir. 2006) (quoting Heppner v.

16 Aleyeska Pipeline Serv. Co., 665 F.2d 868, 871 (9th Cir. 1981)). Upon review of the legislative

17 history, the Court does not find “clearly expressed legislative intention contrary to that language

18 that overcomes the strong presumption that Congress has expressed its intent in the language it

19 chose.” Amalgamated Transit Union, 435 F.3d at 1146. Accordingly, the Court finds that

20 Section 2712 waives sovereign immunity for Plaintiffs’ claims for damages under the Wiretap

21 Act and the SCA.

22

2. Statutory Claims for Injunctive Relief.

23

Section 2712 is inapplicable to Plaintiffs’ claims for injunctive relief. Section 2712 only

24 applies to claims for damages. Therefore, Plaintiffs must turn elsewhere to establish a waiver of

25 sovereign immunity. To do so, Plaintiffs rely on Section 702 of the Administrative Procedure

26 Act (“APA”) and on the common law ultra vires exception set forth in Larson v. Domestic &

27 Foreign Commerce Corporation, 337 U.S. 682 (1949).

28

18

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1

a. The Administrative Procedures Act.

2

Section 702 of the APA provides:

3

A person suffering legal wrong because of agency action, or adversely affected

or aggrieved by agency action within the meaning of a relevant statute, is entitled

4

to judicial review thereof. An action in a court of the United States seeking relief

other than money damages and stating a claim that an agency or an officer or

5

employee thereof acted or failed to act in an official capacity or under color of

legal authority shall not be dismissed nor relief therein be denied on the ground

6

that it is against the United States or that the United States is an indispensable

party . . . . Nothing herein (1) affects other limitations on judicial review or the

7

power or duty of the court to dismiss any action or deny relief on any other

appropriate legal or equitable ground; or (2) confers authority to grant relief if any

8

other statute that grants consent to suit expressly or impliedly forbids the relief

which is sought.

9

10 5 U.S.C § 702. Defendants contend that Section 702 is inapplicable because it does not

11 “confer[] authority to grant relief if any other statute that grants consent to suit expressly or

12 impliedly forbids the relief which is sought.” See id. Defendants argue that Section 223 of the

13 Patriot Act is such a statute.

14

“‘[W]hen Congress has dealt in particularity with a claim and [has] intended a specified

15 remedy’ – including its exceptions – to be exclusive, that is the end of the matter; the APA does

16 not undo the judgment.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak,

17 --- U.S. ---, 132 S. Ct. 2199, 2205 (2012) (quoting Block v. North Dakota ex rel. Board of Univ.

18 and School Lands, 461 U.S. 273, 286, n.22 (1976)) (“Pottawatomi Indians”). Section 223 of

19 the Patriot Act amended the Wiretap Act, the SCA, and FISA to allow suits against the United

20 States for damages. The question presented here is whether, by granting authority to sue the

21 United States for damages, the Patriot Act impliedly limited the authority to sue the United

22 States for other types of relief, such as injunctive or declaratory relief. The Court finds that it

23 does.

24

With respect to the SCA and the Wiretap Act, Section 223 of the Patriot Act not only

25 granted consent to sue the United States for damages, but it also explicitly deleted the United

26 States from the provisions that permit an aggrieved person to sue for recovery and obtain relief,

27 including “preliminary and other equitable or declaratory relief.” See Pub. L. No. 107–56 §

28 223, 115 Stat. 272 (2001) (amending 18 U.S.C. § 2520(a) and 18 U.S.C. § 2707(a) to insert

19

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1 “other than the United States”). Therefore, the Court finds the intent of Congress in passing

2 Section 223 of the Patriot Act was to forbid injunctive and declaratory relief against the United

3 States under the SCA and the Wiretap Act.

4

Although the additional evidence on Congressional intent regarding the SCA and the

5 Wiretap Act noted above is lacking, the Court finds that the Patriot Act must still be read to

6 restrict the authority to sue the United States to suits for damages for the three specific statutory

7 provisions listed in § 2712. Significantly, any ambiguities must be read in favor of the United

8 States’ immunity from suit. See Federal Aviation Administration v. Cooper, --- U.S. ---, 132 S.

9 Ct. 1441, 1448 (2012) (“Any ambiguities in the statutory language are to be construed in favor

10 of immunity . . . .”). Moreover, the Court notes that the Patriot Act’s grant of authority to sue

11 under FISA is more restricted than the grant of authority to sue under the Wiretap Act and the

12 SCA. Thus, it would be inconsistent to hold that the waiver of sovereign immunity is broader

13 with respect to FISA than to the Wiretap Act and the SCA.

14

Relying on Pottawatomi Indians, Plaintiffs argue that the exception to the waiver of

15 sovereign immunity in Section 702 does not bar their FISA claim for injunctive relief because

16 they are “bringing a different claim, seeking different relief” from the specific FISA provisions

17 listed in § 2712(a). 132 S. Ct. at 2209. Plaintiffs’ reliance on this case is misplaced. In

18 Pottawatomi Indians, the Court held that the ban on bringing suit under the Quiet Title Act

19 (“QTA”) did not apply because the plaintiff was not bringing a claim under that statute. Id. at

20 2208 (finding that the plaintiff was “not bringing a QTA suit at all”). Here, Plaintiffs

21 indisputably bring claims under FISA. Thus, the issue is whether FISA, by allowing suits

22 against the United States only for damages based on three provisions of that statute, impliedly

23 bans suits against the United States that seek injunctive relief under any provision of FISA. The

24 Court finds that it does. Accordingly, Plaintiffs cannot rely on ss 702 of the APA for a waiver

25 of sovereign immunity.

26

b. The Ultra Vires Doctrine.

27

Next, Plaintiffs seek to invoke the ultra vires exception to sovereign immunity of federal

28 officials as set forth in Larson. Under this doctrine, “[i]f an employee of the United States acts

20

Case3:08-cv-04373-JSW Document148 Filed07/08/13 Page21 of 26

United States District Court For the Northern District of California

1 completely outside of his governmental authority, he has no immunity.” United States v.

2 Yakima Tribal Court (“Yakima Tribal Court”), 806 F.2d 853, 859 (9th Cir. 1986); see also

3 Larson, 337 U.S. at 689-90.

4

There is some question as to whether this doctrine survived the 1976 amendments to the

5 APA. The Ninth Circuit has commented that “Congress observed that before the amendment to

6 § 702 [of the APA], litigants seeking ... non-monetary relief were forced to resort to the ‘legal

7 fiction’ of naming individual officers, rather than the government, as defendants, ... an approach

8 that was ‘illogical’ and ‘becloud[ed] the real issue whether a particular governmental activity

9 should be subject to judicial review, and, if so, what form of relief is appropriate.’” See The

10 Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 524 (9th Cir. 1989) (quoting H.

11 Rep. No. 1656, at 5, reprinted in 1976 U.S. Code Cong. & Admin. News 6121, 6125, 6128-29).

12 The Ninth Circuit found it “significant that Congress referred disapprovingly to the Ex parte

13 Young fiction, which permitted a plaintiff to name a government official as the defendant in

14 equitable actions to redress government misconduct, on the pretense that the suit was not

15 actually against the government.” Id. at 525-26 (citing Larson, 337 U.S. at 689-91). The

16 Circuit Court stated that “Congress’ plain intent in amending § 702 was to waive sovereign

17 immunity for all such suits, thereby eliminating the need to invoke the Young fiction.” Id. at

18 526; see also Equal Employment Opportunity Commission v. Peabody Western Coal Co., 610

19 F.3d 1070, 1085 (9th Cir. 2010) (noting that in Presbyterian Church (U.S.A.), the Circuit Court

20 “explained that after § 702 was amended in 1976, it replaced the Ex parte Young fiction as the

21 doctrinal basis for a claim for prospective relief[]” and that “since 1976 federal courts have

22 looked to § 702 of the [APA] to serve the purposes of the Ex parte Young fiction in suits against

23 federal officers.”)

24

Nevertheless, there is case law in the Ninth Circuit, post-dating the amendments to the

25 APA in 1976, that applies the ultra vires doctrine or at least suggests its continued existence.

26 See, e.g., Yakima Tribal Court, 806 F.2d at 859 (“If an employee of the United States acts

27 completely outside his governmental authority, he has no immunity.”) (citing Larson, 337 U.S.

28 at 689); De Lao v. Califano, 560 F.2d 1384, 1391 (9th Cir. 1977) (noting that courts have

21

Case3:08-cv-04373-JSW Document148 Filed07/08/13 Page22 of 26

United States District Court For the Northern District of California

1 recognized two exceptions to sovereign immunity when suits are brought against government

2 officials, including the ultra vires doctrine). The Ninth Circuit has declined to address whether

3 the ultra vires doctrine set forth in Larson exists in light of the wavier provided by Section 702

4 of the APA and has noted that the decisions in this area are “hopelessly inconsistent.” Beller v.

5 Middendorf, 632 F.2d 788, 797 (9th Cir. 1980), overruled on other grounds by Bowers v.

6 Hardwick, 478 U.S. 186 (1986). While noting the confusion, the Ninth Circuit declined to

7 attempt a reconciliation. Id. In the absence of clear authority holding that the ultra vires

8 doctrine is no longer viable, the Court will not dismiss Plaintiffs’ statutory claims for injunctive

9 relief to the extent they are premised on the ultra vires doctrine because the 1976 amendments

10 to the APA invalidated this doctrine.

11

However, to the extent the ultra vires doctrine survives, its scope is quite narrow. First,

12 the Court notes that an ultra vires claim may only be asserted against officers in their individual

13 or personal capacity. See Larson, 337 U.S. at 689. Moreover, a claim that an officer was

14 acting ultra vires “is different from the situation where an employee acting as a government

15 agent, commits an act that is arguably a mistake of fact or law.” Yakima Tribal Court, 806 F.2d

16 at 859. An “[u]ltra vires claim[] rest[s] on the official’s lack of delegated authority.” Id. at 860.

17 As the Supreme Court explained in the context of addressing the viability of the ultra vires

18 doctrine against state officials, the ultra vires exception to sovereign immunity is “very

19 narrow.” Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 114 n.25 (1984). An

20 officer “may be said to act ultra vires only when he acts ‘without any authority whatever.’” Id.

21 at 102 n.11 (quoting Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670, 697, 716

22 (1982)) (White, J., concurring in judgment in part and dissenting in part) (finding that the test is

23 whether there was no “colorable basis for the exercise of authority by state officials”). “[A]n

24 ultra vires claim rests on ‘the officer’s lack of delegated power. A claim of error in the exercise

25 of that power is therefore not sufficient.’” Id. (quoting Larson, 337 U.S. at 690).

26

In Pennhurst, the trial court’s undisputed findings were that the residents of the state

27 facility were “often physically abused or drugged by staff members . . . .” Pennhurst, 465 U.S.

28 at 92. The Supreme Court held that the “[p]etitioners’ actions in operating [the] mental health

22

Case3:08-cv-04373-JSW Document148 Filed07/08/13 Page23 of 26

United States District Court For the Northern District of California

1 institution plainly were not beyond their delegated authority” and that the “essence” of the

2 respondents’ claims was that the petitioners failed to provide services adequately. Id. at 102

3 n.11.

4

Here, it is undisputed that Defendants have authority to conduct electronic surveillance.

5 In Count 5 for declaratory, injunctive and other equitable relief, Plaintiffs contend that

6 Defendants conducted electronic surveillance improperly, without following the proper

7 procedures, and in violation of FISA, the Wiretap Act and the SCA. In essence, Plaintiffs

8 contend that the individual defendants erred in their exercise of their authority to conduct

9 electronic surveillance. Such a claim does not fit within the narrow exception to sovereign

10 immunity under the ultra vires doctrine.

11

The bolstered by The fact that Plaintiffs are challenging a government-wide “program”

12 bolsters the Court’s conclusion that Plaintiffs may not proceed under the narrow ultra vires

13 exception. “[T]he key question in addressing the sovereign immunity of the United States is

14 ‘whether the relief sought in a suit nominally addressed to the officer is relief against the

15 sovereign.’” Aminoil U.S.A., Inc. v. California State Water Resources Control Board, 674 F.2d

16 1227, 1234 (9th Cir. 1982) (quoting Larson, 337 U.S. at 687). Here, Plaintiffs seek to obtain

17 relief from the sovereign itself, under the guise of suing officials in their personal capacity.

18 Plaintiffs allege that beginning in early October 2011, then-President Bush, in concert with the

19 other individual defendants, authorized “a range of surveillance activities inside of the United

20 States without any statutory authorization or court approval.” (Jewel Complaint at ¶ 39.)

21 Plaintiffs label this alleged activity as “the Program.” (Id.; see also Complaint at ¶ 42

22 (“The Program of domestic surveillance authorized by the President and conducted by

23 Defendants . . . .”). Plaintiffs seek to halt this alleged governmental “Program.” Plaintiffs

24 cannot obtain effective relief from “the Program” by suing Defendants in their personal

25 capacity.3

26

27

3 The Court’s conclusion that Defendants are essentially seeking relief from the

Government is further bolstered by the fact that Plaintiffs have not substituted in the current 28 officials whom they seek to sue in their personal capacity. Pursuant to Federal Rule of Civil

Procedure 25, an action against an officer in her or her official capacity does not abate when

23

Case3:08-cv-04373-JSW Document148 Filed07/08/13 Page24 of 26

United States District Court For the Northern District of California

1

The Court concludes that Plaintiffs’ statutory claims for injunctive relief may not

2 proceed under the ultra vires doctrine. Therefore, the Court finds that sovereign immunity has

3 not been waived and grants Defendants’ motion to dismiss on Plaintiffs’ statutory claims for

4 injunctive relief.

5

CONCLUSION

6

For the foregoing reasons, the Court GRANTS Plaintiffs’ motion for partial summary

7 adjudication by rejecting the state secrets defense as having been displaced by the statutory

8 procedure prescribed in 50 U.S.C. § 1806(f) of FISA. The Court GRANTS Defendants’

9 motions to dismiss Plaintiffs’ statutory claims on the basis of sovereign immunity (counts 5-16

10 of the Jewel Complaint and causes of action 1-3 of the Shubert Complaint). The Court

11 RESERVES ruling on the Defendants’ motions for summary judgment on the remaining, non-

12 statutory, claims (counts 1-4 of the Jewel Complaint and the fourth cause of action in the

13 Shubert Complaint).

14

The Court shall require that the parties submit briefing on both the scope of FISA

15 preemption on the Plaintiffs’ constitutional claims, specifically, whether the scope of the

16 preemption only provides a procedural mechanism for the review of submitted evidentiary

17 materials or whether the scope of FISA preemption is broader to foreclose altogether the

18 substantive constitutional claims. Should the Court permit the constitutional claims to proceed

19 and find that § 1806(f) merely provides the mechanism for review of submitted materials,

20 Plaintiffs shall be tasked with the burden to establish standing to sue without resulting in

21 impermissible damage to ongoing national security efforts. See Clapper v. Amnesty

22
that officer ceases to hold office while the action is pending. Instead, “[t]he officer’s 23 successor is automatically substituted as a party.” See Fed. R. Civ. P. 25(d). Although the
text of Rule 25 applies only to actions against officers in their official capacity, Plaintiffs rely 24 on the notes to the amendment to Rule 25 in 1961. The notes provide that “[t]he amended
rule will apply to all actions brought by public officers for the government...” and to “actions 25 to prevent officers from acting in excess of their authority or under authority not validly
conferred....” See Fed. R. Civ. P. 25. Advisory Committee’s Notes (citing Ex parte Young, 26 209 U.S. 123). The advisory committee explain that the Rule “will apply whenever effective
relief would call for corrective behavior by the one then having official status and power, 27 rather than one who has lost that status and power through ceasing to hold office.” Id. (citing
Larson, 337 U.S. at 682). Because the notes do provide that the officers’ successors will be 28 substituted in automatically when they are sued under the ultra vires doctrine as set forth in
Ex parte Young and Larson, the Court substitutes in the current office holders.

24

Case3:08-cv-04373-JSW Document148 Filed07/08/13 Page25 of 26

United States District Court For the Northern District of California

1 International USA, 133 S. Ct. 1138, 1149 n.4 (2013) (noting that, pursuant to hypothetical in

2 camera proceedings permitted under § 1806(f), “the court’s postdisclosure decision about

3 whether to dismiss the suit for lack of standing would surely signal to the terrorist whether his

4 name was on the list of surveillance targets.”) Although the Court finds, at this procedural

5 posture, that Plaintiffs here do not allege the attenuated facts of future harm which barred

6 standing in Clapper, the potential risk to national security may still be too great to pursue

7 confirmation of the existence or facts relating to the scope of the alleged governmental

8 Program.

9

Further, the Court shall require briefing on the impact on the Defendants’ assertion of

10 such a risk following the recent disclosure of the government’s continuing surveillance

11 activities and the statement by the Director of National Intelligence that certain information

12 related to the “business records” provision of FISA should be declassified and immediately

13 released to the public.

14

In order to facilitate this process and set the schedule for such further briefing, the Court

15 shall conduct a case management conference on August 23, 2013 at 1:30 p.m. The parties shall

16 submit a joint case management statement by no later than August 16, 2013.

17

IT IS SO ORDERED.

18 Dated: July 8, 2013
19
20

JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

21

22

23

24

25

26

27

28

25

Case3:08-cv-04373-JSW Document148 Filed07/08/13 Page26 of 26

 
 STUART F. DELERY 2 Acting Assistant Attorney General
JOSEPH H. HUNT 3 Director, Federal Programs Branch
ANTHONY J. COPPOLINO 4 Deputy Branch Director
5 JAMES J. GILLIGAN Special Litigation Counsel
6 MARCIA BERMAN
Senior Trial Counsel
7
BRYAN DEARINGER 8 RODNEY PATTON
Trial Attorneys 9 U.S. Department of Justice 10 Civil Division, Federal Programs Branch
20 Massachusetts Avenue, N.W.
II Washington, D.C. 20001 Phone: (202) 514-4782
12 Fax: (202) 616-8460

13
Attorneys for the Government Defendants

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

17 CAROLYN JEWEL, et al.,

18

Plaintiffs,

19 V.
20
NATIONAL SECURITY AGENCY, et al.,
21

22

Defendants.

) ) No. 08-cv-4373-JSW ) ) ) ) ) ) )

23
VIRGINIA SHUBERT, et al.,
24

25

Plaintiffs,

26 V.
27
BARACK OBAMA, et al. ,
28
Defendants.

) ) No. 07-cv-693 -JSW ) ) PUBLIC DECLARATION OF ) JAMES R. CLAPPER, DI ECTOR ) OF NATIONAL INTELLIGENCE ) ) No Hearing Scheduled ) Courtroom 11, 19th Floor ) Judge JeffreyS. White

Public Declaration of James R. Clapper, Director of National Intelligence Jewel eta/. v. National Security Agency et al. (08-cv-4873-JSW); Shubert, eta/. v. Obama, eta/. , No. 07-cv-693-JSW

I, James R. Clapper, do hereby state and declare as follows:
2
INTRODUCTION
3
1. I am the Director of National Intelligence (DNI) ofthe United States. I have held
4
5 this position since August 9, 2010. In my capacity as the DNI, I oversee the U.S. telligence

6 Community (IC) and serve as the principal intelligence adviser to the President. P or to serving

7 as the DNI, I served as the Director of the Defense Intelligence Agency from 1992 o 1995, the
8
Director of the National Geospatial-Intelligence Agency from 2001 to 2006, and th ~ Under
9
Secretary of Defense for Intelligence from 2007 to 2010, where I served as the prin ipal staff
10
II assistant and advisor to the Secretary and Deputy Secretary of Defense on intellige ce,

12 counterintelligence, and security matters for the Department of Defense. In my cap city as the

13
Under Secretary of Defense for Intelligence, I simultaneously served as the Directo of Defense

14
Intelligence for the Office of the Director ofNational Intelligence (ODNI).
15

16

2. The purpose of this declaration is to formally assert, in my capacity , s the DNI

17 and head of the IC, the state secrets privilege and a statutory privilege under the Na ional

18 Security Act of 1947, as amended, see 50 U.S.C. § 3024(i)(1), in order to protect in elligence
19
sources and methods that are at risk of disclosure in the above-captioned cases. This assertion of
20
privilege updates and modifies my prior assertions of privilege in this litigation. A discussed
21
22 below, I am no longer asserting privilege over the existence of various presidentiall authorized

23 National Security Agency (NSA) intelligence activities, later transitioned to authority under the
24 Foreign Intelligence Surveillance Act (FISA). I continue to assert privilege over still-classified
25
information concerning the scope and operational details of these intelligence activities,
26
including but not limited to information that would tend to confirm or deny that p icular
27
28 persons were targets of or subject to NSA intelligence activities or that particular

Public Declaration of James R. Clapper, Director of National Intelligence

2

Jewel eta/. v. National Security Agency eta/. (08-cv-4873-JSW); Shubert, eta/. v. Obama, eta/., No. 07-cv-69 -JSW

telecommunications service providers assisted NSA in conducting intelligence activities.

2 Disclosure of this still-classified information regarding the scope and operational details ofNSA

3 intelligence activities implicated by plaintiffs' allegations could be expected to cau e extremely

4 grave damage to the national security of the United States.
5
3. The statements made herein are based on my personal knowledge as well as on
6
information provided to me in my official capacity as the DNI. I am also submitting a classified
7
8 declaration, solely for the Court's in camera, ex parte review, which further sets f01th the basis

9 for my privilege assertion. See Classified In Camera, Ex Parte Declaration of James R. Clapper,

10
Director of National Intelligence (Dec. 20, 2013).

II
SUMMARY
12

13

4. In the course of my official duties, I have been advised of this lawsuit and the

14 allegations at issue in the plaintiffs' complaints in the Jewel and Shubert actions. In personally

15 considering this matter, I have executed a separate classified declaration dated December 19,
16
2013. Moreover, I have read and personally considered the information contained in the Public
17
and the In Camera, Ex Parte Declaration of Frances J. Fleisch, National Security Agency (NSA),
18
19 executed on December 20, 2013 (hereafter "Classified NSA Declaration"). Disclosure of the

20 information covered by my and NSA's privilege assertions reasonably could be expected to

21 cause exceptionally grave damage to the national security of the United States and, therefore, the
22
information should be excluded from any use in this case.
23
5. I reach this conclusion, and make these assertions of privilege, mindful of the
24
25 public disclosures of information about classified NSA intelligence programs, both authorized

26 and unauthorized, that have taken place since June 2013. The wave ofunauthorize(l public
27 disclosures of classified information regarding NSA intelligence activities that began in June
28
2013 has been extremely damaging to the national security of the United States, threatening the

Public Declaration of James R. Clapper, Director of National Intelligence

3

Jewel eta/. v. National Security Agency eta/. (08-cv-4873-JSW); Shubert, eta/. v. Obama, eta/., No. 07-cv-693-JSW

ability of the IC to conduct operations effectively and keep our country safe. At the same time,
2 these disclosures have generated great public interest in how the NSA uses its special tools and
3 authorities to gather intelligence, and whether they have been used appropriately. At the
4 President's direction, I have therefore declassified and publicly released numerous documents
5
disclosing the existence of, and a number of details about, the NSA's collection of bulk
6
telephony and Internet metadata under sections 402 and 501 of FISA, and the content of
7
8 communications of non-U.S. persons located abroad under FISA section 702. I did this to
9 facilitate informed public debate about the value and appropriateness of these programs with full
10 understanding of what they allow, the oversight mechanisms in place, and the contribution these
II
programs have made to the Nation's security and safety. These documents were properly
12
classified and the decision to declassify and release them was not taken lightly. But I concluded,
13
14 in consultation with elements of the IC, that in light of the unauthorized disclosures, the public
15 interest in the documents outweighed the potential for additional damage to national security.
16
6. On December 20, 2013, under authority of the President, the existence of
17
collection activities authorized by President George W. Bush in October 2001 was also
18
19 declassified. Specifically, starting on October 4, 2001, President Bush authorized the Secretary
20 of Defense to employ the capabilities of the Department of Defense, including the NSA, to
21 collect foreign intelligence by electronic surveillance in order to detect and prevent acts of
22
terrorism within the United States. President Bush authorized the NSA to collect ( 1) the contents
23
of certain international communications, a program that was later referred to and p blicly
24
25 acknowledged by President Bush as the Terrorist Surveillance Program (TSP), and (2) telephony
26 and Internet non-content information (referred to as "metadata") in bulk, subject to various
27
conditions.
28

Public Declaration of James R. Clapper, Director of National Intelligence

4

Jewel eta!. v. National Security Agency eta!. (08-cv-4873-JSW); Shubert, eta!. v. Obama, eta!., No. 07-cv-693-JSW

7. President Bush issued authorizations approximately every 30-60 days. Although

2 the precise terms changed over time, each presidential authorization required the minimization o

3 information collected concerning American citizens to the extent consistent with the effective

4 accomplishment of the mission of detection and prevention of acts of terrorism within the United
5
States. The NSA also applied additional internal constraints on the presidentially authorized
6
activities.
7

8

8. Over time, the presidentially authorized activities transitioned to the authority of

9 the FISA. The collection of communications content pursuant to presidential authorization
10
ended in January 2007 when the U.S. Government transitioned TSP to the authority ofFISA
II
under orders of the Foreign Intelligence Surveillance Court (FISC). In August 2007, Congress
12
13 enacted the Protect America Act (PAA) as a temporary measure. The PAA expired in February
14 2008 and was replaced by the FISA Amendments Act of 2008, which was enacted in 2008 and
15 remains in effect today. Today, content collection is conducted pursuant to section 702 of FISA.
16
The metadata activities also were transitioned to orders of the FISC. The bulk collection of
17
telephony metadata transitioned to the authority of FISA in May 2006 and is collected pursuant
18
19 to section 501 of FISA. The bulk collection of Internet metadata was transitioned to the
20 authority ofFISA in July 2004 and was collected pursuant to section 402 ofFISA. In December
21 2011, the U.S. Government decided not to seek re-authorization of the bulk collection oflnternet
22
metadata under section 402.
23
9. As a result of the declassification of the information described above, the U.S.
24
25 Government is no longer asserting privilege over the existence of these programs, whether
26 conducted under presidential authority or FISC authorization. It has remained necessary,
27 however, to withhold certain information about these programs, even from the publicly released
28
documents, to protect sensitive sources and methods, such as particular targets and ubjects of

Public Declaration of James R. Clapper, Director of National Intelligence

5

Jewel et at. v. National Security Agency eta/. (08-cv-4873-JSW); Shubert, et al. v. Obarna, et at., No. 07-cv-693-JSW

surveillance, and methods of collecting and analyzing intelligence information, because public
2 disclosure of this information would likely cause even graver damage to national security than
3 has already been done by the unauthorized disclosures that have occurred since June 2013 . As
4 explained in great detail in my classified, in camera, ex parte declaration, and in the Classified
5
NSA Declaration, the same is true with respect to the highly sensitive and still-classified
6
information that is implicated by the plaintiffs' allegations in this litigation. For example,
7
8 litigating plaintiffs' claims would likely risk or require the disclosure of information that would
9 tend to confirm or deny whether particular telecommunications carriers have assisted with the
10
NSA activities at issue. Therefore, notwithstanding the unauthorized disclosures and the official
II
declassification and release of information about NSA intelligence programs that have taken
12
13 place since June of this year, it is my judgment that disclosure of the classified, pri ileged
14 national security information described herein, and in greater detail in my classified in camera,
15 ex parte declaration, and the Classified NSA Declaration, will risk further and exceptionally
16
grave damage to the national security of the United States.
17
10. Accordingly, as set forth further below, I am asserting the state secrets privilege
18
19 and the DNI's authority to protect intelligence sources and methods pursuant to 50 D.S.C. §
20 3024(i)(l) to protect against the disclosure ofhighly classified and important intelligence
21 information, sources and methods put at issue in this case, many of which are vital to the national
22
security of the United States, including: (a) information concerning the specific nature of the
23
terrorist threat posed by al-Qa'ida and its affiliates and other foreign terrorist organizations to the
24
25 United States; (b) information that would tend to confirm or deny whether particula individuals,
26 including the named plaintiffs, have been subject to any NSA intelligence activities· (c)
27 information concerning the scope or operational details ofNSA intelligence activiti~s that may
28
relate to or be necessary to adjudicate plaintiffs' allegations, including plaintiffs' claims that the

Public Declaration of James R. Clapper, Director of National Intelligence

6

Jewel eta/. v. National Security Agency et at. (08-cv-4873-JSW); Shubert, eta!. v. Obama, eta!., No. 07-cv-69:)-JSW

NSA indiscriminately intercepts the content of communications, and their claims regarding the

2 NSA's bulk collection of telephony and Internet communications records ("metadata"); and
3 (d) information that may tend to confirm or deny whether AT&T or Verizon (and to the extent
4 relevant or necessary, any other telecommunications carrier) has provided assistance to the NSA
5
in connection with any intelligence activity.
6
11. I specifically concur with the NSA that public speculation about alleged NSA
7
8 activities above and beyond what has been officially disclosed does not diminish the need to

9 protect intelligence sources and methods from further exposure, and that official confirmation
10
and disclosure of the classified, privileged national security information described herein, in my
II
classified in camera, ex parte declaration, and in the Classified NSA Declaration, can be
12
13 expected to cause exceptionally grave damage to the national security. For these reasons, as set

14 forth further below, I request that the Court uphold the state secrets and statutory privilege

15 assertions that I make herein, as well as the statutory privilege assertion made by the NSA

16
pursuant to Section 6 of the National Security Agency Act, see 50 U.S.C. § 3605 (note), and
17
protect the information described in this declaration from disclosure.
18

19

BACKGROUND ON DIRECTOR OF NATIONAL INTELLIGENCE

20

12. The position of DNI was created by Congress in the Intelligence Reform and

21 Terrorism Prevention Act of2004, Pub. L. 108-458, §§ 1011(a) and 1097, 118 Stat. 3638,3643-
22
63, 3698-99 (2004) (amending sections 102 through 104 ofTitle I of the National Security Act
23
of 1947). Subject to the authority, direction, and control of the President, the DNI erves as the
24
25 head ofthe IC and as the principal adviser to the President, the National Security Council, and

26 the Homeland Security Council for intelligence matters related to the national security. See 50
27
U.S .C. § 3023(b)(1), (2).
28

Public Declaration of James R. Clapper, Director of National Intelligence

7

Jewel eta/. v. National Security Agency eta/. (08-cv-4873-JSW); Shubert, eta/. v. Obama, eta/., No. 07-cv-693-JSW

13. The IC includes the ODNI; the Central Intelligence Agency; the NSA; the

2 Defense Intelligence Agency; the National Geospatial-Intelligence Agency; the National
3 Reconnaissance Office; other offices within the Department of Defense for the collection of
4 specialized national intelligence through reconnaissance programs; the intelligence elements of
5
the military services, the Federal Bureau of Investigation, the Department of the Treasury, the
6
Department of Energy, the Drug Enforcement Administration, and the Coast Guard; the Bureau
7
8 oflntelligence and Research ofthe Department of State; the elements ofthe Department of

9 Homeland Security concerned with the analysis of intelligence information; and such other
10
elements of any other department or agency as may be designated by the President, or jointly
II
designated by the DNI and heads of the department or agency concerned, as an element of the
12
13 IC. See 50 U.S.C. § 3003(4).

14

14. The responsibilities and authorities of the DNI are set forth in the National

15 Security Act of 1947, as amended. See 50 U.S.C. § 3024. These responsibilities include
16
ensuring that national intelligence is provided to the President, the heads of the departments and
17
agencies of the Executive Branch, the Chairman of the Joint Chiefs of Staff and senior military
18
19 commanders, and the Senate and House of Representatives and committees thereof. See 50

20 U.S.C. § 3024(a)(1). The DNI is also charged with establishing the objectives of, determining

21 the requirements and priorities for, and managing and directing the tasking, collection, analysis,
22
production, and dissemination of national intelligence by elements of the IC. !d. §
23
3024(f)(1)(A)(i) and (ii).
24

25

15. In addition, the National Security Act of 1947, as amended, provide, that "[t]he

26 Director of National Intelligence shall protect intelligence sources and methods from
27 unauthorized disclosure." 50 U.S .C. § 3024(i)(1). Consistent with this responsibility, the DNI
28
establishes and implements guidelines for the IC for the classification of information under

Public Declaration of James R. Clapper, Director of National Intelligence

8

Jewel et at. v. National Security Agency eta!. (08-cv-4873-JSW); Shubert, et at. v. Obama, et at., No. 07-cv-693-JSW

applicable law, Executive orders, or other Presidential directives, and access to and

2 dissemination of intelligence. !d. § 3024(i)(2)(A), (B). In particular, the DNI is responsible for

3 the establishment of uniform standards and procedures for the grant of access to Sensitive

4 Compartmented Information (SCI) to any officer or employee of any agency or department of
5
the United States, and for ensuring the consistent implementation of those standards throughout
6
such departments and agencies. !d. § 3024(j)(l ), (2).
7

8

16. By virtue of my position as the DNI, and unless otherwise directed by the

9 President, I have access to all intelligence related to the national security that is collected by any
10 department, agency, or other entity of the United States. See 50 U.S.C. § 3024(b); section 1.3(a)
II
ofE.O. 12333, as amended. Pursuant to E.O. 13526, the President has authorized me to exercise
12
13 original TOP SECRET classification authority.

14

ASSERTION OF STATE SECRETS PRIVILEGE

15

17. After careful and actual personal consideration of the matter, based upon my own

16
knowledge and information obtained in the course of my official duties, including the
17
information contained in the public and classified In Camera, Ex Parte Declarations of Frances
18

19 J. Fleisch, NSA, I have determined that sensitive state secrets concerning NSA sources, methods,

20 and activities are implicated by allegations that lie at the core of plaintiffs' claims, and that the

21 disclosure of this information- as set forth herein and described in more detail in the Classified
22
NSA Declaration--can be expected to cause exceptionally grave damage to the national security
23
of the United States, and therefore that information must be protected from disclosure and
24
25 excluded from this case. Thus, as to this information, I formally assert the state secrets privilege.

26 ASSERTION OF STATUTORY PRIVILEGE UNDER NATIONAL SECURITY ACT

27

18. Through this declaration, I also hereby invoke and assert a statutory privilege held

28
by the DNI under the National Security Act of 1947, as amended, to protect the information

Public Declaration of James R. Clapper, Director ofNationallntelligence

9

Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW); Shubert, et al. v. Obarna, et al., No. 07-cv-693-JSW

described herein, in my classified in camera, ex parte declaration, and in the Classified NSA

2 Declaration, see 50 U.S.C. § 3024(i)(l). My assertion of this statutory privilege for intelligence

3 sources and methods is coextensive with my state secrets privilege assertion.

4

INFORMATION SUBJECT TO ASSERTIONS OF PRIVILEGE

5
19. In general and unclassified terms, the following categories of still-classified
6

information are subject to my state secrets and statutory privilege assertions:
7

8

A. Threat Information: information concerning the specific nature of

the terrorist threat posed by al-Qa'ida and its affiliates and other

9

foreign terrorist organizations to the United States, including actual

10

intelligence information collected from intelligence collection

activities;

II

B . Persons Subject to Intelligence Activities: information that would

12

tend to confirm or deny whether particular individuals, including

13

the named plaintiffs, have been subject to any NSA intelligence

activities;

14

c. Operational Information Concerning NSA Intelligence Activities:

15

information concerning the scope and operational details ofNSA

16

intelligence activities that may relate to or be necessary to

adjudicate plaintiffs' allegations, including:

17

(1) Communications Content Collection: information concerning

18

the scope or operational details ofNSA intelligence activities

19

that may relate to or be necessary to adjudicate plaintiffs'

claims that the NSA indiscriminately intercepts the content of

20

communications, see, e.g., Jewel Complaint~~ 9, 10, 73-77;

Shubert SAC~ 1, 2, 7, 64, 70, including:
21

22

a) TSP information: information concerning the scope and

operation of the now inoperative TSP regarding the

23

interception of the content of certain one-end-international

communications reasonably believed to involve a member or

24

agent of al-Qa'ida or an affiliated terrorist organization;

25
b) FISA section 702: information concerning operational

26

details related to the collection of communications under

FISA section 702; and
27

28

c) any other information related to demonstrating that the NSA

has not otherwise engaged in the content-surveillance

dragnet that the plaintiffs allege, and

Public Declaration of James R. Clapper, Director ofNational Intelligence

10

Jewel eta/. v. National Security Agency eta/. (08-cv-4873-JSW); Shubert, eta/. v. Obama, eta/., No. 07-cv-693-JSW

(2) Communications Records Collection: information concerning

2

the scope or operational details ofNSA intelligence activities

that may relate to or be necessary to adjudicate plaintiffs'

3

claims regarding the NSA's bulk collection of telephony and

Internet communication records (or "metadata"), see, e.g.,

4

Jewel Complaint~~ 10-11, 13, 73-77, 82-97; Shubert SAC

5

~ 102;

6

and

7

D. Telecommunications Provider Identities: information that may

8

tend to confirm or deny whether AT&T or Verizon (and to the

extent relevant or necessary, any other telecommunications

9

carrier), has provided assistance to the NSA in connection with any

intelligence activity, including the collection of communications
10
content or non-content transactional records alleged to be at issue

II

in this litigation.

12

13

DESCRIPTION OF INFORMATION SUBJECT TO PRIVILEGE

AND HARM OF DISCLOSURE

14

A. Information Concerning the Threat Posed by al-Qa'ida, Its

15

Aff"l.liates, and Other Foreign Terrorist Organizations

16
20. The intelligence activities, sources, and methods that are implicated by this
17
lawsuit, and put at risk of disclosure in further proceedings, must be viewed and understood in
18

19 the context of the threat faced by the United States. In unclassified terms, more than a decade

20 after the September 11 , 2001 attacks, we remain in a global conflict with al-Qa'ida and we face

21 an evolving threat from its affiliates and adherents. America's campaign against terrorism did

22
not end with the mission at Bin Ladin's compound in May 2011 . Indeed, the threats we face
23
have become more diverse.
24

25

21. In addition, to the extent classified information about the al-Qa'ida threat, from

26 September 11, 2001 to the present, or the many other threats facing the United States, would be
27 at issue in attempting to litigate this case (for example, to demonstrate the reasonableness of the
28
intelligence-gathering activities initiated in the wake of the September 11, 2001, attacks, and

Public Declaration of James R. Clapper, Director of National Intelligence

II

Jewel eta/. v. National Security Agency eta/. (08-cv-4873-JSW); Shubert, eta/. v. Obama, eta/., No. 07-cv-693-JSW

those that remain in place today), such information could not be disclosed without revealing

2 intelligence sources, methods, and information of the United States and thereby causing

3 exceptionally grave damage to the national security. Therefore, I assert the state secrets and DNI

4 statutory privilege to protect such information from disclosure. By way of illustration, set forth
5
below is an unclassified discussion of al-Qa'ida and several of its principal affiliates. My ex
6
parte, in camera declaration discusses some of the classified threat information pertaining to
7
8 these terrorist organizations that is subject to this assertion of privilege.

9

22. Al-Qa'ida in the Arabian Peninsula (AQAP) remains of particular cpncem to the

10
United States. The National Counterterrorism Center (NCTC) assesses that this is the most
II
likely entity to attempt attacks in the West. Even in the wake of Anwar al-Aulaqi' s death in
12
13 September 2011, this group maintains the intent and capability to conduct anti-United States

14 attacks with little to no warning. In its three attempted attacks against the U.S. Homeland-- the

15 airliner plot of December 2009, an attempted attack against U.S.-bound cargo plan~s in October
16
2010, and an airliner plot in May 2012 similar to the 2009 attempt -- AQAP has shown an
17
awareness of the capabilities of Western security procedures and demonstrated its efforts to
18
19 adapt. AQAP continues to exploit Yemen's inability to disrupt its operations on a consistent

20 basis to secure safe havens in the country and mount attacks against the U.S. Embassy in Sanaa.

21

23. AQAP has also continued to publish the English-language Inspire magazin~

22
previously spearheaded by now-deceased al-Aulaqi and Samir Khan- in order to ~nobilize
23

Western-based individuals for violent action, and the publication continues to reach a wide
24

25 global audience of extremists.

26

24. Al-Qa'ida's affiliate in Iraq has demonstrated its capacity to mount poordinated,

27 country-wide terrorist attacks is growing, as it continues at an increasing pace to kill Iraqi
28
civilians by the scores, even hundreds, with near-daily car and suicide bombs over the past year,

Public Declaration of James R. Clapper, Director ofNationallntelligence

12

Jewel et al. v. National Security Agency et al. (08-cv-4873-JSW); Shubert, et al. v. Obama, et al., No. 07-cv-693-JSW

while also publicly acknowledging the group had established an affiliate in Syria, the al-Nusrah

2 Front, with resources diverted from its operations in Iraq. In April, AQI declared its merger with
3 al-Nusrah Front to form the "Islamic State oflraq and the Levant." However, al-Nusrah Front's
4 leader rejected the merger and pledged allegiance directly to al-Qa'ida leader Ayman al-
5
Zawahiri. Zawahiri in June 2013 recognized al-Nusrah Front as an al-Qa'ida affiliate,
6
independent of AQIIISIL and primarily responsible for operations in Syria. Despite his
7
8 differences with al-Qa'ida leadership over roles insides Syria, AQIIISIL's leader last year

9 espoused support for violence against the United States, and continues to support 1-Qa'ida's
10
global ideology.
II
25. While al-Nusrah Front and AQI/ISIL at times openly have fought, both groups
12
13 share the near-term goals of removing the Syrian regime from power, and creating a government,

14 favorable to them, based on a strict interpretation of Sharia law. Al-Nusrah Front and AQIIISIL

15 subscribe to a global jihadist ideology, and each group probably has ambitions beyond the
16
conflict in Syria. The groups potentially have access to thousands of foreign fighters, including
17
some Americans, who since 2012 have traveled to Syria to participate in the conflict for a variety
18
19 of reasons. Additionally, the groups probably have established training camps, familiarizing

20 recruits with combat tactics, as well as the handling of firearms and explosives. Al-Nusrah Front

21 and AQIIISIL's access to foreign fighters, and the permissive operating environment in Syria,

22
raise the IC's concerns that such individuals, Americans among them, could be leveraged and
23
trained to conduct terrorist attacks in their home countries.
24

25

26. AQIIISIL leadership also continues to make public statements inciting violence

26 against governments outside of Iraq and Syria. In an August 2013 statement, the group's
27 spokesman called on Egyptians to attack the Egyptian military and follow the example of
28

Public Declaration of James R. Clapper, Director of National Intelligence

13

Jewel eta/. v. National Security Agency eta/. (08-cv-4873-JSW); Shubert, eta/. v. Obama, eta/., No. 07-cv- 93-JSW

extremists in Iraq and Syria. Both the group's spokesman and its overall leader last year

2 threatened future efforts to target Americans.

