Case 3:06-cv-00274-KI Document 1 Filed 02/28/06 Page 1 of 8 Page ID#: 1

Steven Goldberg, OSB 75134 (goldberg@goldbergmechanic.com) 621 SW Morrison, Suite 1450 Portland, OR 97205 503.224.2372- Fax 503 224-1123
Thomas H. Nelson, OSB 78315 (nelson@thnelson.com) Zaha S. Hassan, OSB 97062 (hassan@thnelson.com) Thomas H. Nelson & Associates 825 NE Multnomah, Suite 925 Portland, OR 97232 503.230.8311 -Fax 503.230.8313

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UNITED STATES DISTRICT COURT DISTRICT OF OREGON

AL-HARAMAIN ISLAMIC FOUNDATION, INC., an Oregon Nonprofit Corporation, WENDELL BELEW, a U.S. Citizen and Attorney at Law, and ASIM GHAFOOR, a U.S. Citizen and Attorney at Law,

CV'06 27 4MO
No. _ _ _ _ _ __

Plaintiffs,

COMPLAINT

vs.
GEORGE W. BUSH, President of the United States; NATIONAL SECURITY AGENCY and KEITH B. ALEXANDER, its Director; OFFICE OF FOREIGN ASSETS CONTROL, an office of the United States Treasury and ROBERT W. WERNER, its Director; FEDERAL BUREAU OF INVESTIGATION and ROBERTS. MUELLER III, its Director,

(Violations ofForeign Intelligence Surveillance Act, Separation of Powers, Fourth Amendment, First Amendment, Sixth Amendment, and International Covenant on Civil and Political Rights)

Defendants.