3

27. For the first time, AQIIISIL in 2013 began releasing propaganda openly recruiting

4 Westerners, including Belgian and French speakers, highlighting its intent to build a capability to
5
mount attacks against the West. AQI/ISIL's spokesman in mid-2013 publicly stated the group
6
7 plans to conduct attacks from eastern Iraq to western Lebanon, and the group's vitriolic rhetoric

8 and hard-line agenda suggest the group poses a broader threat outside the region than at any time

9 since it was pushed into decline by U.S. coalition forces during the Iraq conflict.
10
28. During the past two-to-four years, American and Canadian authorities have
II
arrested several North America-based AQI/ISIL associates, highlighting the potential threat
12
13 posed to the United States. In May 2011, the FBI arrested Kentucky-based Iraqi nationals Waad

14 Alwan and Shareef Hamadi for attempting to send weapons and explosives from Kentucky to

15 Iraq and conspiring to commit terrorism while in Iraq. Alwan pled guilty to supporting terrorism

16
in December 2011. In January 2010, Canadian authorities arrested dual Iraqi-Canadian citizen
17
Faruq 'Isa who is accused of vetting individuals on the Internet for suicide operations in Iraq.
18

19

29. The IC continues to monitor al-Shabaab and its foreign fighter cadre as a potential

20 threat to the U.S. Homeland, although the group is mainly focused on combating African Union
21 Mission in Somalia (AMISOM) forces battling the group in Somalia. The group, which formall
22
merged with al-Qa'ida in February 2012, also remains intent on conducting attacks against
23
24 regional and Western targets in East Africa, especially in countries contributing to the AMISOM
25 mission. Al-Shabaab associated militants in September 2013 conducted an attack on a shopping

26 mall in Nairobi, Kenya. Al-Shabaab leaders in the past have publicly called for transnational
27
attacks, including threatening to avenge the January 2012 death of British national and al-
28
Shabaab senior foreign fighter Bilal Betjawi.

Public Declaration of James R. Clapper, Director of National Intelligence

14

Jewel eta/. v. National Security Agency eta/. (08-cv-4873-JSW); Shubert, eta/. v. Obama, eta/. , No. 07-cv-693-JSW

30. Al-Qa'ida in the Lands of the Islamic Maghreb (AQIM) and Boko Haram have

2 shown minimal interest in targeting the U.S. Homeland, but remain focused on local and regional
3 attack plotting, including targeting Western interests through kidnap-for-ransom operations and
4 other means. AQIM is actively working with local extremists in northern Mali to establish a safe
5
haven from which to advance future operational activities. Al-Murabitun, the extremist group
6
formed in August 2013 through the merger of two AQIM offshoots - Mohtar Belmokhtar's al-
7
8 Mulathamun Battalion and Tawhid wal Jihad in West Africa (TWJWA) - likewise appears

9 focused on plotting against Western interests in North and West Africa. Boko Har~m probably

10
has an emerging awareness ofU.S. persons or entities in the United States with connections to
II
Nigeria. The group's spokesman publicly threatened to find a way to attack a U.S.-based news
12
13 organization if its coverage of Islam did not change.

14

31. In addition, while most Pakistani and Afghan militant groups pose a more direct

15 threat to U.S. interests and our allies in that region, the IC continues to watch for indicators that
16
any of these groups, networks, or individuals are actively pursuing or have decided to
17
incorporate operations outside of South Asia as a strategy to achieve their objectives. Tehrik-e
18
19 Taliban Pakistan (TIP) leaders have repeatedly threatened attacks against the United States,

20 including after the death of Bin Ladin. NCTC assesses that TIP's claim of responsibility for the

21 failed New York Times Square bombing in May 2010 demonstrates its willingness to act on this

22
intent.
23
32.
24

In sum, a variety of entities continue to pose a significant threat to the nation's

25 security. The U.S. Government is utilizing all lawful intelligence gathering capabilities,

26 including those set forth in the Classified NSA Declaration, to meet these threats and to protect
27 the American people. I set forth this information not only to provide the Court with background
28
information necessary to understand why the intelligence activities implicated by or directly at

Public Declaration of James R. Clapper, Director of National Intelligence

15

Jewel eta/. v. National Security Agency eta/. (08-cv-4873-JSW); Shubert, eta/. v. Obama, eta/., No. 07-cv-693-JSW

issue in this case are being undertaken, but also to assert a claim of privilege over classified

2 threat information. The U.S. Government cannot disclose classified threat information in

3 addressing plaintiffs' allegations or other issues in this case, or even in publicly supporting its

4 assertion of privilege, because to do so would disclose to our adversaries what we know of their
5
plans and how we may be obtaining information about them. Such disclosures would lead our
6
adversaries not only to alter their plans, but also to implement greater security for their
7
8 communications, thereby increasing the risk of non-detection. In addition, disclosure of threat

9 information might reveal human sources for the United States, compromise those ources, and
10
put their or their families' lives in danger. Accordingly, because I believe that classified threat
II
information is crucial to understanding the importance to our national security of the NSA
12
13 intelligence activities, sources, and methods implicated by the plaintiffs' allegations, I must

14 assert the state secrets privilege and the DNI's statutory privilege over this classified threat

15 information because of the exceptionally grave danger to national security that could reasonably

16
be expected to result from its disclosure.

17

B. Information That May Tend To Confirm or Deny Whether Particular

18

Individuals, Including the Named Plaintiffs, Have Been Subject to NSA

19

Intelligence Activities.

20

33. Next, I am also asserting privilege over information that would tend to reveal

21 whether particular individuals, including the named plaintiffs in this lawsuit, have been subject
22
to NSA intelligence activities implicated by plaintiffs' allegations. Disclosure of such
23
information can be expected to cause exceptionally grave damage to the national security,
24
25 because actually demonstrating whether particular individuals have or have not been targeted by

26 or subject to intelligence activities would require the disclosure of sensitive and classified details
27 about NSA intelligence-gathering methods. Accordingly, I assert the state secrets and DNI
28
statutory privilege as to this information.

Public Declaration of James R. Clapper, Director of National Intelligence

16

Jewel eta/. v. National Security Agency et al. (08-cv-4873-JSW); Shubert, eta/. v. Obama, et al. , No. 07-cv-693-JSW

34. The NSA cannot publicly confirm or deny whether any particular individual is

2 subject to intelligence-gathering activities, no matter how likely or unlikely it might appear that

3 the individual would be subject to surveillance. If the NSA were to reveal that an individual is
4 the target or a subject of intelligence-gathering, the collection capability relating to that
5
individual would certainly be compromised. On the other hand, if the NSA were to reveal that
6
an individual is not the target or subject of intelligence-gathering, adversaries would know that a
7
8 particular individual has avoided scrutiny and is a secure source for communicating. Moreover,

9 providing assurances to those individuals who are not targets or subjects quickly becomes
10
unworkable when faced with a situation in which an individual has in fact been a target or
II
subject. If the NSA were to confirm that any specific individual is not a target or subject of
12
13 intelligence-gathering, but later refuse to confirm or deny that fact in a situation involving an

14 actual target or subject, it would be apparent that intelligence-gathering was occurring in the

15 latter case. The only recourse for the NSA is to neither confirm nor deny whether someone has
16
been targeted by or subject to NSA intelligence-gathering activities, regardless of whether the
17
individual has been a target or subject or not. To say otherwise when challenged in litigation
18
19 would result in the frequent, routine exposure ofNSA information, sources, and methods, and

20 would severely undermine surveillance activities in general.

21

c. Information Concerning the Scope or Operational Details of NSA

22

Intelligence Activities, Including NSA Sources or Methods.

23

35. Furthermore, I am asserting privilege over any other still-classified facts

24
concerning the scope or operational details of any NSA intelligence activities that may relate to
25
or be necessary to adjudicate plaintiffs' allegations. As noted above, my privilege assertion
26
encompasses (1) facts concerning the operation of the now-defunct TSP, including any facts
27

28

Public Declaration of James R. Clapper, Director of National Intelligence

17

Jewel eta/. v. National Security Agency eta/. (08-cv-4873-JSW); Shubert, eta/. v. Obama, eta/., No. 07-cv-693-JSW

needed to demonstrate that the TSP was limited to the interception of the content1 of one-end
2 foreign communications reasonably believed to involve a member or agent of al-Qa'ida or an
3 affiliated terrorist organization, (2) facts concerning the operation of the collection of
4 communications under FISA Section 702; (3) any other information related to demonstrating that
5
the NSA has not otherwise engaged in the content-surveillance dragnet that the plaintiffs allege,
6
and (4) still classified information concerning the scope or operational details ofNSA
7
8 intelligence activities involving the collection of bulk communications metadata, as discussed in
9 greater detail in the Classified NSA Declaration.
10
36. As the NSA indicates, see Public NSA Declaration, the NSA's collection of the
II
content of communications under the TSP was directed at international communications in whic
12
13 a participant was reasonably believed to be associated with al-Qa'ida or an affiliated
14 organization. Thus, as the U.S. Government has previously stated, plaintiffs' allegation that the
15 NSA has indiscriminately collected the content of millions of communications sent or received
16
by people inside the United States after September 11, 2001, under the TSP is false. I concur
17
with the NSA that to the extent it must demonstrate in this case that the TSP was not the content
18
19 dragnet plaintiffs allege, or demonstrate that the NSA has not otherwise engaged in the alleged
20 content dragnet, highly classified details about the scope and operation of the TSP and other
21 NSA intelligence activities would be disclosed, including NSA intelligence sources and methods,
22
thus risking exceptional harm to national security.
23
37. As explained in further detail in the Classified NSA Declaration, th~ United States
24
25 faced urgent and immediate intelligence challenges after the September 11, 2001, attacks, and
26 undertook signals intelligence activities pursuant to presidential authorization that were designed
27
to meet those challenges and to detect and prevent future terrorist attacks. In addition to the
28
1 The term "content" is used herein to refer to the substance, meaning, or purport of a communication, as defined in 18 U.S.C.§ 2510(8).

Public Declaration of James R. Clapper, Director of National Intelligence

18

Jewel eta/. v. National Security Agency eta/. (08-cv-4873-JSW); Shubert, eta/. v. Obama, eta/., No. 07-cv-693-JSW

TSP, those activities have included the bulk collection of telephony and Internet non-content

2 metadata that was also later transitioned to FISA authority.

3

38. Based on my personal consideration and judgment as to the harm disclosure can

4 be expected to cause to national security, my privilege assertion includes, but is not limited to,
5
the following information, discussed in greater detail in the Classified NSA Declaration.
6
39. I assert privilege over still-classified facts concerning: the scope and operation of
7

8 the TSP and any other NSA intelligence activities needed to demonstrate that the TSP was

9 limited to the interception of international communications reasonably believed to involve a
10
member or agent of al-Qa'ida or an affiliated terrorist organization; the collection of
II
communications content under FISA section 702; and the fact that the NSA does not otherwise
12
13 conduct a dragnet of content surveillance as the plaintiffs allege. Such facts include those

14 concerning (a) how targets were selected under the TSP; (b) the specific sources methods used

15 under the TSP to intercept telephone and Internet communications; (c) the nature tmd identity of
16
the targets under the TSP; (d) any additional classified details about the operation of the TSP that
17
would be necessary to litigate the plaintiffs' allegations; and (e) other NSA surveillance
18
19 activities, including collection of communications content under FISA section 702, that may be

20 needed to address and disprove the content dragnet allegation. See Classified NSA Declaration.
21 In my judgment, revealing or risking disclosure of the foregoing NSA intelligence activities,
22
sources, and methods in order to show that the NSA is not conducting the "dragnet" on the
23
content of communications that plaintiffs allege can reasonably be expected to cause
24
25 exceptionally grave harm to national security by disclosing to our adversaries the ability of the

26 United States to monitor and track their activities and communications.
27
40. I also assert privilege over still-classified facts that would describe the scope or
28
operational details of other NSA intelligence activities, including but not necessarily limited to

Public Declaration of James R. Clapper, Director of National Intelligence

19

Jewel eta!. v. National Security Agency eta!. (08-cv-4873-JSW); Shubert, eta!. v. Obama, eta!., No. 07-cv- 93-JSW

metadata collection activities, that may relate to or be necessary to adjudicate plaintiffs' claims.

2 See Classified NSA Declaration. In my judgment, the NSA is unable to disclose information

3 about the scope or operation of the NSA's bulk collection or targeted analysis oflnternet or
4 telephony metadata (whether conducted under presidential or FISC authority), beyond that which
5
has already been officially acknowledged by the U.S. Government, without risking exceptionally
6
grave harm to national security. Disclosing or confirming further details about these activities
7
8 could seriously undermine an important tool- metadata collection and analysis- tor tracking

9 possible terrorist plots; and could reveal methods by which NSA has targeted and continues to
10
target its intelligence-gathering activities, thus helping foreign adversaries evade detection, and
II
otherwise undermining ongoing intelligence operations conducted under E.O. 123~3 and FISC
12
13 authorization.

14

41. In my judgment, disclosure of still-classified details regarding these intelligence-

15 gathering activities, either directly or indirectly, would seriously compromise, if nQt destroy,
16
important and vital ongoing intelligence operations. After personal consideration of the matter,
17
it is my judgment that disclosing the information described herein and by the NSA would
18
19 compromise important and critical activities, sources, and methods, thereby helping our

20 adversaries evade detection and causing exceptionally grave damage to the national security of

21 the United States.

22
D. Information That May Tend To Confirm or Deny Whether ATt&T, Verizon,

23

or any Other Telecommunications Carrier Has Provided Assistance to the

NSA in Connection With any Intelligence Activity.
24

25

42. In addition, I am asserting privilege over information that may tend to confirm or

26 deny whether or not AT&T, Verizon, or to the extent necessary, any other particular
27
telecommunications provider, has assisted any NSA intelligence activity, including but not
28
necessarily limited to the alleged intelligence activities. The disclosure of any information that

Public Declaration of James R. Clapper, Director of National Intelligence

20

Jewel eta!. v. National Security Agency eta!. (08-cv-4873-JSW); Shubert, eta!. v. Obama, eta!. , No. 07-cv-693-JSW

would tend to confirm or deny allegations of such assistance can be expected to cause

2 exceptionally grave harm to the national security, for a variety of reasons.

3

43. Confirming or denying such allegations would reveal to foreign adversaries

4 whether or not the NSA utilizes particular intelligence sources and methods and, thus, either
5
compromise actual sources and methods or disclose that the NSA does not utilize a particular
6
source or method. For example, revealing that a particular company assists the NSA would
7
8 compromise a range of intelligence activities by providing confirmation that certain channels of

9 communications are vulnerable to NSA interception. Confirmation or denial of a carrier's
10
assistance would replace speculation with certainty for hostile foreign adversaries who are
II
balancing the risk that a particular channel of communication may not be secure against the need
12
13 to communicate efficiently.

14

44. This remains so, in my judgment, notwithstanding the U.S. Government's

15 declassification of a now-expired April25, 2013, FISC order directing Verizon Business
16
Network Services (VBNS) to produce bulk telephony metadata to the NSA. Although the U.S.
17
Government, in acknowledging the existence of the telephony metadata program carried out
18
19 under FISC authorization, also confirmed the participation of VBNS in that program for the time

20 period covered by that order (April25 through July 19, 2013), it has never confim1ed or denied

21 the identities of any other carriers that previously participated in that program, or the identities o
22
any carriers that continue to participate in the program today.
23
CONCLUSION
24

25

45. In sum, I am asserting the state secrets privilege and the DNI's statutory privilege

26 set forth in 50 U.S.C. § 3024(i)( l ) to protect the classified national security information
27
described herein and in the Classified NSA Declaration. I respectfully request that the Court not
28
only protect that information from disclosure, but take all steps necessary to protect the

Public Declaration of James R. Clapper, Director ofNationallntelligence

21

Jewel et at. v. National Security Agency eta!. (08-cv-4873-JSW); Shubert, et at. v. Obama, et at., No. 07-cv-693-JSW

intelligence information, sources, and methods described herein in order to prevent exceptionally

2 grave damage to the national security of the United States.

3

I declare under penalty of perjury that the foregoing is true and correct.

4
Executed on: December 20,2013
5

6

7

8

9

10

II

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Public Declaration of James R. Clapper, Director ofNationallntelligence

22

Jewel eta!. v. National Security Agency eta!. (08-cv-4873-JSW); Shubert, eta!. v. Obama, eta!. , No. 07-cv-6'9 3-JSW

 
 Case 4:07-cv-00693-JSW Document 146 Filed 02/10/15 Page 1 of 10

United States District Court For the Northern District of California

1

2

3

4

IN THE UNITED STATES DISTRICT COURT

5 FOR THE NORTHERN DISTRICT OF CALIFORNIA
6

7 CAROLYN JEWEL, ET AL.,

8

Plaintiffs,

No. C 08-04373 JSW

9 v.

10 NATIONAL SECURITY AGENCY, ET AL.,

11

Defendants.

12 13 VIRGINIA SHUBERT, ET AL.,

No. C 07-00693 JSW

14

Plaintiffs,

15 v.

16 BARACK OBAMA, ET AL.,

17

Defendants.

18

ORDER DENYING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT AND GRANTING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
/

19

Now before the Court is the motion filed by Plaintiffs Carolyn Jewel, Erik Knutzen, and

20 Joice Walton, on behalf of themselves and all other individuals similarly situated (“Plaintiffs”)

21 for partial summary judgment on their claim for relief which challenges the interception of their

22 Internet communications as a violation of the Fourth Amendment (“Fourth Amendment Claim”

23 or “Claim”). Also before the Court is the cross-motion for partial summary judgment on

24 Plaintiffs’ Fourth Amendment Claim filed by Defendants National Security Agency, United

25 States Department of Justice, Barack H. Obama, Michael S. Rogers, Eric H. Holder, Jr., and

26 James R. Clapper, Jr. (in their official capacities) (collectively, “Government Defendants”).

27

Having considered the parties’ papers, including the Government Defendants’ classified

28 brief and classified declarations, and the parties’ arguments, the Court DENIES Plaintiffs’

Case 4:07-cv-00693-JSW Document 146 Filed 02/10/15 Page 2 of 10

United States District Court For the Northern District of California

1 motion for partial summary judgment and GRANTS the Government Defendants’ cross-motion

2 for partial summary judgment.1

3

The issues raised by the pending motions and additional briefing now before the Court

4 compel the Court to examine serious issues, namely national security and the preservation of the

5 rights and liberties guaranteed by the United States Constitution. The Court finds the

6 predicament delicate and the resolution must strike a balance of those significant competing

7 interests.

8

Based on the public record, the Court finds that the Plaintiffs have failed to establish a

9 sufficient factual basis to find they have standing to sue under the Fourth Amendment regarding

10 the possible interception of their Internet communications. Further, having reviewed the

11 Government Defendants’ classified submissions, the Court finds that the Claim must be

12 dismissed because even if Plaintiffs could establish standing, a potential Fourth Amendment

13 Claim would have to be dismissed on the basis that any possible defenses would require

14 impermissible disclosure of state secret information.

15

BACKGROUND

16

Plaintiffs allege that as part of a system of mass surveillance, the Government

17 Defendants receive copies of their Internet communications, then filter the universe of collected

18 communications in an attempt to remove wholly domestic communications, and then search the

19 remaining communications for search terms called “selectors” for potentially terrorist-related

20 foreign intelligence information.

21

The Government has described the collection of communications pursuant to Section

22 702 of the Foreign Intelligence Surveillance Act (“Section 702”) in several public reports.

23 Upon approval by the Foreign Intelligence Surveillance Court of a certification under Section

24 702, NSA analysts identify non-U.S. persons located outside the United States who are

25 reasonably believed to possess or receive, or are likely to communicate, foreign intelligence

26 information designated in the certification. (See, e.g., NSA Civil Liberties and Privacy Office

27 1 Having not relied on Plaintiffs’ proposed order submitted after the hearing on the
28 motions, the Court DENIES Defendants’ motion to strike it.

2

Case 4:07-cv-00693-JSW Document 146 Filed 02/10/15 Page 3 of 10

United States District Court For the Northern District of California

1 Report, NSA’s Implementation of FISA Section 702 at 4 (Apr. 16, 2014) (“Civil Liberties

2 Report”)). Once designated by the NSA as a target, the NSA tries to identify a specific means

3 by which the target communicates, such as an e-mail address or telephone number. That

4 identifier is referred to a “selector.” Selectors are only specific communications accounts,

5 addresses, or identifiers. (See id; see also Privacy and Civil Liberties Oversight Board Report

6 on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence

7 Surveillance Act (“PCLOB Report”) at 32-33, 36.) According to the Government’s admissions,

8 an electronic communications service provider may then be compelled to provide the

9 Government with all information necessary to acquire communications associated with the

10 selector, a process called “tasking.” (Id. at 32-33; see also Civil Liberties Report at 4-5.)

11

One process by which the NSA obtains information related to the tasked selectors is

12 known as the Upstream collection program. Through a Section 702 directive, this program

13 compels the assistance of the providers that control the telecommunications backbone within

14 the United States. (See PCLOB Report at 35.) Under the Upstream collection program, tasked

15 selectors are sent to domestic electronic communications service providers to acquire

16 communications that transit the Internet backbone. (See id. at 36-37.) Internet communications

17 are filtered in an effort to remove all purely domestic communications, and are then scanned to

18 capture only those communications containing the designated tasked selectors. (Id. at 37.)

19 “Unless [communications] pass both these screens, they are not ingested into governmental

20 databases.” (Id.)

21

Plaintiffs contend that the copying and searching of their private Internet

22 communications is conducted without a warrant or any individualized suspicion and,

23 accordingly, violates the Fourth Amendment. The Fourth Amendment prohibits the

24 Government from intercepting, copying, or searching through communications without a

25 warrant issued by a neutral and detached magistrate, upon probable cause, particularly

26 describing the place to be searched and the things to be seized. Judicial warrants based on

27 particularity and probable cause are especially crucial in electronic surveillance, where searches

28

3

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United States District Court For the Northern District of California

1 and seizures occur without leaving a trace and where the threat to privacy is especially great.

2 United States v. U.S. District Court (Keith), 407 U.S. 297, 313 (1972).

3

In their motion for partial summary judgment, Plaintiffs seek adjudication as to their

4 Fourth Amendment Claim with regard only to the NSA’s acknowledged Upstream collection of

5 communications pursuant to Section 702. The Government Defendants contend that Plaintiffs’

6 evidence is insufficient to establish standing, and that even assuming standing, either there can

7 be no Fourth Amendment violation on the facts in the record as a matter of law, or alternatively,

8 that the state secrets privilege requires dismissal of Plaintiffs’ Fourth Amendment Internet

9 surveillance claim.

10

The Court shall address other additional specific facts as necessary in the remainder of

11 this Order.

12

ANALYSIS

13 A. Summary Judgment Standard.

14

Summary judgment is appropriate when the record demonstrates “that there is no

15 genuine issue as to any material fact and that the moving party is entitled to judgment as a

16 matter of law.” Fed. R. Civ. P. 56(c). An issue is “genuine” if there is sufficient evidence for a

17 reasonable fact finder to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477

18 U.S. 242, 248-49 (1986). “[A]t the summary judgment stage the judge’s function is not . . . to

19 weigh the evidence and determine the truth of the matter but to determine whether there is a

20 genuine issue for trial.” Id. at 249. A fact is “material” if it may affect the outcome of the case.

21 Id. at 248. The party moving for summary judgment bears the initial responsibility of

22 identifying those portions of the record which demonstrate the absence of a genuine issue of a

23 material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

24

Once the moving party meets this initial burden, the non-moving party “may not rest

25 upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s

26 response, by affidavits or as otherwise provided in this rule, must set forth specific facts

27 showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). In the absence of such

28

4

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1 facts, “the moving party is entitled to a judgment as a matter of law.” Celotex, 477 U.S. at 323;

2 see also Keenan, 91 F.3d at 1279.

3 B. Standing.

4

Defendants contend that Plaintiffs have not submitted evidence sufficient to establish

5 that they have standing to challenge the alleged ongoing collection of communications by the

6 NSA. As Defendants admit, the Government has acknowledged the existence of the Upstream

7 collection process which involves the collection of certain communications as they transit the

8 Internet backbone network of telecommunications service providers. However, the technical

9 details of the collections process remain classified.

10

In order to prevail on their motion for summary judgment, Plaintiffs must support each

11 element of their claim, including standing, “with the manner and degree of evidence required at

12 the successive stages of the litigation.” Bras v. Cal. Pub. Utils. Comm’n, 59 F.3d 869, 872 (9th

13 Cir. 1995) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). Plaintiffs must

14 proffer admissible evidence establishing both their standing as well as the merits of their claims.

15 See Fed. R. Civ. P. 56(c); see also In re Oracle Corp. Sec. Litig., 627 F.3d 376, 385 (9th Cir.

16 2010) (holding that the court’s ruling on summary judgment must be based only on admissible

17 evidence). If Plaintiffs are unable to make a showing sufficient to establish an essential element

18 of their claim on which they bear the burden at trial, summary judgment must be granted against

19 them. See Celotex Corp., 477 U.S. at 322.

20

“To establish Article III Standing, an injury must be ‘concrete, particularized, and actual

21 or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.’”

22 Clapper v. Amnesty International USA, --- U.S. --- , 133 S. Ct. 1138, 1147 (2013) (quoting

23 Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010)). “Although imminence is

24 concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to

25 ensure that the alleged injury is not too speculative for Article III purposes – that the injury is

26 certainly impending.” Id. (citing Lujan, 504 U.S. at 565 n.2) (emphasis in original). Thus, the

27 Supreme Court has “repeatedly reiterated that ‘the threatened injury must be certainly

28 impending to constitute injury in fact,’ and that ‘[a]llegations of possible future injury’ are not

5

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United States District Court For the Northern District of California

1 sufficient.” Id. (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (emphasis in

2 original)).

3

In Clapper, the Court found that allegations that plaintiffs’ communications were

4 intercepted were too speculative, attenuated, and indirect to establish injury in fact that was

5 fairly traceable to the governmental surveillance activities. Id. at 1147-50. The Clapper Court

6 held that plaintiffs lacked standing to challenge NSA surveillance under FISA because their

7 “highly speculative fear” that they would be targeted by surveillance relied on a “speculative

8 chain of possibilities” insufficient to establish a “certainly impending” injury. Id.

9

Here, Plaintiffs have sufficiently demonstrated that they are AT&T customers. (See

10 Declaration of Carolyn Jewel at ¶¶ 2-5; Declaration of Erik Knutzen at ¶¶ 2-6; Declaration of

11 Joice Walton at ¶¶ 2-6.) In addition, Plaintiffs allege that, as AT&T customers, all of their

12 Internet communications have been collected and amassed in storage. See Hepting v. AT&T

13 Corp., 439 F. Supp. 2d 974, 991-92 (N.D. Cal. 2006) (“AT&T and the government have for all

14 practical purposes already disclosed that AT&T assists the government in monitoring

15 communication content.”). The record suggests that AT&T currently aids the Government in

16 the collection of information transported over the Internet. (See AT&T Transparency Report

17 dated 2014.) If the governmental program is sufficiently large and encompassing to include the

18 mass collection of all Internet communications, the question of whether any specific

19 communication was specifically targeted is not the relevant inquiry. See Klayman v. Clapper,

20 957 F. Supp. 2d 1, 26-28 (D.D.C. 2013) (granting standing to individual plaintiffs to challenge

21 NSA collection of their telephone records from Verizon after finding “strong evidence” that

22 NSA collected Verizon metadata for the last seven years and ran queries that necessarily

23 analyzed that data); see also Smith v. Obama, 24 F. Supp. 3d 1005, 1007 n.2 (D. Idaho 2014)

24 (finding that plaintiff, a Verizon customer, had standing to bring an action based on collection

25 of telephone metadata). “As FISC Judge Eagan noted, the collection of virtually all telephony

26 metadata is ‘necessary’ to permit the NSA, not the FBI, to do the algorithmic data analysis that

27 allow the NSA to determine ‘connections between known and unknown international terrorist

28 operatives.’” ACLU v. Clapper, 959 F. Supp. 2d 724, 746 (S.D.N.Y. 2013) (citing In re

6

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United States District Court For the Northern District of California

1 Application of the Fed. Bureau of Investigation for an Order Requiring the Prod. of Tangible

2 Things from [REDACTED], amended clip op. at 22-23); see also id. at 748 (“[A]ggregated

3 telephony metadata is relevant because it allows the querying technique to be comprehensive. . .

4 . Armed with all the metadata, NSA can draw connections it might otherwise never be able to

5 find.”).

6

The creation of a large surveillance program designed to “intercept all or substantially

7 all of its customers’ communications, . . . necessarily inflicts a concrete injury that affects each

8 customer in a distinct way, depending on the content of that customer’s communications and the

9 time that customer spends using AT&T services.” Hepting, 439 F. Supp. 2d at 1001. In this

10 matter, the Ninth Circuit has held that although the harm alleged by Plaintiffs is widely shared,

11 that does not necessarily render it a generalized grievance. See Jewel v. Nat’l Sec. Agency, 783

12 F.3d 902, 909-10 (9th Cir. 2011) (“[W]e conclude that Jewel alleged a sufficiently concrete and

13 particularized injury, Jewel’s allegations are highly specific and lay out concrete harms arising

14 from the warrantless searches.”). Accordingly, the Court finds that, as Plaintiffs have provided

15 evidence that they are AT&T customers who send Internet communications, they have crossed

16 the threshold requirement to establish that, should the program work as alleged, their

17 communications would be captured in a dragnet Internet collection program.

18

However, the question whether Plaintiffs can establish standing to pursue their Fourth

19 Amendment claim against the Government Defendants for constitutional violations goes beyond

20 whether they, as individuals and AT&T customers with Internet communications, can proffer

21 evidence of generalized surveillance of Internet communications. Although the public and

22 admissible evidence presented establishes that Plaintiffs are indeed AT&T customers with

23 Internet communications and would fall into the class of individuals surveilled, the evidence at

24 summary judgment is insufficient to establish that the Upstream collection process operates in

25 the manner in which Plaintiffs allege it does.

26

In their attempt to establish the factual foundation for their standing to sue on their

27 Fourth Amendment Claim, Plaintiffs rely in large part on the declarations of Mark Klein and

28 their proffered expert, J. Scott Marcus, as well as other former AT&T and NSA employees to

7

Case 4:07-cv-00693-JSW Document 146 Filed 02/10/15 Page 8 of 10

United States District Court For the Northern District of California

1 present the relevant operational details of the surveillance program. Plaintiffs assert that the

2 declarations support the contention that all AT&T customers’ Internet communications are

3 currently the subject of a dragnet seizure and search program, controlled by or at the direction

4 of the Government. However, having reviewed the record in its entirety, the Court finds the

5 Plaintiffs’ evidence does not support this claim.

6

Plaintiffs principally rely on the declaration of Klein, a former AT&T technician who

7 executed a declaration in 2006 about his knowledge and perceptions about the creation of a

8 secure room at the AT&T facility at Folsom Street in San Francisco. However, the Court finds

9 that Klein cannot establish the content, function, or purpose of the secure room at the AT&T

10 site based on his own independent knowledge. See Fed. R. Civ. P. 56(c)(4). The limited

11 knowledge that Klein does possess firsthand does not support Plaintiffs’ contention about the

12 actual operation of the Upstream data collection process. Klein can only speculate about what

13 data were actually processed and by whom in the secure room and how and for what purpose, as

14 he was never involved in its operation. In addition, Plaintiffs’ expert, Marcus, relies exclusively

15 on the observations and assumptions by Klein to formulate his expert opinion. Accordingly, his

16 testimony about the purpose and function of the secure equipment at AT&T and assumed

17 operational details of the program is not probative as it not based on sufficient facts or data. See

18 Fed. R. Evid. 702(b). The Court finds that Plaintiffs have failed to proffer sufficient admissible

19 evidence to support standing on their claim for a Fourth Amendment violation of interference

20 with their Internet communications. In addition, without disclosing any of the classified content

21 of the Government Defendants’ submissions, the Court can confirm that the Plaintiffs’ version

22 of the significant operational details of the Upstream collection process is substantially

23 inaccurate.

24

In addition, having reviewed the classified portion of the record, the Court concludes

25 that even if the public evidence proffered by Plaintiffs were sufficiently probative on the

26 question of standing, adjudication of the standing issue could not proceed without risking

27 exceptionally grave damage to national security. The details of the Upstream collection process

28 that are subject the Government’s assertion of the state secrets privilege are necessary to

8

Case 4:07-cv-00693-JSW Document 146 Filed 02/10/15 Page 9 of 10

United States District Court For the Northern District of California

1 address the defenses against Plaintiffs’ theory of standing as well as to engage in a full and fair

2 adjudication of Government Defendants’ substantive defenses against the Claim. The Court has

3 reviewed the classified brief submitted by the Government and finds that its legal defenses are

4 persuasive, and must remain classified.

5

Disclosure of this classified information would risk informing adversaries of the specific

6 nature and operational details of the Upstream collection process and the scope of the NSA’s

7 participation in the program. Notwithstanding the unauthorized public disclosures made in the

8 recent past and the Government’s subsequent releases of previously classified information about

9 certain NSA intelligence gathering activities since 2013, the Court notes that substantial details

10 about the challenged program remain classified. The question of whether Plaintiffs have

11 standing and the substantive issue of whether there are Fourth Amendment violations cannot be

12 litigated without impinging on that heightened security classification. Because a fair and full

13 adjudication of the Government Defendants’ defenses would require harmful disclosures of

14 national security information that is protected by the state secrets privilege, the Court must

15 exclude such evidence from the case. See Mohamed v. Jeppesen DataPlan, Inc., 614 F.3d 1070,

16 1083 (9th Cir. 2010) (holding that “application of the privilege may require dismissal” of a

17 claim if, for example, “the privilege deprives the plaintiff of information needed to set forth a

18 prima facie case, or the defendant of information that would otherwise give the defendant a

19 valid defense to the claim”). Addressing any defenses involves a significant risk of potentially

20 harmful effects any disclosures could have on national security. See Kasza v. Browner, 133

21 F.3d 1159, 1166 (9th Cir. 1998).

22

The Court is frustrated by the prospect of deciding the current motions without full

23 public disclosure of the Court’s analysis and reasoning. However, it is a necessary by-product

24 of the types of concerns raised by this case. Although partially not accessible to the Plaintiffs or

25 the public, the record contains the full materials reviewed by the Court. The Court is persuaded

26 that its decision is correct both legally and factually and furthermore is required by the interests

27 of national security.

28

9

Case 4:07-cv-00693-JSW Document 146 Filed 02/10/15 Page 10 of 10

United States District Court For the Northern District of California

1

CONCLUSION

2

For the foregoing reasons, the Court DENIES Plaintiffs’ motion for partial summary

3 judgment and GRANTS the Government Defendants’ cross-motion for partial summary

4 judgment regarding the allegations of Fourth Amendment violations challenging the possible

5 interception of Plaintiffs’ Internet communications.

6

IT IS SO ORDERED.

7 Dated: February 10, 2015
8
9

JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

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10

 
 Case: 4:07-cv-693 As of: 03/22/2018 06:08 PM PDT 1 of 17
E−Filing,REOPEN
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:07−cv−00693−JSW

Shubert et al v. Bush et al Assigned to: Hon. Jeffrey S. White Lead case: 3:06−md−01791−VRW Member case: (View Member Case) Case in other court: 9th Circuit, 10−15638
Eastern District of New York, 1:06−02282 Cause: 42:1981 Civil Rights
Plaintiff

Date Filed: 02/02/2007 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Virginia Shubert

represented by Matthew Delmont Brinckerhoff Emery Celli Brinckerhoff & Abady LLP 75 Rockefeller Plaza, 20th Floor New York, NY 10019 212−763−5000 Fax: 212−763−5001 Email: mbrinckerhoff@ecbalaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam R Pulver U.S. Department of Labor Office of the Solicitor 200 Constitution Ave NW N−2474 Washington, DC 20210 (202) 693−5740 Email: pulver.adam.r@dol.gov (Inactive) TERMINATED: 06/28/2013 ATTORNEY TO BE NOTICED

Ilann Margalit Maazel Emery Celli Brinckerhoff & Abady LLP 600 Fifth Avenue 10th Floor New York, NY 10020 212−763−5000 Fax: 212−763−5001 Email: imaazel@ecbalaw.com ATTORNEY TO BE NOTICED

Plaintiff Noha Arafa

represented by Matthew Delmont Brinckerhoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam R Pulver (See above for address) TERMINATED: 06/28/2013 ATTORNEY TO BE NOTICED

Ilann Margalit Maazel (See above for address) ATTORNEY TO BE NOTICED

Plaintiff

Case: 4:07-cv-693 As of: 03/22/2018 06:08 PM PDT 2 of 17

Sarah Dranoff

represented by Matthew Delmont Brinckerhoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam R Pulver (See above for address) TERMINATED: 06/28/2013 ATTORNEY TO BE NOTICED

Ilann Margalit Maazel (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Hilary Botein individually and on behalf of all others similarly situated

represented by Matthew Delmont Brinckerhoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam R Pulver (See above for address) TERMINATED: 06/28/2013 ATTORNEY TO BE NOTICED

Ilann Margalit Maazel (See above for address) ATTORNEY TO BE NOTICED

Plaintiff All Plaintiffs

represented by Adam R Pulver (See above for address) TERMINATED: 06/28/2013 ATTORNEY TO BE NOTICED

Cindy Ann Cohn Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 415−436−9333 Fax: 415−436−9993 Email: cindy@eff.org ATTORNEY TO BE NOTICED

Ilann Margalit Maazel (See above for address) ATTORNEY TO BE NOTICED

V. Defendant George W. Bush

represented by Alexander Kenneth Haas King Spalding LLP 1700 Pennsylvania Ave., NW Suite 200 Washington, DC 20006
202−626−5502 Fax: Email: ahaas@kslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 4:07-cv-693 As of: 03/22/2018 06:08 PM PDT 3 of 17

Defendant Michael V. Hayden
Defendant Keith B. Alexander

Anthony Joseph Coppolino U.S. Department of Justice, Civil Divisi 20 Massachusetts Avenue, N.W. Room 6102 Washington, DC 20530 (202) 514−4782dc Email: tony.coppolino@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexander Kenneth Haas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony Joseph Coppolino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James R. Whitman U.S. Department of Justice Civil Division, Torts Branch 1425 New York Ave., N.W. Washington, DC 20005 202−616−4169 Fax: 202−416−4314 Email: james.whitman@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexander Kenneth Haas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony Joseph Coppolino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James J. Gilligan USDOJ, Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W. Room 6102 Washington, DC 20530 202−514−4782 Fax: 202−616−8470 Email: james.gilligan@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
James R. Whitman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Berman U.S. Dept. of Justice, Civil Division Federal Programs Branch

Case: 4:07-cv-693 As of: 03/22/2018 06:08 PM PDT 4 of 17

20 Massachusetts Ave., N.W. Room 7204 Washington, DC 20530 202−514−3330 Fax: 202−616−8470 Email: marcia.berman@usdoj.gov ATTORNEY TO BE NOTICED

Rodney Patton U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W. Room 7320 Washington, DC 20530 United Sta 202−305−7919 Fax: 202−305−2685 Email: Rodney.Patton@usdoj.gov ATTORNEY TO BE NOTICED

Defendant Alberto Gonzales

represented by Alexander Kenneth Haas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

James R. Whitman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant John Ashcroft

represented by Alexander Kenneth Haas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James R. Whitman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant United States of America

represented by Anthony Joseph Coppolino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James J. Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul Edward Ahern U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Washington, DC 20530

Case: 4:07-cv-693 As of: 03/22/2018 06:08 PM PDT 5 of 17

(202) 305−0633 Email: Paul.Ahern@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marcia Berman (See above for address) ATTORNEY TO BE NOTICED

Rodney Patton (See above for address) ATTORNEY TO BE NOTICED

Defendant President Barack Obama

represented by Anthony Joseph Coppolino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James J. Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marcia Berman (See above for address) ATTORNEY TO BE NOTICED

Rodney Patton (See above for address) ATTORNEY TO BE NOTICED

Defendant Attorney General Eric H. Holder

represented by Anthony Joseph Coppolino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James J. Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marcia Berman (See above for address) ATTORNEY TO BE NOTICED

Rodney Patton (See above for address) ATTORNEY TO BE NOTICED

Date Filed 02/02/2007
02/02/2007

# Docket Text
1 Case transferred in from the Eastern District of New York; Case Number 1:06−cv2282 FB−MDG. Original file certified copy of transfer order and docket sheet received.. Filed bySarah Dranoff, Hilary Botein, Virginia Shubert, Noha Arafa. (gsa, COURT STAFF) (Filed on 2/2/2007) Additional attachment(s) added on 2/5/2007 (gsa, COURT STAFF). (Entered: 02/05/2007)
CASE DESIGNATED for Electronic Filing. (gsa, COURT STAFF) (Filed on 2/2/2007) (Entered: 02/05/2007)

Case: 4:07-cv-693 As of: 03/22/2018 06:08 PM PDT 6 of 17

03/20/2007 05/09/2007 05/14/2007 06/22/2007 06/22/2007 06/23/2007 06/23/2007
07/12/2007 07/13/2007

2 IT IS SO ORDERED AS MODIFIED: Pursuant to the stipulation: On or before 5/18/2007, the Government may file a dispositive motion and any assertion of the military and state secrets privilege in Shubert v. Bush, on or before 6/29/2007, Plaintiffs may file opposition to the dispositive motion; on or before 7/20/2007, the Government may file a reply brief in support of its dispositive motion. Oral argument on the dispositive motion has been set for 8/16/2007 at 2:00 PM. Signed by Chief Judge Vaughn R Walker on 3/20/2007. (cgk, COURT STAFF) (Filed on 3/20/2007) (Entered: 03/20/2007)
3 STIPULATION and Proposed Order to Extend Briefing and Hearing Schedule in Shubert v. Bush, Case No. 07−00693 filed by Government Defendants in their official capacity by George W. Bush, Michael V. Hayden, Keith B. Alexander, Alberto Gonzales. (Coppolino, Anthony) (Filed on 5/9/2007) (Entered: 05/09/2007)
4 STIPULATION AND ORDER GRANTING to extend briefing and hearing schedule in Shubert v. Bush re 3 Stipulation, filed by Alberto Gonzales,, George W. Bush,, Keith B. Alexander,, Michael V. Hayden. On or 5/25/2007, the Government will file a dispositive motion, opposition to be filed on or before 7/13/2007, any reply in support of the dispositive motion shall be filed on or before 8/3/2007. The hearing is set for 8/30/2007 at 2:00 PM. Signed by Chief Judge Vaughn R Walker on 5/11/2007. (cgk, COURT STAFF) (Filed on 5/14/2007) (Entered: 05/14/2007)
5 Memorandum in Opposition re (253 in M:06−cv−01791−VRW) MOTION to Dismiss or, in the Alternative, for Summary Judgment on State Secrets Grounds filed byDennis P. Riordan. (Pulgram, Laurence) (Filed on 6/22/2007) (Entered: 06/22/2007)
6 Declaration of Candace J. Morey in Support of (315 in M:06−cv−01791−VRW) Memorandum in Opposition to Motion to Dismiss or In the Alternative for Summary Judgment by the United States filed byDennis P. Riordan. (Attachments: # 1 Exhibit A−Z# 2 Exhibit AA−II# 3 Exhibit JJ−KK)(Morey, Candace) (Filed on 6/22/2007) (Entered: 06/22/2007)
7 Memorandum in Opposition re (273 in M:06−cv−01791−VRW) MOTION to Dismiss Plaintiffs' Master Consolidated Complaint filed byElaine Spielfogel−Landis(on behalf of herself and all others similarly situated). (Himmelstein, Barry) (Filed on 6/23/2007) (Entered: 06/23/2007)
8 Appendix re (6 in 3:07−cv−00464−VRW, 5 in 3:07−cv−01187−VRW, 7 in 3:06−cv−06254−VRW, 7 in 3:06−cv−05576−VRW, 5 in 3:06−cv−07934−VRW, 4 in 3:07−cv−02029−VRW, 5 in 3:06−cv−06434−VRW, 6 in 3:06−cv−05269−VRW, 67 in 3:06−cv−03596−VRW, 7 in 3:06−cv−06570−VRW, 13 in 3:06−cv−06224−VRW, 5 in 3:06−cv−06294−VRW, 70 in 3:06−cv−03574−VRW, 6 in 3:06−cv−05268−VRW, 12 in 3:06−cv−06387−VRW, 5 in 3:07−cv−01323−VRW, 7 in 3:06−cv−05066−VRW, 13 in 3:06−cv−06222−VRW, 5 in 3:06−cv−06435−VRW, 7 in 3:06−cv−05063−VRW, 7 in 3:06−cv−06253−VRW, 7 in 3:07−cv−01396−VRW, 7 in 3:07−cv−00693−VRW, 7 in 3:06−cv−06295−VRW, 8 in 3:06−cv−06313−VRW, 7 in 3:06−cv−05065−VRW, 7 in 3:06−cv−05067−VRW, 5 in 3:06−cv−05452−VRW, 6 in 3:06−cv−05340−VRW, 319 in M:06−cv−01791−VRW, 7 in 3:06−cv−05064−VRW, 32 in 3:06−cv−03467−VRW, 5 in 3:07−cv−01326−VRW, 9 in 3:07−cv−00109−VRW, 7 in 3:06−cv−06225−VRW, 5 in 3:07−cv−01242−VRW, 5 in 3:06−cv−06388−VRW, 13 in 3:07−cv−01324−VRW, 351 in 3:06−cv−00672−VRW, 6 in 3:06−cv−05267−VRW, 5 in 3:06−cv−06385−VRW, 6 in 3:06−cv−05341−VRW, 5 in 3:07−cv−01243−VRW, 8 in 3:06−cv−05485−VRW, 7 in 3:06−cv−05343−VRW, 4 in 3:06−cv−06924−VRW, 4 in 3:07−cv−02538−VRW, 14 in 3:06−cv−04221−VRW) Memorandum in Opposition, to Verizon's Motion to Dismiss Master Complaint filed byElaine Spielfogel−Landis(on behalf of herself and all others similarly situated). (Attachments: # 1 Exhibit Tabs 4−12# 2 Exhibit Tabs 13−20)(Himmelstein, Barry) (Filed on 6/23/2007) (Entered: 06/23/2007)
9 STIPULATION and Order to Extend Deadlines for Motion to Dismiss and Related Briefing in Shubert v. Bush, Case No. 07−693 by Sarah Dranoff, Hilary Botein, Virginia Shubert, Noha Arafa. (Maazel, Ilann) (Filed on 7/12/2007) (Entered: 07/12/2007)
10 STIPULATION AND ORDER re 9 filed by Hilary Botein, Virginia Shubert, Sarah Dranoff, Noha Arafa. On or before 7/20/2007, Plaintiffs will file an opposition to the Government's dispositive motion in Shubert v Bush, C07−0693. On or before

Case: 4:07-cv-693 As of: 03/22/2018 06:08 PM PDT 7 of 17

07/19/2007 07/19/2007 08/30/2007
09/21/2007 09/21/2007 09/21/2007 10/01/2007 10/03/2007 10/25/2007
10/25/2007 11/02/2007

8/16/2007, the Government will file a reply brief in support of its dispositive motion. Signed by Chief Judge Vaughn R Walker on 7/13/2007. (cgk, COURT STAFF) (Filed on 7/13/2007) (Entered: 07/13/2007)
11 Memorandum in Opposition to Defendants' Motion to Dismiss filed bySarah Dranoff, Hilary Botein, Virginia Shubert, Noha Arafa. (Attachments: # 1 Part 2 of Plaintiffs' Memorandum of Law in Opposition to Motion to Dismiss)(Maazel, Ilann) (Filed on 7/19/2007) (Entered: 07/19/2007)
12 AFFIDAVIT in Opposition Declaration of Ilann M. Maazel Pursuant to Rule 56(f) in Opposition to Defendants' Motion to Dismiss or for Summary Judgment filed bySarah Dranoff, Hilary Botein, Virginia Shubert, Noha Arafa. (Maazel, Ilann) (Filed on 7/19/2007) (Entered: 07/19/2007)
13 Minute Entry: Motions Hearing held on 8/30/2007 before Chief Judge Vaughn R Walker. PROCEEDINGS:1. Verizon's Motion to Dismiss for Lack of Personal Jurisdiction. 2. Verizon's Motion toDismiss Complaint in Chulsky, Riordan and Bready. 3. Verizon's Motion to Dismiss Plaintiffs Master Complaint.4. United States' Motion to Dismiss Complaints on State Secrets Grounds (Chulsky, Riordan, Bready). 4. United States' Motion to Dismiss in Shubert. 5. United States' Motion to Intervene − granted. RESULTS:The Court heard argument from counsel. The Court took the matter(s) under−submission.Court to issue written ruling. (Court Reporter Kathy Powell.) (cgk, COURT STAFF) (Date Filed: 8/30/2007). (Entered: 09/04/2007) (Entered: 09/04/2007)
14 MOTION Plaintiffs' Motion for Order to Preserve Evidence; Plaintiffs' Memorandum of Points and Authorities in Support of Motion for Order to Preserve Evidence filed by All Plaintiffs'. Motion Hearing set for 10/25/2007 02:00 PM in Courtroom 6, 17th Floor, San Francisco. (Cohn, Cindy) (Filed on 9/21/2007) (Entered: 09/21/2007)
15 Declaration of Cindy A. Cohn in Support of 14 Plaintiffs' Motion for Order to Preserve Evidence filed byAll Plaintiffs'. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Cohn, Cindy) (Filed on 9/21/2007) Modified on 10/1/2007 (gsa, COURT STAFF). (Entered: 09/21/2007)
16 Proposed Order [Proposed] Interim Order to Preserve Evidence by All Plaintiffs'. (Cohn, Cindy) (Filed on 9/21/2007) (Entered: 09/21/2007)
17 Cover sheet of TRANSCRIPT of Proceedings held on 8/30/2007 before Judge Vaughn R. Walker. Court Reporter: Katherine A. Powell. Complete transcript is in MDL 06−1791 VRW. (gsa, COURT STAFF) (Filed on 10/1/2007) (jlm, COURT STAFF). (Entered: 10/02/2007)
18 MOTION to Amend/Correct 14 MOTION Plaintiffs' Motion for Order to Preserve Evidence; Plaintiffs' Memorandum of Points and Authorities in Support of Motion for Order to Preserve Evidence filed by All Plaintiffs'. Motion Hearing set for 11/15/2007 02:00 PM in Courtroom 6, 17th Floor, San Francisco. (Cohn, Cindy) (Filed on 10/3/2007) (Entered: 10/03/2007)
19 Memorandum in Opposition re 14 MOTION Plaintiffs' Motion for Order to Preserve Evidence; Plaintiffs' Memorandum of Points and Authorities in Support of Motion for Order to Preserve Evidence, 18 MOTION to Amend/Correct 14 MOTION Plaintiffs' Motion for Order to Preserve Evidence; Plaintiffs' Memorandum of Points and Authorities in Support of Motion for Order to Preserve Evidence MOTION to Amend/Correct 14 MOTION Plaintiffs' Motion for Order to Preserve Evidence; Plaintiffs' Memorandum of Points and Authorities in Support of Motion for Order to Preserve Evidence filed byGeorge W. Bush, Michael V. Hayden, Keith B. Alexander, Alberto Gonzales, John Ashcroft. (Attachments: # 1 Affidavit Coppolino Declaration & Exhibits Thereto)(Haas, Alexander) (Filed on 10/25/2007) (Entered: 10/25/2007)
20 NOTICE by George W. Bush, Michael V. Hayden, Keith B. Alexander, Alberto Gonzales, John Ashcroft re 19 Memorandum in Opposition,,, of Lodging of Classified Supplement & accompanying Declaration (Haas, Alexander) (Filed on 10/25/2007) (Entered: 10/25/2007)
21 RESPONSE in Support re 14 MOTION Plaintiffs' Motion for Order to Preserve Evidence; Plaintiffs' Memorandum of Points and Authorities in Support of Motion for

Case: 4:07-cv-693 As of: 03/22/2018 06:08 PM PDT 8 of 17

12/14/2007 03/25/2008 11/06/2008
05/05/2009 05/14/2009 07/31/2009 07/31/2009 08/05/2009
08/27/2009 09/03/2009 09/10/2009
10/02/2009 10/07/2009

Order to Preserve Evidence filed byAll Plaintiffs'. (Cohn, Cindy) (Filed on 11/2/2007) (Entered: 11/02/2007)
22 NOTICE by George W. Bush, Michael V. Hayden, Keith B. Alexander, Alberto Gonzales, John Ashcroft of Manual Filing (Haas, Alexander) (Filed on 12/14/2007) (Entered: 12/14/2007)
23 REVISED PRACTICE AND PROCEDURE ORDER re (370 in M:06−cv−01791−VRW) Order filed September 10, 2007 signed by Judge Vaughn R Walker on 3−24−08. (vrwlc3, COURT STAFF) (Filed on 3/25/2008) (Entered: 03/25/2008)
24 Transcript of Proceedings held on 9−12−2008, before Judge Vaughn R. Walker. Court Reporter/Transcriber Debra L. Pas, Telephone number (415) 431−1477. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 2/2/2009. (Pas, Debra) (Filed on 11/6/2008) (Entered: 11/06/2008)
25 Letter from Ilann M. Maazel to Judge Vaughn R. Walker re 9th circuit authority. (Maazel, Ilann) (Filed on 5/5/2009) (Entered: 05/05/2009)
26 ORDER re 25 Letter filed by Hilary Botein, Virginia Shubert, Sarah Dranoff, Noha Arafa. Signed by Judge Vaughn R Walker on 5/14/2009. (vrwlc3, COURT STAFF) (Filed on 5/14/2009) (Entered: 05/14/2009)
27 CASE MANAGEMENT STATEMENT Joint Request to Schedule Case Management Conference filed by United States of America. (Coppolino, Anthony) (Filed on 7/31/2009) (Entered: 07/31/2009)
29 ERRONEOUS DOCKET ENTRY − Please ignore NOTICE OF APPEAL. Filing fee $ 455. (Attachments: # 1 2nd part of Notice of Appeal)(gsa, COURT STAFF) (Filed on 7/31/2009) Modified on 8/7/2009 (gsa, COURT STAFF). (Entered: 08/05/2009)
28 CLERKS NOTICE : PER COUNSEL'S REQUEST, Case Management Conference has been scheduled in this case for September 3, 2009 at 3:30 p.m. Parties joint case management statement shall be due one week prior to the conference. Counsel for the plaintiffs and the defendants has been granted leave to appear telephonically. The clerk shall initiate the call. Parties requesting a continuance shall submit a stipulation and proposed order. If parties are unable to reach a stipulation, the requesting party shall submit an exparte application with a proposed order. Case Management Conference set for 9/3/2009 03:30 PM. Case Management Statement due by 8/27/2009. (cgk, COURT STAFF) (Filed on 8/5/2009) (Entered: 08/05/2009)
30 CASE MANAGEMENT STATEMENT Joint Case Management Statement filed by United States of America. (Coppolino, Anthony) (Filed on 8/27/2009) (Entered: 08/27/2009)
Set/Reset Hearings: Case Management Conference reset for 9/10/2009 03:30 PM. (cgk, COURT STAFF) (Filed on 9/3/2009) (Entered: 09/08/2009)
31 Minute Entry: Case Management Conference (Telephonic) held on 9/10/2009 before Chief Judge Vaughn R Walker. Attorneys : For Plaintiff(s): Ilann Maazel (by phone). Cindy Cohn. For Defendant(s): Anthony Coppolino (by phone). James Whitman (phone). Govt to File Motion: 10/8/2009. Opposition: 11/5/2009. Reply: 11/19/2009. Hearing: 12/15/2009 at 10:00 AM. (Court Reporter not reported.) (cgk, COURT STAFF) (Date Filed: 9/10/2009) (Entered: 09/16/2009)
32 STIPULATION to Extend Time to Renew Motion to Dismiss and For Summary Judgment by United States of America. (Ahern, Paul) (Filed on 10/2/2009) (Entered: 10/02/2009)
33 STIPULATION AND ORDER granting doc 32 in C07−0693 Shubert v Bush filed by United States of America. The government defendants' renewed motion to dismiss and

Case: 4:07-cv-693 As of: 03/22/2018 06:08 PM PDT 9 of 17

10/16/2009 10/22/2009
10/26/2009 10/29/2009 10/30/2009
10/30/2009 10/30/2009 10/30/2009 11/03/2009 11/20/2009 12/03/2009 12/08/2009 12/15/2009

for summary judgment shall be filed no later than 10/20/2009. The plaintiffs' opposition to that motion shall be filed no later than 11/24/2009. Reply shall be filed no later than 12/4/2009. The hearing shall remain set for 12/15/2009 at 10:00 AM. Signed by Judge Vaughn R Walker on 10/7/2009. (cgk, COURT STAFF) (Filed on 10/7/2009) (Entered: 10/07/2009)
34 STIPULATION (Second) to Extend Time to Renew Motion to Dismiss and for Summary Judgment by United States of America. (Attachments: # 1 Proposed Order, # 2 Exhibit 1)(Ahern, Paul) (Filed on 10/16/2009) (Entered: 10/16/2009)
35 STIPULATION AND ORDER re 34 Stipulation filed by United States of America. Govt to file motion no later than 10/27/2009. Opposition due no later than 12/2/2009. Reply due no later than 12/8/2009. Hearing on Govt Defendants motion to dismiss and for summary judgment 12/15/2009 at 10:00 AM. Signed by Judge Vaughn R Walker on 10/21/2009. (cgk, COURT STAFF) (Filed on 10/22/2009) (Entered: 10/22/2009)
36 STIPULATION (Third) to Extend Time to Renew Motion to Dismiss and for Summary Judgment by United States of America. (Attachments: # 1 Proposed Order)(Ahern, Paul) (Filed on 10/26/2009) (Entered: 10/26/2009)
37 STIPULATION AND ORDER. Government's motion due 10/30/09; plaintiffs' opposition due 12/04/09; reply due 12/08/09; hearing 12/15/09 at 10:00 am. Signed by Judge Vaughn R Walker on 10/28/09. (vrwlc3, COURT STAFF) (Filed on 10/29/2009) (Entered: 10/29/2009)
38 MOTION to Dismiss and for Summary Judgment filed by United States of America. Motion Hearing set for 12/15/2009 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Exhibit 1, Public Declaration of Dennis C. Blair, Director of National Intelligence, # 2 Exhibit 2, Public Declaration of Keith B. Alexander, Director of the National Security Agency, # 3 Exhibit 3, Policies and Procedures Governing Invocation of the State Secrets Privilege)(Ahern, Paul) (Filed on 10/30/2009) (Entered: 10/30/2009)
39 NOTICE by United States of America re 38 MOTION to Dismiss and for Summary Judgment of Lodging of In Camera, Ex Parte Classified Declaration of Dennis C. Blair, Director of National Intelligence (Ahern, Paul) (Filed on 10/30/2009) (Entered: 10/30/2009)
40 NOTICE by United States of America re 38 MOTION to Dismiss and for Summary Judgment of Lodging of In Camera, Ex Parte Classified Declaration of Lieutenant General Keith B. Alexander, Director of the National Security Agency (Ahern, Paul) (Filed on 10/30/2009) (Entered: 10/30/2009)
41 NOTICE by United States of America re 38 MOTION to Dismiss and for Summary Judgment of Lodging of In Camera, Ex Parte Classified Supplemental Memorandum of Points and Authorities (Ahern, Paul) (Filed on 10/30/2009) (Entered: 10/30/2009)
42 STIPULATION AND ORDER re doc 36 THIRD STIPULATION TO EXTEND TIME TO FILE RENEWED MOTION TO DISMISS AND FOR SUMMARY JUDGMENT filed by United States of America. Signed by Judge Vaughn R Walker on 11/2/2009. (cgk, COURT STAFF) (Filed on 11/3/2009) (Entered: 11/03/2009)
NOTICE of Hearing on Motion : The 12/15/2009 hearing on the United States' motion to dismiss and for summary judgment, doc #38 has been moved from 10:00 AM to 02:00 PM in Courtroom 6, 17th Floor, San Francisco. (cgk, COURT STAFF) (Filed on 11/20/2009) (Entered: 11/20/2009)
43 Memorandum in Opposition re 38 MOTION to Dismiss and for Summary Judgment filed byNoha Arafa, Hilary Botein, Sarah Dranoff, Virginia Shubert. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Maazel, Ilann) (Filed on 12/3/2009) (Entered: 12/03/2009)
44 Reply Memorandum re 38 MOTION to Dismiss and for Summary Judgment filed byUnited States of America. (Attachments: # 1 Exhibit 1)(Ahern, Paul) (Filed on 12/8/2009) (Entered: 12/08/2009)
45 Minute Entry: Motion Hearing held on 12/15/2009 before Chief Judge Vaughn R Walker re doc 38 MOTION to Dismiss and for Summary Judgment filed by United

Case: 4:07-cv-693 As of: 03/22/2018 06:08 PM PDT 10 of 17

01/21/2010
01/25/2010
02/04/2010 03/19/2010
03/22/2010 03/23/2010 04/26/2010 05/03/2010 05/21/2010
06/11/2010 04/06/2011 01/12/2012 02/01/2012 02/23/2012 02/23/2012 05/21/2012

States of America ; the court submitted the matter, the court to issue order. (Court Reporter Jim Yeomans.) (cgk, COURT STAFF) (Date Filed: 12/15/2009) (Entered: 12/16/2009)
46 ORDER by Judge Vaughn R. Walker granting (680) Motion to Dismiss in case M:06−cv−01791−VRW; granting (38) Motion to Dismiss in case 3:07−cv−00693−VRW; granting Motion to Dismiss in 3:08−cv−4373 VRW. (Attachments: # 1 Appendix) (hlk, COURT STAFF) (Filed on 1/21/2010) (Entered: 01/21/2010)
47 JUDGMENT. IT IS ORDERED AND ADJUDGED that in accordance with the Court's January 21, 2010 Order, judgment is hereby entered in member caseShubert et al v Bush et al, No C 07−0693 in favor of defendants and against plaintiffs. (cgk, COURT STAFF) (Filed on 1/25/2010) (Entered: 01/25/2010)
48 ORDER re (Doc #46 in 3:07−cv−00693−VRW, Doc #703 in M:06−cv−01791−VRW) 1/21/2010 Order on Motion to Dismiss. Signed by Judge Vaughn R. Walker on 2/4/2010. (hlk, COURT STAFF) (Filed on 2/4/2010) (Entered: 02/04/2010)
49 NOTICE OF APPEAL as to (46 in 3:07−cv−00693−VRW) Order on Motion to Dismiss (47 in 3:07−cv−00693−VRW) Judgment by Virginia Shubert. Appeal Fee $455, Receipt Number 34611043712. (far, COURT STAFF) (Filed on 3/19/2010) (Entered: 03/22/2010)
50 Copy of Notice of Appeal and Docket sheet mailed to all counsel (Attachments: # 1 docket sheet)(far, COURT STAFF) (Filed on 3/22/2010) (Entered: 03/22/2010)
51 Copy of Notice of Appeal and Docket sheet mailed to all counsel (Attachments: # 1 docket sheet, # 2 cover letter, # 3 USCA appeal notification form)(far, COURT STAFF) (Filed on 3/23/2010) (Entered: 03/23/2010)
52 USCA Case Number 10−15638 9th Circuit for 49 Notice of Appeal filed by Virginia Shubert. (far, COURT STAFF) (Filed on 4/26/2010) (Entered: 04/26/2010)
53 TRANSCRIPT DESIGNATION AND ORDERING FORM for proceedings held on 12/15/09 before Judge Walker. (far, COURT STAFF) (Filed on 5/3/2010) (Entered: 05/04/2010)
54 Transcript of Proceedings held on 12/15/09, before Judge Vaughn R. Walker. Court Reporter/Transcriber James Yeomans, Telephone number (415) 863−5179. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 8/19/2010. (jjy, COURT STAFF) (Filed on 5/21/2010) (Entered: 05/21/2010)
55 CLERKS NOTICE Advising Counsel of Change in MDL Master Case Number Format (rcs, COURT STAFF) (Filed on 6/11/2010) (Entered: 06/11/2010)
56 ORDER of USCA (far, COURT STAFF) (Filed on 4/6/2011) (Entered: 04/06/2011)
60 USCA Memorandum as to 49 Notice of Appeal filed by Virginia Shubert (rcs, COURT STAFF) (Filed on 1/12/2012) (Entered: 05/14/2012)
57 NOTICE of Appearance by Adam Pulver (Pulver, Adam) (Filed on 2/1/2012) (Entered: 02/01/2012)
58 MANDATE of USCA (far, COURT STAFF) (Filed on 2/23/2012) (Entered: 02/23/2012)
59 CLERKS Letter Spreading Mandate to Counsel (far, COURT STAFF) (Filed on 2/23/2012) (Entered: 02/23/2012)
61 STIPULATION WITH PROPOSED ORDER Stipulation to Toll Defendants' Response to Second Amended Complaint filed by Keith B. Alexander, United States of America, Barack Obama, Eric H. Holder. (Coppolino, Anthony) (Filed on 5/21/2012) (Entered: 05/21/2012)

Case: 4:07-cv-693 As of: 03/22/2018 06:08 PM PDT 11 of 17

08/20/2012 09/05/2012 09/06/2012 09/06/2012 09/17/2012 09/24/2012 09/25/2012
09/28/2012
09/28/2012 09/28/2012 10/02/2012 10/03/2012 10/16/2012 10/17/2012 10/18/2012

62 Letter from Adam Pulver Requesting Judge Assignment. (Pulver, Adam) (Filed on 8/20/2012) (Entered: 08/20/2012)
63 Letter from Ilann M. Maazel to Judge Wilken. (Pulver, Adam) (Filed on 9/5/2012) (Entered: 09/05/2012)
64 ORDER REASSIGNING CASE. Case reassigned to Hon. Yvonne Gonzalez−Rogers. Hon. Vaughn R. Walker no longer assigned to the case. Signed by Executive Committee on 9/6/12. (ha, COURT STAFF) (Filed on 9/6/2012) Modified on 9/7/2012 (jlm, COURT STAFF). (Entered: 09/06/2012)
65 REASSIGNMENT ORDER OF JUDGE YVONNE GONZALEZ ROGERS. Signed by Judge Yvonne Gonzalez Rogers on 9/6/12. (fs, COURT STAFF) (Filed on 9/6/2012) (Entered: 09/11/2012)
66 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Jeffrey S. White for all further proceedings. Judge Hon. Yvonne Gonzalez Rogers no longer assigned to the case. Signed by Judge Jeffrey S. White, on 09/17/2012. (jlm, COURT STAFF) (Filed on 9/17/2012) (Entered: 09/18/2012)
67 STIPULATION WITH PROPOSED ORDER Stipulation and Request to Reset Hearing Date; Set Briefing Schedule filed by Keith B. Alexander, Eric H. Holder, Barack Obama, United States of America. (Coppolino, Anthony) (Filed on 9/24/2012) (Entered: 09/24/2012)
68 ORDER GRANTING AS MODIFIED 67 STIPULATION RE: Request to Reset Hearing Date; Set Briefing Schedule. Responses due by 10/18/2012. Replies due by 10/26/2012. Motion Hearing set for 12/14/2012 09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S. White.. Signed by Judge JEFFREY S. WHITE on 9/25/12. (jjoS, COURT STAFF) (Filed on 9/25/2012) (Entered: 09/25/2012)
69 Third MOTION to Dismiss and for Summary Judgment filed by Keith B. Alexander, Eric H. Holder, Barack Obama, United States of America. Motion Hearing set for 12/14/2012 09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S. White. Responses due by 10/18/2012. Replies due by 10/26/2012. (Attachments: # 1 Ex. A − DNI Public Declaration, # 2 Ex. B − NSA Public Declaration)(Berman, Marcia) (Filed on 9/28/2012) (Entered: 09/28/2012)
70 NOTICE by Keith B. Alexander, Eric H. Holder, Barack Obama, United States of America re 69 Third MOTION to Dismiss and for Summary Judgment Notice of Lodging of Classified DNI Declaration (Berman, Marcia) (Filed on 9/28/2012) (Entered: 09/28/2012)
71 NOTICE by Keith B. Alexander, Eric H. Holder, Barack Obama, United States of America re 69 Third MOTION to Dismiss and for Summary Judgment Notice of Lodging of Classified NSA Declaration (Berman, Marcia) (Filed on 9/28/2012) (Entered: 09/28/2012)
72 STIPULATION WITH PROPOSED ORDER and Request to Set Briefing Schedule filed by All Plaintiffs. (Cohn, Cindy) (Filed on 10/2/2012) (Entered: 10/02/2012)
73 ORDER DENYING STIPULATION TO RESET BRIEFING SCHEDULE. Signed by Judge JEFFREY S. WHITE on 10/3/12. (jjoS, COURT STAFF) (Filed on 10/3/2012) (Entered: 10/03/2012)
74 STIPULATION WITH PROPOSED ORDER TO DEEM CERTAIN DOCUMENTS FILED filed by All Plaintiffs, Noha Arafa, Hilary Botein, Sarah Dranoff, Virginia Shubert. (Pulver, Adam) (Filed on 10/16/2012) (Entered: 10/16/2012)
75 ORDER GRANTING 74 STIPULATION TO DEEM CERTAIN DOCUMENTS FILED. Signed by Judge Jeffrey S. White on 10/17/12. (jjoS, COURT STAFF) (Filed on 10/17/2012) (Entered: 10/17/2012)
76 RESPONSE (re 69 Third MOTION to Dismiss and for Summary Judgment ) filed byNoha Arafa, Hilary Botein, Sarah Dranoff, Virginia Shubert. (Maazel, Ilann) (Filed on 10/18/2012) (Entered: 10/18/2012)

Case: 4:07-cv-693 As of: 03/22/2018 06:08 PM PDT 12 of 17

10/18/2012 10/24/2012 10/25/2012 11/02/2012 12/12/2012 12/14/2012 12/21/2012
02/13/2013 02/27/2013 02/27/2013 02/27/2013 03/06/2013 03/13/2013 06/07/2013

77 DECLARATION of Ilann M. Maazel in Opposition to 69 Third MOTION to Dismiss and for Summary Judgment filed byNoha Arafa, Hilary Botein, Sarah Dranoff, Virginia Shubert. (Related document(s) 69 ) (Maazel, Ilann) (Filed on 10/18/2012) (Entered: 10/18/2012)
78 STIPULATION WITH PROPOSED ORDER for Extension of Time for Govt. Defs. to File their Reply in Supp. of Summ. Judgment filed by Keith B. Alexander, Eric H. Holder, Barack Obama, United States of America. (Berman, Marcia) (Filed on 10/24/2012) (Entered: 10/24/2012)
79 ORDER GRANTING (78 in 3:07−cv−00693−JSW) STIPULATION for Extension of Time for Govt. Defs. to File their Reply in Supp. of Summ. Judgment. Replies due by 11/2/2012.. Signed by Judge Jeffrey S. White on 10/25/12. (jjoS, COURT STAFF) (Filed on 10/25/2012) (Entered: 10/25/2012)
80 REPLY (re 69 Third MOTION to Dismiss and for Summary Judgment ) Government Defendants' Reply in Support of Third Motion to Dismiss and for Summary Judgment filed byKeith B. Alexander, Eric H. Holder, Barack Obama, United States of America. (Coppolino, Anthony) (Filed on 11/2/2012) (Entered: 11/02/2012)
81 NOTICE OF QUESTIONS FOR HEARING. Signed by Judge Jeffrey S. White on December 12, 2012. (jswlc2, COURT STAFF) (Filed on 12/12/2012) (Entered: 12/12/2012)
82 Minute Entry: Motion Hearing held on 12/14/2012 before Jeffrey S. White (Date Filed: 12/14/2012). (Court Reporter Joan Columbini.) (jjoS, COURT STAFF) (Date Filed: 12/14/2012) (Entered: 12/14/2012)
83 Transcript of Proceedings held on December 14, 2012, before Judge Jeffrey S. White. Court Reporter/Transcriber Joan Marie Columbini, CSR, RPR, Telephone number 415−255−6842. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 1/11/2013. Redacted Transcript Deadline set for 1/22/2013. Release of Transcript Restriction set for 3/21/2013. (Columbini, Joan) (Filed on 12/21/2012) (Entered: 12/21/2012)
84 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7−3.d filed byNoha Arafa, Hilary Botein, Sarah Dranoff, Virginia Shubert. (Pulver, Adam) (Filed on 2/13/2013) (Entered: 02/13/2013)
85 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7−3.d filed byKeith B. Alexander, Eric H. Holder, Barack Obama, United States of America. (Attachments: # 1 Clapper v. Amnesty International)(Berman, Marcia) (Filed on 2/27/2013) (Entered: 02/27/2013)
86 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7−3.d filed byNoha Arafa, Hilary Botein, Sarah Dranoff, Virginia Shubert. (Maazel, Ilann) (Filed on 2/27/2013) (Entered: 02/27/2013)
87 ORDER RE ADDITIONAL BRIEFING. Signed by Judge Jeffrey S. White on February 27, 2013. (jswlc2, COURT STAFF) (Filed on 2/27/2013) (Entered: 02/27/2013)
88 Supplemental Brief by Govt. Defs. Addressing Clapper v. Amnesty Int'l filed byKeith B. Alexander, Eric H. Holder, Barack Obama, United States of America. (Berman, Marcia) (Filed on 3/6/2013) (Entered: 03/06/2013)
89 Supplemental Brief re 87 Order filed byAll Plaintiffs. (Related document(s) 87 ) (Pulver, Adam) (Filed on 3/13/2013) (Entered: 03/13/2013)
90 NOTICE by Keith B. Alexander, Eric H. Holder, Barack Obama, United States of America re 69 Third MOTION to Dismiss and for Summary Judgment Notice and Request that the Court Hold the Pending Cross−Motions for Summary Judgment in Abeyance (Berman, Marcia) (Filed on 6/7/2013) (Entered: 06/07/2013)

Case: 4:07-cv-693 As of: 03/22/2018 06:08 PM PDT 13 of 17

06/14/2013 06/14/2013 06/19/2013
06/28/2013
07/08/2013 07/08/2013 07/08/2013 07/16/2013 07/23/2013 07/30/2013 08/05/2013
09/18/2013 09/20/2013 09/30/2013 09/30/2013 12/20/2013
12/20/2013

91 RESPONSE to re 90 Notice (Other), Opposition to Defendants' Motion for a Stay by All Plaintiffs. (Maazel, Ilann) (Filed on 6/14/2013) (Entered: 06/14/2013)
92 DECLARATION of Ilann Maazel in Opposition to 90 Notice (Other), Defendants' Motion for a Stay filed byAll Plaintiffs. (Attachments: # 1 Exhibit A−P)(Related document(s) 90 ) (Maazel, Ilann) (Filed on 6/14/2013) (Entered: 06/14/2013)
93 Response re 91 Response ( Non Motion ) Government Defendants' Response to Plaintiffs' Opposition to Defendants' June 7, 2013 Notice byKeith B. Alexander, Eric H. Holder, Barack Obama, United States of America. (Coppolino, Anthony) (Filed on 6/19/2013) (Entered: 06/19/2013)
94 Notice to Withdraw as Attorney filed by Noha Arafa, Hilary Botein, Sarah Dranoff, Virginia Shubert. Responses due by 7/12/2013. Replies due by 7/19/2013. (Attachments: # 1 Affidavit)(Pulver, Adam) (Filed on 6/28/2013) Modified on 7/2/2013 (hdjS, COURT STAFF). (Entered: 06/28/2013)
95 ORDER by Judge Jeffrey S. White GRANTING IN PART and DEFERRING RULING IN PART 69 Defendants' Motion to Dismiss and for Summary Judgment. (jswlc2, COURT STAFF) (Filed on 7/8/2013) (Entered: 07/08/2013)
Set Deadlines/Hearings: Case Management Statement due by 8/16/2013. Case Management Conference set for 8/23/2013 01:30 PM in Courtroom 11, 19th Floor, San Francisco. (jjoS, COURT STAFF) (Filed on 7/8/2013) (Entered: 07/08/2013)
96 DOCUMENT ENTERED IN WRONG CASE − PLEASE DISREGARD (jjoS, COURT STAFF) (Filed on 7/8/2013) Modified on 7/8/2013 (jjoS, COURT STAFF). (Entered: 07/08/2013)
97 MOTION for Reconsideration re 95 Order on Motion to Dismiss filed by All Plaintiffs. (Attachments: # 1 Proposed Order)(Maazel, Ilann) (Filed on 7/16/2013) (Entered: 07/16/2013)
98 AMENDED ORDER. Signed by Judge Jeffrey S. White on July 23, 2013. (jswlc2, COURT STAFF) (Filed on 7/23/2013) (Entered: 07/23/2013)
99 STIPULATION WITH PROPOSED ORDER to Continue Case Management Conference filed by Keith B. Alexander, Eric H. Holder, Barack Obama, United States of America. (Berman, Marcia) (Filed on 7/30/2013) (Entered: 07/30/2013)
100 ORDER GRANTING 99 Stipulation to Continue Case Management Conference. Case Management Statement due by 9/20/2013. Case Management Conference set for 9/27/2013 01:30 PM in Courtroom 11, 19th Floor, San Francisco. Signed by Judge Jeffrey S. White on August 5, 2013. (jswlc3, COURT STAFF) (Filed on 8/5/2013) (Entered: 08/05/2013)
101 NOTICE of Appearance by James R. Whitman (Whitman, James) (Filed on 9/18/2013) (Entered: 09/18/2013)
102 CASE MANAGEMENT STATEMENT Joint filed by Keith B. Alexander, Eric H. Holder, Barack Obama, United States of America. (Berman, Marcia) (Filed on 9/20/2013) (Entered: 09/20/2013)
103 Minute Entry: Status Conference held (Date Filed: 9/30/2013). (Court Reporter Debra Pas.) (jjoS, COURT STAFF) (Date Filed: 9/30/2013) (Entered: 09/30/2013)
104 AMENDED Minute Entry: (CORRECTION OF BRIEFING SCHEDULE) Status Conference held (Date Filed: 9/30/2013). (Court Reporter Debra Pas.) (jjoS, COURT STAFF) (Filed on 9/30/2013) (Entered: 09/30/2013)
105 Supplemental Brief of Govt. Defs. on Threshold Legal Issues as Ordered by the Court at the Sept. 27, 2013 Case Management Conference filed byKeith B. Alexander, Eric H. Holder, Barack Obama, United States of America. (Berman, Marcia) (Filed on 12/20/2013) (Entered: 12/20/2013)
106 Declaration of James R. Clapper in Support of 105 Supplemental Brief, filed byKeith B. Alexander, Eric H. Holder, Barack Obama, United States of America. (Related document(s) 105 ) (Berman, Marcia) (Filed on 12/20/2013) (Entered: 12/20/2013)

Case: 4:07-cv-693 As of: 03/22/2018 06:08 PM PDT 14 of 17

12/20/2013 12/20/2013 12/20/2013 12/20/2013
01/13/2014 02/12/2014 03/07/2014 03/11/2014 03/26/2014 04/01/2014 04/17/2014 05/09/2014 05/09/2014

107 Declaration of Frances J. Fleisch, National Security Agency in Support of 105 Supplemental Brief, filed byKeith B. Alexander, Eric H. Holder, Barack Obama, United States of America. (Related document(s) 105 ) (Berman, Marcia) (Filed on 12/20/2013) (Entered: 12/20/2013)
108 NOTICE by Keith B. Alexander, Eric H. Holder, Barack Obama, United States of America re 105 Supplemental Brief, of Lodging of In Camera, Ex Parte Classified Declaration of James R. Clapper, Director of National Intelligence (Berman, Marcia) (Filed on 12/20/2013) (Entered: 12/20/2013)
109 NOTICE by Keith B. Alexander, Eric H. Holder, Barack Obama, United States of America re 105 Supplemental Brief, of Lodging of In Camera, Ex Parte Classified Declaration of Frances J. Fleisch, Acting Deputy Director of the National Security Agency (Berman, Marcia) (Filed on 12/20/2013) (Entered: 12/20/2013)
110 NOTICE by Keith B. Alexander, Eric H. Holder, Barack Obama, United States of America of Filing Declassified Declarations (Attachments: # 1 2007 Declaration of J. Michael McConnell, Director of National Intelligence, filed in Jewel v. NSA and Shubert v. Obama, # 2 2007 Declaration of Lt. Gen. Keith B. Alexander, Director, National Security Agency, filed in Jewel v. NSA and Shubert v. Obama, # 3 2009 Declaration of Dennis C. Blair, Director of National Intelligence, filed in Jewel v. NSA, # 4 2009 Declaration of Dennis C. Blair, Director of National Intelligence, filed in Shubert v. Obama, # 5 2009 Declaration of Deborah A. Bonanni, National Security Agency, filed in Jewel v. NSA, # 6 2009 Declaration of Lt. Gen. Keith B. Alexander, Director, National Security Agency, filed in Shubert v. Obama, # 7 2012 Declaration of James R. Clapper, Director of National Intelligence, filed in Jewel v. NSA and Shubert v. Obama, # 8 2012 Declaration of Frances J. Fleisch, National Security Agency, filed in Jewel v. NSA and Shubert v. Obama)(Berman, Marcia) (Filed on 12/20/2013) (Entered: 12/20/2013)
111 Response to Defendant's Public Declarations byAll Plaintiffs. (Maazel, Ilann) (Filed on 1/13/2014) (Entered: 01/13/2014)
112 Supplemental Brief Plaintiffs' Responses to the Court's Four Questions filed byNoha Arafa, Hilary Botein, Sarah Dranoff, Virginia Shubert. (Maazel, Ilann) (Filed on 2/12/2014) (Entered: 02/12/2014)
113 RESPONSE to Court's Threshold Questions (Government Defendants' Reply on Threshold Legal Issues as Ordered by the Court at the September 27, 2013, Status Conference) by Keith B. Alexander, Eric H. Holder, Barack Obama, United States of America. (Gilligan, James) (Filed on 3/7/2014) (Entered: 03/07/2014)
114 ERRATA re 113 Response ( Non Motion ), Gvt. Defs.' Reply on Threshold Legal Issues as Ordered by the Court at the Sept. 27, 2013 Status Conference by Keith B. Alexander, Eric H. Holder, Barack Obama, United States of America. (Attachments: # 1 Corrected Gvt. Defs.' Reply on Threshold Legal Issues as Ordered by the Court)(Berman, Marcia) (Filed on 3/11/2014) (Entered: 03/11/2014)
115 RESPONSE to the Court's Question About Rule 11 Certifications by Keith B. Alexander, Eric H. Holder, Barack Obama, United States of America. (Berman, Marcia) (Filed on 3/26/2014) (Entered: 03/26/2014)
116 ORDER RE UNDER SEAL DOCUMENTS. Signed by Judge JEFFREY S. WHITE on 4/1/14. (jjoS, COURT STAFF) (Filed on 4/1/2014) (Entered: 04/01/2014)
117 Unopposed REQUEST Concerning Briefing Set Forth in March 19, 2014 Order (Jewel Doc. #95), filed by Noha Arafa, Hilary Botein, Sarah Dranoff, Virginia Shubert. (Maazel, Ilann) (Filed on 4/17/2014) Modified on 4/18/2014 (jlmS, COURT STAFF). (Entered: 04/17/2014)
118 Brief re Compliance with Preservation Orders, filed by Keith B. Alexander, Eric H. Holder, Barack Obama, United States of America. (Berman, Marcia) (Filed on 5/9/2014) Modified on 5/12/2014 (jlmS, COURT STAFF). Modified on 6/4/2014 (jlmS, COURT STAFF). (Entered: 05/09/2014)
119 [REDACTED] Classified Declaration of Miriam P., National Security Agency Ex Parte, In Camera Submission, filed by Keith B. Alexander, Eric H. Holder, Barack

Case: 4:07-cv-693 As of: 03/22/2018 06:08 PM PDT 15 of 17

05/09/2014 05/09/2014 06/02/2014
06/03/2014 06/05/2014
06/05/2014 06/05/2014 06/06/2014 06/06/2014 06/06/2014 06/13/2014 06/13/2014 06/23/2014