INTRODUCTION 1. This is an action for injunctive relief and for damages seeking an order that would require defendants and their agents to halt an illegal and unconstitutional program of electronic surveillance of United States citizens and entities. This action also seeks to enjoin the use of
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evidence obtained through this surveillance in the proceeding in which defendant Office of Foreign Assets Control has designated plaintiff Al-Haramain Islamic Foundation, Inc. ("AlHaramain Oregon"), as a terrorist organization.
2. Defendants have engaged in electronic surveillance of plaintiffs without court orders, which surveillance is contrary to clear statutory mandates provided in the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801-62 ("FISA"), and to provisions ofthe United States Constitution as well as a treaty entered into thereunder.
3. Defendants have used illegal surveillance to harm plaintiffs in manners set forth more specifically in the body of this Complaint.
PARTIES 4. Plaintiff Al-Haramain Oregon is an Oregon nonprofit corporation whose headquarters were established in Ashland, Oregon. Plaintiff currently owns real property in Ashland, Oregon, and in Springfield, Missouri. 5. Plaintiff Wendell Belew is a citizen ofthe United States and an attorney at law who has had business and other relationships with plaintiff Al-Haramain Oregon. 6. Plaintiff Asim Ghafoor is a citizen of the United States and an attorney at law who has had business and other relationships with plaintiff Al-Haramain Oregon. 7. Defendant George W. Bush is President ofthe United States. 8. Defendant National Security Agency is an agency of the United States. 9. Defendant Keith B. Alexander is Director of defendant National Security Agency. 10. Defendant Office of Foreign Assets Control is an office ofthe Department ofthe Treasury of the United States. 11. Defendant Robert W. Werner is Director of the Office ofForeign Assts Control.
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12. Defendant Federal Bureau oflnvestigation is a federal police and intelligence agency.
13. Defendant RobertS. Mueller III is Director ofthe Federal Bureau of Investigation.
JURISDICTION AND VENUE 14. This court has jurisdiction under 28 U.S.C. § 1331. 15. The United States District Court for the District of Oregon is a proper venue of this action insofar as one of the plaintiffs is an Oregon corporation that owns real property in this jurisdiction. In addition, defendants' actions caused harm in this District.
STATEMENT OF FACTS 16. In February 2004, defendant Office of Foreign Assets Control froze the assets of plaintiff Al-Haramain Oregon pending an investigation into whether that plaintiff was engaged in activities related to terrorism. 17. At the time of the freezing of the assets, plaintiff Al-Haramain Oregon was affiliated with and supported by Al-Haramain Islamic Foundation (hereafter "Al-Haramain Saudi Arabia"), a charity located in, and controlled by individuals residing in, Saudi Arabia. 18. On information and belief, the decision to freeze plaintiff Al-Haramain Oregon's assets was based upon warrantless electronic surveillance of communications between a director or directors of Al-Haramain Oregon and plaintiffs Belew and Ghafoor. 19. In March and April, 2004, defendant National Security Agency targeted, and engaged in electronic surveillance of communications between, a director or directors of plaintiff Al-Haramain Oregon and plaintiffs Belew and Ghafoor. Defendant National Security Agency did not obtain a court order authorizing such electronic surveillance nor did it otherwise follow the procedures mandated by FISA.
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20. In May 2004, defendant National Security Agency turned over to defendant United States Treasury Office of Foreign Assets Control logs of the conversations specified in the preceding paragraph.
21. Defendant Office ofForeign Assets Control relied upon the logs obtained without a warrant in designating plaintiff Al-Haramain Oregon as a "specially designated global terrorist" in September 2004. Al-Haramain Saudi Arabia was not and has never been designated as a terrorist organization.
22. Designation of plaintiff Al-Haramain Oregon as a "specially designated global terrorist" has resulted in severe financial hardship and other harms being visited upon plaintiff.
23. Al-Haramain Saudi Arabia was dissolved by order ofthe Kingdom of Saudi Arabia in the winter or spring of 2004 and has not carried out activities since that date.
24. As a result of defendants' actions, plaintiff Al-Haramain Oregon has been irreparably damaged insofar as its assets have been frozen, preventing it from engaging in the charitable and humanitarian efforts for which it was organized.
25. As a result of defendants' actions, plaintiffs Belew and Ghafoor have been irreparably damaged insofar as their abilities to represent their clients have been hindered and interfered with, and have been chilled, by defendants' illegal and unconstitutional actions.