Obama, United States of America. (Berman, Marcia) (Filed on 5/9/2014) Modified on 5/12/2014 (jlmS, COURT STAFF). Modified on 5/12/2014 (jlmS, COURT STAFF). (Entered: 05/09/2014)
120 Declaration of Anthony J. Coppolino, filed by Keith B. Alexander, Eric H. Holder, Barack Obama, United States of America. (Berman, Marcia) (Filed on 5/9/2014) Modified on 5/12/2014 (jlmS, COURT STAFF). (Entered: 05/09/2014)
121 NOTICE of Lodging of Classified NSA Declaration for In Camera, Ex Parte Review, filed by Keith B. Alexander, Eric H. Holder, Barack Obama, United States of America (Berman, Marcia) (Filed on 5/9/2014) Modified on 5/12/2014 (jlmS, COURT STAFF). (Entered: 05/09/2014)
122 STIPULATION WITH PROPOSED ORDER CONCERNING BRIEFING SCHEDULE, filed by Noha Arafa, Hilary Botein, Sarah Dranoff, Virginia Shubert. (Attachments: # 1 Proposed Order)(Maazel, Ilann) (Filed on 6/2/2014) Modified on 6/3/2014 (jlmS, COURT STAFF). Modified on 6/3/2014 (jlmS, COURT STAFF). (Entered: 06/02/2014)
123 ORDER by Judge Jeffrey S. White granting 122 Stipulation CONCERNING BRIEFING SCHEDULE (jjoS, COURT STAFF) (Filed on 6/3/2014) (Entered: 06/03/2014)
124 Brief re 118 Plaintiffs' Brief Concerning The Government's Violation, of the Court's Preservation Orders, filed by Noha Arafa, Hilary Botein, Sarah Dranoff, Virginia Shubert. (Attachments: # 1 Proposed Order re: The Government's Violation of the Court's Preservation Orders)(Related document(s) 118 ) (Maazel, Ilann) (Filed on 6/5/2014) Modified on 6/6/2014 (jlmS, COURT STAFF). (Entered: 06/05/2014)
125 ORDER RE EMERGENCY APPLICATION TO ENFORCE THE COURT'S TEMPORARY RESTRAINING ORDER. Signed by Judge Jeffrey S. White on 6/5/14. (jjoS, COURT STAFF) (Filed on 6/5/2014) (Entered: 06/05/2014)
126 Emergency MOTION to Stay re 125 Order Emergency Motion to Stay the Court's June 5, 2014 Order filed by Eric H. Holder, Barack Obama, United States of America. Responses due by 6/6/2014. Replies due by 6/13/2014. (Coppolino, Anthony) (Filed on 6/5/2014) (Entered: 06/05/2014)
127 ORDER SETTING HEARING. APPLICATION TO ENFORCE Temporary Restraining Order Hearing set for 6/6/2014 02:00 PM.. Signed by Judge JEFFREY S. WHITE on 6/6/14. (jjoS, COURT STAFF) (Filed on 6/6/2014) Modified on 6/6/2014 (jjoS, COURT STAFF). (Entered: 06/06/2014)
128 NOTICE of Phone Number for Government Counsel for Emergency Hearing re 127 Order, filed by Eric H. Holder, Barack Obama, United States of America (Coppolino, Anthony) (Filed on 6/6/2014) Modified on 6/9/2014 (jlmS, COURT STAFF). (Entered: 06/06/2014)
129 MOTION for Extension of Time to File Opposition to Plalintiffs' Emergency Motion to Enforce Court's Temporary Restraining Order, filed by Eric H. Holder, Barack Obama, United States of America. (Coppolino, Anthony) (Filed on 6/6/2014) Modified on 6/9/2014 (jlmS, COURT STAFF). (Entered: 06/06/2014)
130 Letter to Judge Jeffrey S. White re Telephonic Hearing Held on 06/06/14, from Marica Berman, dated 06/12/14. (kc, COURT STAFF) (Filed on 6/13/2014) (jlmS, COURT STAFF). Modified on 8/5/2014 (jlmS, COURT STAFF). (Entered: 06/16/2014)
131 ORDER RE REQUEST by Judge Jeffrey S. White, signed on 06/13/14. (kc, COURT STAFF) (Filed on 6/13/2014) (jlmS, COURT STAFF). Modified on 8/5/2014 (jlmS, COURT STAFF). Modified on 8/5/2014 (jlmS, COURT STAFF). (Entered: 06/16/2014)
132 ORDER by Judge Jeffrey S. White, signed on 06/23/14. (jlmS, COURT STAFF) (Filed on 6/23/2014) (Additional attachment(s) added on 8/5/2014: # 1 Main Document) (jlmS, COURT STAFF). Modified on 8/5/2014 (jlmS, COURT STAFF). Modified on 8/5/2014 (jlmS, COURT STAFF). (Additional attachment(s) added on 8/7/2014: # 4 Main Document) (jlm, COURT STAFF). Modified on 8/7/2014 (jlmS, COURT STAFF). ***DOCUMENT UNSEALED BY

Case: 4:07-cv-693 As of: 03/22/2018 06:08 PM PDT 16 of 17

06/23/2014
06/27/2014 06/30/2014 06/30/2014 07/02/2014 07/11/2014 07/23/2014 07/24/2014 07/28/2014 08/04/2014 08/05/2014 08/11/2014 09/30/2014

ORDER OF THE COURT, PLEASE SEE DOCUMENT NO. 143 *** (Entered: 06/23/2014)
133 RESPONSE to 131 Order, filed by Virginia Shubert (jlmS, COURT STAFF) (Filed on 6/23/2014) (Additional attachment(s) added on 8/5/2014: # 1 Main Document) (jlmS, COURT STAFF). Modified on 8/5/2014 (jlmS, COURT STAFF). (Additional attachment(s) added on 8/7/2014: # 3 Main Document) (jlm, COURT STAFF). Modified on 8/7/2014 (jlmS, COURT STAFF). ***DOCUMENT UNSEALED BY ORDER OF THE COURT, PLEASE SEE DOCUMENT NO. 143 *** (Entered: 06/23/2014)
134 Reply Memorandum re Compliance With Preservation Orders, filed by Keith B. Alexander, Eric H. Holder, Barack Obama, United States of America. (Attachments: # 1 Declaration of James J. Gilligan, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F)(Gilligan, James) (Filed on 6/27/2014) Modified on 6/30/2014 (jlmS, COURT STAFF). (Entered: 06/27/2014)
135 ERRATA to 134 Reply Memorandum, filed by Keith B. Alexander, Eric H. Holder, Barack Obama, United States of America. (Attachments: # 1 Exhibit (Corrected Government Defendants' Reply Brief Regarding Compliance With Preservation Orders))(Gilligan, James) (Filed on 6/30/2014) Modified on 7/1/2014 (jlmS, COURT STAFF). (Entered: 06/30/2014)
136 Administrative Motion to File Under Seal Response to June 23, 2014 Order filed by Keith B. Alexander, Eric H. Holder, Barack Obama, United States of America. (Attachments: # 1 Declaration of Marcia Berman, # 2 Proposed Order, # 3 Document to be filed under seal)(Berman, Marcia) (Filed on 6/30/2014) (Entered: 06/30/2014)
137 ORDER by Judge JEFFREY S. WHITE granting 136 Administrative Motion to File Under Seal (jjoS, COURT STAFF) (Filed on 7/2/2014) (Entered: 07/02/2014)
138 ORDER by Judge Jeffrey S. White, signed on 07/11/14. (jlmS, COURT STAFF) (Filed on 7/11/2014) Modified on 8/7/2014 (jlmS, COURT STAFF). ***DOCUMENT UNSEALED BY ORDER OF THE COURT, PLEASE SEE DOCUMENT NO. 143 *** Modified on 5/12/2016 (jlmS, COURT STAFF). (Entered: 07/11/2014)
139 NOTICE of Change of Address, filed by All Plaintiffs, Noha Arafa, Hilary Botein, Sarah Dranoff (Maazel, Ilann) (Filed on 7/23/2014) Modified on 7/24/2014 (jlmS, COURT STAFF). (Entered: 07/23/2014)
140 Final Brief re 134 Reply Memorandum re Compliance With Preservation Orders(Pursuant to the Court's June 6, 2014 Order), filed by Noha Arafa, Hilary Botein, Sarah Dranoff, Virginia Shubert. (Related document(s) 134 ) (Maazel, Ilann) (Filed on 7/24/2014) Modified on 7/25/2014 (jlmS, COURT STAFF). (Entered: 07/24/2014)
141 Administrative Motion to File Under Seal re Response to the Court's Order of July 11, 2014, filed by Keith B. Alexander, Eric H. Holder, Barack Obama, United States of America. (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 Response to Court's Order)(Berman, Marcia) (Filed on 7/28/2014) Modified on 7/29/2014 (jlmS, COURT STAFF). (Entered: 07/28/2014)
142 ORDER by Judge Jeffrey S. White GRANTING 141 Administrative Motion to File Under Seal Response to Court's Order of July 11, 2014. (jswlc3, COURT STAFF) (Filed on 8/4/2014) (Entered: 08/04/2014)
143 ORDER GRANTING ADMINISTRATIVE MOTION TO UNSEAL. Signed by Judge JEFFREY S. WHITE on 8/5/14. (jjoS, COURT STAFF) (Filed on 8/5/2014) (Entered: 08/05/2014)
144 CORRECTED ORDER GRANTING PLAINTIFFS' ADMINISTRATIVE MOTION TO UNSEAL. Signed by Judge JEFFREY S. WHITE on 8/11/14. (jjoS, COURT STAFF) (Filed on 8/11/2014) (Entered: 08/11/2014)
145 ORDER GRANTING MOTION FOR EXCESS PAGES; DENYING REQUEST TO STRIKE CROSS−MOTION FOR SUMMARY JUDGMENT; SETTING BRIEFING SCHEDULE AND CONTINUING HEARING. Signed by Judge

Case: 4:07-cv-693 As of: 03/22/2018 06:08 PM PDT 17 of 17

02/10/2015 05/20/2015 05/21/2015 06/13/2017
06/28/2017 07/19/2017 03/02/2018 03/05/2018

JEFFREY S. WHITE on 9/30/14. (jjoS, COURT STAFF) (Filed on 9/30/2014) (Entered: 09/30/2014)
146 ORDER DENYING PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT AND GRANTING DEFENDANTS MOTION FOR PARTIAL SUMMARY JUDGMENT. Signed by Judge JEFFREY S. WHITE on 2/10/15. (jjoS, COURT STAFF) (Filed on 2/10/2015) (Entered: 02/10/2015)
147 ORDER GRANTING MOTION FOR ENTRY OF FINAL JUDGMENT ON FOURTH AMENDMENT CLAIM. Signed by Judge JEFFREY S. WHITE on 5/20/15. (jjoS, COURT STAFF) (Filed on 5/20/2015) (Entered: 05/20/2015)
148 JUDGMENT ON FOURTH AMENDMENT CLAIM. Signed by Judge Jeffrey S. White on 5/21/15. (jjoS, COURT STAFF) (Filed on 5/21/2015) (Entered: 05/21/2015)
149 Government Defendant's Opening Brief Regarding Preservation of Upstream Internet Communications Previously Acquired Under Section 702 of the Foreign Intelligence Surveillance Act by Eric H. Holder, Barack Obama, United States of America. (Attachments: # 1 Exhibit, # 2 Exhibit)(Patton, Rodney) (Filed on 6/13/2017) Modified on 6/14/2017 (cjlS, COURT STAFF). (Entered: 06/13/2017)
150 Government Defendants' Notice of Filing by Keith B. Alexander, Eric H. Holder, Barack Obama, United States of America. (Gilligan, James) (Filed on 6/28/2017) Modified on 6/29/2017 (cjlS, COURT STAFF). (Entered: 06/28/2017)
151 ORDER RE PRESERVATION ISSUES. Signed by Judge Jeffrey S. White on July 19, 2017. (jswlc2S, COURT STAFF) (Filed on 7/19/2017) (Entered: 07/19/2017)
152 [PROPOSED] Stipulated Protective Order filed by Keith B. Alexander, Eric H. Holder, Barack Obama, United States of America, All Plaintiffs. (Patton, Rodney) (Filed on 3/2/2018) Modified on 3/5/2018 (cjlS, COURT STAFF). (Entered: 03/02/2018)
153 STIPULATED PROTECTIVE ORDER. Signed by Judge Jeffrey S. White on 3/5/18. (jjoS, COURT STAFF) (Filed on 3/5/2018) (Entered: 03/05/2018)

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2

IN RE NATIONAL SECURITY AGENCY
3
TELECOMMUNICATIONS RECORDS 4 LITIGATION
5
6 This Document Relates to:
7
Shubert v. Bush, Case No. 07-693
8

)

MDL Dkt. No. 06-1791-VRW

)

) CLASSIFIED DECLARATION

) OF J. MICHAEL McCONNELL,

) DIRECTOR OF NATIONAL

) INTELLIGENCE

)

)

SUBMITTED IN CAMERA,

)

EX PARTE

)

9

)

Hon. Vaughn R. Walker

)

10

11

IN CAMERA, EX PARTE DECLARATION OF J. MICHAEL McCONNELL,

12

DIRECTOR OF NATIONAL INTELLIGENCE

13

I, J. Michael McConnell, do hereby state and declare as follows:

14

M.,INTRODUCTION

<

15

1. ~I am the Director of National Intelligence (DNI) of the United States. I have

16

held this position since February 2007. Previously, I have served as the Executive Assistant to
17

18 the Director of Naval Intelligence, as the Chief of Naval Forces Division at the National Security

19 Agency, as Director of Intelligence for the Joint Chiefs of Staff during Operation Desert Storm,

20 and as the Director of the National Security Agency.

21

2. ~In the course of my official duties, I have been advised of this lawsuit and the

22

allegations at issue in Plaintiffs' Amended Complaint. The statements made herein are based on
23

24 my personal knowledge -as well as on information provided to me in my official capacity as

25 Director of National Intelligence. In particular, as set forth below, I have read and personally
26 considered the information contained in the Public and In Camera, Ex Parte Declarations of Lt.
27
Gen. Keith B. Alexander, Director of the National Security Agency, submitted in this case.
28
CLASSIFIED DECLARATION OF J. MICHAEL McCONNELL,
DIRECTOR OF NATIONAL INTELLIGENCE
CASE NO. 07-693; MDL NO. 06-1791

3.

2 claim that the NSA has conducted a "dragnet" content surveillance program involving the
3 interception of "virtuallyevery telephone, internet and/or email communication that has been
4 sent from or received within the United States since 2001." Amended Compl. CJ[<J[ 1, 4.
5
Nonetheless, the adjudication of this case risks the disclosure of information concerning several
6
highly classified and critically important intelligence activities of the National Security Agency,
7
8

9

10
(1) targeted content surveillance aimed
II
to the President's Terrorist Surveillance Program ("TSP") and recent orders of the Foreign
12
13 Intelligence Surveillance Court ("FISC" or "FISA Court"); (2) the bulk collection and targeted

14 analysis of non-content information about telephone and Internet communications-critically

15 important and highly sensitive activities that are also now conducted pursuant to FISC orders

16
that enable the NSA to uncover the conttacts
17
18

other highly significant intelligence

19 activities that are beyond· the scope of Plaintiffs' allegations but nonetheless are put at risk by

20

21

22
lawsuit therefore puts at risk of disclosure information concerning, inter alia,
23
24 essential foreign intelligence-gathering activities utilized to meet the extremely serious threat of
threat which I

26 describe further below based on recent assessments of the National Counter Terrorism Center
27
(NCTC) prepared in April2006 and February 2007.)
28
CLASSIFIED DECLARATION OF J. MICHAEL McCONNELL, DIRECTOR OF NATIONAL INTELLIGENCE CASE NO. 07-693; MDL NO. 06-1791

2

4. 'tf't-The purpose of this declaration is to formally assert, in my capacity as the

2 Director of National Intelligence and head of the United States Intelligence Community, the

3 military and state secrets privilege (hereafter "state secrets privilege") and a statutory privilege

4 under the National Security Act, see 50 U.S.C. § 403-1(i)(l), in order to protect intelligence
5
information, sources, and methods that are at risk of disclosure in this case. Disclosure of the
6
information covered by this privilege assertion reasonably could be expected to cause
7
8 exceptionally grave damage to the national security of the United States and, therefore, the

9 information should be excluded from any use in this case. In addition, I concur with Gen.
10
Alexander's conclusion that, because the very subject matter of this lawsuit concerns highly
11
classified and critically important foreign intelligence activities, the risk is great that further
12
13 litigation will lead to the disclosure of information harmful to U.S. national security and,

14 accordingly, that this case should be dismissed.

15

{m..,CLASSIFICATION OF DECLARATION·

16

5. ~Pursuant to the standards in Executive Order No. 12958, as amended by

17 Executive Order No. 13292, this declaration is classified as: TOP ~-gcR-gTtJCOH~T·
18

19

The details concerning these classification

20 markings are set forth in the In Camera Alexander Declaration at <J[<J[ 5-8 and are briefly

21 summarized here. Under Executive Order No. 12958, information is classified "TOP SECRET"
22
if unauthorized disclosure of the information reasonably could be expected to cause
23
exceptionally grave damage to the national security of the United States; "SECRET" if
24
25 unauthorized disclosure of the information reasonably could be expected to cause serious

26 damage to national security; and "CONFIDENTIAL" if unauthorized disclosure of the
27
information reasonably could be expected to cause identifiable damage to national security. At
28
CLASSIFIED DECLARATION OF J. MICHAEL McCONNELL, DIRECTOR OF NATIONAL INTELLIGENCE CASE NO. 07-693; MDL NO. 06-1791

the beginning of each paragraph of this declaration, the letters "U," "C," "S," and "TS" indicate

2 respectively that the information is either UNCLASSIFIED, or is classified CONFIDENTIAL,

3 SECRET, or TOP SECRET.

4

6. "ffl+.,Additionally, this declaration also contains Sensitive Compartmented

5
Information (SCI), which is "subject to special access and handling requirements because it
6

involves or derives from particularly sensitive intelligence sources and methods." 28 C.P.R.
7

8 § 17.18(a). This declaration references communications intelligence (COMINT), also referred

9 as special intelligence (SI), which is a subcategory of SCI that identifies information that was
10
derived from exploiting cryptographic systems or other protected sources by applying methods
II
or techniques, or from intercepted foreign communications. This declaration also references
12
13 human intelligence (HCS), another subcategory of SCI that identifies information derived from

14 individuals who provide intelligence information.

15

7.

16
about the Terrorist Surveillance Program (TSP), a controlled access signals intelligence program
17
authorized by the President in response to the attacks of September 11, 2001. Information
18

19 pertaining to this program is denoted with the special marking "TSP."

20

21

22

23
8. ~nally, information labeled "NOFORN" may not be released to foreign
24
25 governments, foreign nationals, or non-U.S. citizens without permission of the originator and in

26 accordance with DNI policy. The "ORCON" designator means that the originator of the
27
information controls to whom it is released. Finally, this document is marked Manual Review
28
CLASSIFIED DECLARATION OF J. MICHAEL McCONNELL, DIRECTOR OF NATIONAL INTELLIGENCE CASE NO. 07-693; MDL NO. 06-1791

("MR") indicating that it is not subject to automatic declassification at any specific date.

2

'!Yl.BACKGROUND ON DIRECTOR OF NATIONAL INTELLIGENCE

3

9. ~he position of Director of National Intelligence was created by Congress in

4 the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. 108-458, §§ 101l(a) and
5
1097, 118 Stat. 3638, 3643-63, 3698-99 (2004) (amending sections 102 through 104 of Title I of
6
the National Security Act of 1947). Subject to the authority, direction, and control of the
7
8 President, the Director of National Intelligence serves as the head of the U.S. Intelligence

9 Community and as the principal adviser to the President, the National Security Council, and the

10 Homeland Security Council for intelligence matters related to the national security. See 50

I 1

U.S.C. § 403(b)(l), (2).

12

13

CNJ 10.

The United States "Intelligence Community" includes the Office of the

14 Director of National Inteiligence; the Central Intelligence Agency; the National Security

15 Agency; the Defense Intelligence Agency; the National Geospatial-lntelligence Agency; the
16
National Reconnaissance Office; other offices within the Department of Defense for the
17
collection of specialized national intelligence through reconnaissance programs; the intelligence
18
19 elements of the military services, the Federal Bureau of Investigation, the Department of the

20 Treasury, the Department of Energy, the Drug Enforcement Administration, and the Coast

21 Guard; the Bureau of Intelligence and Research of the Department of State; the elements of the
22
Department of Homeland Security concerned with the analysis of intelligence information; and
23
24 such other elements of any other department or agency as~may be designated by the President, or
25 jointly designated by the DNI and heads of the department or agency concerned, as an element o

26 the Intelligence Community. See 50 U.S.C. § 401a(4).

27

11. (:t::F} The responsibilities and authorities of the Director of National Intelligence

28

CLASSIFIED DECLARATION OF J. MICHAEL McCONNELL, DIRECTOR OF NATIONAL lNTELLlGENCE CASE NO. 07~693; MDL NO. 06-1791

are set forth in the National Security Act. See 50 U.S.C. § 403-1. These responsibilities include

2 ensuring that national intelligence is provided to the President, the heads of the departments and

3 agencies of the Executive Branch, the Chairman of the Joint Chiefs of Staff and senior military

4 commanders, and the Senate and House of Representatives and committees thereof. 50 U.S.C.
5
§ 403-1(a)(l). The DNI is also charged with establishing the objectives of, determining the
6
requirements and priorities for, and managing and directing the tasking, collection, analysis,
7
8 production, and dissemination of national intelligence by elements of the Intelligence

9 Community. !d. § 403-1 (f)(l )(A)(i) and (ii). The DNI is also responsible for developing and
10
determining, based on proposals submitted by the heads of agencies and departments within the
11
Intelligence Community, an annual consolidated budget for the National Intelligence Program
12
13 for presentation to the President, and for ensuring the effective execution of the annual budget

14 for intelligence and intelligence-related activities, and for managing and allotting appropriations

15 for the National Intelligence Program. ld. § 403-1(c)(1)-(5).

16

12. ~addition, the National Security Act of 1947, as amended, provides that

17

"[t]he Director of National Intelligence shall protect intelligence sources and methods from
18

19 unauthorized disclosure." 50 U.S.C. § 403-1(i)(l). Consistent with this responsibility, the DNI

20 establishes and implements guidelines for the Intelligence Community for the classification of
21 information under applicable law, Executive orders, or other Presidential directives and access to
22
and dissemination of intelligence. Id. § 403-1(i)(2)(A), (B). In particular, the DNI is responsible
23
for the establishment of uniform standards and procedures for the grant of access to Sensitive
24
25 Compartmented Information ("SCI") to any officer or employee of any agency or department of

26 the United States, and for ensuring the consistent implementation of those standards throughout
27
such departments and agencies. ld. § 403-1(j)(1 ), (2).
28
CLASSIFIED DECLARATION OF J. MICHAEL McCONNELL, DIRECTOR OF NATIONAL INTELLIGENCE CASE NO. 07-693; MDL NO. 06-1791

13. ~By virtue of my position as the Director of National Intelligence, and unless

2 otherwise directed by the President, I have access to all intelligence related to the national

3 security that is collected by any department, agency, or other entity of the United States.

4 Pursuant to Executive Order No. 12958, 3 C.F.R. § 333 (1995), as amended by Executive Order
5
13292 (March 25, 2003), reprinted as amended in 50 U.S.C.A. § 435 at 93 (Supp. 2004), the
6
President has authorized me to exercise original TOP SECRET classification authority.
7

8

-fli) ASSERTION OF STATE SECRETS PRIVILEGE

9

14. ~fter careful and actual personal consideration of the matter, based upon my

10
own knowledge and information obtained in the course of my official duties, including the
II
information contained in-the Public and In Camera Declarations of Gen. Alexander, I have
12
13 determined that the disclosure of certain information-as set forth herein and described in more

14 detail in the classified declaration of Gen. Alexander-would cause exceptionally grave damage

15 to the national security of the United States and, therefore, must be protected from disclosure and
16
excluded from this case. Thus, as to this information, I formally assert the state secrets privilege.
17
In addition, it is my judgment that sensitive state secrets are so central to the subject matter of the
18
19 litigation that any attempt to proceed in the case will substantially risk the disclosure of the

20 privileged information described herein and in more detail in the classified declaration of Gen.

21 Alexander and will therefore risk exceptionally grave damage to the national security of the

22
United States.
23

1W ASSERTION OF STATUTORY PRIVILEGE UNDER NATIONAL SECURITY .ACT

24

<

25

15. ~Through this declaration, I also hereby invoke and assert a statutory privilege

26 held by the Director of National Intelligence under the National Security Act to protect the
27
information described herein, see 50 U.S.C. § 403-l(i)(l). My assertion of this statutory
28
CLASSIFIED DECLARATION OF J. MICHAEL McCONNELL, DIRECTOR OF NATIONAL INTELLIGENCE CASE NO. 07-693; MDL NO. 06-1791

privilege for intelligence sources and methods is coextensive with my state secrets privilege

2 assertion.

3

1'ffi.JNFORMATION SUBJECT TO CLAIM OF PRIVILEGE

4

16. ~The information subject to my assertion of the state secrets and statutory

5
privileges includes the following:
6

A. "tffl.Jnformation regarding the specific nature of the al

7

Qaeda terrorist threat; and

8
B. ~ Information that may tend to confirm or deny whether

9

the Plaintiffs have been subject to any alleged NSA

intelligence activity that may be at issue in this matter; and
10

II

c. ~Information concerning NSA intelligence, activities,

sources, or methods, including:

12

13

(1)Minformation concerning the scope and operation of

the Terrorist Surveillance Program, including information

14

that may be needed to demonstrate that the TSP was limited

to one-end foreign al Qaeda-related communications and

15

that the NSA does not otherwise engage in the content

16

surveillance dragnet that the Plaintiffs allege; and

17

(2) (~Any other information concerning NSA intelligence

activities, sources, or methods that would be necessary to

18

adjudicate the Plaintiffs' claims, including, to the extent

19

applicable, information that would tend to confirm or deny

whether the NSA collects large quantities of

20

communication records information; and

21

D.

~ Information that may tend to confirm or deny whether

22

Verizon/MCI, AT&T, or any other telecommunications

carrier has assisted the NSA with the alleged intelligence

23

activities.

24

~ESCRIPTION OF INFORMATION AND HARM OF DISCLOSURE

25

A. 'fll) Information Concerning the al Oaeda Terrorist Threat

26

<

17. €81/0CINF) Based on all of the intelligence information presently available to us,
27

28 the U.S. Intelligence Community judges the al Qaeda terrorist network has the intention and the
CLASSIFIED DECLARATION OF J. MICHAEL McCONNELL,
DIRECTOR OF NATIONAL INTELLIGENCE
CASE NO. 07-693; MDL NO. 06-1791

potential capability to carry out catastrophic terrorist acts on the U.S. Homeland. Indeed,

2 intelligence indicates al Qaeda's central leadership is pursuing multiple, possibly related, paths t

3 an attack against the Homeland. International counterterrorism efforts in 2006-especially the

4 August disruption of a major aviation plot by United Kingdom (UK) and Pakistani authorities-
5
have been successful, but they underscore that al Qaeda's core elements are resilient and
6
continue to plot attacks against U.S. interests overseas. Preventing such attacks is the U.S.
7
8 Intelligence Community's highest priority. The intelligence activities that are implicated by, and

9 put at risk of, disclosure in this lawsuit must be understood in the context of the extremely
10
serious threat faced by the United States.
II
18. ~ith the attacks of September 11, al Qaeda demonstrated its ability to
12
13 introduce agents into the United States undetected and to perpetrate devastating attacks. As the

14 President noted in his January 23, 2007, State of the Union Address, "In the mind of the

15 terrorists, this war began well before September the 11th, and will not end until their radical
16
vision is fulfilled. And these past five years have given us a much clearer view of the nature of
17
this enemy.... Our enemies are quite explicit about their intentions. They want to overthrow
18
19 moderate governments, and establish safe havens from which to plan and carry out new attacks

20 on our country."

21

19. (SHIICS//OCI-P'tF) Since September 11, al Qaeda leaders have repeatedly

22
promised to deliver another, even more devastating attack on America. For example, in October
23

24 2002, al Qaeda leader Ayman al-Zawahiri stated in a video addressing the "citizens of the_United

25 States": "I promise you that the Islamic youth are preparing for you what will fill your hearts

26 with horror." In an October 2004 tape, al-Zawahiri chastised the Muslim world-"Limiting the
27
battle to fighting only the Jews in Palestine and leaving America without attacking it, will not
28
CLASSIFIED DECLARATION OF J. MICHAEL McCONNELL,
DTRECTOR OF NATIONAL INTELLIGENCE
CASE NO. 07-693; MDL NO. 06-1791

restrain America and the crusaders against us." In an audiotape released on January 19, 2006,

2 Bin Ladin warned United States citizens that "operations in America" are "under preparation and

3 you will see them on your very own soil as soon as they are completed, Allah willing." And

4 again, in June 2006 Bin Ladin claimed, "We will continue to fight you and your allies

5
everywhere, in Iraq, Afghanistan, Somalia and Sudan to run down your resources and kill your
6
men until you return defeated to your nation."
7

8

20. '"fl:B-ln recent months, al Qaeda has reiterated its intent to inflict a catastrophic

9 terrorist attack on the United States. As recently as December 20, 2006, al-Zawahiri issued
10
threats of attacking the U.S. Homeland saying, "You shall never dream of security until we truly
1 1
experience it in Palestine and all lands of Islam ... if we are struck in our countries, we shall
12
13 never stop striking you in your countries ... and as our commander, Shaykh Usama Bin Ladin ..

14 . told you, 'As you bomb, you will be bombed, and as you kill, you will be killed."'

15

21.

16
attacks around the world, including in Indonesia, London, Iraq, Saudi Arabia, Algeria, and
17
Turkey, killing hundreds of innocent people. Foiled plots, including the plot disrupted in August
18

19 2006 to blow up multiple airliners transiting the Atlantic Ocean en route to North American

20 cities, would have claimed thousands more innocent victims had they been successful.

21

22

uwcs 22. (S

l,lOC/l~{F) Classified intelligence information provides a more specific

23

and alarming picture of the continuing terrorist threat to the Homeland posed by al Qaeda. In
24

25 sum, the U.S. Intelligence Community believes the al Qaeda terrorist network intends to execute

26 a catastrophic terrorist attack on the U.S. Homeland. For this reason, the President authorized
27
the Terrorist Surveillance Program and related activities described in this Declaration. The
28 CLASSIFIED DECLARATION OF J. MICHAEL McCONNELL, OJ RECTOR OF NATIONAL INTELLIGENCE CASE NO. 07-693; MDL NO. 06-1791

10

intelligence activities at issue in this case are thus being utilized to meet a known, real, and

2 perhaps imminent threat to the lives of thousands of Americans and, indeed, to the continuity of

3 the United States Government. The threat we face cannot be understated.

4

23. (T57/MC:s/IOCfNf) British and Pakistani authorities in early August 2006

5
disrupted the most significant known, advancing threat to the U.S. Homeland and U.S. interests
6

7

8

9

10

11

12

13

24. (Sf/IICS. OCfl'W) In addition, based on April 2006 and February 2007

14 assessments by the National Counterterrorism Center (NCTC), a national intelligence center that

15 is an element of the ODNI, the U.S. Intelligence Community continues to receive reliable

16
intelli

that al Qaeda remains intent

17

on conducting a grand-scale attack on the Homeland with a likely focus on U.S. symbols of
18

19 power or economic might. AI Qaeda continues to have these intentions despite the degradation

20 of its leadership, resources, and operational capability in the wake of a steady stream of deaths,
21 captures, and disruptions. Intelligence sources have
22

23
24 As a result of our disruptions of the group's planning and increased security measures, however, 25 "softer" targets have become increasingly attractive, although the 2006 US-UK aviation plot

26 discussed above shows the group does not shrink from attempting targets with enhanced security
27
Specific softer targets include tourist sites, shopping centers, and passenger trains.
28
CLASSIFIED DECLARATION OF J. MICHAEL McCONNELL, DIRECTOR OF NATIONAL INTELLIGENCE CASE NO. 07-693; MDL NO. 06-1791

11

2

3

4

5

6
25. (57/'IICS/.LNFI__We have numerous reasons to believe al Qaeda is still plotting
7
8 another attack on U.S. soil. Besides Bin Ladin's own statements, his deputy, Ayman al-

9 Zawahiri, issued threats against the United States and its interests and enjoined Muslims
10
worldwide to take up violent jihad in more than a dozen audio or video taped statements in 2006
11
and at least four thus far in 2007.
12

13

14

15

16

17

18

19

20

21

22

23

24

27. (SII'HCSt/OC) The Intelligence Community assesses al Qaeda is most likely

25 employing a diversified operational planning model, involving multiple, probably autonomous,

26 concurrent efforts. This is possibly in response to successful U.S. targeting of known al Qaeda
27
senior leaders.
28
CLASSIFIED DECLARATION OF J. MICHAEL McCONNELL,
DIRECTOR OF NATIONAL INTELLIGENCE
CASE NO. 07-693; MDL NO. 06-1791

12

2 3 4 5
28. (8h'IICSHOC~~J2) AI Qaeda has regained many of its capabilities despite the loss
6
of its Afghan base and a more difficult global operating environment created by sustained U.S.
7
8 and international counterterrorism efforts.
9 10 11 12
13 14
15
16 17 18 19 20 21 22
•
23 24
25
26 27 28
CLASSIFIED DECLARATION OF J. MICHAEL McCONNELL, DIRECTOR OF NATIONAL INTELLIGENCE CASE NO. 07-693; MDL NO. 06-1791

2 3 4 5 6 7 8 9 10 II 12 13 14 15 16
(S//NF) Possible al Qaeda Targets and Attacks
17
30.
18
19 Qaeda as a
20 21 22 23 24 25 26 27 28
CLASSIFIED DECLARATION OF J. MICHAEL McCONNELL, DIRECTOR OF NATIONAL TNTELUGENCE CASE NO. 07-693; MDL NO. 06-1791
14

31. (8/IHCS/fOC~W) With respect to attacks in the Homeland, the compilation of

2 data on al Qaeda's plotting attempts suggests the group remains focused on its strategic targeting

3 doctrine-striking majorU.S. cities or industries, causing major psychological and economic
4 impact. The group's signature attack is one that would be impressive in its scope or audacity
5
hits either multiple targets simultaneously or a single high profile place or person. Reporting
6
identified a variety of potential targets that would be .
7
8 attractive to group operatives, such as:

9

•

10

11
•
12

13

14

•

15

16
32.
17
18 locations is often incomplete, known target locations include large cities

19

20

21

22

23

24

33. (5//HCSf/OC/~J.E) although not eliminating al Qaeda's plotting to conduct a

25 spectacular attack against the U.S., constraints on al Qaeda's capabilities and increased security
26 measures at airports, government buildings, and other high-profile targets in the United States
27
could be making lower profile, less-protected targets increasingly attractive. An attack in the
28
CLASSIFIED DECLARATION OF J. MICHAEL McCONNELL, DIRECTOR OF NATIONAL INTELLIGENCE CASE NO. 07-693; MDL NO. 06-1791

15

United States, like those against London's transport systems, would probably meet al Qaeda's

2 objectives without requiring the planning, resources, and expertise necessary for a complex

3 September 11-style attack. This shift in al Qaeda' s planning has become apparent from our

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

36. (SHIICS//OCLWE) The U.S. Intelligence Community remains concerned the

27
multiple terrorist attacks carried out in London in July 2005 and the foiled 2006 US-UK airline
28
CLASSIFIED DECLARATION OF J. MICHAEL McCONNELL, DIRECTOR OF NATIONAL INTELLIGENCE CASE NO. 07-693; MDL NO. 06-1791

plot may be a harbinger of similar attacks to come in the United States in which Islamic

2 extremists in Western countries-whether homegrown or sent from abroad-will mimic and

3 refine the small explosives tactics used in these operations. Of specific concern to the U.S.

4 Intelligence Community in the wake of the London bombings is the continuing interest al Qaeda

5
intelligence
6
most likely would occur in major cities or
7

8 against

ing major cities, which would be consistent withal Qaeda's expressed intent to

9 inflict a high number of casualties in key centers of the economy.
10 II 12 13 14 15 16 17 18 19 20 21
22
23
24
25 26 27
While U.S. authorities have identified instances of possible surveillance and pre-operational
28 CLASSIFIED DECLARATION OF J. MICHAEL McCONNELL, DIRECTOR OF NATIONAL INTELLIGENCE
CASE NO. 07-693: MDL NO. 06-1791

activities aimed at gathering intelligence on rail transit systems, as yet there is no corroborating

2 intelligence to link them to operational planning against U.S. mass transit systems.

3

38. (SHIICSHOC~l"F) The U.S. Intelligence Community also believes al Qaeda and

4 its affiliates continue to target the civil aviation sector, including U.S. passengers and Western
5
aircraft overseas.
6

7

8

9

39. (T£f/HC£HOC~l"F) Despite our intelligence successes, however, there are

10
significant swaths of al Qaeda activity that almost certainly remain undetected. We believe it
11
likely that, at any given point in time, the group has multiple plots in play against the U.S.
12
13 Homeland, some of which could be in the advanced stages of preparation.

14

15

16

17

18

19

21

40.

22
conventional weapons. We are confident al Qaeda was actively pursuing chemical, biological,
23

and radiological capabilities prior to the fall of the Taliban in late 2001 and has been actively
24

25 pursuing a nuclear capability since at least 2005. Based on the extent of senior leadership

26 support for the Chemical, Biological, Radiological and Nuclear (CBRN) efforts, a clearly stated
27
intent, and reporting since 2001, we judge al Qaeda remains determined to inflict mass casualties
28 CLASSIFIED DECLARATION OF J. MICHAEL McCONNELL, DlRECTOR OF NATIONAL INTELLIGENCE CASE NO. 07-693; MDL NO. 06-1791

20 unlikely al Qaeda has acquired sufficient materials and expertise to do so.

21

43. ~mong al Qaeda and associated jihadist networks, information is

22
proliferating on
23

24

25

26 continued interest and pursuit of unconventional weapons increases the likelihood al Qaeda or an
27

28
CLASSIFIED DECLARATION OF J. MICHAEL McCONNELL,
DIRECTOR OF NATIONAL INTELLIGENCE
CASE NO. 07-693; MDL NO. 06-1791

associated group will attempt to conduct CBRN attacks against the United States or U.S.

2 interests worldwide.

3

44. (T~ 'IIOC/J'W) These various examples of some of our intelligence information

4 demonstrate the al Qaeda network continues to plan ways to inflict a catastrophic attack. In sum,
5
based on all of the intelligence presently available to us, the U.S. Intelligence Community judges
6
al Qaeda poses a grave danger to the U.S. Homeland. The severity of that threat and the
7
8 difficulty of tracking al Qaeda members is precisely the reason the Government is utilizing all

9 lawful intelligence-gathering capabilities. I set forth this threat information not only to provide
10
the Court with crucial background as to why the intelligence activities at issue in this case are
II
being undertaken, but also to assert a claim of privilege over this threat information. Although
12
13 the foregoing threat assessment demonstrates precisely why we undertake these activities, the

14 Government cannot disclose this information in defending the legality of the intelligence

15 activities being challenged, since to do so obviously would disclose to our adversaries what we
16
know of their plans and how we may be obtaining information about them. Such disclosure
17
would lead our adversaries not only to alter their plans, but also to implement greater security for
18
19 their communications, thereby increasing the risk of non-detection. In addition, disclosure of

20 threat information might reveal human sources for the United States and, thus, compromise those

21 sources and put lives at danger. Accordingly, although I believe such threat information is
22
crucial to understanding the context in which NSA conducts the intelligence activities put at
23
24 issue by Plaintiffs' lawsuit, I must assert the state secrets privilege and DNI statutory privilege
25 over the information because of the grave damage to national security that could reasonably be

26 expected to result from its disclosure.
27

28
CLASSIFIED DECLARATION OF J. MICHAEL McCONNELL,
DIRECTOR OF NATIONAL INTELLIGENCE
CASE NO. 07-693: MDL NO. 06-1791

B. lt&Jnformation That May Tend to Confirm or Deny Whether the Plaintiffs Have Been Subject to any Alleged NSA Intelligence Activities
2
45. ~addition to asserting privilege over information concerning the al Qaeda
3
threat, I am also asserting the state secrets privilege and the DNI statutory privilege to protect
4
5 from disclosure information that would reveal or tend to reveal whether or not the Plaintiffs in

6 this case have been subject to any NSA intelligence activities. See In Camera Alexander Decl.
7
<J[<J[ 32-37.
8
46.
9

10

II

12

13

14
As should be obvious, to confirm or deny whether someone is a target of surveillance would
15
16 disclose either who is being targeted-thus compromising that collection-or who is not being

17 targeted, thus revealing to adversaries that an individual is a secure source for communicating or,

18 more broadly, the methods being used to conduct surveillance. While it may seem innocuous to
19
disclose that certain citizens are not being targeted, such a disclosure may provide insight to a
20
trained eye as to the scope of the NSA' s activities. Moreover, providing assurances that
21
22 someone is not being targeted becomes unworkable, and itself revealing, when cases arise where

23 an individual may be targeted, because refusing to confirm or deny only in cases where
24
surveillance is occurring would effectively disclose and compromise that surveillance.
25

26

27

28

The only recourse for the NSA is to neither confirm nor deny whether someone has

CLASSIFIED DECLARATION OF 1. MICHAEL McCONNELL, DIRECTOR OF NATIONAL INTELLIGENCE CASE NO. 07-693; MDL NO. 06-1791

been targeted or subject to NSA activities, regardless of whether the individual has been targeted

2 or not. To say otherwisewhen challenged in litigation would result in the frequent, routine

3 exposure of NSA information, sources, and methods and would severely undermine surveillance

4 activities in general.
5
C. (U) Information Concerning NSA Activities, Sources, or Methods
6
47. (I SI/Sltff'SPI/OC/NF) I am also asserting privilege to protect information
7
8 concerning the classified NSA intelligence activities, sources, and methods that are further

9 described in Gen. Alexander's classified declaration. In particular, as set forth in Gen.
10
Alexander's Declaration, the United States faced urgent and immediate intelligence challenges
11
after the September 11 attacks, and the President authorized signals intelligence activities
12
13 designed to meet those challenges and to detect and prevent future terrorist attacks by al Qaeda
14 and its affiliates. Those activities include the Terrorist Surveillance Program ("TSP") and relatedj

15 content surveillance now subject to orders of the Foreign Intelligence Surveillance Court, as well
16
as the bulk collection of telephony and Internet non-content meta data currently authorized by
17
the FISC and used to discover contacts
18

19

20

48. ~y privilege assertion covers any facts concerning NSA intelligence sources

21 and methods that are put at risk of disclosure by this case, including (1) information concerning
22
the scope and operation of the Terrorist Surveillance Program, including information that may
23
needed to demonstrate that the TSP was limited as the President stated to the interception of one-
24

25 end foreign communications reasonably believed to involve a member or agent of al Qaeda or an

26 affiliated terrorist organization, and that the NSA does not otherwise intercept the content of
27
virtually every telephone and Internet communication sent from or received within the United
28
CLASSIFIED DECLARATION OF J. MICHAEL McCONNELL, DIRECTOR OF NATIONAL INTELUGENCE CASE NO. 07-693; MDL NO. 06-1791

22

States as the Plaintiffs allege; and (2) any other information concerning NSA intelligence

2 activities, sources, or methods that would be necessary to adjudicate the Plaintiffs' claims,

3 including, to the extent applicable, information that would tend to confirm or deny whether the

4 NSA collects large quantities of communication records information. In my judgment, the
5
disclosure of such information would cause exceptionally grave harm to national security.
6
49. (I ISJISJ/ffSPI/OC!NF) Specifically, based on my personal consideration and
7
8 judgment as to the harm disclosure would cause to national security, my privilege assertion

9 includes, but is not limited to, the following activities discussed by Gen. Alexander:
lO
(1) (TSfiSDJTSP//OC/NF) First, I assert privilege over facts concerning the operation of
II
the Terrorist Surveillance Program and any other NSA intelligence activities needed to
12
13 demonstrate that the TSP was limited as the President stated to the interception of one-end

14 foreign communications reasonably believed to involve a member or agent of al Qaeda or an

15 affiliated terrorist organization, and that the NSA does not otherwise conduct a dragnet of
16
content surveillance as the Plaintiffs allege. Such facts include those concerning (1) how targets
17
were selected under the TSP; (2) how specific methods were used under the TSP to intercept
18
19 telephone and Internet communications and to minimize the risk of collecting non-target

20 communications and purely domestic communications; (3) the nature and identity of the targets

21

and (4) other NSA surveillance activities

22
occur outside the United States or are otherwise outside the scope of FIS
23

24

In my judgment, the

25 NSA should not be forced to confirm or reveal its actual intelligence sources and methods in

26 order to show that it is not conducting the "dragnet" of surveillance that Plaintiffs allege.
27
Revealing such information would cause exceptionally grave harm to the national security by
28
CLASSIFIED DECLARATION OF J. MICHAEL McCONNELL,
DIRECTOR OF NATIONAL INTELLIGENCE
CASE NO. 07-693; MDL NO. 06-1791

23

helping foreign adversaries to evade detection.

2

-(2) (TS//SD/fSPI/OC/NF.L?econd, I assert privilege over additional classified details

3 about the operation of the TSP that would be necessary to adjudicate the lawfulness of that

4 program (to the extent it is at issue), including facts concerning (1) the operational swiftness and
5
agility of the TSP, particularly in conjunction with meta data analysis,
6
and (2) the effectiveness and success of the
7
8 TSP. In my judgment, revealing any of this information, even now that the TSP is no longer

9 authorized, would disclose highly classified NSA capabilities, sources, and methods, including
10
those now being utilized under the current FISC orders.
11
(3) (TS/7Sl7/"fSPi/OG!NE:). Third, I also assert privilege over facts that would disclose or
12
13 describe the NSA's meta data collection activities. In my judgment, the NSA is unable to

14 disclose any information about the existence or operation of the NSA' s bulk collection or

15 targeted analysis of Internet or telephony meta data without causing exceptionally grave harm to
16
national security. These are among the most important intelligence tools the NSA uses, and they
17
have never been officially confirmed or denied by the United States. Disclosing or confirming
18
19 these activities would seriously undermine an essential tool for tracking possible terrorist plots

20 and would help foreign adversaries evade detection. Such a disclosure would also undermine
21 ongoing intelligence operations authorized by the FISC, as the meta data activities are currently
22
conducted pursuant to FISC orders.
23
(4) (I'SI/SDff'SP/;'Q('INF) Finally, I also assert privilege over information con~erning
24
25 the various FISC orders that are described by Gen. Alexander. In my judgment, disclosure of

26 current surveillance activities of the FISC, either directly or indirectly, would seriously
27
compromise, if not destroy, vital ongoing intelligence operations.
28
CLASSIFIED DECLARATION OF J. MICHAEL McCONNELL, DIRECTOR OF NATIONAL INTELLIGENCE CASE NO. 07-693; MDL NO. 06-1791

24

50. ('fSffSIIFFSP//OCANF) Based on my experience, I believe that the NSA activities

2 discussed herein and described further by Gen. Alexander-the content and meta data collection

3 activities authorized by the President after 9/11 and subsequently authorized by the FISC-are

4 among the most important intelligence tools available to the United States for protecting the
5
Homeland from another catastrophic terrorist attack.
6

7

8

9

Disclosing the information

10
described herein and by Gen. Alexander would compromise these critical activities, sources, and
11
methods, thereby helping our adversaries evade detection and causing exceptionally grave
12
13 damage to the national security of the United States.

14

D. "'"'(Uj"Information That May Tend to Confirm or Deny Whether Verizon/MCI,

AT&T, or any Other Telecommunications Carrier Has Assisted the NSA

15

With Alleged Intelligence Activities

16
51.
17
information that would tend to confirm or deny whether Verizon/MCI, AT&T, or any other
18

19 telecommunications carrier has assisted the NSA with intelligence activities.

20

21

22

23

24

25

26

27

28
CLASSIFIED DECLARATION OF J. MICHAEL McCONNELL, DIRECTOR OF NATIONAL INTELLIGENCE CASE NO. 07-693; MDL NO. 06-1791

2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24
25 26
27
28 CLASSIFIED DECLARATION OF J. MICHAEL McCONNELL,
DIRECTOR OF NATIONAL INTELLIGENCE CASE NO. 07-693; MDL NO. 06-1791
26

2 3 4 5
6 7 8 9 10 11 12 13 14 15 16 17 18 19
20
21
22 23 24
25 Accordingly, I assert the state secrets and DNI statutory privilege over such information, 26 including the information described in the In Camera Declaration of Gen. Alexander.
27 28
CLASSIFIED DECLARATION OF J. MICHAEL McCONNELL, DIRECTOR OF NATIONAL INTELLIGENCE CASE NO. 07-693; MDL NO. 06-1791

~ISK OF LITIGATION AND CONCLUSION

2

56. (ISJI8ti/OC~TF) Finally, I concur with Gen. Alexander's conclusion that further

3 litigation of this case will inherently risk the disclosure of highly classified activities.

4 Plaintiffs wrongly allege that the NSA is conducting a dragnet program of content surveillance,
5
but disproving Plaintiffs' speculation would require revealing and probing the intelligence
6
activities that the NSA actually does conduct. Those vital activities, as described herein, are
7
8 highly classified, sensitive, and fragile, and any effort to disclose information about them could

9 have grave consequences for the national security.

10

57. (IS118ti/OCANF) The stakes we face in the U.S. Intelligence C~mrnunity are of

I I
the highest magnitude. We know that al Qaeda is planning to attack inside the United States
12

13 again, whether it be a "small" scale attack on shopping malls or "fun" places that kills dozens, a

14 devastating attack on aviation or rail systems that kills hundreds, a catastrophic, mass-casualty

15 attack that kills thousands, or an attack on government or economic sector infrastructure that

16
would cause severe economic harm or threaten the continuity of government. The NSA's

17

activities described herein and by Gen. Alexander are all directed at this terrible threat.
18

19

58. ~For these reasons, in addition to invoking the state secrets and DNI

20 statutory privilege to protect the intelligence information, sources, and methods at issue, I
21 respectfully urge the Court to dismiss this case.
22

23

24

I declare under penalty of perjury that the foregoing is true and correct.

25

26

27

J. ICHAEL McCONNELL

28

Director of National Intelligence

CLASSIFIED DECLARATION OF J. MICHAEL McCONNELL,
DIRECTOR OF NATIONAL INTELLIGENCE
CASE NO. 07-693; MDL NO. 06-1791

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

IN RE NATIONAL SECURiTY AGENCY TELECOMMUNlCATIONS RECORDS LITIGATION
This Document Relates tQ:
Shuberl v. Bush, Case No. 07-693

)

MDLDkt. No. 06·1791-VRW

)

) )

CLASSifiED DECLARATION
OF LT. GEN. KEITH n.

)

ALEXANDER, DIRECTOR,

)

NATIONAL SECURITY

)

AGENCY

)

)

Sl'BMITTIlD IN CAMERA.

)

EX PARTE

)

)

HOD. Vaughn R. Walker

IN CAMERA, EXPARTE DECLARATION OF LrEUTANANT GENFRAL KEITH B. ALEXANDER, DIRECTOR, NATIONAL SECURITY AGENCY

(l:) I, Lieutenant General Keith B- Alexander, do hereby state and declare as follows:

I. (lJl'ntroduction

(U) I am the Director of the National Secunty Agency (NSA), an intelligence

ageItcy within the Department of Defense. I am responsible for directing the NSA. overseeing

tbe operations undertaken to carry out its mission and, by specific charge of lite President and the

Director of Nationa11nteHigence., protecting NSA activities and intelligence SOutCCS and

methods. 1 have been designated an orlglnal TOP SECRET classification authority under

Executive Order ;<0. 12958.60 Fed Reg. 19825 (1995), as amende<i on March 25, 2003, and

Department of Defense Difective No. 5200.I-R, lnform.ation Security Program Regulation, 32

C.F.R. § 159a.12 (1000).

2.

(U) The purpose of this declaration is to support an a~sertion of the military and

state secrets privilege (hereafter "state secrets privllege'j) by the Director of National Intelligence

(DNf) as the head of the intelligence coflununity, as well as the DNrs a'lserticm ofa statutory
Derived Frum; J'SAlCSSM 1·52 Duled: 20041123

1 Su."'Veillance Court ("FISC" or "FISA Court"). As the Court is also aware, the NSA has

2 collected, pursuant 10 Presidential authorization and subsequent FISC orders, non-content

3 infomlation (U., meta data) about telephone and Internet communications in order to enable

4 highly sophisticated analytical tools that can uncover the corltacts

5 members or agents

6 other NSA activities do not constitute the dragnet that Plaintiffs allege, however, would require

7 the disclosure of highly classified intelligence infonnation, sources, and methods. indeed,

8 although the existence of the TSP has been acknowledged, the details of that program......as well

9 as the details of the related content surveillance authorized by the FISC-remain highly

10 classified, and the meta data activities have never been acknowledged by the United States and

11 likewise remain highly classified.

12

4.

'ff&l'IItX;INIl'tln addition, Plaintiffs allege that Verizon and

13 AT&T have cooperated in the alleged dragnet program. See }\mended CompL ml 5-8. Neither

14 company assisted with the alleged dragnet program, because no such dragnet exists.

15

16

17

18

19

20

cause exceptionally grave damage to the national security.

21

5.

'ff&l'IItX;!NJP'j Accordingly, the protection of the classified

22 infonnation put at risk by this case, including the following, is vital to the national security

23 United States: (1) any infonnation that would tend to confiml or deny whether particular

24 CLASSIFIED DECLARATION OF LT. GEN. KEITH 8. ALEXANDER DiRECTOR. NATIONAL SECURITY AG~NCY
CASE NO. 07-693; MDL NO. 06-1791

individuals such as the named Plaintiffs have been subject to any NSA intelligence activities;

2 (2) infonnation about NSA intelligence activities, including facts demonstrating thai the TSP

3 was Iim.jted to aI Qaeda-re!ated international communications and was not a content survei llance

4 dragnet as Plaint iffs allege; (3) facts that would tend to confirm or deny the existence of the

5 NSA 's meta data activit ies, and any infonnation about those activities; and (4) the fact that

6

Any

7 disclosure or official confirmatio n of this information would cause exceptionally grave damage

8 to the national security.

9

6. (U) For these reasons, as set forth further below, the state secrets and statutory

10 privilege assertions that the ONI and I are making sho uld be upheld and the information

11 described in this declaration should be protected from disclosure. I also believe that any further

12 litigation of this case poses ex.ceptionally grave ri sks to the national security.

13

14

7.

(U) Table of Contents II+SI'~IG~Ft To facilitate the Court's review, this

15 declaration is organized as follows:

16 1.

Introduction

17 11. Summary

18 III. Classification of Declaration

19 IV. Background Information

20

A. The National Security Agency

21

8 . September 11 , 200 Land the Continuing at Qaeda Threat

22

Informatio n Protected by Privilege

23

Descriptio n of Info rmation Subject to Privilege and the Hann of Disclosure

24

II II ~;!:~::~~

::

~ DOCLARATIONOF LT. GEN. KEITH .I'IATIONAl.. SECURITY A(iF.NCY

8.

ALEXANDER

II CASE NO. 07·693; MOL NO. ()6. 179 t

A. )nfa nnation Tbat May Tend to Confinn or Deny Whether or Not the Plaintiffs .

Have Been Subject to MY Alleged NSA Activities That May Be at Issue in This

2

Malter

3

I.

4

2.

5

3. Harm of Disclosure

6

B. Information Concerning NSA Activities, Sources, and Methods, and the Harm of

Disclosure

7

1. Infoxmation Concerning Plaintiffs ' Allegations ofa Content Surveillance

8

"Dragnet"

9

2. Additional Classified lnfonnation Concerning the TSP

10

3. Infonu31ion Concerni ng Meta Data Acti vities

11

4. Information Demonstrati ng the Success o f TSP and Meta Data Acti vities

12

5. Information Concerning the FISC Orders

13

C. lnfonnation That May Tetld to Confirm or Deny Whether VerizonIMCI

and/or AT&T

the Alleged lntelligence

14

Activities, and

15 Vll . Risks of Allowing Litigation to Proceed

16 VJlI. Summary and Conclusi on

17

UI. (U) Classification of D~claration

18

8. -tsrThis declaration is classified TOP SECRETIICOMINT.

19

pursuant to the standards in Executive Order No.

20 12958, as amended by Executive Order No. 13292. Under Executive Order No. 12958,

21 informati on is classi fied ''TO P SECRET" ifunauthori:z:ed disclosure afthe information

22 reasonably co uld be expected to cause exceptionally grave damage to the national security of the

23 United States; "SECRET' if unauthorized disclosure of the information reasonably could be

24 CLASS IFIED DECLARATION OF LT. GEN. KEITtI B. ALEXANDER DIRECTOR, NATIONA L SECUR ITY AGfiNCY
CASE NO. 07.693; MOL NO. 06-1791

expected to cause serIous damage to national security; and "CONFIDENTIAL" ,funauthorized

2

information reasonably co'utd be expectoo 1.0 cause identifiable damage to

3

security. At the beginning of each paragraph of this declaration, the letter Of letters in

4

designate(s) the degree ofclassification of the information the paragrapb contains.

5

used for this purpose, the letters "'U," "C:' "S," and ''TS'' indicate respectively that the

6

is either UNCLASSlFIED, or is classIfied CONFIDENTIAL, SECRET, or TOP

II7 SE(:RET

8

.(8) Additionally, this declaration also contains Sensitive Compartmented

9 InfoTITlation (SCI), which is "informatiun that not only is classified fur national security TCaSQns

10 as Top Secret, Secret, or Confidential, but also is subject to special access and handling

It requirements because it involves or derive.') from particularly sensitive intelligence sources and

12 methods." 28 C.F,R, § 17.18(a). Because oftbe exceptional sensitivity and vulnerability nf'md'i

13 information, these safeguards and access requirements exceed the access standards that are

14 : normany required for information of the same classification level, SpedficaIly, this declaration

15 references communications intelligence (COMfNT), also referred to as special 1ntemgcnce (81),

16 which is a subcategOf)' nfSCI. COMD"T Or S1 identifies SCI that was derived from exptoiting

17 cryptographic systems or other protected SOurces by applying mtthods or techniques, or from

18 intercepted foreign wmmunications,

19

20

2l

21

24

r

DIRECTOR., NATIONAL SECCRJTY AGE:'NCY

CASt NO, 07-693; MDLNO, \I€-l19 1

1ff,sp.'leC.J;'I¥nni, declaration also contains information 2 related to or derived from !he Terrorist Surveillance Program (TSP), a controlled access signals :; intelligence program amhon7'oo by the President in response to the attacks ofSeptentbcr 1I! 4 2001. Although the President pubhcly acknowledged the existence of tile TSP in December 5 2005, details about the progra:m remain highly classified and Strictiy compartmented, 6 Information pertaining to this program is denoted with the special marking "TSP" and requires

14

11. i8t In additiDn to the fact that classified infonnation contained herem may not be

15 revealed to any pC'rson without authorization pursuant to Executive Order 12958, as amended,.

16 this dedaration contains information iliat may not be released to foreign governments, foreign

17 nationals, or non~U.S, citizens without permission of the onginator and in accOrdance with DNI

J8 policy. This mformation is iabeled "NOFORN," The "OReON" designator means. that the

19 originator of the information controls to whom it is released, Finally, this document is marked

20 Manual Review ("MR'') indicating that it is not subject to automatic declassification at any

21 'specific date,

22

23

24

I

I

AGENCY

; CASE NO, 07.693; MDL NO, O~I i'il

lV, (U) Backerouud Information

(U} Background on The National Security Agency

12. (U) The NSA \vas established by Presidential Directive in 1952 as a separately

4 organized agency within the Department of Defense. Under Executive Order J2333, § L 12{b),

5 as amended, the NSNs cryptologic mission includes three functions; (1) to coilect, process, and

6 disseminate signals Intelligence (SIGfNT) informatlOo, of which COMfNT is a stgnifica..'l11

7 subset, for (a) national foreign inteliigence purposes, (b) counterinteltigence purposes, and (c)

8 the support of military operations; (2) to conduct infonnation secnrity activities; and (3) to

9 conduct operations security training for the U,S. Govenunent.

10

13. (TSHSI) Signals intelligence (SIGINT) CQnsists of three subcategories:

11 (1) communications intetligence {COMINT}; (2) el~nic intelligence (ELI1'-.'T); and (3) foreignl

12 instrumentation signals intelligence {FIS:n-..'1} COIDIDU'nkatio'Cs intelligence (COMTNT) is

)3

as "all procedures and methods used in the interception of cornmunications and the

14 obtaining of infonnation from such communications by other than the intended recipients:' 18

15 U"s.C § 798. COMINT includes mformation derived from the interception of foreign a.4,C

!6 mternational communications, such as voice, fac.qimlle, a'1d wmputeNo·computer information

17 conveyed via a number of means

18

Electronic intelligence (ELtNf) is technical intelHgence information_ derived from

19 foreign non-commun~cations electromagnetic radiations except atomic detonation or radioactive

20 sources-.ln essence, radar systems affiliated with military weapons platforms (e.g., antj~ship) and

2J civliian systems (e.g., shipboard and air traffic control radars). Foreign instrumentation signals

22 intemgence (FISfNT) is derived from nOfl*U,S aerospace surfaces and subsurface systems which!

23 may have either military or civilian apphcauons.

24 CLASSIFIED DECL..A.RATION OF LT. G€-": KEr::H B ,A.LEXANDER 'DIRE.(lOR, l\ATIONAL SECUPJ1'Y ACI3";CY
CASE ~O. 07-693; MDLNO.I}b.I791

"

!
14. fS1 The NSA's SIGINT responsibilities include establishing and operating an

2 effective unified organization to conduct SIGINT activities set forth in Executive Order No.

3 12333, § 1.12(b), as amended. In perfonning its SIOINT mission, NSA has developed a

4 sophisticated worldwide SIGINT collection network that acquires, among other things, foreign

5 and international electronic communications and related infonnation. The technological

6 infrastructure that supports the NSA's foreign intelligence information collection network has

7 taken years to develop at a cost of billions of dollars and untold human effort. It relies on

8 sophisticated collection and processing technology.

9

15. (U) There are two primary reasons for gathering and analyzing foreign

10 intelligence information. The first, and most important, is to gain infonnation required to direct

11 U.S. resources as necessary to counter external threats. The second reason is to obtain

12 infonnation necessary to the fonnulation of U.S. foreign policy. Foreign intelligence

13 information provided by the NSA is thus relevant to a wide range of important issues, including

14 military order of battle; threat warnings and readiness; arms proliferation; international terrorism'

15 and foreign aspects of international narcotics trafficking.

16

16. ~ The NSA's ability to produce foreign intelligence infonnation depends on its

17 access to foreign and international electronic communications. Foreign intelligence produced by

18 COMINT activities is an extremely important part oftbe overall foreign intelligence information

19 available to the United States and is often unobtainable by other means. Public disclosure of

20 either the capability to collect specific communications or the substance of the information

21 derived from such collection itself can easily alert targets to the vulnerability of their

22 communications. Disclosure of even a single communication holds the potential of revealing

23 intelligence collection techniques that are applied against targets around the world. Once alerted,

24 CLASSIFIED DECLARATION OF LT. GEN. KEITH B. ALEXANDER DIRECTOR, NATIONAL SECURlTY AGENCY
CASE NO. 07-693; MDL NO 06-1791

I.

targets can frustrate C01vUNT collection by using different or new encryption techniques, by

2 dissemmating disinformation, or by utilizing a different communications link. Such evasion

3 techniques may inhibit access to the target's 'communications and therefore deny the United

4 States access to information crucial to the defense of the United States both ai home and abroad.

5 COMINT is provided special statutory protection under 18 USc. § 798, which makes it a crime

6 to knowingly disclose to an unauthorized person classified infonnation "concerning the

7 communication intelligence activities of the United States or any foreign government."

8 B. (U) September 11,2001 and the al Qaeda Tbreat.

9

17. (U) On September It, 2001, the al Qaeda terrorist network launched a set of

10 coordinated attacks along the East Coast of the United States. Four C()mmercial jetliners, each

11 carefuily selected to be fully loaded with fuel for a transcontinental flight, were hijacked by al

12 Qaeda operatives. TIlOse operatives targeted the Nation's financial c<..-'Tlter in New York with two

13 of the jetliners, which they deliberately flew into the Twin Towers of the World Trade Center.

14 Al Qaeda targeted the headquarters of the Nation'5 Anned Forces, the Pentagon, v.'ith the third

15 jetliner. Al Qaeda operatives were apparently headed toward Washington, D.C. with the fourth

16 jetliner when passengers struggled with the hijackers and the plane crashed in Shanksv1l1e,

17 Pennsylvania. The intended target of this fourth jetliner was most evidently the Vv'bite House or

18 the Capitol, strongly suggesting that al Qaeda's intended mission was to strike a decapitation

19 blow to the Government of the United States-to kill the President, the Vice President, or

20 Members of Congress. The attacks of September 11 resulted in approximately 3,000 dcaths--

21 the highest single-day dea1h toll from hostile foreign attacks in the Nation's history. In addition,

22 these attacks shut down air travel in the United States, disrupted the Nation's financial markets

23 and goverrunent operations, and caused billions of dollars of damage to the economy.

24 CLASSIFIED DECLARATJON OF LT. GEN. KEITH B. ALEXANDER DIRECTOR, NATIONAL SEClJRJTY AGENCY
CASE NO. 07-693; MDL NO. 06-\791

18, (U) On September l4, 2001, the Pccsident declared a national emergency "by

2 reason of the terrorist attacks at the World Trade Center, New York, New York, and the

3 Pentagon. and the continuing and immediate threat of fwther attacks on the United States."

4 Proclamation No 7463, 66 Fed, Reg, 48199 (Sept 14, 2001), The United States also

5 hnmedia1eiy began plans for a military resp"nse directed at aJ Qaeda's training grounds and

6 haven in Afghanistan, On September i4, 2001, hoth Houses of Congress passed a Jo)nt

7 Resolution authorizing the President "to use a1l necessary and appropriate force against those

8 nations, organflations, or persons he determines planned, authorized, committed, or aided the

9 terrorist attacks" of September 11. Authorizatlon for Use of Military F,?rce, Pub. L No.1 07-40

10 § 21 (a), 115 Stat 224,224 (Sept 18,2001) ("{'Alog, Auth,"), Congress also expressly

11 acknowtedged that the attacks rendered it ''necessary and appropriate" for the United States to

12 exercise its right "jo protect United States citizens both at home and abroad," and acknowledged

13 in particular that "the President has authority under the Constitution to take action to deter and

]4 prevent acts of international terrorism agrunst the United States." Id. pmbL

LI

19, (1.J) As the President made clear at the time, the aUacks ofSepterober II "created

16 ,s!alcof armed conflict." Military Orner, § 1{,), 66 Fed. Reg, 57833, 57833 (Nov, 13,2001).

i7 indeed, shortly after the attacks, NATO took the unpfecOOented step of invoking article 5 of the

18 North Atlantic Treaty, which provides that an "armed attack against one Of more of [the partiesl

19 shaH be considered an attack against them all," North Atlantic Treaty, Apr. 4, 1949, art. 5, 63

20 Stat. 2241, 2244, 34 C.NTS, 243, 246, The President also determined that at Qaeda terrorists

21 "possess both the capability and (he intention to undertake further terrorist attacks against the

22 Uoi1oo States: that, if not detected and prevented, win eause ml15S deaths. mass injuries, and

23 massive destruction of property, and may place at nsk the contlfluity of the operations of the

24 CLASS1FIED DECLARKflO,,<; OF LT. GEl't !(EmIl]. ALEXANDER
DlRECTOR, f.<ATlONAL. SECURITY AGE>!CY
C"'.S£ NO. (J7.{j93;.\4DL NO. 36-\791

United States Government," and he concluded that "an extraordinary emergency exists for

2 national defense purposes." Military Order, § I (c), (g), 66 Fed. Reg. at 57833-34.

3

20. (U) As a result of the unprecedented attacks of September 11,2001 , the United

4 States found itself immediately propelled into a worldwide war against a network of terrorist

5 groups, centered on and affihated with al Qaeda, that possesses the evolving capability and

6 intention of inflicting further catastrophic attacks on the United Slates. That war is continuing
7 today, at home as well as abroad. Moreover, the war against al Qaeda and its allies is a very

8 different kind of war, against a very different enemy, than any other war or enemy the Nation

9 previously faced. Al Qaeda and its supporters operate not as a traditional nation-state but as a

10 diffuse, decentralized global network of individuals, cells, and loosely associated, often disparate

11 groups, that act sometimes in concert,.sometimes independently, and sometimes in the United

J2 Slates, but always in secret-and their mission is to destroy lives and to disrupt a way oflife
13 through terrorist acts. Al Qaeda works in the shadows; secrecy is essential to at Qaeda's success

14 in plotting and ex.ecuting its terrorist attacks.

15

21. (TS!}SWNF) The in Camera Declaration of Michael McConnell, Director of

16 Nationallntelligence, details the panicwar facets of the continuing al Qaeda threat and, thus, the

17 exigeot need for the NSA intelligence activities described here. The NSA activities are directed

18

19

20

21 GLobal telecommunications networks, especl aJJ y the Internet, have developed in recent years'

22 a loosely interconnected system- a network of nerw-orks-that is ideally suited for the secret

23 communications needs of loosely affiliated terrorist cells. Hundreds of internet service

24 CLASSIFlED DECLARATION OF LT. GEN. KEJTH B, ALEXANDER
DIRECfOR. NATlON,&"L SECURITY AGENCY
CASE NO 07-693; MDL NO, 06-!'191

providers, or "ISPs," and other providers of communications services offer a wide variety of 2 global communications options, often free of charge. 3 4 5 6 7 8
9 \0
11 12 13 14 15 16 17 18
t 9 challenges for the Nation's communications intelligence capabilities. First, in this new kind of 20 war, more than in any other we have ever faced, commurucations intelligence is essential to OUI 21 ab!lity to identify the enemy and to detect and disrupt its plans for further attacks on the United
22 23
24 CLASSIFIED DECL ARATION OF LT. GEN. KEITH B. ALEXANDER OIRECTOR, NATIONAL SECURITY AGENCY
CASE NO. 07·693: MDL NO. 06- 1791

States. Communications intelligence often is the only means we have to learn the identities of

2

individuals who are involved in terrorist activities and the existence of particular

3

threats. Second, at the same time that communications intelligence is more important

4

ever, the decentralized. non-hierarchical nature of the enem y and their sophistication in

5 exploiting the agility of modem telecommunications make successful commW)icalions

6 intelligence more difficult than ever.

7 C. (U) NSA Activities Critical to Meeting al Qacda Tbreat.

8

24,

f,<,ffiPll<9€'lNI'\- 'Ta meet these challenges and to help detect

9 and prevent another catastrophic terrorist attack within the United States, the NSA has utilized a

10 number of critically important intelligence tools. One such tool was the Terrorist Surveillance

11 Program, which the President authorized specifically to detect and prevent a1 Qaeda-I:elated 12 terrorist attacks within the United States. Pursuant the TSP, the NSA was authorized to j'tlt~rceDt I 13 the content4 of telephone and Internet COmDlWlications for which there were reasonable grounds 14 to believe that (1) such communication originated or tenninated outside the United States, and

15 (2) a party to such communication was a member or agent of at Qaeda or an affiliated terrorist 16 organization. ~

17

4 (TSHSlIrFSPHOCfNF) The term "content" is used herein to refer to the substance,
18 meaning, or purport of a communication, as defined in 18 U.S.C. § 2510(8), as opposed to the
type of addressing or routing information referred throughout this declaration as "meta data." 19

20 October 4,

I ~:~~:~ The TSP was first authorized by the President on

Il

approx;imately every 30-60 days throughout the ex i"","""

of the program. The Presidential docwneots authorizing the TSP also contained the
21 authorizations ror the meta data activities described herein . The Presidential authorizations,

moreover, evolved over time, and during certain periods authori zed other activities (th is

22 declaration is not intended to and does not

describe the

.

23

24

LT. GEN. ICEI'm Il ALEXANDER

DIRECTOR, NATIONAL SECURITY AGENCY

CASE NO. 07-693; MDL NO. 06-\ 791

i,

25, ffSlISliffSIWOCINFj On January 10, 2007, the FISA Court issued two orders

2 :authorizing the Government to conduct certain electronic surveillance that had been occurring

3 under the TSP. As ex.plained morc fully below, sec Section VI.B.S, infra, the orders consisted 0

4

5 ,,

a Foreign Telephone and Email Order, which »uthonzoo.,

6 'inter alia, electronic survcitlanc:e of telephone and internet ronunufljcatioos (:amoo over

7 particuhlrly listed facilities when the Government determines that there is probable cause to

8: believe that (l) one of the oomrnUJ'licants is a member Of agent of al Qaeda or an assodated

9 terrorist organization, and (2) the C{)mmunication is to or from a foreign country (i.e.~ a one-end

10 foreign corrununication to or from the Cnited States). The telephone numbers and email

11 addresses to be targeted under the Foreign Telephone and Email Order were further limited to

12 those that the NSA reasonably believes are being used by persons outside the United States.

13

26, ffSllSIIfl'SPiIOGINFJ In light ofthe,e intervening FISA Court oroers, any

14 eiectronic surveillance that was occurring as part of the TSP is now being conducted subject to

15 the approval of the FISA Coun, and the President detenninod not to reauthorize the TSP. As

16 described further in Section VLR5, irifYa, and as the Uniled States noofted this Court on April 9,

17 2007, a Judge of !he FISA Court recenti}

18 !declined to adopt the Government's interpretation ofFISA underlying the application for the
I19 Foreign Telephone and Emrul Order. The initial authorization to conduct su:rveillance under the

20

21
~ 62, MDL ~o, 06·1791-VRW (N,D, 22

23

24
DIREC'lnR. NATIONAL SEC1.'RITY AGENCY
i CASE h"O. Oi.693; MD~ NO. 06-1791

"
"

,.

Foreign Telephone and Email Order, however, has been extended through May 31, 2007 .

2 Further proceedings before the FISA Court are ongoing, and the TSP has not been reauthorized.

3

27.

1'fI>P>'IG€/l\fFl In addition to the TSP, the NSA also coll ects

4 non-content conununication information known as ''meta data." Specifically, after the 9111

5 attacks, the President authorized the NSA to collect bulk meta data related to telephony

6 communications for the purpose of conducting targeted analysis

7

meta data is infonnation derived from caU detail records that reflect non-

8 content infonnation such as the daLe, time, and duration of telephone calls, as well as the phone

9 numbers used to place and receive the caUs.

10

May 2006 certain telecommurucation providers

11 have been required by an order of the FISA Court to produce to the NSA on a daiJy basis ail

12 telephony meta data that they create ("FISC Telephone Records Order,,).6 Although this 13 collection is broad in scope.7 the NSA queries the data solely with identified telephone nwnbers

14 for which there are facts giving rise to a reasonable, articulable suspicion that the nwnber is

15

Historically, only a tiny fraction

16

17 of telephony meta data records collected by the NSA bas actually been presented to a trained
18 6 (FSII6I/fOClNF) The FISC Telephone Records Order has been reauthorized
19 approx.imately every 90 days since it was first issued. 20

21

22

23

Order,

g (TS,
the NSA

loIS~I-rerSr Pl/vOerCy sfimNilFar)reEqvueinrebmeefonrtes

the faT

FISC issued its Telephone Re,cords l accessing the meta data collected

pursuant to the President's authorization.

24 CLASSIFIED DECLARATION OF LT. GEN . KEITH B. ALBXANDER

DIRECTOR. NATIONALSECURlTY AGENCY

CASE NO. 07-69)~ MDL NO. 06-1791

professional for analysis. While the vasl majority of records are thus never viewed by a human

2 at the NSA, it is still necessary to collect the meta data in bulk in order to utilize sophisticated

3 analytical tools for tracking th e corltac"

4

Telephony meta data collection and analysis are highly valuable tools for tracking

5 terrorists and are therefore ·highly classified and strictly compartmented.

6

28.

i4<SIII/{J£liN¥j [n addition, since the 9/ 11 aHack s, the NSA

7 has collected bulk meta data related to Internet communications. J.nternet meta data is

8 header/router/addressing infonnation, such as the "to," "from," "ee," and "bcc"lines, as opposed

9 to the body or ''Te'' Jines, of a standard email. The collection of lnternet meta data in bulk was

10 conducted pursuant to Presidential authorization from October 200

and since

11 July 2004 it has been conducted pursuant to an Order oflhe Foreign Intelligence Surveillance

12 Court authorizing the use of a pen register and trap and trace device ("FISC Pen Register

13 Order"). See 18 U.S.c. § 3127 (defining ''pen register" and"trap and trace device"). Pursuant

14 the FISC Pen Register Order, which has been reauthorized approximately every 90 days since it

15 was first issued, the NSA is authorized to collect;io bulk, meta data associated with electronic

16

on the lntemet.9

17

18

19

20

21

22

23
24
DIRECfOR., NATIONAL SECURIn' AGIE"':V CASE NO. 01-693; MOL NO. 06-1791

bulk

it is only authorized to query the archived meta data using email

2 addresses for which there are facts giving rise to a reasonable, articulable suspicion that the

3 address is associated

:si,oB,,, restrictions were

4 in place under the Presidential authorization). As with bulk telepho ny meta data collection, and

5 as the FISA Court specificall y recognized in finding the bulk Internet meta data collection

6 cons istent with the First and Fourth Amendments, the collection of the data in bulk is necessary

7 to allow the NSA to use critical and unique analytical capabilities to track the contacts (even

8

terrorists. Like telephony meta data

9 activities,internet meta data collection and Wlalysis are highl y valuable tools for protecting the

to United States from attack, and, accordingly, infonnation pertaining to those activities is highly

11 classified and strictly compartmented.

12

29.

13

14

IS

16

17

18

19

20

21

22

23

24 II~.~~~~~ OOruWm.1JNOfLT.GEN. KErrn D. ALEXANDER

II

NAnONAL SECURlTV AGENCY

II U""NU. 01-693; MOL NO. 06- 1791

, " 30.
2 3 4 5 6 7 B

II

12

On July 14,2004, the FISC issued the Pon Register Order,

13 : restoring the bulk coilection ofIntemet meta data as described above.

14

v, (U) Informatigp Protected by Privilege

IS

31 (U) As set forth further below, the fOUOw1ng categories of mfonnation are subject

16 to the DNI's assertion of the state secrets pn'vilege and statutory privilege under tile t\ational

J7 Security Act, as well as my a$sertion of the NSA priviiege:

18

]9
II (TSHSlh'TSPOO€JNF) As noted, the President reauthorized the TSP, as well as the 2() Internet and telephony meta data activities, approximately every 30-60 days, and each time he
did so in a single document covering all three activities (and. at times, other activities). See o. S>
21 supra,

22

23

24

A. (U) Information that may tend to confirm or deny whether

the Plaintiffs have been subject to any alleged NSA

2

inteHigcnce activity that may be at issue in this matter; and

3

B. (U) Information concerning NSA intelligence activ1t~es,

sources, Or methods, including:

4

(I) (tJ) Information ooncemlng the scope and operation of

5

the Terrorist SUf\;ciHance Program, induding information

that may be needed to demonstrate that the TSP was iimi ted

6

to one-end foreign a! Qaeca-related communications and

that the NSA docs not otherwise engage in the content

, 0

surveillance dragnet that the Plaintiffs allege; and

8

(2) (LI) MY other information conceming NSA inte1!igence

activities. sources, or methods that would be necessary to

9

adjudicate the Plaintiffs' claims, including, to the extent

applicable, information that would tend to confirm or deny

iO

whether the >4SA collects large quantities of

oommurtication reoords information; and

i 1

C. (U) lnfonnntion that may tend to confirm or deny whether

12

VedzonlMCI, AT&T) or any other telecommunications

carrier has assisted the NSA with the alleged intelHgence

13

activities,

\4

VI. (U) Description of Information Subject to Privilege and the Sarm of Disclosure

15 A. (U) Inforooation That May Tend to Confirm or Deny Whether the Plaintiffs Have Been Subject to Any Alleged NSA ActivitielS That May Be at helle in This Matter
]6
32. (t:) Tne tlrst category of information as to which [ am 5upp,;;rting the DNI's. 17
assertion of privilege, and asserting the NSA's own statutory privilege, concerns information as 18
to whether particular individuals, including the named PlainHffs in this lawsuit, have been
19
subject to alleged NSA intelligence activities. As set furth below, confirmation or deniai of su~" 20
information would cause exceptionally grave hann to national security,
21

22

23

24 CLA.SSIPIED DECLARATJON OF LT~ GEN KEITH B. ALeXANDER OIRECTOR, !\'ATIONAL SECURiTY AGENCY
CASE NO 07·6<)); MDL NO 00-:791

1.
2 33. (fSHSlf{fSPNOCfNF) The named Plaintiffs in this action-Virginia Shubelt,
J Noha Arafa, Sarah Dranoff, and Hilary Botein-allege that the contents of their telephone and
4 Internet communications were subject to ''unlawful interception, search and seizure, and
5 electronic surveillance," Amended Compl. ~ 87, in connection with a program of "dragnet"
6 surveillance that captures the contents of "virtually every telephone, internet and/or email
7 communication that has been sent from or received within the United States since 200 1,"
8 id. t,]"f: 1,4. The NSA does not engage in the "dragnet" program that Plaintiffs all"ge
9
10

II

12

1 J 14

15

16

17

18

19
20

21

22

23

24

DECLARATION OF LT. GEN. KEITH S, ALEXANDER

DIRECTOR, NATIONAL SECUIUTY AGENCY

CASE NO. 07·69j~ MDL NO. 06-1791

2

3

4

5

6

7

8

9

10

I 1

12

13

14

15

16

17

First, as a matter of course, the NSA cannot publicly confirrn l

18 or deny whether any indi vidual is subject to the surveillance activities described herein, because

19 to do so would tend to reveal actual targets. For example, if the NSA were to confirm in this

20 case and others that specific individuals are not targets of surveillance, but tater refuse to

21

22

23

24 DlRi2-roi:-'NAnONAL SECURITY AGENCY CASE NO. 07-693; MDL NO. 06·1791

1 comment (as it would have to) in a case involving an actual targel, a person could easily deduce

2 by comparing such response..o:; that the person in the latter case is a target. The harm of revealing

3 targets of foreign intelligence surveillance should be obvious, [fan individual knows or suspects

4 he is a target of U.S. intelligence activities, he would naturally tend to alter his behavior to take

5

6

7

8

addition, revealing

9

10 channel for communication. Such information could lead a person, secure in the knowledge that

11 he is not under surveillance, to help a hostile foreign adversary convey infonnation;

12 alternatively, such a person may be unwittingly utilized or even forced to convey infonnatlon

13 through a secure channel. Revealing which channels are free from surveillance and which arc

14 not would also reveal sensitive intelligence methods and thereby could help any adversary evade

15 detection.

16

36.

17

18

19
20

21

22

23

24

I OF LT GEN. KEITH B. ALEXANDER

D!RECTOR. NATIONAL SECURITY AGENCY

CASE NO. 07-693; MDL NO. 06-1791

2

J

4

5

37.

iGGiiNl!'tOisclosing any of this information would reveal:

6

Nation '$ most sensitive and lmportant intelligence-gathering methods For reasons

7

such disdosures would cause exceptionally grave damage to the tHl.tlonal

8

by allowing aI Qaeda and lts affiliates to evade detection, as weU as by alerting other

9 foreign adversaries to these critical intelligence-gathering methods. Disclosing whether the

10 currently receives telephony or internet meta data

also

11 ,vio1ate specific provisions (lfthe FiSC Teiephone Records and FISC Pen Register Orders.

12 B. (U) Information Concerning NSA Activities, Sourcesj or Methods, and the Harm Qf Disclosure,
13
38. (U) The second category ofinforrnation over which J am supporting the DNl's
14 assertion of privilege and asserting the ~SA's statutory pci'\-itege is information concerning
15 inteiiigence activities, sources, and methods that may at issue in this case, induding (1) facts
16
ooncem.ing the operation of the Terrorist Surveillance Program and any other NSA intelhgence 17
activities needed 10 demonstrate that the TSP was limited as the President stated to the
18 interception of {}ne~end foreign communications reasonably believed to involve a mernber or
)9
agent of al Qaeda 01" an affilIated terrorist organization, see ~ 24 & n.S, supra. and thal the NSA 20
does not otherwise conduct a dragnet of content surveillance as the Plaintiffs allege; (2) other 21
classified facts about the operation of the TSP that would be ne...---essary to adjudicate the 22
lawfulness of that program; and (3) facts that would confinn or deny whether the NSA collects

24 'CLASSIFIED DECLARATION OF LT, GEN, KEtTH B. ALEXANDER OIRECOR, N/\T:OYAL SECLRJTY ADENCY
CASP: NO. 07.693; MDLl\O. {16·i79!

large Quantities of communication records inforrnatiofi, As set forth below. the disclosure of

0 k

such infonnation woutd cause ex_ceptionally grave harm to national security.