FIRST CLAIM FOR RELIEF (Foreign Intelligence Surveillance Act) 26. Plaintiffs incorporate by reference each and every allegation in the preceding paragraphs as if set forth fully herein. 27. Defendants' engagement in electronic surveillance to monitor conversations between and among plaintiffs as targeted persons without obtaining prior court authorization, and defendants' subsequent use of the information obtained against plaintiffs, is in violation of
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the civil and criminal provisions of FISA. As a result, all evidence obtained by this illegal surveillance must be suppressed pursuant to 50 USC § 1806(g). Further, plaintiffs are entitled to liquidated and punitive damages pursuant to 50 USC § 1810.
SECOND CLAIM FOR RELIEF (Separation of Powers)
28. Plaintiffs incorporate by reference each and every allegation in the preceding paragraphs as if set forth fully herein.
29. By carrying out their program of unlawful warrantless surveillance, defendants have acted in excess of the President's Article II authority (i) by failing to take care to execute the laws, and instead have violated those laws, (ii) by acting in contravention of clear statutory dictates in an area in which Congress has Article I authority to regulate, and (iii) by engaging in the conduct described above where Congress has specifically prohibited the President and other defendants from engaging in such conduct.
THIRD CLAIM FOR RELIEF (Fourth Amendment Violations) 30. Plaintiffs incorporate by reference each and every allegation in the preceding paragraphs as if set forth fully herein. 31. Defendants have carried out unreasonable surveillance ofplaintiffs' private telephone, email, and other electronic communications without probable cause or warrants in violation of the Fourth Amendment to the United States Constitution.
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FOURTH CLAIM FOR RELIEF (First Amendment Violations)
32. Plaintiffs incorporate by reference each and every allegation in the preceding paragraphs as if set forth fully herein.
33. Defendants, by carrying out and/or asserting the right to carry out their program of unlawful warrantless surveillance, have impaired plaintiff Al-Haramain Oregon's ability to obtain legal advice, to join together for the purpose of legal and religious activity, to freely form attorney-client relationships, and to petition the government of the United States for redress of grievances, all of which are modes of expression and association protected under the First Amendment of the United States Constitution.
FIFTH CLAIM FOR RELIEF (Sixth Amendment Violations) 34. Plaintiffs incorporate by reference each and every allegation in the preceding paragraphs as if set forth fully herein. 35. Defendants have impaired plaintiffs' ability to obtain and provide legal advice by carrying out unreasonable surveillance of plaintiffs' private telephone, email, and other electronic communications without probable cause or warrants in violation of the Sixth Amendment to the United States Constitution. SIXTH CLAIM FOR RELIEF (Violation of International Covenant on Civil and Political Rights) 36. Plaintiffs incorporate by reference each and every allegation in the preceding paragraphs as if set forth fully herein. 37. On June 25, 2002, the United States Congress ratified the International Convention for the Suppression of the Financing of Terrorism ("Convention"). Article 17 of the
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Convention requires the United States to comply with international human rights law in "any measures" taken pursuant to the Convention. One of the measures pursuant to the Convention is the International Covenant on Civil and Political Rights ("International Covenant") which guarantees the right to privacy. Article 17 of the International Covenant provides:
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks.
PRAYER FOR RELIEF Plaintiffs respectfully request that the Court: 1. Declare that defendants' warrantless surveillance of plaintiffs is unlawful and unconstitutional, and enjoin any such warrantless surveillance; 2. Order defendants to disclose to plaintiffs all unlawful surveillance of plaintiffs' communications carried out pursuant to the illegal program; 3. Order defendants to tum over to plaintiffs all information and records in their possession relating to plaintiffs that were acquired through the warrantless surveillance program or were the fruit of surveillance under the program, and subsequently destroy and make no further use of any such information and records in defendants' possession; 4. Order defendant Office of Foreign Assets Control to purge all information acquired from such program from its files, as well as all fruits of such information and make no further use of any such information; 5. Award plaintiffs individually liquidated damages of$1,000 or $100 per day for each violation as specified in the Foreign Intelligence Surveillance Act; 6. Award plaintiffs individually punitive damages of $1 ,000,000;
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7. Award costs, including an award of attorneys' fees under the Foreign Intelligence Surveillance Act;
8. Award costs, including an award of attorneys' fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(l)(A);
9. Award such other relief as the Court may deem just and proper. DATED: February 28,2006
Respectfully submitted,