,

3 ,I"I

1. (U} Information Concerning Plaintiffs! Allegations of 11 Content Surveillance"Dragnet."

4

39. (U) In December 2005. President Bush explained that" after the September i 1

5

attacks, he authorized the NSA to intercept the conient of certain communications for which

6

there arc reasonahle grounds to bdieve that (1) such communicatIon ong-mated or terminated

7

outside the United States, and (2) a party to such commurucahon lS a member or agent of al

8

Q8eda or an affiliated te:rrorist organization, The President stated at the time that tillS activity,

9

now referred to as the Terrorist SurveiUance Program. did not involve the collection of purely

10

domestic communications, or international comnrurucatio-ns with no a1 Qaede connection. and

II

these facts were reiterated publicly by the Attorney General and then~Deputy Director of

12

Nationallnte1ligenre. Nonetheless, 1 run advised that the Plaintiffs haVe alleged that, pursuant to

13

a secret }\iSA program, "virtually every telephone, internet anrlJor {''IDait communication that has '

14

been sent from or received within the United States since 200 1 has been (and continues to be)

15

searched, seized, intercepted, and subjected to surveillance without a warrant, CQurt order or any

16

other lawful authorization." Amended Compl. ~ 1. As the President made clear in deScribing th

17

Umited scope of the TSP, such allegations of a content surveillance dragnet are false. But if the

18

NSA had to demonstrate in this case that the TSP was limited as the President statOO1 aod not a 19

dragnet as the Phuntiffs claim, and that the 1\:SA does not otJ1CfWlse engage in the dragnet that 20

Plaintiffs allege, sensitive and classified facts about the operation of the TSP and NSA

21

inteHigence activities would have to be disclosed.

40. (TS!/SIl,tTSPjfOCIft.l~ The privileged mformation that must be protectcQ from 23
disclosure jncludes the following classified detaiis demonstratmg the limHed nature of the TSP,
24 CLASSlflED DECURATION Of LT GEN. KeITH [l ALEXANDER DIRECTOR. NATIONAL SECURl'tY AGENCY CASE NO. 07-693; MDL NO, 06-1]\)1

First, interception of the content of communications under the TSP was triggered by a range of 2 information, including sensitive foreign intelligence, obtained Of derived from various sources 3 indicating that a particular phone number or email address is reasonably believed by the U.S.
,
4 i Intelligence Community to be associated with a member or agent of al Qaeda or an affiliated 5 terrorist organization. Professional intelligence officers at the NSA undertook a careful but 6 expeditious analysis of that information, and considered a number of possible factors, in 7 determining whether it would be appropriate to target a telephone number or email address 8 the TSP. Those factors included whether the target phone number or email address was: 9 (I) reasonably believed by the U.S. Intelligence Community, based on other authorized 10 collection activities or other law enforcement or intelligence sources, to be used by a member or 11 agent of al Qaeda or an affiliated terrorist organization; 12 13 14 15 16
17
18 19 20 21 22
7,.,'
24
IDlREC1UR, NA110NAL SECURITY AGENCY
CASE NO. 07-693; MDL }lO. 06-119!
I

5 grOUl1e:S to believe that the ta.rget is a member or agenl of a1 Qaeda or an affiliated terrorist

6 organization, the NSA took steps to focus the interception on the specific al Qaeda-rdated target

7 and on communications ofthllt targe! that are to or from a foreign country. In this respect, the

8 NSA's collection efforts

the NSA had

9 reasonable grounds to believe carry the Hone end" foreign communiCations of members or agents

10 of al Qaeda or affiliated ten'orist organizations.

11

12

!3

14

15

16

17

18

19

2Q

21

22

23

or 24 CLA$S1F!ED DECLARATION LT GEN KEITt! !l ALEXANDER D!RECrOR, t-.iATlONAL SECUfVrv AGENCY CASE NO. 01-U93; MDL NO.l}6.I791

2

3

4

5

NSA took specific steps in the actual TSP

6 inter<;:eption process to minimize the risk that the communications of non-targets were

7 intercepted, Wiih respect to telephone communications, specific telephone numbers identified

8

9

{O intercepted were those to or tioro the targeted number of an individual wllo was reasonably

t 1 believed to be a member or agent of a1 Qaeda or an affiliated terrorist organization, Fo! Internet

12 communications, the NSA used identifying infonnation obtained through its analysis of the

13 target, such as email adeire,,,,,,,

to target for collection the communications of

14 individuals reasonably believed to be members or agents of al Qaeda or an affiliated terrorist 15 organization.16

16

17

i8

no

J9 content of

"key words" other than the

selectors themselves. Rather, the NSA targeted for collection only email ad,;".",,,,

20 ~ _ s ss o c, i a torecod mmwunitihcastuiosnpsecintedwhmicehmsbuecrhs

21 In addition, due 10 technical limitations of the hardware

used, incidental

collection of non-target comxnunications has occurred, and in such circu..rnstances the NSA
22 applies its minimlwtion procedures to ensure that communications of non~targets are no!

disseminated, To the extent such facts would be necessary to dispel Plaintiffs' eIToneQ,uu:s"~I:~:etl
23 allegations, they could not be disdosed without reveaHng highly sensitive intelligence n

24 CLASS!F!E:J DECLARATION or LT G8N, KEITH B. ALEXAN'D£R
DIREClOR, NATIONAL SECZJRJTY ACEN(.'Y
CASE NO. O?·6'H; ~OL l-lQ, 06~1191

45. (TSIfSIIFfSPHOCINF) In addition to procedures designed to ensure that the TSP

2 was limited. to the international communications of al Oaeda members and affiliates, the NSA

3 also took additional steps to ensure that the privacy rights of U.S. persons were protected.

4

5

6

7

8

9

10

II

12

13

14

15

16

17

18

19

17 (UfFOUO) In addition, in implementing the TSP, the NSA applied the existing Legal

Compliance and Minimization Procedures applicable to U.S. persons to the extent not
20 inconsistent with the President's authorization. See United States Signals Intelligence Directive

(USSlD) 18. These procedures require that the NSA refrain from intentionally acquiring the
21 communications of U.S. persons wbo are not the targets of its surveillance activities, that it

destroy upon recognition any communications solely between or among persons io the U.S . that 22 it inadvertently acquires, and that it refrain from identifying V.S. persons in its intelligence

reports unless a senior NSA official determines that the recipient of the report requires such 23 information in order to perform a lawful function assigned to it and the identity of the U .S.

person is necessary to understand the foreign intelligence or to assess its significance. 24 CLASSlflED DECLARATION Of LT. GEN. KEITH B. ALEXANDER
DIRECTOR, NA TIONAL SECURJIT ACENCY

CASE NO. 07-693; MOL NO_06-179 1

2

3

4

5

6

7

47 .

8

to

II

12

13

14

15

16

None of these activities, however, could be disclosed to address and

17 Plaintiffs' dragnet allegations without causing ex.certionally grave damage to the national
II I 8 securjty

19

2. (U) Additional Classified Information Concerning the TSP

20

48. (U) To the extent the Plaintiffs in this case are chaJlenging the lawfulness of the

21

itself, facts about the operation or that program (which remain highl y cl assifi ed) also could

22

be disclosed.

23

24

DECLARATION OF LT GEN KEITH B. ALEXANDER

DIRECTOR, NATIONAL SECURITY AGE NCY

NO. 01·693; MOL NO. 06·1791

49. fi'SiiSlNTSPNOCINF) For example, in cofljunctlon with meta data analysis, the

2 TSP provided far greater operational swiftness and effectiveness for identifying the al Qaeda

3 terrorist network In the United States than the traditional procedures that had been used under the

4 Foreign Intelligence SurveiHance Act In order to ascertain as rapidly as pDssible the potential al

5 Qaeda terrorist threats facing the United States, the NSA must know not only what a foreign

6 terrorist target sa'ys in a particular telephone or Internet intercept. but with whom that person has
7 been communicating To the extent indtvidual court orders fur an TSP targets could have been

8 : required in advance Uflder traditional FISA procedures, the NSA would have been unable to

9 target communications sent to and from new phone numbers or Internet acoounts as quickly, and

10 valuable intelligence could have been lost

II

50,

12

13

TSP, in conjunction with meta data collection and an,"y:;is~

14 aJlowcd the NSA to obtain rapidly not only the content of a pa.~ic1Jlar communication, but

15 connections between that target and others who may form a web of aI Qaeda conspirators. In

16 some cases, the NSA was able to begiu col1ectiOl1 On a target phone numher in

17

begin collection on a targeted phone number or

! 8 email address. In contrast, if individual applications have to be prepared and approved through

19 tlJ.e traditional FISA process before the NSA can target a newly identified phone number Or email

20 acoount associated with 3J Q3eda,. '\1tal information could be lOost in the interim. The traditional

2 f FfSA process is a highly effective tool for many types of surve)Jlance activities, 22

23

24 cL-\sS!F!EO DECLARATION OF LT GE'i. KEITH 8 ALEXANDER DIRE{1DR, NATiONAL SEtlHUTY AGENCY CASE NO. 07-693, MDL NO. ()6·I?Q!

2

3

4 to stop and demonstrate, through a multi-layered process involving NSA and DOJ counsel, (he

5 Attorney General, and the FISA Court, that each of numerous, rapidly changing target numbers

6 or emails requires coverage. Where the gravest of dangers are at stake-a catastrophic mass

7 casualty terrorist attack against the U.S, Homeland and the corresponding nee<l to track

8 thousands of potential terrorists··--and

9

hide their communications and tracks, it is vital that the NSA be able to track mlillil)lel

10 communications, contacts, and"as rapidly as possible to fulfill its mission to protect the

11 national security of the United States.

12

51. f::rsH'-SII/TSP.,'lOCfNF) None of the foregoing information about the Terrorist

13 Surveillance Program could be disclosed in this case, however, without causing exceptionally

14 grave harm to the national security. Even though the President has determined not to reautl,orizel

15 the TSP, revealing how the program operated would provide key insights to foreign adversaries

] 6 as to how the NSA monitors communications. Information about the specific foreign

17 intelligence factors that triggered interception under the TSP would obviously reveal to foreign

18 adversaries the very facts that would most likely lead to their communications being intercepted,

19 even under the current FISA Court Orders, thereby giving adversaries a roadmap as to how to

20 avoid such interception.

21
22

23

24 CLASSIFIED DECLARATION OF LT GEN KEITH B, ALEXANDER DIRECTOR. NAT10NALSEn;RITY AGENCY
CASE NO. 07-693; MDL NO. 06--1791

1

2

3

52. (TSHSliffSPilOCINF) Likewise, infonnation about the speed and agility with

4 which the NSA can collect content on a target, and how long it might maintain surveillance,

5 would provide invaluable insights for an adversary to devise new and different ways to protect

6 their communications. In particular, disclosure of the NSA '3 ability to utilize the TSP (or,

7 therefore, the current FISA Court-authorized content collection) in conjunction with contact

8

severely undermine efforts to detect terrorist activities.

9 Armed

kn"wledge, an adversary could make more robust use

10

11

12

J3 method of surveillance, even no longer in use, can easily lead to evasive actions as to other

14 current methods that would deprive U.S. decision-makers of critical infonnation needed to

15

threats.

16

~) Information Concerning Meta Data Activities

17

53.

1tfJ.etN'f'71'othe extent that the NSA's bulk collection and

18 targeted analysis of communication meta data may be at issue in this case, those activities-as

19 described in paragraphs 27 and 28, above-must also be protected from disclosure.

20

54.

'Ie€lNf'}!\snoted above, starting in October 2001, and now

21 pursuant to the FISC Pen Register Order, the NSA collected bulk meta data associated with

22

23
24
DIRECTOR, NATIONAL SECURlTY AGENCY CASE NO. 07-693; MOL NO. 06-1791

2

3

to the FISC Telephone Records Order, certajn telecommunication companies

4 provide the NSA with bulk telephony meta data in the form of call detail records derived from
5 iofannalion kept by those companies in the ordinary course of business. See 'i 27, supra.

6 Disclosure of the NSA 's meta data collection activities, either before or after FISC authori zation,

7 would cause exceptionally grave ham to national security.

8

55.

m{Y!'WHn particular, the bulk collection of internel and

9 lelephon y meta data allows the NSA to use critical and unique analytical capabilities to tTack the

10

or agents

11

the use of two highly sophisticated tools known as "contact chainin g" and

12

Contact-chaining allows the NSA to identify telephone numbers and email

13 addresses that have been in contact with k n o w n _ u m b e r s and addresses: in

14

those contacts can be targeted for immediate query and analysis as

15

and addresses are identified. Obtaining the meta data in bulk , moreover, allows the

16

not only to track the contacts made by a particular telephone number or email address from

17 a certain point in time going forward, but also to trace historically the contacts made with that

18 number or address. This tool has been highly useful in detecting previously unknown terrorist

19 operatives or agents for further sUIVeillance.

20

21

22

23

24 CLASS!F!ED DECLARATION OF LT. GEN. KEITH B. ALEXANDER D!RECTOR, NATIONAL SECURITY AGENCY
CASE NO. 07-693; MDL NO . 06·1791

2
4
5 6
7 8 9 10 11 12 13 14 15
16 17 18 19 20
21
22
23 analysis may be illustrated by an example of when. this tool was not utilized, According to the
24 CLASS1Ft£O DECLARATlONOF L'T. DEN. KEITH R ALEXA'lOER DIRECTOR, NATJQNALSECURJTY AGENCY
CASE NO. 07-693, MOL NO. ()6..1 i"fl

9/ 11 Commission report, when Khalid a1-Mihdhar, oneofthe 9/1 I hijackers, was in the United

2 States from January 2000 to June 2001, he telephoned the home of his wife's family in Yemen. 3 The phone number fo r this home in Yemen had well-established terrorist connections l9 and was

4 being targeted by lhe NSA through an overseas collection process that did nol have the capabili!

5 to obtain meta dala to help identify the location of incoming calls. At the time, there was no

6 FISA co llection on this number, and neither the TSP program, under which the NSA targeted

7 one-end foreign calls into the United States, nor the collection of bulk meta data, which would

8 have allowed analysis of this number to ascertain other contact numbers, were in place. Had the

9 Yemeni phone number been targeted using the TSP and were meta data analysis available. we

10 should have been able to identify that aJ-Mihdhar was in the United States when he called the

II number in Yemen. which would have provided leads to investigate the matter further. Indeed,

12 the 9/ 11 Commission report noted mat if the FBI had known that at Mihdhar was in the United

13 States, "investigations or interrogation o f(at Mihdhar}, and investigation of (hi s] travel and

14 financial activities could have yielded evidence of connections to other participants in the 9/11

15 plot. The simple fact of [his) detention could have derailed the plan. In any case, the

16 opportunity did not arise." Final Report of the National Commission on Terroris t Attacks Upon

17 the United States ("9/11 Commission Report") at 272. While there is an element of hindsight to

18 this example, and perhaps other actions could have detected al Mihdhar, the existence of the TSP

19 and meta data activities would have provided a highly significant tool that may have proved

20 valuable in detecting the 9/ 11 plot.

21

22

19 (FSHSfJ/NF) In August 1998. the number was found in the pocket o f one of tbe

I ", · 1 . 1 III .

I~IIII

•• 1 •• 11'.1. 1.1111 :1, .. 1

I

,I

II I

23

24

. . .. .... . .

DI REcrOR, NAnONAL SECURITY AGENCY

CASE NO. 07·6\1); MOL NO. ()6. 1791

59.

ffiSl'>'ffl€ANf'} Bas"d on my experience as Director of the

2 NSA, I believe that the meta data collection activities authorized by the President after 9/11 and

3 : subsequently authorized by the fISC are among tbe most important intelligence 1001s available

4 to the United States for protecting the Homeland from another ca!.aStrophic terrorist attack. In

5 my view, the ~SA could not have obtained certain critica1 intelligence in any other way. These

6 NSA activities have given the lJriitcd States unparalleled ability 10 un,jeflltar,d

7

If employed on a sufficient volume of raw data,

8

that

9 were previously unknown. Meta data collection thus enables the NSA to segregate some ofiliat

10 very small amount of otherwise l.llldetectab1e but highly valuable informatmfl from the

11 overwhelming amount of other infonnation that has nO intelligence value whatsoever-in

12 coHoqillal terms, to find at least some of the needles hidden In !he haystack.

13

14

15

16

17

18

19

20

21

22

23

o;,cl,,,ure ,orconfirroation of the NSA's bulk collection and targeled analysis

CLASSifIED OECLARA11ON Of L'L GER KE!TH B ALEXANDER DlRECTOR, NAT!Oi'IA1. SECURITY AGENCY
CASE tiD, 07,.¢93; MOL Nn OQ...1791

of telephony meta dats would confirm to all of our foreign ad,'ersari,es

2

eXIstence of these critical intelligence capabilities :and the«t,y \,ev,erely Imd'errnine

3 NSA'5 abiHty to gather information ronceming terrorist COMcctiomL

4

4. fFSlfSlffFSlWeCfNA Information DemQustrating the Success of tbt

TSP and Meta Data Activities.

5

60. ff-8/ISl!fTSPOO€fN¥j Specific examples of how the TSP, in conjunction with

6

meta data analysis, led to the development by the NSA of actionable intelligence and important

II7 cowoteHerrooslrn efforts help illustrate lhe effectiveness and need tor the activitie~L To the

8
II """"tthat such examples would be relevant to any defense of this action. however, those

9

examples could not be disclosed without revealing specific NSA Intelligence information,

JO

J J

12

13

J4

J5

16

17

18

19

20

21

22

23

24

I

OlRECTOR, NATjO~ALSECURlTY AGENCY

CASE NO. 07-693; MOL NO. 06-1191

2 3 4 5 6 7 8 9
]0
] ! 12

14

15

16

17

18

19
20

21 22

23

24

, GEN KE1TH B. ALEXANDER

D!RECTOR, NATJONAL SECURtTI AGENCY

CASE NO, 07·693; MDL NO. 06-1791

"

DIRECroR, NKnONALSECIJRJTY AGENCY
CASE NO. 07-693; MDL NO. Q6.! 791
./

3
8
9
II
12 13
14 IS 16 17 18 19
20 21 22 23
2 4 CLASSIFIED DECLARATION OF LT. GEN. KEITH 8 . ALEXANDER DIRECTOR, NATI ONAL SECURITY AGENCY
CASE NO. 07-693; MOL NO. ~1791

2 3 4 5 6 7 8 9 10 11 12 13 14 15
17
21
I~~~~rg.~NDAETCIOLANRAALTSIOENCUORFITLY..TAGGFE.NN.CKYEITH B. ALEXANDER I . 07-693; MOL NO. 06- 1791

2

3

4

5

6

7

8

9

61. (fSOSIIITSPIJOCfNF) Information about any afthe successes ofNSA activities

10 would not anJy be reveal ing of the substantive knowledge of the United States Government as \0

11 terrorist plans and activiti es, but would also tend to reveal or confi rm to all ofaur foreign

12 adversaries the sources and methods by which the United Stales obtained sucb infonnation.

13

5. ~ Information Concerning FISC Orders.

14

62.

/ff:SIIfIe€N'NI,}Next, to the extent relevant to the litigation

15 this case, infonnation concerning the various orders of the Foreign Intelligence Surveillance

16

mentioned throughout this declaration must also remain protected from public disclosure.

17 As discussed above, three NSA intelligence activities authorized by the President after the

18 September 11 attacks to detect and prevent a further al Qaeda attack-the TSP, lnternet meta

19 data collection, and telephon y meta data collection-have been subject to various orders of the

20 FISC and are no longer being conducted under Presidential authorization. The very existence of

21 the meta data FISC orders-the FISC Pen Register Order (firsl issued in Jul y 2004) and the

22

Records Ot:der (flTSt issued in May 2006}-remains classified. The President

23 authorized the disclosure of the general existence of the January 10,2007 FISC orders that

24 CLASSIFIED DECLARATION OF LT. GEN. KEITH B. ALEXANDER DIRECTOR. NATIONAL SECURln' AGENCY
CASE NO. 07-693; MDL NO. 06-1791

indivi,juai, in a manner similar to that

2 undertaken in the TS1>, and President's authorization of the TSP lapsed in February 2007.

.3 Infonnatlon that may reveal the existence of the undisclosed FISC orders or the substance of

4 of these orders should he protectoo from disclosure.

5

63.

IOGJll>Il''j-I>is,:Jo;'UI'eof infomlation about and within the

6 FISC orders would obviously reveal1ntelligence sources and methods currently being utilized

7 the NSA under Court order and, thus, would cause exceptional harm to national security, For

8 example, as discussed above, the FISC Telephone Records Order requires certain

9 telecommunication companies to produce all of their telephony meta data to the NSA on a daily

1{} basis a,,')d authorizes the NSA to access its archive of collected telephony meta data only when

11

reasonablY suspected to be associated

12

The Order also provides that a telephone number

13

l4

on the basis of activities that are protected by the First

15 Amendment The FISC Pen Register Order authorizes the use of a pen register and trap and

16 trace device to collect Internet meta

similar

17 terms. Disci9sure of these facts would reveal sensitive sources and methods utilized by the NSA

18 to obtain data utilized to track

20 F1SC Pen Register

ile<8IJ'H') For this reason, the fISC Telephone Records Order and any person from disclosing to any.other person that the KSA

has sought Of obtained the telephony meta data. other than to (a) lOOse persons to whom

21 .

is necessary (0 comply with the Order; (b) an attorney to' obtain legal advice Or

II assistance wilh respect to the productIon of meta data in response to the Order, or (c) other

22

II

:::;~;s;as~'.pe.nn~tHhaietdabnyy

the Director of the FBI or the person to whom disclosure is

Director's designee. made pursuant to (a),

The (b),

FL<)C or (c)

Orders shaH be

23 115;ub,ie<l to the nondisclosure requuem.ents applicable to a person to Whom the Order is directed

same manner as such person
24 CLA.'>SIF1ED DECLARATJON OF Li GEN. KEITH R ALEXANDER

DJRF{;'fOR., Nt. '110NAL SECURITY AGENCY

CASE NO, 07,693; MDL NO {l6.1791

"
IferelNl" 1rhe intelligence activities authorized by the FISC
2 Pen Register and FISC Telephone Records Orders must nol be compromised by the discloswe c,~

3 other info(TI1stion. for example, as dlscussed above, the disclosure of

4

5

6

7

8 Thus, any attempt to address the lawfulness of the meta data ficti'vities under Presidentiai

9 authorization prior to the FISC orders would directly risk disclosure of current NSA operations

10 under F1SC Orders,

11

65,

fl'iH'iK>GIINl''tThe disclosure of information conce!'Iling

12 recent FISC Orders authorizing electronic survei1lance would also harm national security. The
I 13 lanuary J0, 2007 Foreign Teiephone and Email Order authorized, among other things, eiectr"nic

14 surveillance: of telephone and Internet communications

15 wben the Government determines that there is probable cause to believe that {I} one of the

16 communicants is a member or agent

(2)

i 7 the communication is to or from a foreign country! i.e., a (me-end foreign communication to or
18 from the UnIted States.2! The telephone numbers and email addresses to be targeted (i,e"

J9 "selectors") under this order were further limited to those that the NSA reasonably believes are

20

used by persons olltside the United States. Under the order, every 30 days the Governmen~

21 is required to suhmit a report to the FISA Court listing new selectors that the NSA has targeted 22

23

24

IIII

~:~:~~~f';;~~~~ meder" OECLARATIOhOFL

highly classified,
. GEN. KEITH B AtJ:XANOER

DlRECTOR, NATIONAL SECURITY AGENCY

CA.SE NO, ()7·693; ~D:" NO, 06-1791

"

dwing the previous 30 days and briefly summarizing the basis for the NSA 's detennination thaI

2 the probable cause standard has been met.

3

66. (TStlSYlOG£fN¥) The surveillance under this new FISA Court Foreign

4 Telephone and Email Order. which is subject to detailed minimization and oversight procedures,

5 was authorized for 90 days and indicated that il may be reauthorized by the FISA Court upon

6 application by the At10rney General. The order stales that, with each request for reauthorization,

7 the Government is required to present a list of current selectors previously reported to the FISA

8 Court that the Government intends to continue to task for collection under the reauthorization.

9 The order further indicated that, at any time, the FISA Court may request additional infonnation
10 regarding particular selectors, and, if the Court finds that the applicable probable cause standard 11 is not met, it may direct that tile sW"Veillance under the order shall cease: on the selector(s) in

12 question. This non-traditional order allowed the Government to target for collection

13 communications related to

selectors used by terrorists without

14 having to seek advance approval from the FtSA Court for each individual selector. Upon the

15 initiation of the surveillance authorized under the Foreign Telephone and Email Order, the NSA

J 6 monitored

,u",'gnseiectors.

17 selectors oCCWTed over a 90-day period.

18

the reporting of these initial

19

20

21

22

23

24

I

LT.

KEITH B. ALEXANDER

DIRECTOR. NATIONAL secURITY AGENCY

1/ C,\SENO. 07-69]; MOL NO. 06· 179 1

1

2

3

4

5

6

7

8

9

While the general existence of the January 2007 orders,

10 as described publicly by the Attorney General, is not classified, the number, nature, and contents
I II of the specific orders described herein are highly classified. Among other tbings, disclosing to !I 12 our enemies what surveillance activities, targets and methods are or are not covered by FISA
13 Court orders would reveal sources and methods of intelligence gathering, and enable t.~e enemy

14 to alter its communications to evade detection.

15

16

17

18

19
20

21

22

23

24

DECLARATION OF LT GEN. KEITH B. ALEXANDER

DlRE(."'TOR, NATIONAL SECURllY AGENCY

CASE NO. 07-693; MDL NO. 06-l791

,
I:,,,

2

3

did not grant the Government's application to renew the

4 surveillance authority in the Foreign Telephone aod Email orner (concerning surveillance
5 targeting telephone numbers and e-mail addresses reasonably believed to be used by penlons

6 outside the United States). Rather. it issued an Order and MemOl;"a11dum opinion on April 3,

7 2007, declining to adopt the intt.'lpfetation of the Foreign Intel1igence Surveillance Act
8 undedyjng the Government's application tor the Foreign Telephone and Email Order.

9 nevertheless ordered that the Government could subntil an application for a single extension of

10 the Foreign Telephone and Email Order to May 31 1 2007. The Court contemplated that an
II extension of surveillance authority to May 3 i would allow the Government to submit an

12 application that might permit the Court "to authonze at least part of the frequesierl] surveillance 13 in Ii manner consistent with [its] order and opinion," On the Government's applic.ation, the

14 Court granted a separate order issued on April 5, 2007, extending the surVeillance authority

15 granted by the Foreign Telephone and Email Order to May 31, 2007,

16

69" (TSIISINOClINF) The Goverrunent has reviewed the new flSA Court orders

17 working closely with the FISA Court in the hopes of developing an approach for continuing

J8 the authorized survemance beyond May 3] > 2001, Hi a manner consistent with the April 3, 2007,

19 order of tho FlSA Court The dc;ruls oftnese orders, and targets implicated by the orders, like

20 the operauonllJ detaiis and targets of the ongoing FrSA Court-approved surveillance, arc highly

21 classified, Thus, infonnatiofl about the nature of these recent FISC orders should not be

22 disclosed in this case,

23

OF LT. IIII 24 i,~:;;~~~J,O~E~C;;L;A:;~R.~AT10N

GEN, KHllt B. ALEXANDER

! ,SECURITY AGENCY

; MOL NO. 06-!7'1j

c. (U) Information That May Tend to Confirm or Den}, Whether VerizonIMC[ and/or
AT&T Uas Assisted the NSA with the Alleged lntelligence Activities
2 70, (U) The third major category of information as to which I am supportin g the
3 DN! 's assertion of privilege, and asserting the NSA 's statutory privilege, concerns infonnation
4
that may tend to confinn or deny whether Veri zonIMCI and/or AT&T has assisted the NSA with
5 the alleged intelligence acti vities, As set forth below, confirmation or denial of such in£,mla'ionl
6 would cause exceptionally grave harm to national security.
7
I.
8

9

71.

1A1sp,IIQ(;I,N-F~ Plaultiffs allege that they are customers of

10 Verizon andior AT&T, and that those companies participate in the content surveillance dragnet
II that Plaintiffs allege. Sec Amended Compl. .., 5-8. Neither company has participated in the

J2 alleged dragnet, because such a program does not exist.

13

14

IS

16

17

18

19

20

21

22

....1' .... '

. - " ............ ..

23

24 CLASS IFIED DECLARATION OF LT. GEN. K..EITII B. AI.EXANDER DIRECTOR, NATIONAL SECURJTY AGENCY CASE NO, 07-693; MOL NO. ()6. 1791

2 3
4
5 6 7 8 9
10
11 12 13 14 15 16 17 18 19 20 21 22 23 2411~~~:~ DECLARATION Of LT Ci£).;. KEITH B ALPXA"'iDER
>"jATIONALSECURlTY AGE~CY \;0. iJ7-69"3; MOL NO. 06-\ 791

2
3 4 5 6 7 8 9 10 II 12
13 14
15
16
17 18 19
20
21 22 II~~~======~~ 23 24
mRECTOR. NATIONAL SECURITY AGENCY
CASE NO. 07·693; MDL NO. ()6.. 179 1

2 3
4
5 6 7 8 9 10 I I
12 J3 14
15 16
17 18 19
20
21
22 23
111;:::;~~ DECLARATION OF LT. GEN K EITH B. ALEXANDER II ,NATJONALSECURlll' AGENCY
NO, 07-693; MOL NO. 06-1791

2 3 4 5 6 7 8 9 )0 I I 12 13 14 15 16 17 18 19 20 21 22 23 24
DIRECTOR, NATIONALSECURlTY AGENCY
CASE NO. 07-693; MOL NO. 06-1791

2
3 4 5 6 7 8 9
10
1I 12 13 14 15 16
17
IS
19
20 21 22
23 24 CLASSIFieD DECLARATlON Of L"C G~K KEn11 it ALEXANDER
DIRECTOR, NATIONAL SP;UIUIT AGENCY
eASE NO VJ-6Y};MDI..NO.{\6.-179!

2 3 4 5 6 7 9 10 11 12 13 14
24 : CLASSIFIED DECLARATION or LT, GEN. KEITH B. ALEXANDER
!: DIRECTOR, NATIONA[.S(CURJTY AGENCY
CASE. NO. 01-693; MDL NO. Of,. !79!

2 3 4 5 6 7 8
9
10 11 12 13
14
15 16 17 18 19 20 21 22 23
24 CLASS]f'tED DECLARAT10N Of LT. GEN. KEITH B. ALEXANDER DIRECTOR, NATIONAL SECURJTY AGENCY CASE NO. 07-69';; MOL NO. 06-179\

2

3

4

5

6

7

8

9 10

11

12

13

82.

VII. (U) Risks of Allowing Litigation to Proceed 19G1l'll'f-Upon examination of the allegations, claims, facts,

14 and issues raised by this case, it is my judgment that sensitive Slate secrets are so central to the

15 subject matter of the litigation that any attempt to proceed will substantially risk the disclosure 16 the privileged state secrets described above. Although Plaintiffs challenge an alleged CQntent

17 surveillance dragnet that does not exist, proving why that is
18

19

20

21

22 effo rt to probe the outer-pounds of such classified information would pose inherent and 23

24 CLASSIFIED DECLARATION OF LT. GEN. KEITH 8. ALEXANDER DIRECTOR, NAT10NALSECURJTY AGENCY CASE NO. 07-693; MDL NO. 06-1791

,.'

significant risks of the disclosure of that in>orn,"""'tI! ""'1ll<I:'fl!l~tic,.lIysensitive iniormation

2 about NSA sources, methods, operAtions, tar!!e!s

3

83. (£) Indeed, ally effort merely to allude to those facts in a non-classified fashion

4 could be revealing of classified details that should not be disclosed. As noted, even seemingly

5 , minor Or mnoCUouS facts, in the context of this case or other non~cla.lisified information, can tend
!6 to reveal, particularly to sophislicattXl foreign adversaries, a much bigger picture of US. ,
I7 inlelligence gathering sources and methods.

VIII. (U) Summary and Conclushm

84, (+SNSlJINf} The United States has an overwhelming interest in detecting and

10 thwarting further mass casualty attacks by a1 Qaeda. The United States has already suffered one

11 ettack thai kllled thousands, disrupted the Nation's financial center for day~> and successfulty
I
12 struck at the cotr...mand lind control center for the Nation's military. AJ Qacda oontlnues to

13

i
:

possess

the

ability

and

clear.

stated

intent

to

carry

out

a

massive

attack

in

the

United

States

that

14 1 could result in a significant loss ofHfe, as well as have a devastating tmpact on the U.s.

15 , economy. According to the most recent tntelligence analysis; attacking the U.S. Homeland

16 remains one of a1 Qaeda's top operational prionties, see In Camero Deciaration of Michae!

j 7 McConnell, ON!, and a1 Qaeda will keep trying for high-impact attacks as long aq its central ! 8 command structure is functioning and affiliated groups are capable of furtbering its inter~1s"

19

85. t+SUSlIINF) Al Qaeda seeks to use our own oommunications infrastructure

20 against us as they secretly attempt to infiltrate agents into the United Slates, waiting to attack al a

21 time of their choosing. One of the greatest challenges the United States oonfronts in the ongoing

22 effort to prevent another catastrophic terronst attack against tbe Homeland is the critical need to

2J gather intelligence quickly and effectivelY, Time is of the essence in preventing teIT()rist attacks,

24 I CiASSIf.1EJ) O£CLARATION OF LT, GE'l KJlITH B. ALEXA\,OER
DIRECTOR, NATIONAL :lp.cua:rv AOEf>:CY
CASE '\0, 07-693: MOL NO. !)6·\19!

and the government faces significant obstacles in finding and tracking agents of aJ Qaeda as they

2 manipulate modern technology in an attempt to communicate while remaining undetected. The

3 NSA activities described herein are vital tools in thls effort.

4

86. (S) For the foregoing reasons, in my judgment the disclosure of the information

5 discussed herein would cause exceptionally grave damage to the narional security of the United

6 States. In addition to upholding the state secrets privilege and statutory privilege assertions by

7 the Director ofNationallntelligence in this case, I request that the Court also uphold my

8 assertion ofNSA's statutory privilege to protect infonnation about NSA activities. FinaJly, it is

9 my view that continued litigation oflhis lawsuit would risk the disclosure of sensitive classified

10 information and, accordingly. that the Coun should not only protect from disclosure the

II classified information described herein but dismiss this lawsuit.

12

13

I declare under penalty of perjury that the foregoing is true and CQrrect.

14

15

16

LT. GEN. KEITH B. ALEXANDER

Director, National Security Agency

17

18

19
20

21

22

23

24 CLASSIFIED OECLARATION Of LT. GEN. KEITIi B. ALEXANDER DIRECfOR. NATIONAL SECURJTY AGENCY CASE NO. 07-693; MOL NO. 06-1191

 
 f\il' ~ I( !n-I 1 ~ 1' \()\II ,, _ , ('jIK('~\"<O F()RN

BETH S. BRINKMANN 2 Deputy Assistant Allomey Genera!
DOUGLAS N. LETI"ER 3 1 errorism Litigation Counsel
JOSEPH H. HUNT 4 r)ir~-ctor. Federal Program$ Branch
VINCENT M. GARVEY Deputy Branch Direclor ANTHONY J. COPPOLINO Special LitIgation Counsel MARCIA BERMAN Senior Litigation Counsel PAUL E. AHERN 9 Trial Attorney L:.S. Department of Justice 10 Civil Division, Federal Programs Branch II 20 Massachusetts Avenue, NW Washington, D.C. 20001 Phone: (202) 514-4782 Fax: (202) 616·8460
I'
14 AIIDmeys jDr rile Government De{e"da111s

IS

UNITED STATES DISTRICT COURT

16
NORTHERN DISTRICT OF CALIfORNlA
Ii
SAN FRANCISCO DIVISION
18

19 D-l RE NATIONAL SECURITY AGENCY TELECOMMUN ICATIONS RECORDS

) No. M:06-cv-01791-VRW )

20 LJTlGATION

) CLASSIFIED DECLARAnON

) OF LT. GEN. KElTH B. 21 - - _ - - - - - - -_ _ __ _ ....J) ALEXANDER, DIRECTOR

) NATIONAL SECURITY AGENCY

Ihis Document Relatcs Solely To:

)

) EX PARTE, IN CAMERA

Shubert, CI al. v. Uniled Siaies uj America. el ul. 24 (Case No. 07-cv-0069J-VRW)

) ) Date: December I 5, 2009

25

) Time: 10:00 a.m.

) Counroom 6, 17'h Floor _ _ __ _ _ _ _ __ __ _ _ _ _ _ _---J) Chief Judge Vaughn R. Walker

27 DeriveO From: NSAlCSSM I -52 Da~ : 20091030 Oeclassify On. 20)41030

Classified In Com~m, fJ PtJrle Declaration of LL G('ll. Keilh B. AJexander, Dircclor, Nalional Secunty Agency V:rg;",'a S"~bvr. er al. v Un;td S,ate.• 0/ A'.erlca. el "I. (Nu 07-<v.69) . VRW: MOL No 06-17911
....:·lOH~Ii.J'S""HL(~' RHI-=lT::"'1~'''''fi1iJ.,.'-i+iC·O'+ ~NMII""~IR-'T"._ ·, 0R CON::~orOIl N

T(JI' -"!.<'It! 'f UP t O~II" i

2
(U) Table ofConlents

I.
4
II . 6 III.

(U) IntroduC!!on (U) Summary (U) Classification of Declaration

IV. (U) Background Infomtation

9 10
II V

A . (U) The Nalional Security Agency B. (U) Scptember I I, 200 I and the al Qaeda Threat C . (V) Summary of NSA Activities After 9111 to Meet al Qaeda Threat
(U) Infonnation Protected by Privilege

12 VI.
13
14

(V) Description of lnfonnation Subject to Privilege and (he Harm of Disclosure
A. (U) lnfonnation That May Tend to Confinn or Deny Whether Ihe Plaintiffs Have Been Subject to Any AlIeg~ NSA Activities

15

B. (U) In(onnation Related to NSA Activities, Sources, or Methods Implicated by

16

the Plaintiffs' Allegalions and the Harm to National Security of Disclosure

17

I.

(U) Plaintiffs' Allegations of a Communications Dragnet

18

(a) (U) Infonnation Related to the Terrorist Surveillance Program

1<)
(b) (U) Other Classified Information Concerning NSA AClivities 20

(e) ~JISJHNF) Technical Details of Analytic Capabilities
21

22

2. (fSNSlJ.IOCINF) Information Concerning Current FISA Authorized

Actlvities and Specific FISC Orders

B

3. (U) Plaintiffs' Allegalions that Telecommunications Companies have
24
Assisted the NSA with Ihe Alleged Activities

25
VII. (U) Risks of Allowing Litigation 10 Proceed
26

27 VIII. (U) Conclusion

2S

Cla~iflcd (II Camera. Ex Parle Dcclmlion of I..l GO'). Ke llh B. Alexander. DIrector. National SecunlY Agency

2

V. rKInia SI",l;crl, el 01. ". Unllnl $rare,. ofAmcnca C'I nl (No 07-ev · ~Y3-V RW: MOL N,,_ 0<\-1791)

I O f' :~ U I{Ll T.~I· .( (l'lll'<tl
CLASSIFIED DECLARATION OF LT. GEN. KEITH B. ALEXANOER NATIONAL SECURITY AGENCY
(U) I, Lieutenant General Keilh B. Alexander. do hereby state and declare as follows :

I. (U) Inn-oduction

I . (U) I am the Director of the National Security Agency (NSA), an intelligence

6 agency within the Oepanment of Oefense. I am responsible for directing Ihe NSA, overseeing the operations undl"taken 10 carry OUI il~ mission IIJld, by specific charge of the PresIdent and the

Direcior of National Intelligence, protecting NSA activities and intelligence sources and melhods.

I have been designated an original TOP SECRET classification authority under Executive Order
10
II 1\'0. 12958, 60 Fed . Reg. 19825 (Apr. 17, 1995), as amended by Executive Order No . 13292, 68

12 Fed. Reg. 15315 (Mar. 25, 2003)(rcprinted in 3 C.F.R. 2003 Compoat 196 and at SO U.S.C.A.

11 § 435 (Supp. 2009». and Department of Defense Directive No. S200.1·R, Information Security

14
Program Regulation, 32 C.P.R . § 159a.12 (2000) .
IS

16

2, (U) The purpose of this declaration IS 10 support an assertion of the military and

17 state secrets pri vi lege (hereafler "state secrets pri vi lege") by the Di rector of National Inte II igence

18 (DNI) as the head of the intelligence community, as well as the DNl's assertion of a statutory
19
privilege under the National Security Act . Specifically, in the course of my official duties, I have
211
been advised of this litigation and thc allegations in the plaintiffs' Amended Complaint. As

described herein, vanous classified facts related to the plaintiffs' claims are subject 10 the DNl's Slale secreL~ privilege asseMion. Thc disclo sure of illfonnation discussed throughout this 24 declaration, which relates to NSA intelligence information, activities, sources, methodS, and

rclalionships. reasonably could be expected to cause exceptionally grave damage: 10 the national 26
s.xurity of the Unitcd States. In addition, it is my judgment thaI sensitive stale secrets are so

28

I"" or ClltS:iificd In Caml!ru. fJ {'one Dedaralion or II Gc:n. Keith B. Alexander, Oire.:tor. NallonalSecUrllY Agency
V.'flnlr> Shubc" . c( al. ". /Jill SI"/~' '(m'nr a . ,'1 ,,/ (No 07 <v-6Q~.VRW ; MDL "'u 06·179 1)

)

! 01' SI R H T ./ FSI\'inl'.II~'T_· 'ORCO\JINOfOR>;

c~nlral In Ihe subject mallcr uf the litigation that any attempt to proceed in the case risks the
disclosure of the secrets descrihed herein and exceptionally grave damage to the national security
of the United States. Through this declaration, I also hereby invoke and ass crt the NSA 's 4 st.atutory privilege ~et forth in section 6 of the National Security Agency Act of 1959, Public Law
}o.·o . 86-36 (codified as a note to 50 U.S.C. § 402) ("NSA Act"), to protcc.t the infonnation relsted
tto NSA activities described below. The statements made herein are based on my personlll
knowledge of NSA activities and operations, and on infonnation available to me as Director of
9 the NSA.
10
II. (U) Summan'
II
3. (U) J have reviewed the Amended Complaint in this case. Plaintiffs allege, in
12
13 sum. that. after the 9/1 I attacks. the NSA received presidential authorization to engage in 14 surveillance activities far broader than the puhlicly acknowledged ~Terrorist Surveillance 15 Program" ("TSP"), which was limited to the interception of specific international
III
c·)rnrnunications involving persons reasonably believed to be associated with aJ Qaeda and
17
affiliated terrorist organizations. Plaintiffs allege that the NSA, with the assistance of
I ~
t9 telecommunications companies, Amended Camp!. ~ 5-8. conducts a "dragnet" SUI\leillance 20 program involving th.e interception of "virtually every telephone, imcrnet and/or email
21
oommWlication that has been sent from or received within the United States since 200 I" as part
22
of an alleged Prcsidentially-authorized ''program'' after 9/ 11, id. 1l~ 1,4. I cannot disclose on the
public record the nature of any NSA information implicated by the plaintiffs' allcgations.
However. as described further below, the disclosure of information related to the NSA '$
26 activities, Sources and methods implicated by the plaintiffs' allegations re<lsonably could be
27
e~pected to cause exceptionally grave damage to the national security ()f the United States and,
ClassifiCll In C(Jm~r(l, & Pom Declaration of It Gel! Kei!h B. Alc~~noe(. D,rector. N~ti"n~' S<x:uriry Agency
" ''binl'' Slmherr. £1 nl l' Un"~ SIOID 0/ Americo. el ,,) (No. 0; · ev-64) .VRW. MDL '<<>. 1)6..1791)

for this reason, are encompll~sed by the DN I's state secrets and statutory privilege assenions, as

well as by my own statutory privilege assertion, and should be protected from disclosure in thIs

case. In addition, it is my judgment thaI senSitive stale secrets are so central to the subject mattcr

orlhe litigalton that any attempt to proceed in the case risks the disclosure of the classified

privileged national security information described herein and exceptionally grave damage to the
6
nOltionaJ security of the United Siales.

4. (fS,«fSPfiSIIIOEfN F) The al!cgalions in this lawsuit put at issue the disclosure
9 of infonnation concerning several highly classified and critically imponant NSA intelligence
10 acti vities that commenced aOer the 9111 terrorist attacks, but which are nOW being conducted
II
pursuant to authority of the Foreign Intelligence Surveillance Act ("FlSA"). including ongoing
12
I! activities conducted under orders approved by the Foreign Intelligence Surveillance Coun
14 ("FJSC·'). Plaintiffs' allegation that the NSA undertakes indiscriminate surveillance of the
15 conten" of millions of communicalions sent or received by people inside the United States-
16
under the now defunct- TSP or otherwise - is false. as discussed below. Likewise, the piatnliifs'
1'7
allegations that telecommunications companies assisted with the allcged dragnet program are IR
t9 false. because the aHcgcd dragnet does not exist. The NSA 's collection of the content of
corrununications under the TSP was directed at international communications in which a
21 participanl was reasonably believed to be associated with al Q8eda or an atTiliatcd organization
22
a.1d did not constitute the kind of dragnet collection of the content of millions of Americans'
23
telephone or Internet communications that the r1aintiffs allege. Allhough the existence of the

25 TSP has been acknowledged, the dctails of that program remain highly claSSified, along with

26

27

I (TSh'SfflNF) The term "content" is used in this Declaration to refer to the substance.

meaning, or pU'llon of a communication, as defined in 18 U.S.c. § 2510(8). as opposed to the

t~e of addressing or routing infonnation referred throughout this declaration as "meta data."

Cla'isdicd II> Camero. £, P(lrle DeclRrnlion of Lt Gen. Ke;l\o B Abandel'. Di'e<.1or. Nal;on.l SeCllnry Ag,,"cy
V ' f'" r.ld Siu/f.",. ,,' 01. v. U"II~J S,UfC.< o!Amcrl.;n. ~I oJ (»; " M<v-M3-\,IlW , MDL No 06.\7')1)
TfW'-SFTH C r " lSI" " (,OMI'cj'f_',.'ORCO~d ' M)r ORN

details of related Wnlen! surveillance activities undertaken after the TSP ended pursuant 10

orders of the FISC. This informal ion could not be dIsclosed to address or dtsprove or otherwise

liligale the plamtiffs' allegation of a CXlnlcnl dragnet wilhout causing exceplional harm to NSA's

S0urces and methods of gathering intelligence - Includmg methods currently used to delcct and
or prevent further terrorist attacks under the aUlhority the FlSA.

5.

(TSlrrSPl/S I/lOC/,",,'F) In addilion. as the (oun is aware from prior classified

declarations submiltcd by the NSA in this and mlaled pf(lccedings. the NSA has wHeeled,

pursuant to presidential authorization and currenlly undcr subsequent FISC onders. non-wlltent

10
infonnation (i.e. , meta data) about telephone and Internet communications in order to enable

II

highly sophisticated analytical tools that can uncover the contacts

of

12

13 members or agents otl• • • • • • • • • • • • •

As noted above and

14 detailed below, the content surveillance subject to presidential authonzation after 9111 was not

IS the content dragnet sUlVeillanee that plaintim allege, and the collection of non-content
II>
infomation. while significant in scope. remains a highly classIfied matter currently under FlSA
17
aJthorization. For the NSA to attempt to explain. cluri fy, disprove, or otherwise litigate
I ~
19 plaintiffs' allegalions regarding a communications dragnet would require the NSA to confirm Ihe

20 e~istencc of. or risk disclosure of facts concerning, intelligence sources and methods for thc

21
o)lIection of non-content information related to wmmunications. as well as current NSA
22
operations under FISC Orders - disclosures thaI would cause exceptionally grave hann to

national security.
Z4

1 (TS,L/SlHOC-fNB Certain FISC Orders arc also directed at• • • • • • • • • • . Because~lions in the wmplaint reference activities

27 a·Jthorized afler 9/11, which were diTC(:ted a t _

' any

fUr1her references to the FISC Orders will focus solely on activities under the orders dIrected at

Clas-lif,ed In Camero, Ex Parr, Dcclara"on of Lt. Gro . Keith B Alc,ancier. Director. Naito,,) So::unty Agency

6

V'lI.nia Shubert. l"I al v United SI"'r.\ nf Amenca. ct 01. (No . 07-;:, ·693·VRW. MDL No 06-(791)

6,

plaintiffs' allegation that

tdeeommunieations carriers assisted the NSA in alleged intelligence achvitics also cannot be wnftnned or dcnied without ri ~king exceptionally grave hann to national security. Becausc the

j\'SA has not undertaken the alleged dragnet collection of communications content, no carrier has

assisted in that alleged activity. • • • •
6

II
Disclosw-e 0 • • • • • • • • •
12
13 • • • • • • • • • • • • • • • • • • • • • • • • • • • •Iwould cause

14 exceptionally grave damage to the national security,

I)

7.

h4{}€,lN-!<:\ Acrordiogly. Ihe DNI 's stale secrets and

16
Statutory privilege assertions, and my own statutory privilege assertlon, seek to protect against
17
the disclosure of the highly classified intelligence sources and mcthods put at issue in this case
18

19 and vital to the national socurity of the United States, including: (1) any infonnation that would

tend to confinn or deny whether particular individuals. Including the named plaintiffs, have been
21 sllbjecl to the alleged NSA intelligence activilies; (2) infonnation concerning NSA intelligence
n
s'>urces and methods. including facts demonstraling that the content collection under the TSP

was limited to specific al Qacda and associated terrorist-related international communications
24
25 and was not a content sUlveillance dragnet as plaintiffs allege; (J) facts that would tend to
26 a.lnfirm or deny the existence of lhe NSA '5 bulk meta data collection and use, and any
27
illformation about those activities; and (4) the fact that • • • • • • • • • • • • • • • •
2&

Cial>,f,cd In CQnI.:rn. Ex Parle Dech rl.t;ol', of I I GCfl. Keilh R. Ale'ander, Director, N QI ;l'n ~1 Security Agency

7

1':'11'"'" S;,,, f,~rl, ..I at. v. (lmled StuN" 0[Am ,'!',,'o, Of a l. (~u U7·<\'-693-VRW: MOl.. f'oil' Ot, ·t791)

The; (aci that there has been public ~peeulalion

about alleged NSA activjries does not diminish the need to protect intelligence sources and methods from further exposure. OfficIal confirmation and disclosure of Ihe c1a~ified privikgcd

national security information described ht:rein would causc exceptionally grave damage to the

national sccurily. For these reasons, as set fonh funhcr below, I request that the Court uphold
6
the state sccrels and slatutory privilcge assertions that the DNI and I now make. and prolect the

illformation described in Ihis declaration fTom disclosure.

9

Ill. (U) Clusificalion of Declaration

10
8. (Sffllb'fNF) This declararion is classified TOP SECRETIITSPI/SI_
II
_ /IORCONINOFORN pursuant to the standards in Executive Order No . 12958, as amended

13 by Executive Order No. 13292. Under Executrve Order No. 12958, information is classified 14 "TOP SECRET" if unauthorized disclosurc oflhc information reasonably could be expected to 15 c;Juse exceptionally grave damage to the national security of the United States; "SEeR ET' if

unauthorized disclosure of the information reasonably could be expected 10 <:.'luse serious
17
damage to national security; and "CON FI 0 ENTl i\ L" if unauthorized disc10sure of the
19 information reasonably could be expected 10 cause identifiable damage to national security. At
20 the begillI1ing of each paragraph of this declaration. the 1etler or letters in parentheses 21 designate(s) the degree of classification of the information the paragraph contains. Whcn used

for this purpose, the letiers "U," " C:' "S:' and "TS" indicate respectively that thc information is

24 cither UNCLASSIFIED, or is classified CONFrDENT1A L, SECRET, or TOP SECR ETl.

Classified In Cumern. Ex POrle Declaration of LI Gen. Ktilh B Abander, Oi""'-lo'. NaUMal SOCI.Jn!)' Agency

8

I'.rginoll Sh"b;·r:. N al. y /J"il~" S/n1,., of ,jmr1"1CQ. '" (/1. (No. 07.cv·693·vRW: MOL No Qt.-1791)

rOi'

SI

.CttCT: 'TSI"ICO~dl·H_

ORCO~"iNOFORN
! ..

9.

(SNSIHN F) Additionally, this declarntion also contains Sensitive Compartmented

Infonnatlon (SCI), which is "information that not only is classi tied for national secunty reasons

3 as Top Secret. Secret, or Confidential. but also is subject to special access and handling

requirements because it involves or dellYCS from particularly sensitive intelhgence sources and

methods." 28 C.F.R. § 17.18(a). Because of the exceptional sensitivity and vulnerability of such

information., these safeguards and access requirements e)(cecd the access standards that are

nomlally required for information of Ihe same classilication level. Speci fieally, Ihls declaration

references communications intelligence (COMrNT). also referred \0 as special intelligence (SI),
10
which is a subcBlegory of SCI. COM [NT or SI identifies SCI thai was derived from exploiting
II
c:yplographic syslems or other protected sources by applying methods or techniques, or from
11
I) intercepted foreign communications.

14

10. ff-SIffSPIISI.

(/O€~F) This declaration also contains information

IS related to or derived from the TSP, a prior controlled access signals Intelligence program Ihat
16
operated under presidential authorization in response to the attacks of September 11,2001, until

January 2007. A\lhough the TSP was publicly acknowledged by then-President Bush in
18 19 December 2005, details about the program remain highly classified rmd strictly compartmented.
20 InfoITJIlltion pertaining 10 thiS program i~ denoted with the spccial marking "TSP" and requires
21
more restrictive handling. 22

25 26

Classified In Camera. Er Parle Dcciar:llioo of LL Gen Keith B. Alexander. Director. NJlional Security AgCTlCY

9

V.·rglnifl SII"bert. el "I ". Un Ilea Sla/~J of America. c( ,,/ (No 07-cv·693· VRW: MOL No 06·17911

I J. ts#N¥lln addition to (he fact that cla!'sified informlltion contained hcrein may
6 7 not be revealed to any person without authorization pursuanl to Executive Order 12958, as
j 'l1cnded, this declaration contains infonllation that may not be released to foreign govemmenL~.

foreign nationals, or non-U .S. citizens without pennission of the originator and in accordance
10
"lIh DNI policy. This information is labeled "NOFORN" (NF). The "ORCON" (OR)
11
designator means that the originator of the infonuation conlfols to whom it is released .
12
IV. (U) Background Information

14 A. (1J) The National Security Agency

IS

12. (U) The NSA was established by Presidential Directive In 1952 as a separately

10
organized agency within the Department of Defense. 'Ihe NSA's foreign intelligence mission
17

includes the responsihility to colieCI, process, analyze, produce, and disseminate signals

1'1 inlelligencc (SIGINT) information, of which communications intelligence (COMINT) IS iI
20 Slgnl (Ieant suhset, for (a) national foreign intelligence purposes, (b) counterintclligence pUTlloses,
21 a.ld (c) the support of military operations. See Executive Order 12333 , § 1.7(c), 46 Fed. Reg.
22
59941 (Dec. 4. 1981), as amended .5
23

25

26

27 5 (U) Section 1.7(c) of E.O. 12333, as amended, speci fically authorizes thc NSA to
28 "Collect (including through clandestine means), process, analyze. produce, and disseminate

ClassIfied III Com"o . Ex Pnru Declarall()!', (If LI. Gen. KCllh B. Alcuoda. OirO::IM. Nat ional Soturiry Agency

10

1':~lIPrD SI" ,ht-n. CI 01. I'. United Stairs "fAm" icfJ . ~I 01 (No. 07-<v· b'H·VRW.1-101. No. O("I7QI)

IJ. fFSHSb'fNF) Signals inlelligence (SIGINT) COM1Sls of Ihrec subcalcgorics: 2 ( ~ ) communicalions inlelligence (COM 1NT); (2) eleclronic inlelligence (ELINT); and (3) foreign

instrumentalion signals mleliigence (FISrNT) . Conununications intelligence (COM1NT) is

defined as ·'all procedures and methods used in lhe interception of wrrunun\callons and the

obtaining of informalion /Tom such communications by other Ihan the ;nlcnded reclpienls. " 18
6
L;.S.C. § 798. COMINT includes infonnalion dcrived from the interceplion of foreign and

international communications, such as voice. facsimile, and computer-to-computer infonnation

con veyed via a number 0 f means

10
_

. Electronic intelligence (EUNT) is technical intelligence information derived from

II

foreign non-communications electromagnetic rndialions except atomic dctonation or radioactive
12

sources - in essence, radar systems affiliated with military we!\pons plAtforms (e.g .. anti-ship)

14 a,d civilian systems (c.g ., shipboard and air trome control radars). Foreign instrumentation
15 signals intelligence (F1S1NT) is derived from non-U .S. aerospace surfaces and subsurface
16
systems which may have either military or Civilian applications.
17
14. (U) The NS A•s S lG!NT responsibi Iities inc lude ~tablishi ng and operating an
18
19 effective unified organization to conduct SIGrNT activjties set forth in E.O. No. 12333,
20 § I . J2(b), as amended. In performing its SIGINT mission, NSA has develope<l a sophisticated
21
worldwi de S IG rNT collection network . TIle Icch nologi cal ill frastructure I hat supports the NSA' s

foreign inlelligence informallon collection network has taken years 10 develop at a cost or billion$ of dollars and untold human effort. )t relies on sophisticated collection and processing

ttJChnology .

27
signals intelligence information for roreign intelligence and counterintdligcnce purposes to l S support national and departmental mi ssions."

Class ir,cd In Camero, Ex Parle Declaralion of 1..1. Gco. Keith B. Alexander, DIl1~c.r.or. NBt;',nal Serunty Agency

II

Virgin/" Sh,d>e" , ~I nl. Y. Unlled SM/r' oJ Ameli01. cl ~/. (No. 07<v.o93· VRW . MDL ~o. 06· 179 1)

TOP S r: CI ~ n:.'TSI'.i C O i \ I I V r _ ,OIKO>J 'NOroRN

15. (U) TIlerc are two primary reasons for gathering and analyzing foreign
ill(clligence infonnation. The lirst, and most important, is to gam information required to direct
LS. resources as necessary to counter external threats and m support of military operations. The
s.:eond reason is to obtain information necessary to Ihe formulation of U.S. foreign policy.
Foreign intell igcnec mformation provided by the NSA is thus relevant to a wide range of
(,
7 important issues, Including military order of battI.:; threat warnings and readiness; arms proliferation; international terrorism; counter-intelligence; and foreign aspects of international
9 narcot ics trafficking.
10
16. (ll) Foreign intelligence produced by COMINT activities is an extremely
11
important part of the overall foreign intcll igence information available to the United Stales and is
13 often unobtainable by.olher means. Public disclosure of tither the capability to coHeel speci fie 14 communications or the substance of the information derived ftom such collection itself can
t s Cdsily alert targets to the vulnerability of their communications. Disclosure of even a single
v)nununication holds the potential of revealing intelligence collection techniques that are applied
t 7
against targets around the world , Once alened, targets can frustratc COM INT collection by
I~
t9 using different or new encryption techniques. by disseminating di~infonnation, or by utilizing a 20 dirfen:nt communications link. Sueh evasion techniques may inhibit aceess to the target's
1 t
oJmmunications aIld thercfore deny the United States access to information crucial to thc
defense of the United States both at home and abroad. COMINT is pro vided special statutory
protection under 18 U.S.c. § 798, which makes it a crime to knowingly disclose to an
unauthorized person classi fied information "conceming the communication intelligence activities 26 of the United States or any f(lreign government ,"
27

Classified In CQmero. £J PII'1e I)eclarahon of 11. Gen. Keith B, Alt:xwda. Director. National SC(unty Agency

t2

Y' rginm SI'''!xI1. ,-I al. v. Uniurl SIQ/~' 0/ Ampn~". el II/. (No. ()7-<y-{;93- VRW. MDL No. 06(1791)

..oRC ON/~JorO R~l

i()!'~ I (I<I'1 i sl> (Ch l l,,"!
B. (U) September 11,200 I and thc III Qat'da Threat

t)l{cm, '001 ClRN

17. (U) On September 11,2001, the al Qaeda terrorist network launched a set of

e,)ordinated attacks along the East Coast of the United States. I-'our commercial jetliners, each

c.lfefully selected to be fully loaded with fuel for a transcontinental flight, were hijacked by a[

Qaeda operatives. Those operatives targeted the Nation's finanC'lal center in New York with two

of the jetliners, which they deliberately new inlO the Twin Towers of the World Trade Center.
7
Al QBeda targeted the headquaners of the Nalion 's Anned Forces, the Pentagon, with the third
9 jttliner. Al Qaeda operatives were apparenlly headed toward Washington, D.C. with the fourth
10
j(,tliner when passengers stn.gglcd with the hijackers and the plane crashed in Shanksville, It
Pennsylvania. The intended target of this (ounh jetliner was most evidently the White House or
12
the Capitol, strongly suggesting that aJ Qaeda's intended mission was to strike a decapitation

14 hlow 10 the Government of the United States-to loll the president, the Vice President, or

IS ~fcmbers of Congress. The allacks of September II resulted in approximately 3.000 deaths-
II>
the highest single-day death 1011 from hostile foreign attacks in thc Nation 's history. In audition,
Ii
these attacks shul down air travel in the United Stales, disrupted the Nation 's financial markets
I ~
a..,d government operlllions, and caused billions of dollars of damage to tllC economy.

20

18. (U) On September 14, 2001, a national emergency was declared "by reason of thc

21
terrorist attacks at the World Trade Center, New York, New York, and the Pentagon, and the

continuing and immediate threat of further attacks on Ihe United States." Presidential

Proclamation No. 7463, 66 Fed. Reg. 48199 (Sept. 14 , 2001). The United States also

25 immediately began plans for a military response directed at al Qaeda's training grounds and 21> havens in Afghanistan. On Septemher 14,2001, bOlh Houses of Congress passed a Joint

Rcsolution aUlhorizing the President oflhc United States ''to use all necessary and appropriate
28

('i"S\lficd /Il Cornua. Er Parte Dcdaraoon (lr Lt Gen. Keith B "hander. Direclor. National SC<:IJriry Ag'ocy

13

1.1 e;lfioJ SII/Ibcr/ CI(II ,'. [I'll/cd SI(JI.·, uf Am~' ·;,,,,. <I "I. (No. O'·;;v·69J·vRW, MDL No. 06 ·179 I)

ftlfCC against tho se nations, organizations, or pen;ons he detennincs planned, authorized.

committed, or aided the terrorist attacks" 01 September II , Authorizal1on for Use of Mllital)'

Force, Pub. L. No. 107-40 § 21 (a), 115 SIaL 224,224 (Sept. 18,2001), Congress also expressly

acknowledged thallhe attacks rendered it "necessary and appropriate" for Ihe United States to

e'lercisc its right "to protect Untted States citIzens both at home and abroad." and acknowledged

in particular that "the President has authority under the ConstHU1l0n to take action to deter aJ1d

8 prevent acts of intemationalterrorism agaInst the Unitod Slates." Id. pmbL

9

19. (U) Also alter the 9/11 allacks, a Military Order was issucxl stating that the attacks

10
of September II "created a staleof anncJ connie!," see Military Order by the President § I (a).
II
66 Fed. Reg, 57833, 57833 (Nov, i 3. 200\). and that al Qaeda terrorists "possess both the

IJ C:ip~bility and the intention to undertake funher terrorist attacks against the United States Ihat, If

14 not detected and prevented. will cause mass dealhs, mass injunes, and massive destruction of
15 property, and may place at risk the continuity of the operations of the Unitoo States
t6
Government," and concluding that "an eXII-.aordinary emergency exists for nalional defense
17
purposes," id. § I(c), (g). 66 Fed. Reg. at 57833-34. Indeed, shortly after the al1acks, NATO
18
19 took the unprecedented Slep of invoking article 5 of the North Aliantic Treaty. which provides
20 that an "armed attacK against one or more of[lhe parties] shall be considered an attack against
21
them all." North Atlantic Treaty, Apr. 4. 1949. art. 5, 63 Stat. 2241,2244,34 U,N.T.S . 243. 246, 22
20. (U) As a TCSult of the unprecedented attacks of September 1 I, 200 I, the United
2J
24 States found itsclf Immediately propelled inlo a worldwide war against a neIWork of terrorist
25 groups, centcred 00 and affiliated with al Qaeda., that possesses the evolving capability and

26 intention of inflicting further catastrophic attacks on the United States. That war is oontinuing

today, at home as well as abroad. Moreover, the war against al Qaeda and its allies is a very

Classified In Camera. & Pone Dcclaratl(\(1 oflL GLn. Keuh B Alcnnder. DirOClor. Nation,,1 S("Cu,;ry AgLl1CY

14

."" ",>.' V;~jmD S/",herl, c/ ai, v. / :",:u/

oj Amrrica, ~I oJ. (No 07-<v·69). VR W. MOL 1-;" 01>-179 1)

dilTerent kind of war, against a very dilTerenl enemy, than any other war or enemy the Nation has

previously faced. AI Qaeda and its supporters operate not as a traditional nation-state but as a

diffuse. decentralized global network of individuals, cells, and loosely associated, often disparate

groups, that act sometimes in concert, sometimes independently, and wmetimes in the United

States, but always In secret - and Iheir mission is to destroy lives and to disrupl a way of Ii fe
6
7 through terrorist acts. AI Qaed.a works in Ihc shadows; secrecy is essential to al Qaeda 's success
g in plotting and executmg its terrons\ attacks.

21. ~J5+hlN.I'7 The Classified In Camera, l:."x Parle Declaration of Dennis C. Blair,
10
Director of National Intelligence, details the particular facets of the continuing al Qaeda threat II
and, thus, the exigent need for the NSA intelligence actwities described here. The NSA
12
activities are directed at thaI threat, • • • • • • • • • • • • • • • • • • • • • •
14
I~
16
• • • • • • • •~lobaJ telecommunications networks, especially the Internet, have
11
developed in recent years into a loosely interconnecled system - a network ofnelVlorks - that is
18
ideally suited for the secret communications needs of loosely affiliated. terrorist cells. Hundreds
20 of Internet service providers, or "ISPs," and other providers of communications services offer a

wide variety of global communications options, often free of charge. • • • • • • • • • •
12 23 _ _ _ _ _ _ _ 6 2A 25 16 27 2&

Ctasslfied /11 Camera, Er Pant D('l:laralion of Lt. Gcn KCllh B. Alexander, Director. National SCCllnty Agency

15

Y,,?inio SIIIIMrl. rial. v. UniledSIQIC;ofAmcrico. eiO/ (No 01·cy-693·VRW; MDL No. 06.1791)

I 0 1' ~iI ( I{I T fW CtPvU'. I 22,

"(lll t 'C) ' ! ~' Ol=ORl>!

4 5 6

9 10 II 12

14

15

II>

17

1&

19

2u

21

:!3, (f'S.vSfHNF) Our effons againsl al QacJa and its affiliates there (ore present

22
critical challenges for the Nation's communications intelligence capabilities. First, in this new

kind of war, more than in any other we have ever faced, communications intelligence is ~sential

25 to our ahi1ilY 10 identify the enemy and to detect and disrupt its plans for funher attacks on Ihe 21" l'olted Stales. Communications intelligence often is the only means we have to learn the
27
identities of panicular individuals who arc Involved in terrorist activities and the existence of

nassified III Glmero, fT PDrle Declaration of Lt, Gen. KClth B Alexander, Diredor, Nat\OIlal So.:urily Agency

16

V:/X""D Shubcn N "'." UIH(cd ,) (/7,n' "f ,l.1t1C,i~o. ~I al. (N~. 07-<"V.693·vRW: MDL No 0(>.1791)

"H11'! d t' RI r T:W ( 0""" r
particular t(:rrorist threats. Second, at the same time that communications intelligence is more

importanlthan ever. the decemralized. non-hierarchical nature of the enemy and their

3 s<)phistication in exploiting Ihe agility of modem tele<:Qmmunications make successful

communications intelligence morc difficult than ever. It is against Ihis backdrop that the risks

presented hy this litigation should be assessed, in particular the risks of disclosing particular

"'SA sources and methods implicated by the claims.

8 C. (U) Summary of NSA Actjviti~ After 9111 to Meet al Qaeda Threat

24. (U) Aftef the September 1 I anacks, the NSA recei ved presidenl1 al aut honzation
10
and direction to detect and prevent further tcrrorisl attacks within the United States by
II
intercepting tbe content7 of communications for which there were reasonable grounds 10 helieve
12
that (I I.such communications originated or terminated outside the United States and (2) a party

14 [(l such communication was a member or agent of al Qaeda or an affiliated terrorist organization.
15 The t:xi~tence ofth!s activily was disclosed by then-President Bush m December 2005 (and
16
suhscquently referred to as the "Terrorist Surveillance Program" or ·'TSP").'
1 i
25, ffSI-FfSIWSlJ/OCI+IIF) In more specific and classified terms, the NSA has
18
utilized a number of critically important intelligence sources and methO<ls to meet the threat of

10 nother mass casualty terrorist attack on Ihl: United States - melhods that were designed to work 2!

12

7 (U) The lenn "content" is used in this Declaration to refer to the substance, meaning, or

purport of a communication. as defmed in 18 U.S.c. § 2510(8).

24

8 (U) On January 17,2007, the Government made public the general facts that new

orders of the Foreign Intelligence Surveillance Court had been issued that authorized the

Government to target for collection international communications into or out of the United States

where Ihere is probabl c cause to bel icve that one of the communicants is a mem ber or agent of al

Oaeda or an associated terrorist organizalion~ thaI, as a result of these orders, any electronic

27 surveillance that had been occurring as part of the TSP was thell being conducted subject to the

a?proval of the F1SA Court: and that, under these circumstances, the TSP was nOI reauthorized.

C""ified In C~nlNa, F..r Patl,' l)eclamion c-f LL Grn. Keith B Ale:l'.Jndcr. Director. NaliMal Securily Agency

17

1'.""0[" S;'lIb~n. clol, v. U"",.,:l5,ales ofAmcn<a. el at. (No 07.cv.li9.1.VRW~ MDL No. 06.1791)

'FOP S[CIU:T T'\l'd 'O M!Nl

" OR ("ON,N()Ff)R~~

I OJ' :'1 ( 1(1 I I :sf' Cordlhl
duration ofteitphone calls. as well as the phone numbers used to place and receive the calls.10 [n

2 additIOn, sincc Ihe 9/ 11 anacks. the NSA has collected bulk mela data related to In/ern!!/

c,)mmunicalions. Internet mcta data is header/router/addressing infomlarion, such as Ihe "10,"
4
" rrom:' "ec," and "bee" lines, as opposed to the body or "('e"lines, of a slandard email.
s
26. ffSffSlHOClNF) Each orlhe foregoing activities continues in somc form under o
11 Jthority of the F1SA and, thus, the NSA utililcs the same intelligence sources and mcthods

today to detect and prevent further terrorist attacks that II did a!ter the 9111 attacks. First, as

9 noted above, on January 10, 2007, the FISC issued two orders authorizing the Govemmcntlo
10
conduct certain electronic surveillance that had been occurring under the TSP. The FISC Orders
II
were implemented on January 17,2007, and. thereafter, any ele<;uonic surveillance that had b<:(;n
12
13 occurring as part orlhe TSP became 3ubjccllo Ihe approval of the FISC and the TSP was not
14 reaulhorized .11

15

t6

17

18

19

20

21
22

23

24

15

26

mr II ~ As also described further, see infra 63-66, the FISC extended

Ihese orders with some modifications. What is described below as the Foreign Telephone and

Email Order expired in August 2007 and was supplanted by autJlOrity enacted by Congress - first

under Ihe Protect America ACI and then the F1SA Amendments Act of 2008 - 10 aurhorizc

C z~slticJ In Comero . E( P~ rll' ()ed~,""()n of Lt G~ , Kei;h B. Alexander, Director, N.(ional Secunry Ageoc~

19

I.' ".':I",~ <;1",l><fI, "01 ". r.. ''';,.,( Ylulo.s 0{AnlL'ria>, (10/, (No. O1 ''''' · 6q~ ·vnW; MOl. Nn ()6-INI)

27 _ (1'81o'SlflOCA\'f) Second, with respect to Ihe collection of telephony meta data,

si nee May 2006 certain telecommunication providers have been required by an order oCthe FISC

-' to produce to the NSA on a daily hasls al! telephony meta data thaI they create ("FISC Telephone
Business Records Order") The rise Telephone Business Records Order has been reauthorized
5
8QProximately every 90 days since it was first issued. Although (his collection is broad in scope,

the NSA was authorized by the FISC to query the archived telephony data with identified

Idephonc numbers for which (here are facts giving rise to a reasonable, aniculablc suspicion that

the number is associated with • • • • • • • • • • • • • • • • (hereafter refcrred to
10 33 a "RAS·' determinatlOIl).12 Historically, only a liny fraction oftclcphony meta data records
II
e·)lIected by thc NSA has adually been presented to a trained professional for analysis. As
12
discuss~ further below, see infra ~~ 48-56, while the vast majority of records arc thus never

14 viewed by a human at thc NSA, it is still necessal)' to collect the meta data in bulk in order to

15

foreign intelligence surveillance of targets located overseas v.~lhout individual court orders.

17
11 (TSNSIIIOCINf) As set {onh further below, see infra m\60-62, NSA's compliance

IR with this limitation in the FISC Order has bex.'T1 subjca to further pr(lceedings in the FISC that

commenced with a campi ianee report by thc government on January! 5,2009, which indicated
19 that thc NSA had aJ so been querying incoming telephony meta data with selectors for

20 counterterrorism targets subject to NSA surveillance under Executive Order 12333, as to which the NSA had not made a "RAS" determination. On March 2, 2009, the FISC renewed the Order

21 authorizing thc bulk provision to NSA of business records containing telephony meta data from

telecommunications camers, but subjected that activity to new limitations, including that the

NSA may query the meta data only af\cr a motion is granted on a c.ase-by-case basis (unless

otherwise necessary to protect against imminent threat to human life). The FISC also required

the Government to report to the FISC on its review of revisions to the meta data collection and

24 analysis process and to include affidavits de$cribing the value of the collection of telephony meta

data authorized by thc (,[SC Telephone Business Records Order. The Government submilled its 25 rCJ)ort to the FISC as req uired on August 17, 2009. The FISC subsequentl y renewed the

1 elephone Business Records Order on September 3,2009, and, in so doing, restored 10 NSA the

authority 10 make RAS determinations for selectors that NSA counterterrorism personnel

27 nominate for analysis through contact chaining

(these selectors are described

as "seeds') This renewed Order expires on Octoher 30. 2009.

(Ia~,iflcd In Cnmna. Ex Parjl' Drelaration of LL Crn Keith S. Ate:<.ander. Director. National Secoril) Agmcy

20

V;rgimQ $I,,<lx·.,. ("I al I' 1,)'''/<'1/ $Iales "f.4mcriclJ. "' DI. <1'0. 07--<;\'·6Q3-VRW. MDL No. %-17?!)

-101' :,"-HO r 1':,1' t'tl'I!'';1 _{lHCm'::'«)I"Of(:-o

uliliu sophisticated and vital analYllcal (ools for trackJng the contacts • • • • • • •

2

• • • • • • • • for protecllng thc national security of the United States.

28. (TSNSlo'fOC/Nf) Thud, heginning in July 2004, the co\Iectwn of Internet meta

data in bulk has been conducled pursuant to an order of the FISC authorizing the use of a pen
5
regIster and trap and trace deVIce ("FISC Pen Register Order" or "PRTT Order"), See 18 U.S.C .

§ 3)27 (defining "'pen register" and "trap and tface device")_ Pursuant to the FISC Pcn Register

8 Order, which has becn reauthorized appro;"\imately every 90 days since it was first issued, the

9 l'SA is authorized to collect, in bulk, meta data associated wnh electroniC communications
10 • • • • • • • • • • on the IntemeL D • • • • • • • • • • • • • • • •
II

12
I~

14

I~

Although the NSA collects email meta data in bulk • • •

16
I• • • • it has been authorized by the FISC to query the archived meta data only using email
17
a.jdresses for which Ihere are facts giving rise to a reasonable, articulable suspicion that the email
IB

19 address is associated willi• • • • • • • • • • • • • • • As with bulk telephony

20 meta data collt:Ction, bulk Internet meta dala collection is necessary to allow the NSA to use
21
critical and unique analytical capabilities 10 track the contacts (even retrospectiveIY)_

terrorists. Like telephony meta data activities, lntcrnet meta B
24
1S

27
28

ClaiSiflrd III Camera, Ex Porte Occiarall(ln ofli Gen_ K,,',!h B Ab,ndcf. DirtC!or. Nar:oml Securily Agency

21

.or . v '1(Inio SllIIbcn. CI 01 v. United SrlJ"·' Imcrira, {/ ",. (1' :. (y7 Ly~9J.vRW; MDL No , (J!>-I"19I)

'1 Of' ',I ( 1{1 I I'i l' f ' ( l~II~'T_ '(lR('O', '\~l-t-fW--,,<data collection and analysis are vital tools for protecting the Unite<! States from attack, and,

ac::cordingly, information pertaining to those actiVIties is highly classified. I'

V. (1) Information Protected by Privilege 29. (U) In general and unclassified terms, thc following C3tcgorie~ of Information arc

subject to the ONI's assertion of the Slate secrets privilege and statutory pnvilege under the
6
1\:8tional Sccurity Act, as well as my assertion of the NSA privilege:

A. (U) Information that may tend to confirm or deny whether the plaintiffs have been subjcct to any alleged NSA intelligence activity that may be at issue in thIS matter; and

I~
B. (U) Any information concerning NSA intelligence

11

actiVIties, sources, or methods that may relate to or be

necessary to adjudicate plaintiffi' a\legSllons, including

12

allegahons thallhe NSA, with the assistance of

telecommunicalions carners, indiscriminately intercepts the

content of communications and also, to the extent

14

applicable to plaintiffs' claim, the communications records

of millions of Americans as part of an allege<! "Program "

I;

authorized by the President after 9/11, See. e.g., Amended

16

Compl. ~11-8. 58 .

17

(U) The scope of this assertion includes but is not limited

to:
18

19

(i) (U) Infonnation conceming the scope and

operation oflhe now inoperative "Terrorist Surveillance

20

Program" ("TSP") regarding thc interception of the content

of certain one-end international communications
~ I
reasonably bclievcx! to involve a member or agent of al-

Qaeda or an anilialed terrorist organization, and any other

infonnation related to demonstrating toal the NSA does not

otherwise engage in the content surveillance dragnet that

24

the plaintiffs allege; and

25

17

I

L No. 06-1791- ~ W (N .0. CaL) (submitted Apr. 20, 2007) (relating to

28 all actions against the MCI and verizon Defendants),

(13 )> died III Comera, €X Par/~ Decbr3tion Df U. Gen , Ke1(n 8. Aie"311cier, Dirc-dor. Nftlio!'.,1 Secun1)l Agency

22

v ' ,~""O Shubert, ~I ,,/. <'. UnIlMSIDI"O[Anrcriw. t:l nl, (No O1·cv·6')~· V RW', MDL ;\~. 06·1791)

'10 1' ::<ECR rTi T3P COMII<f I _

!IOI~CON,NOFORN

(ii) (Uj Any other information concerning NSA intelligence activities, SOllrc~, or methods that would be necessary to adjudicate the plaintiffs' claims, including.. to
the extent applicable, information that wou!d tend to confirm or deny whether or not the NSA obtained from telecommuni~lions companies communi~tion tran~actional records: ano

6

(Iii) (U) Information that may tend to confirm or

deny whether any telecommunications carrier has provided

assistance to the NSA in connection with any alleged

activity.

9

VI. (lJ) Description of Information Sublect to Privilege lind the Harm of DiscJosure

10
A.
II

(U) Informarion That May Tend to Confirm or Deny Whetber the PlaiotifTs Have Been Subje-ct to Any Alleged NSA Activities

12

]0. (L') The tirst major category of information as to which I am supporting the DNJ's

assenion ofpriv.legc, and asserting the NSA 's own statutory privilege, concerns Information as
14
to whether particular individuals, mcluding the named plaintiffs in this lawsuit, have been
I~
16 s'Jbject to alleged NSA intelligence aClivilies . As set forth below, disclosure of sueh information

17 would cause exceptionally grave! hann to the national security.

IS

)1. ff-5fFFSPNSINOCfNF) The named plaintiff~ in this action - Virgmia Shuben,

19
l\oha Arafa, Sarall Dranoff, and Hilary Botein - allege that the contents of their telephone and

(n(emel communications were subject to "unlawful interception, search and seizure, and
21
electronic surveillance," Amended CampI. ~ 87, in connection with a program of "dragnet"
23 slJrveiliance that caplures the eontents of "virtually every telephone, internet and/or email 24 communication thaI ha~ been sent from or received WIthin the United State<; since 2001," id.

mll,4. As sel forth herein, the NSA does not engage in "dragrlet" surveillance of (he content of
26
27 o)mmunications as plaintitn allege.
28

Classified In Camera. E.t Parle Orclaralton (If 1.1. Grn. Kc;(h B. Ale.."d~,. Diro:tOT, NllioMl Se.:Otl!)· Ascncy

B

(i""" " 1I.~'m~ .~hlll>.:rl. I!I ",. v.

S,,,,•., uf.4m.rico. ., "I. (N". 01 · c\' -~93 - VRW; MDL Nu 01>-1791)

24 25

ClmililX! 111 C~mcro. Ex Parle Declaralion ofu. Gen. Kellh B. Alexander. Oireclor, Nali()l\3l SCCllnry AgCllcy

24

Virg.nia Sh«ben. er al. u. {lnucd SrOlrs ofAmcric~, el 01 (No_ 07-ev-693- VRW: MDL No_ 06.1791)

33 . (T S/ffSPh'SIh'OCINf) • • • • • • • • • • • • • •

')
10
34. (U) As a matter of course, the NSA cannot publicly confirm or deny whether any
II
individual is subject 10 surveillance activities because to do so would tend to reveal acrual
12
,) targets. For example, ir the NSA were to confinn in this case and others that specific individuals
14 are nottnrgcts of surveillance, but later refuse to comment (as il would have to) in a case
IS illvolving an acruallarge(, a peI'S<Jn could easily deduce by comparing such responses that the
16
p~rson in the latter case is a target. The harm of revealing targets of foreign inlel1igence
1-;
surveil Iance shoul d be obvi(lll5. ! f an individual knows or suspects he IS a largel of U .S.
18

20

't. ffS1jSIf10CfNF} I previously noted that NSA has estimated thaI il collects lnlemet

metadata associated with

21

22

~Y meta da~ , I previ

pnor to

, aboot _ _ telephony meta data rec<>rds was

presented to an analyst for review, sec Classified In Camera. Ex Pane Declaration of LTG Keith

24 B. Alex.ander ~ 27 (submitted May 25, 2007). and the scope of thai dispanry remains gencrall y

the same.
25

27
28

Cassl!ied In [O"'lIrO, Et PalTe Declal'1ltion of Ll. Gen. Keith R. Abmdo:r, Director, National Security ASCilc)'

25

V:rpll1ia ShUM". N al. ". {lnoted Slate.' vI AnIerica. .:' 01 (l'~. OJ ."v-I>'l_\ ·VR W; MOL No 06-1791)

intelligence aClivities, he would naturally tend to alter his behavIOr to lake new precautions

against surveillance. In addition, revealing who is not a target would indicate who has avoided surveillance lind what may be a ~ure channel for communication _ Such information could lead

a person, secure in the knowledge that he is not under surveillance, 10 help a hostile foreign

adversary convey information; alternatively, such a person may be unwiltingly utilized or even
6
forced 10 convey information through a secure channel. Revealing which channels are free from

surveillance and which are not would also reveal sensitive mtelligence methods and thereby

9 wuld help any adversary evade detection and capitalize on limitations in NSA's capabilities.

10
35 . (TS#SI

fOCINF)

II

• • • • • • • • • • • • • • • • • • • • • • • Ihe underlying meta data collection
12

13 CQuid not be confirmed or denied without causing exceptionally grave damage to the national

14 s,.:curity. [n particular, disclosure of whether the NSA currently receives plaintiffs' telephony or

I' JllIemct meta data from any telecommunications companies would aiso violate spe<:itic
16
provisions of the FISC Telephone Records and FiSC Pen Register Orders.
17

I~

19

21)

21

23 24 25
26
27

Classified 'n Camerll. £f POrle Dex:\a",tion of 1.1. Geo. Keilh B. AleXllndcr, Director. N3lion.1 Security Agel1C)'

26

V.''g,nw SI",l,.rrJ. ,~"I. ". UIlII~" !>JOles v(Amc"co. cilli. (No 07 -cv-6?) ·VRW; MOL N<> 06-17';)1)

t"_•••• TOI' '01 (IU: I r'\j'. '( '0 '0\1',

I-((1)*I~f'('!f:O~\~1+::~~e<OrF(eJ*R*N

B.

(U) Information Related to NSA Activities, Sourcc~. or Methods Implicated by the

Plaintiffs' A!legations and the, Harm to National Security of Disclosure

t.

(U) Plaintiffs' Allegations of a Communications Dragnet

36_ (U) r am also supporting the DNl's assertion of privilege and asserting the NSA's

SI atulory privilege over any other facts concerning NSA intelligence activities. sources. or

methods that may relate 10 or be necessary to adjudicate the plaintiffs' claims and allegations.

including that (I) the NSA is Indiscriminately intercepting the content of communIcations of
9
10 millions of ordinary Americans, SUo e,g.. Amended CompL '\i'\l1-4, and (ii) to the extent relevant II to this action, that the NSA is collecting the "call data" of people in the United Stllles with the
/2 assistance of telecommunications camer.;, rresumably including infoonation conceming the

plaintiffs' communications. See, e.g., ,d, ~~ 5-8, 58. As described above, the scope of the
/4
g .lVemmcnt's privilege assertion includes but is not limit<:d to: (I) facts concerning the operation

/6 of.he now inoperative TCTTOrist Surveillance Program and any other NSA activities needed to
/7 demonstrate (hat the TSP was limited to the interception of the content of one-end foreign
/8 o)mmunications reasonably believed to involve a member or agent of al Qaeda or an affiliated
/9
terrorist organization and that the NSA does not otherwise conduct a dragnet of conlcnt
20
surveillance as the plaintiffs aJlege; and (2) infonnation concerning whether or not the NSA
21
obtains transactional communications records from telecommunications companies. As set fonh
23 below, the disclosure of such infmmallon would cause exceptionally grave ha.nn to national

security.
25

CI~ified In Camera. [r f>lIm DL\:;ar.!lioij oIl! Ceo io:eieh B, Alcullticr. Director . N3/ional Securi!)! Agency

27

SI,",,_, V rg"tw Slit/ben, elol v. Un/h't!

oj America, rt {fl, (No, 07-cv-o~:;. VR W: MOL No_1)0.1 79 /)

TOI' Srnz t: I I 1'.)1',It '() r>; II 'n • • • • •~"OORRCt"'ff))t.Nt',1!'t.'leOifreOrJ.:~~I,

(a) (U) Information Related to the Terrorist Surveillance Program

37. (U) After the existence of the 1 SP was orficially acknowledged in December

2005. the Government stated that the NSA's collection of the content of communications under

the TSP was directed at international communications in which a participant was reasonably

believed to be associated with al Qaeda or an affIliated organization . Plaintiffs' allegation that
6
the NSA has undenaken indiscnminate surveillance of the content of mIllions of

s cummunications sent or received by people inside the United States after 9/11 under (he TSP is
therefore false, again as the Government has previously stated. 19 But to the extent the NSA must
10
demonstrate that content surveillance was so limited, and was not plaintiffs' alleged content
11
dragnet. or demonstrate that the NSA has not otherwise engaged in Ihe alleged content dragnet ,
12
highly classified NSA intelligence sources and methods about the operation of the TSP and NSA

14 intelligence activities would be subject to disclosure or the risk of disclosure. n)e disclosure of

I~ whether and to what extent toe NSA utilizes certain intelligence sources and methods would
16
reveal to foreign adversaries the NSA ' s capabilities, or lack thercof, enabling them to either
17
evade panieular channels of communications that are being monitored, or exploit channels of
18
19 commWlieations that are not subject to NSA activities - in either casc risking exceptionally grave

20 harm to national security,

21

38. (U) The privileged information that must be protected from disclosure includes

22
tIlE: following classified details conccmtng content surveillance under the now inoperative TSP.
2J

39 , (TSJrTSP,l,IWK>CtNF) First, interception of the contcnt of communications

25 under the TSf> was triggered by a range of information, including sensitive foreign intelligence,

26

27
19 (U) See, e.g., Public Declaration of LTG Keith B. Alexander, Director, National 28 Security Agency ~ 16 (submitted May 25 , 2007).

Ciasslfic(\ In Camera. Ex Parte Decla-!"llion of Lt. Gen . Keith B. Alexander. Oin:clor. Nalimlal Sec"ri!), Agency

28

Virgln/" Shllhen el nl v. Unlf~tf S!(I/~t ()f A,"~nc~ tI nl (No 07--<:v·693·VRW : M Dl. "1o. 06 · 1791)

"01' :) I.(' R: l:: piTS I'lit :0:-',11 r~ l• • • • •,"',/'eo~f{t'e'eO~l<Ififtl~~('.tt'>rf-}**

~'f-UrltRt-1+(,-+J',-rl~I""""'(·-''(fl')~(rtlt"I!'<l"'Ir--._ _ OI((,fJlG ,\ {)1 O RN ohtainaJ or derived from vanou~ sources indicating that a particular phone number or email

2 a.:Jdress is reasonably believed by the U.S. Intelligence Community to be associated with a

nlember or agent of al Qacda or an affiliated terrorist organization. Professional intelligence

o meers at the NSA undertook a careful but expeditious analysis of that infomlation, and

o)nsidered a number of possible faclors, in determining whether 11 would be appropnate to target
6
a telephone number or email address under the TSP. Those factors included whether the target

phone number or email address was : (I) reasonably believed by the lJ .S. Intelligence

Community, based on other authorized collection activities or OIher law enforcement or
10
intelligence sources, to be used by a member or agent of al Qaeda or an affiliated terrorist
II
organization ;
Il 1 ~ I. I ~ 16 17 IS 19 20 21 21 B 24
lS 26 27 2S

u. ('Ia-a;licd In ["mua, £<P(IflB Dec\arallon of Gen. Keilh R. Alexander, l)"cctN. NOli!'nal Security Agency

29

v, '-gl~io Shoberl. c/ al v ljn"cd SIQles ofA ", cnc~, fl ai, (S o. 07 -c,~69J - VRW: M DL No. 06-1 79 1)

TOPS I:( 'Hf1 l Si' (: · (I~R·COt~ , ~orllRN

40. (fSHTSPHSlHOCINf) Once the NSA delerrntncd thatlhere were reasonable

grounds to believe that the target is a member or agent of al Qaeda or an affiliated terrorist
5
llrguniUltion, the NSA took. steps to focus the interception on the specific al Qacda-relawi target

lJ.'1d on communications of (hat target that were (0 or from a foreign country. In this respect, Ihe

l';'SA's collection efforts

IhcNSA had

reasonable gTounds to believe carry the "one-end" foreign communications of members or agents
10
of al Qaeda or affiliated terrorist organiz.ations.
II
41.
12

I)

I~

IS

16

17

l~

19

10

42.

11

21

21

24

2~

26

27

2~

or ClA"5ifiC(j J" Camera. F..r Parle \)<xl.ration U . (;"" Kellh B, Alexmder. I>irec!or. NOli"n,,! Security Agency

)0

V',,!:lmD SIo"beu. '" <II. v. {JIII/ed Sum-s ofAOler,cu. eJ nt. (No 07..::v'{)93.v RW. M DL No. 06-17(1)

-tt-)t'-Sl.t rtt T I :-lP CU"·' I'" I

4
43.

~~*,""The NSA look specific steps in the actual TSP

interception process to minimize the risk thai the communications of non-targets were

illtercepted. With respect to telephone communications, specific telephone numbers identified

8 through the analysis outlined above were • • • • • • • • •

• • • • • • • • • • • • • • • • • • • • • • • so that the only wmmunicalions

10
intercepted were those to or from the targeted number ofan individual who was reasonably
)I
belieVed to be a member or agent of al Qaeda or an affiliated terrorist organization.
12

13

44. ffS~ffSPflSb1'oefNA For the interception of the wntent oflntemet

14 wmmunications under the TSP, the NSA used identifying infonnation obtained through its

15 a.,al ysi s of the larget, such as ernai I addresses • • • • • • •' to largel for collection the
16
wmmunications of individuals reasonably believed to be members or agents of al Qaeda or lin
17

28

C la~~iti~ In Camero. Ey POrie Declaralioo of LI . Gen. Keilh Il AI...,,,der. Director. Nalronal Security Agency

31

r. ,.glllill Siw/'"ri. rl "I ". t/mlrd Slmr, of,jmuic<1. or "I. (No. 07·c,.(,Q)·VRW: MDL Nu. {)(j.179t)

aO"ihoted terrorist organizallon . • • • •

The NSA did not search the conlent of the

5
communications
6

with "key words" other than the targeted se\cctors

7 themselves. Rather, the NSA targeted for collection only email addresses • • • • • • •

• • • • associated with suspected members or agents of al Qaeda or affiliated terrorist

organizations, or communications in which such • • • • • • • • were mentioned . In
10 addition, duc to technical limitations of the hardware and software, incidenlal collection of non-
II
target communications has occurred, and in such CIrcumstances the NSA applies its
12
mimmization procedures 10 ensure that communications ofnon-targ~ts are not disseminated. To

14 tlte extent such facts would be necessary to dispel plaintiffs' erroneous content dragnet
1~ allegations, they could not be disclosed without revealing highly sensitive intelligence methods.
16
45, (TSfffSPHSI:HOCfNF) In addition to procedures designed to ensure that the TSP
17
was limited to the intemational communications of al Qacda members and affiliates, the NSA
18
19 also took additional steps to ensure that Ihe privacy rights of U.S. pcrsOIlS weTe protected. •
20

28

Clas:sir.cd /" Comrl'lJ. Ex PQrr~ ~larJli()n of LL Gt'll, Kwh B. Aleundet, Dire{lor, N~lIonal Securiry AgOlCy

32

V:'1!,inioSln1ber(. ~I aI, ". UnllM Sia/", <'/ Am,'nco, CI nl. (No. 07·c".{,9J· VRW; MDl t-!" 06.1791)

_ _ _ _ _u 46. (fSlffSPIlOCfNf) • • • • • • • • • • • • • • • •

-7 .......................
9 10 II 12 I.l

I~

16

17

18

19

The foregoing information about the targeted scope of content

2() oJlIection under the TSP could not be disclosed, in order to address and rebut plaintiffs'
21

22
2~ (UfffiBQ) In addition, in implementing the TSP, the NSA applied the existing Legal Compliance and Minimization Procedures applicable to U.S. persons to the extent not 24 inconsistent with the presidential authorization. See United Slates Signals Intelligence Directive (USS1D) 18. These procedures require that the NSA refrain from intentionally a~uiring thc 25 communications of U.S. persons who arc not the targets of Its surveillance activities, that it destroy upon recognition any rommunications solely beIWeen or among persons in the United States that it inadvertently acquires, and that it refrain from identifying U.S . persons in its 27 intelligence reports unless a senior NSA offIcial determines that Ihe recipient of the report requires slIch infoonation in order to perform a lawful f'wlcl1on assigned to it and the identity of the U.S. person IS necessary to understand Ihe foreign Intelligence or 10 assess its signifiCllllcc.

CI"s,i~ctl /11 CamfTo. Ex PurlPOociorafion of Ll (ie" K~i,h II AiCXA!\dcr, Dir<-c1Qr. Na,ion"i s..curi,y A~01Cy

33

1'_, llin1a SI,,,bcrt. CI 0/, ". Untrcd Sin/t.' of AI"~ri,''' . ,','/ (N" (J7--e,,-{}01-VR, W: M DL No_ ()(i-17?1 i

TOI' SlT Rf '1, r.~ f" CO\ lI ', " _ ORCm,U' <01O R~'
alfegahon that the NSA engaged in the alleged conlent dragnet, without revealing specific NSA
2 S'Jurccs and methods, which would cause exceptionally grave damage to the national security. 47 . (TSIffSPIISlIIOC/l'}F) In addition 10 these facts about the TSP, facts about other
I\'SA intelligence aC1ivilies would be need<XI 10 address or prove that Ihe NSA does not conduct
the a!leged content dragnet.
6

9
10
II In short, there IS no
12
other "drllgnet" program authorized by the President after 911 I under which the NSA intercepts

tIle content or vinullily all domestic and international communications as the plaIntiffs allege.
IS Again. however, infonnation about NSA conlent surveillance activities beyond the TSP could
16
not be disclosed in order to address and rebut plaintiffs' allegation without revealing specific
17
NSA sources and methods and thereby causing eXcqJlionally grave damage to national
I~

19

20

21

2.l ffSIFFSWISI:NOCINF) To the e)(t~lI relevant to this case, additioMI facts about Ihe

23 operational details of the TSP and subsequent FlSA authorized content surveillance aClivities

a'iso could nOI be disclosed without exceptional harm to national security. including for example

26

- information Ihat would demonstrate the operational swil1n~s and effectiveness of u\iJizi

evntenl surveillancc in

wilh the mela dala activities. As

Ion ana 's described herein. a

P, in conjunction with meta SA to obtain rapidly not only the content

of a panieular communication.. but connections between thatlargel and others who may form a

web of al Qaeda conspirators. 28

em"",,,, Class,fj..-d/n

Ex Parle nocl.",.ion ofU. Om Keith R. Ak..nd"". Diro:«Qr . Nalio""l Se.:uri", A~ency

1':'I(In", Sh"bcri. ~I al. v. Umled Slb'("1 ()j A",air~ rl nt, (No 07-cv-69}.vRW; MOL No 06-17"1)

(b) (U) Other Classified Information Concerning NSA Activities

48. (fSIFFSP-IISIHOGNF) To the extent thal1he plaintiffs' "dragnet" allegations also

implicate other NSA actl vities, such as the bulk collection of /lon-con ten} communication meta
4 d3ta or the collection of communications records, see. e.g., Amended Compl. 1 5R. addressing

thel r assertions wou ld rcqui re disc\osure of NSA sources and methods that would cause
6
t: (c~plional1y grave ham) to national security. As also explained herein, these colleclion

activities are now subjccI to thc ordcrs and supcevision of the FISC.

?

49. ~ As noted above, starting in October 200 I, and since

10
2004 pursuant 10 the FISC Pen Register Order, the NSA collected bulk meta data associated with
II
electronic communications • • • • • • • • • • • • • • • • • • • • • • • •
12

13

14

I ~

m See supm 25,28. 24 • • • • • • • • • • • • • •

16

Ii

I ~

l'i

20

21

22

("I~;..,;fiod In Comero. F, I'orl~ Dc,I",.ti,." llfll Gen. K,,;lh B. Alexander. Dil"("C!or. N.f;,,",,\ Soo",,'y Agetlcy V,rg",;oShlJhat. rlol v L/"'Ied 51<1/•., "/A",,,,;,.', "'01, (No, 07·cv·693·VRW: MDL No. 00·17<)l)

_

pursuant to the FISC Telephone Records Order. CCl1ain telecommunication companies

provide the NSA with bulk telephony meta data in Ihe form of call detaIl records derivoo from

3 infonnation kept by those companies in the ordinary course ofbusiness. See supra ~ 25, 27 .

4

50. (fSHSIlfOCiNf1 The bulk meta data collection activities that have been

undertaken by the NSA since 9111 are vital tools for protecting the United StBtes from another

catastrophic lerronst anack . Disclosure (){ lhese meta data actIVities, sources, or methods would

(;;Juse exceptionally grave hanJl to national security It is nol possible 10 target collection solely
9 on known terrorist telephone or Internet identifiers and effectively discover the existence,
10
10cation. and plans oftcrroriSI adversaries. • • • • • • • • • • • • • • • • • • • • II
12
Il

15 Ib 17 18

20 21

ClaSSIfIed In Comera. Ex Parle De(l....,ion of \..J.. Gm. Keith B. Alf"lUInder. OilT<1or. N.,;on.1 Securi!)! A~C1Icy

36

V:rg!n!11 sr",hut. ,/ ,,/. ,. Un"d SI~Ic.> o!A",""tfl. CI 01. \]';0 07.ev.69J . VRW; MDL No. 06.1791)

-11)1" \ [( It I T T,':l' ( () \11'<"I

'ORCOI<l -~ O, ttftt<:-

. lllC only effectivc means by wluch NSA analysts arc able cuntinuously

to keep track of such opcratJves is through mew data co\lcclion and analysis.
or (SffSIHNF} Technical Det.ails Anall·tlc Ca[!abillties
51. (TSHSfhlOClNF) In particular, the bulk collection of Internet and telephony meta

data allows the NSA to usc critical and unique analytical capabilities to track the contacts.

through the use of two highly sophisticated tools known as "contact-chaining" and

o

Contact-chaining allows the NSA to identify telephone numbel":'; and email addresses

10
IIlal have been in contact with known

numbcrs and addresses; in tum, Ihose

II
contscts caJl be targeted for immediate query and analysis as new
12

numbers

13 and addresses are identified, When the NSA performs a contact-chaining query on a teITorist-

14 associated telephone identifier,

15

16

17

19 20
11
22
52_ fFS~fSIIlOEfN F}
23 24
25
26 27

(lass ifie.J fn C"mem. £,. Parte Dochr~"on of I.e Ge'. K(,.llh B, A'"~ond.,.. Dmxtor, ',I ;(I",1 Sccunty AgtTIcy

37

II rgJni~ Sf",;"'r/, ,,' "I. ,', Unued S,n/C,' oj.'mm,.", ," "f, \ '0. (J7-N-t>93,VRW. MI1 L '<0, 06-1791)

1'01' SECI{ ET 'T:';\',. r:OMI~n-.

" ORCO WH O r OR~';

,,-=. ,, '

6

7

53 .

~~ .~.
\A

'~~h "" ..

~

I

.~

9

10

II

12

14 IS 16 17
I~

-21
22
23
54 .

-
~ Because il is impossible 10 detem,ine ill advance

2S which particular piece of meta data will turn out to identify II terrorisl , collecting meta data in

26 bulk is IIi tal for the success of conllict-chaining

In . NSA analYSIs know thaI e

I<:rrorists' tele(lhOne calls arc located somewhere in the bilhons of data bils : what they cannot

Classif,,:u In Camero . I:J: Parte Declaration of Lt. Gen, Keith B. Alexander. Oircclor. National Security Agency
i""II'n'o SI",berl, ~I"I " (./nJlcd Slal<, ofAmrrico. fI n/, (No. 07-c\'· fl93 · VRW; MOL No, 06-1 791)

T(l P ~ [(,R ET. ;l~I' ; CO~Wa_

" ORCON.'NorORN

orders of the ForeIgn Intelligence Surveillance Court mentioned throughout this declaration that
8'Jthorize NSA intelligence collection activilies, as well as NSA surveillance activities conducted
3 pursuant to thc now lapsed Protect America Act ("PAA'') and current activities aUfhorized by the
FISA Amendments Act of2008. As noted herein, the three NSA intelligence acti vities initiated
alter the September II allacks to detect and prevent a further al Qaeda attack - (i) con lent
C0l1ection of targeted al QaC(b and associated terrorist-related communications under what later
s was C3l1ed the TSP; (ii) internet meta data bulk collection; and (iii) telephony meta data bulk
9 c·)lIechon - have been subject to various ordL'TS of thc FISC (a~ well as FISA statutory authority)
10
a.,d lITe no longer being conducted under presidential authorization. The bulk collection of non-
II
c)ntent transactional data for Internet oommunications was first authorized by the FISC in the
1~
13 July 2004 FISC Pen Register Order, and the bulk collection of non-content telephony meta data
was fIrst authorized by the FISC in May 2006. TIle existence and operational details of these
15 orders, and of subsequent FISC orders reauthorizing these activities, remain highly classified and
I~
disclosure of thi~ infonnation would cause exceptionally grave harm to national sccurity.16 In
17
addition. while the Government has acknowledged the general existence of the January 10,2007
IS
I~ FISC Orders authorizing electronic surveillance similar to that undertaken in the TSP, the
20 C<:Jntent of those orders, and facts concerning the NSA sources and methods they authorize,
21
22
16 ffS""SIJ/OC~F) For lhis reason, tne FISC Telephone Business Records Order and
FISC Pen Register Orders prohibit any person from disclosing \0 any other person thll\ the NSA has sought or obtained the telephony meta data, other than to (a) those persons to whom disclosure is necessary to wmply with the Order; (b) an allomcy to obtain legal advice or 25 a~sistance with rcspectto Ihc productionofmel3 data in response to the Order; or (c) other persons as permitted by the Director of the FBI or the Director 's designee. The FISC Orders further provide that any person to whom disclosure is madc pursuanlto (a), (b), or (c) shall be 2; s:Jbject to thc nondisclosure requirements applicable to .1 person to whom thc Order is directed in dlc same manner as such person.

Ci.",if,ed In Comera. [,. POt'lq Ded~r.\;oo of l, . G"" Keilh B. Alcllllndc:r. D'l\lC\or. l'al;onal Security AgCtl<y

41

~. 'sin,,, ~Io"n,.rl. d n/ ,'. (inlf(4 S((J(~.' MA"""·I"~. cr ~/. (Nv. Q7.cv.M3·VRW; M f)I N(I (1(,·1 7Q I)

c,mnot be disclosed without likewise causing exceptional hann to national security. Subsequent

c')ntent surveillance sources and methods utilized by the NSA under the PAA and, currently,

under the FISA Amendments Act of 2008 likewise canno! be disclosed. I summarize below the
4
proceedings that have OCCUlTed uod",. authority of the FISA or the FISC.

58. (TS/iSIh'OCINF) (a) tTllernel Ml?ta Dnta: Pursuant to the FISC Pen Register

Order, which has been reauthorized approximately every 90 day!' after It was first issued, NSA is
1

authorized 10 collect in bulk, from telecommunications carriers, mcla data associated with

9 electronic communications • • • • • • • • • • • • • • • • • • • • • • • • •
10

II

12

I J

The NSA is authorized to query the archived meta

14 data collected pursuant to the FISC Pen Register Order using email addresses for which there

I ~ were facts giving rise to a reasonable, articulable suspicion that the emailaddrcss was associated

16
with • • • • • • • • • • • • • •
17

The FISC Pen Register Order was most

recently reauthorize<! on • • • •> 2009, a,nd requires continued assistance by the providers
18

1'1 through • • • • • 2009.

20

59. (fSHSIHOCfNF) (b) 1't!/ephom' Mela Dala: Beginning in May 2006,Ihc NSA's

21 bulk collection of telephony meta data, preViously subjoct to presidential authori7.ation, was
12
a'Jihorized by the FISC Telephone Business Records Order. Like the FISC Pen Register Order,

the rlSC Telephone Business Records Order was reauthorized approxImately tvery 90 days.

Based on the finding that reasonable grounds existed that the production was relevant to efforts
26 to protect against international terrorism, the Order required telecommunications carriers 10 27
produce to the NSA "call detail records" or "telephony metadata" pursuant to 50 U .S.C.

e ('Ia«if1c.J In Camera. £y Pane Dcci"dt;on o!' Lr. Gm. Keith Ateund"" Director, NQltOMI Security Agency

42

V.rginin SI",berl, cr nl ,'. UoltcdS/lI/<s ufAmem','. ,') al. (No. 07 ·cy·693·VRW; MDL No 01'>-1 I')t)

TOP b[CR[T,rT SP CO ' < I I ' . - I _ ' OI{cO?~:NorOlw

lOP ',I ( IUT P\I' C( 1\\1'\'1 • • • • •r+O~R~('f·0tl"N&,..>.,.fl()rf-1fl()*I~.J..('';§ 18611e] (authonzing the production of business records for , illler alin, an investigation 10 protect against international terrorism). Telephony meta dala was compiled from call detail data maintained by the' providers in the ordinary course ofbusincss that reflected non-contenl illfonna!ion such as the date, time, and duration of telephone calls, as well as the phone numbers

u;ed to place and receive the calls. The NSA was authoriz.e<J hy the HSC to query the archived
6
telephony meta data solely with Identified telephone numbers for which there were facts giving

rise to a reasonable. articulablc suspicion that the number was associated with • • • • •

I• • • • • • • • • • • Q

(that is. s "RAS" determination). The FISC Telephone Business

10
Records Order was most recently reauthorized on September 3, 2009, with aUlhority continuing
II
U[}ti\ October 30, 2009.
12

13

60. ff6NS IN()CI?J F) As noted above, see supra note 12, on JIInuary IS. 2009 , the

14 Depamncm of Justice (" DOr) submitted a compliance incident repon related to the Businc::ss

15 Rccords Order to the FISC, based on infonnauon provided to DOJ by the NSA, wh.ich indicated
\6
tlmt the NSA 's prior reports to the FISC conceml[}g implementation of the FISC Telephone
\7
Business Records Order had not accurately reported the extent to which N SA had b(XTI querying
I~
19 the telephony meta data acquired from carriers. 111 swn , Ihis compliance incident related to a

20 process whereby currently tasked telephony selectors (i.e .. phone numbers) reasonably believ~
21
to be associated wuh authorized counter lelTorism foreign intelligence targcts under Executive
12
(·rder 12333 were revicwcrl againstlhe Incoming telephony metaosts to determine iflha!

24 number had been in contact wilh a number in Ihe United States. This process OCCUlTed prior to a 25 formal determination hy NSA that reasonablc, articulablc suspicion existed that the selector was

26 Il"-Soeiatoo wilh • • • • • • • • • • • • • • • • • and was not consistent with

l'-'SA's prior descriplions (lfthc process for querying telephony mela data. 2&

Classified In Camerll. Ex Porte O('(lar.u;(\n of Lt. Gen. Keith B. Ale..andcr. Din,clor, Na.;onal S.:.:uriIY Agency
V"''ti''i<JSh"b~rt. e(o/. v UIl;lrdSltl/~.soJAmenco. ~IQI. (No. 07<v.{,9].VRW; MDL No. 06-1 79\)

61. n=&H6INOC!NF1 By Order daled March 2, 2009, the FISC directed that the NSA

nlay conti nue to acqui rc call detai) records of telephony meta data in accordance with the FISC

1 cl ephonc Business Record Orders, but was prohi hi ted from accessi ng data acquired except in a

limited manner. In particular, the Government could request through <l motion thai the FISC

3'Jthorize querying of the telephony meta data for purposes of obtaining foreign intelhgence on a
6
case .by~e basis (unless otherwise necessary 10 protect against immin(.'T)1 Ihrea\ to human life,

subject 10 report to the FISC the next business day). In addition, following the Government's

disclosures concerning compl iance with the FISC Orders. the FISC imposed other obligations.
tU
including to report on its ongoing review of Ihe matter and 10 file affidavlls describing the
II
contmuing value of the telephony mela data collection to the national security of the United
11
13 States and to certify that Ihe information sought is relevant to an authorized investigation. The
t4 Government compleled its end-la-end review and submitted ils report lUld the required affidavits
\~ to the FISC on August 3, 2009. In that rcpon. Ihe Governmenl outlined the Sleps NSA had taken
16
to address and COlTect Ihe instances of noncompliance with FISC Orders, liS well as the remedial
17
safeguards put in place 10 mOnilor and ensure compliance with such Orders in the fulUIe. The

19 FISC most recently renewed the Telephone Business Records Order on September 3, 2009. This

2U 11llest renewal restored 10 NSA the authority to make RAS determinations on telephone

21 22 2.\

-identifiers nominated by NSA personnel 10 use in conducting contact chaining_ 62. ~,qSP{,l81._ _(ff',/Ot:l·G,lN.I<t NSA is commit:1cd to working with the r:rSC

24

25 on thIS and other compliance issues to ensure Ihal this vital Intelligence tool works approprialely

a:ld effectively. For putposes of this litigation, and the privilege assertions now made by the
27
['N I and by the NSA. the intelligence sources and methods described herein remain highly 28

Ciassiftal/n e"'''CI'II. E, Parle D.:dannion of Lt. Gen . Keith B. Ab.nd"". Director. National SccunJy Ag<'f1<y

44

V.'l'gInia Siulben. el 01. v. Un/led SIal,., 0/ A"'eric~. el 01. (No. U7-<"1 ·6~·3·VRW; MOL No. 06·1791)

ciassifi.ed and the disclosure Ihat • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • would compromise vital NSA sources and methods and result in exceptionally grave hann to national secunly.
nsc 6). {TSIffSPI+81.l10GINFJ (c) ('on/en/ Collec/ion: On January 10,2007, the
i~. sued ore"!TS authorizing the Government to conduct certain elcctTonic surveillance that had
6 7 R 9 10 II 11
the Government determined that there was probable
16
(2) the communication is to or /Tom 8 foreign country (i.e.,
17
a onc-end foreign communiC<ltion to or from the United States), Thereafter. any electronic
18
19 surveillance that was occurring as part of the TSP became subjcct to the approval oflhe FISA 20 Court and the TSP was not reauthorized. 2)
1\

Clmificd I" Carnua. £.f Pant Ikcl a:atiOll ofL1. GtO Keith B Alexander, Di"'~IOf. NJI;Ooal S,"" uri ly Agc:o,y

45

Virgmw S ill/heel. ~I nl ,'. United SIMC.\ uj•• ",criCA. CI al. (N o. 07- cv.{)93.VRW: MDL Nu. 06- 11'11)

64 , (T6,%IIIOC~F) The Foreign Telephone and Email Order remained in effect

unlll the Protect America Act ("PAA") was enacted in August 2007. Under the PM, the r1SA's

definition of "elcctronic surveillance" was clarified 10 exc:lude "surveillance directed at a person

reasonably believed to be located outside the United States," 50 U.S.c. § 1805A . ne PAA
5
a'Jthorized the DNI and the Attorney General 10 jOintly "authorize the a~uisition of
6
foreign intclligoocc infom1ation concerning persons reasonably bclieved 10 be Otilside the

Lniled S!4tcs" for up 10 one year, id § 180511(a), and to issue directives 10 communications

sCTVice providers requiring Ihem 10 "immediately provide the Governmenl with all information,
10
facilities, and assistance necessary to accomplish the acquisition" of necessary intelligence It
information, id. § 1805B(e}. Such directives were issued \0 telecommunications companies and
12
I ~ the NSA conducted content surveillance of overseas targets under the PA A through their

fucl1i1ies .

15

65 . ~SIH{)CfNF) Beginning in Septembcr 2008, expiring directives that had been

)6
is.sued under the PAA for content surveillance of overseas targets (including surveillance of

s!)ccific • • • targets overseas) were replaced by new directives for such surveillance
18
19 i5-sued pursuant to the FlSA Amendments Act of2008. Title I of the nSA Amendments Act of
20 2008 authorizes the targeting of persons outside of the United States without individual FISC
21 orders but subject to directives issued to carriers by the Direclor ofNationallntelligcnce and the
22
Attorney General under Section 702(h) of the frSA for the continuation of overseas surveillance

14

CiaS5if,ed In Comera, f..T Porl~ Declaf1lllon of 11. Gcn Keilh B Aku ndcr, Dir«lor. ""ti(\nA\ " ..:onIY A,,,,>cy

46

Yi/"flnitJ Sl",b~rl. vIol I', Urfl/cd SI<",,' rif Ame";I'o, CI al. (Nil OJ"",,6CJJ. VIHV; MDL ....11. 06 -1NI)

under this new authority. Sec SO V.S.C § 1881 a(h) (as added by the FISA Act of 2008 , P.L , 110·261).

J

66. (TSlffSPHSIHOCfNA In sum. Ihe post 9111 content surveillance activities

undertaken by the NSA evotved trom the presidentially authorized TSP to the FISC Foreign

Telephone and Email Order, to the directives issued untier the PAA and, ultimately, to the

directives that are now being issued pursuant to the I"ISA Amendments Act of 2008. Each

a llhorization sought 10 enable the NSA to UIldertake surveillance on numerous multiple targets

9 overseas without the need to obtain advance COUJ1 approval for each target, but nonc has entailed

10
the kind of indiscriminate content surveillance drngnet on telephone and Jnlemet
II
communications that the ptaintiffs allege,
12

3.

(U) Plaintiffs' AlIeglitions that Telecommunications Companies hJlve Assisted

the NSA wIth the Alleged ActivltJes

14

67. (U) TIle third major category of NSA intelligence sources and methods as to
tS

16 which J am S\.Ipporting the DNl"s assertion o( privilege, and assel1ing the NSA 's statutory

17 privilege, concerns information that may tend to confinn or deny whether or not
18 tdecommunications providers have assisted the NSA with alleged intelligence activities.
19
Plaintiffs allege that they are customers of telecommunications carners such as AT&T and
20
Verizon, and that these companies panicipaled in the alleged surveillance activities that the

22 plaintiffs seek to challenge. As set fonh below, confirmation or denial of a relationship between

the NSA and any telecommunications carriers on alleged intelligence activities would cause

exceptionally grave harm to national security.

25

68. (fSIffSPOSI •

'J'OCINF) Because the NSA is not engaged in the

26

indiscriminate dragnet of the content of domestic and international communications 8S the

lS

Classifl~ hI (Amua, £I Perle Occi,w,on of l..L Gen. Ke,(h B. """..ndcr, Dira;ior. N.,i"n, ' Sr.;uril) Agency

47

V"lI inill SI",berl ~/ 01 I'. U",(~d SlMt:.{ "f Amtn'clI, iI 01. (No, 07-c,,·('<l.\·VR w; tv! DL No Oti· 17q I !

plaintiffs allege, no telecommunications carriers have assisted the NSA with any ~uch aeti \'l1y2&

6

9

10
69. (T-SIITSP,I./OI. HOCfNF)
\I

12

13

14

15

)6

_.17
IS 19
20

21

22

28 ~TSIITSPHSI

NOCfNf) On September 19.2008, then-Allomey General

Mukasey submitted a classified declaration and certification to this Court authorized

802 of the FISA Aet Amendments Act of2008, see 50 U.S.c. 1885a,

16

28

Classified In Camerll. Ex Parle DcdC"3!ioo of l.i C"". Ke;th B Alexander, Director, Ki(ian,! S<:cUrily Agency

48

Vu-ginia S/luberl, L'lol v Uniled SIOIe.s o/Anr,',;co, t>1 al (No. 07.cv-693.vRW; MDL :"" 116-1791)

TTr()rl'I'....,.~<-fI"·1t~ltrt7, -+I ---t-I.,..;.I..'.",,"(t."T"(jr't\7t"dt".<~:l-I"'"• • • • • • •r'eO~I~f('t-P~ No r 0 RN

4
. -6
7'

~
10 II
70.
12 13 14 15 16 17 I ~ 19 20 21 22 23 24 25 26 27
2~

('!a'>Slficd I~ Camrru. F.:t Pnnr Dedar.!lion of U. G,-n. Keith 11 Abandc:r. Din:Ltor, Nalional Security Ag.:nc)·

49

V'X">lcl 51",b",l, Clol. v. Unil"d SI~I~.rofAm,'ne·n. CJ "I (No ()7..,v.o93-VRW: MDL No 06-1791)

9

10

71. (fSflSt ._~~M:'O*C",+;,~f>,f-.If)fq • • • • • • • • • • • • • • •

II

12

13

14

I ~

It>

18 19

Classdiro In Camem, f.J Pane Ded"'3lioo or Lt, G ~n, Kei(~ B. Alcxaodc.-. I)ir=or. Nalion.1 Set:lJrily Agency

50

Vl1'gimo Shllbcl'f. cl aJ, " UnllcJ SI(1I(":.<0/Am,:rica, ClN, (No. 07-cv-693-VKW; MDL No 06-1791)

, .....

"'Ir ' ,J

'r.r,~n

6

9

72-

,~. LI'"

10

II

12

13

14

15 16 17 18 19 20 21

-
15

26
2? 18

,.,.,. ...... no., '"'

Classified In Camera, Ex Porlt' Declar.IBOA of Li Gen . Keilh B Ale"ndcr. Director. National Securily AgcFtcy

5

v'rgln,,,SJ,,,bert, tldl." UnlletfSJafesQfA"'~ri~a, 01 ,,1 (No O?-cv·693·VRW; MDL No. 06·1791)

~tE'.'.Ri_-rf' F ".) f,'',,:' H', )\l~

',fJRCONfNOFOR?,

n 1 Of' S l ("l ~

1': .1' , f O~d[', T

6
7), (fSfJS'.

9 10
"
12 13
14
15 16 17 18 19 10 21

13 24 15 26 27 28

Cla.<;;if,ed In Comera, Er Parte Dcdallllion of U. Grn Kwh B, Ak"andcr, Dim:lor, Nallen" Se<ourily Agency

52

":~i"iaSh"lxrl ~I nl. v, UH/I",I Siaies ofAmcnca, "01 (No. 07-c,'·693-·VRW: MDL No. (J(,..1791)

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Ciassiflo.l/J! Camera. Er Parle Declaration of L(. Gen. Keith B, Alo.andcr, Director, N,,{Lu",1 Scrurity Agency

53

V:rginw Slw"n1, et nl. v. Unll~d S,a'es f'f Am.nco. cl rd. {Nn 07-<;\J~~3. VRW: MOL '.~. (lb. I )~ I)

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(Ia <s;r.ed In Cam..,.". E, Pnne Deci.'Jlion of l~ Gen. Keilh B Ak.andcr. Di=t1lr. N~liono! Security Agency
V:'gU1/ ~ SIaJ/h~'1. elol. v. UJJ1",~d SUt" -.\ (1{ A,"~ricQ, In 01. (Nct 01'-CV .(lq~·VRW ; MDL No. Ob-119J)

infonnation. including critically sensitive infonn<llion aooul NSA sources, methods, operations,

tllfgel.~.

Indeed, any elTon merely to allude to those facts in a non-classified

fashion could be revealing of classI licd details thaI should nOI be disclosed. Even seemingly 4 minor or innocuous facts, in Ihe context of Ihis casc or other non-c1a.~sified infonnation, can lend

to reveal. particularly 10 sophishcaled foreign adversaries. a much bigger picture of U.S.

intelligence gathtring sources and methods.

78. (fSHSb'INF) nle United Stales has an overwhelming Interest in detecting and
I 9 I thwarting funher mass casualty attacks by al Qaeda. The United States has already suffered onc
10
attack tllal killed thousands, disruptetlthe Nation's financial cenler for days, and successfully
I II struck at Ihe command and control ceoter for the Nation's military. AI Qaeda continues to
12
I 13 possess the ability and clear, stated intent to C<lrry oul a massive attack in the United States that
I
14 could resuh in a significant los5 of life, as well as have a devastating impact on the U.S.

15 eo;onomy. According to the mosl recent intelligence analysis, attacking the U.S. Homeland
16
n:mains one of al Qaeda' S lOp operational priorities, !.ee Classi fied /" Camera Ex Parle
17
['Ieclaration of Admiral Dennis C. Blair, Director of National Intelligence., and al Qacda will
18
19 keep trying for high-impact attacks as long as its central command structure is functioning and

20 affiliated groups are capable of furthering its intercsts.

11

79. fFSI-J8J~~ AI Qaeda seeks to I.lSe our own cornmuniC<l.tions infi'astructure

against us as they secretly attempt to infiltrate agents inlO the United Stales, waiting to attack at a
23
time of their chOOsing. One of the greatest challenges the United States confronts in the ongoing
24
effort to prevent another catastrophic terrorist atlacle against the Homeland is the critiC<lI need 10
26 gather intelligence quickly and eITectively. Time is of the essencc in preven!ing terrorist attacks,

a:1d the government faces significant obstacles in finding and lTacking agents of al Qaeda as they

C'a>liflc.l/. Comero. Ex Porte Dc:tSf1IhCln of LI. Gen. Ke;th B. At,..nd",. 0'='0'. Na,ioo,t Secur,cy Agency J'.;'1:'",0 Shub.>rC. ~I al. I' U""ed S"'tes o/Ameri'Q. ,/ III. (No. 01.c,,~91·VR\V: MDl No. 06-1791)

HJI' SI ('RI-'I ·I .if COl< II''; r _

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manipulatc modem technology in an allempt to communicate while remaining undetecled . The

l--SA sources, methods, and activitles described herein are vital tools in this effort.

VlII, (U) Conclusion

80. (U) In sum, I support the DNl's assertion oftne state secrets privilege and
5
statutory privilege to prevent the disclosure of the infonnation described herein and detailed
6
herein. I also assert a stalUt':\ry privilege under Section 6 of the National Security Agency At-t

8 Wllh respect 10 the infonnation described herein Ihal concerns Ihc functions of thc NSA. Public
Q disclosure orthe aforementioned intelligent'e sources, methods and activities could reasonably be 10
e~pectcd to cause exceptionally grave harm to Ihe national security of the United States,
II
Consequently, because proceedings in this case risk disclosure ofpnvileged and cla.~sified

I :I intelligence-related infonnation, I respectfully requesl thsi the Court not only protect Ihal 14 inforrnallon from disclosure but also dismiss this case to prevent exccptionally grave nann 10 the IS national security of the Uniled States.
16 17 18 19 20 21

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24 2S 2b 27 lS
C!as:.oified In Camero. E.t Pon<! Dccbratiorl ofLt. Grn Kc:ilh iI. AICl<dndcr, D'n'Clor, l\ " ;ort,1 Secun.y A8etlc)' l';rg;niaShub;tJ1. "nt. v. U""edS'a'cso!Amm ,,,. ~I ol (No 07 ·co-6Q j· VRW·, MDL No 06- 1'191 )

1 declare under penally ofperjury that the foregoing is true and om-eel.

DATE: 30 OU ()f
4

~H~ 1i~LA EXA~ NDER_ __
LTG. USA
Director National Security Agency

7 8 9 10 II 12 13 14 1<; 16 Ii 18 19 20 21 22

24 25 26 27 28
('I.ssifiod In Camero. f.f PM" Dedar~hO" of LI. Gen_ Keith B. Alc,"nd~. Di=lor. "ati,'O ,r """uriry Agency v'rgmlQ Sh"bal. 01 nl. \._ Vml,·" SlOI"$ oj Am,.,.jc~. N 01. (No. 07-cv--693.VRW; MDL "'0. 06--i791)
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