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Steven Goldberg, 0 75134

~~~
Thomas H. Nelson, OSB 78315 Zaha S. Hassan, OSB 97032

8 -COMPLAINT

 
 Case 3:06-cv-00274-KI Document 79 Filed 09/07/06 Page 1 of 33 Page ID#: 787

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

AL-HARAMAIN ISLAMIC

)

FOUNDATION, INC., an Oregon

)

Nonprofit Corporation, WENDELL

)

BELEW, a U.S. Citizen and Attorney at )

Law, ASIM GHAFOOR, a U.S. Citizen )

and Attorney at Law,

)

)

Plaintiffs,

)

)

vs.

)

)

GEORGE W. BUSH, President of the

)

United States, NATIONAL SECURITY )

AGENCY, KEITH B. ALEXANDER, its )

Director, OFFICE OF FOREIGN ASSETS )

CONTROL, an office of the United States )

Treasury, ROBERT W. WERNER, its )

Director, FEDERAL BUREAU OF

)

INVESTIGATION, ROBERT S.

)

MUELLER, III, its Director,

)

)

Defendants,

)

)

and

)

)

Case No. 06-274-KI OPINION AND ORDER

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OREGON PUBLISHING COMPANY, )

)

Intervenor.

)

)

Jon B. Eisenberg Attorney at Law 1970 Broadway, Suite 1200 Oakland, California 94612

Lisa R. Jaskol Attorney at Law 15760 Ventura Boulevard, 18th Floor Encino, California 91436

Steven Goldberg American Bank Building 621 S. W. Morrison, Suite 1450 Portland, Oregon 97205

Thomas H. Nelson Zaha S. Hassan Thomas H. Nelson & Associates 825 N.E. Multnomah, Suite 925 Portland, Oregon 97232

Jessica Ashlee Albies Law Office of J. Ashlee Albies 621 S.W. Alder Street, Suite 621 Portland, Oregon 97205

Attorneys for Plaintiffs

Andrea Marie Gacki U.S. Department of Justice Civil Division / Federal Programs Branch 20 Massachusetts Avenue, N.W., Room 7334 Washington, D.C. 20001

Andrew H. Tannenbaum U.S. Department of Justice 20 Massachusetts Avenue, N.W. P. O. Box 883 Washington, D.C. 20044

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Anthony J. Coppolino U.S. Department of Justice 20 Massachusetts Avenue, N.W., Room 6102 Washington, D.C. 20530
Attorneys for Defendants Charles F. Hinkle Emilie K. Edling Stoel Rives, LLP 900 SW Fifth Avenue, Suite 2600 Portland, Oregon 97204
Attorneys for Intervenor
KING, Judge: Plaintiffs Al-Haramain Islamic Foundation, Inc., Wendell Belew, and Asim Ghafoor filed
suit against George W. Bush, the National Security Agency (“NSA”), the Office of Foreign Assets Control (“OFAC”), the Federal Bureau of Investigation (“FBI”), and the respective agency directors (collectively, “the government”) for violations of the Foreign Intelligence Surveillance Act (“FISA”), the Separation of Powers clause, the Fourth, First and Sixth Amendments to the United States Constitution, and the International Convention for the Suppression of the Financing of Terrorism. The government has filed a Motion to Dismiss or, in the Alternative, for Summary Judgment (#58) and a Motion to Prevent Plaintiffs’ Access to the Sealed Classified Document (#39). Plaintiffs have filed a Motion for Order Compelling Discovery (#35). Oregonian Publishing Company has filed a Motion to Intervene and to Unseal Records (#7).
For the reasons described herein, the government’s Motion to Dismiss is denied, and its Motion for Summary Judgment is denied with leave to renew. The government’s Motion to Prevent Plaintiffs’ Access to the Sealed Classified Document is granted. Plaintiffs’ Motion for
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Order Compelling Discovery is denied with leave to renew. Oregonian Publishing Company’s Motion to Intervene was previously granted on April 25, 2006, and its Motion to Unseal Records is denied.
BACKGROUND I. Factual Background
On December 17, 2005, in a radio address, and in response to an article the day before in The New York Times, President George W. Bush announced that he had authorized “the interception of international communications of people with known links to al Qaeda and related terrorist organizations” (“Surveillance Program”) after the September 11, 2001 attacks.1 President’s Radio Address (Dec. 17, 2005), available at http://www.whitehouse.gov//news/releases/2005/12/20051217.html. Attorney General Alberto Gonzalez subsequently confirmed that the Surveillance Program intercepts communications where one party to the communication is outside the United States and the government has a reasonable basis to believe that at least one party to the communication is affiliated with, or working in support of, al Qaeda.
Plaintiffs allege in their Complaint that in February 2004 OFAC froze Al-Haramain’s assets while investigating whether Al-Haramain was engaged in terrorist activities. At that time, Al-Haramain was affiliated with and supported by Al-Haramain Islamic Foundation, a charity in Saudi Arabia. Plaintiffs allege that Al-Haramain’s assets were frozen as a result of warrantless electronic surveillance between a director or directors of Al-Haramain and its attorneys, Belew
1The government refers to the program as the “Terrorist Surveillance Program” or “TSP” in its briefing, while plaintiffs refer to the program as the “warrantless surveillance program.” Page 4 - OPINION AND ORDER

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and Ghafoor. Plaintiffs also allege that in March and April 2004 the NSA engaged in electronic surveillance of communications between Al-Haramain’s director or directors and Belew and Ghafoor, without obtaining a court order or otherwise following the procedures required under FISA. They further allege that in May 2004, the NSA turned over logs of these conversations to OFAC, which subsequently identified Al-Haramain as a “specially designated global terrorist” in September 2004.
The government offers some additional information about Al-Haramain. It explains that the identification of Al-Haramain as a specially designated global terrorist was due to its having provided support to al Qaeda, Osama bin Laden, and other specially designated global terrorists. In addition, the United Nations Security Council has identified Al-Haramain as an entity belonging to or associated with al Qaeda. The government also explains that Soliman Al-Buthi,2 a director of Al-Haramain and a citizen of Saudi Arabia, has been identified as a specially designated global terrorist.
Plaintiffs seek a declaration that the surveillance of them was unlawful, seek disclosure of the communications, information, and records obtained as a result of the surveillance, along with the subsequent destruction of such information and records, seek to enjoin warrantless surveillance of plaintiffs, seek $1,000 or $100 per day for each violation of FISA, and seek punitive damages of $1,000,000, costs and attorney fees.
Along with their Complaint, plaintiffs filed a document under seal with the Court (the “Sealed Document”). OFAC inadvertently disclosed this document to counsel for Al-Haramain
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in late August 2004 as part of a production of unclassified documents relating to Al-Haramain’s potential status as a specially designated global terrorist.
Lynne Bernabei, an attorney for Al-Haramain and for two of its directors, Al-Buthi and Pirouz Sedaghaty (a k a Pete Seda), testified in a declaration about the circumstances surrounding her dissemination of the Sealed Document. Upon receiving the packet of materials from OFAC, she copied and disseminated the materials, including the pertinent document which was labeled “TOP SECRET,” to Al-Haramain’s directors and Bernabei’s co-counsel. In August or September, a reporter from the Washington Post reviewed these documents for an article he was researching. On October 7, 2004, Bernabei learned from the FBI that included among the produced documents was a sensitive document that OFAC claimed had been inadvertently released. At the request of the FBI, Bernabei and her co-counsel returned their copies of the sensitive document to the FBI. The FBI did not pursue Al-Haramain’s directors, whom the government describes as “likely recipients” of the document, to ask them to return their copies.
The government asserts that the Sealed Document carries a classification of “TOP SECRET” and that it contains “sensitive compartmented information” or “SCI.” The Sealed Document is now in the Secure Compartmentalized Information Facility at the FBI office in Portland (“SCIF”). II. Procedural Background
On March 17, 2006, the Oregonian Publishing Company filed a Motion to Intervene and to Unseal Records. On May 22, 2006, plaintiffs filed a Motion for Order Compelling Discovery, seeking to compel the government to respond to interrogatories requesting information about electronic surveillance of the plaintiffs and information regarding the reasons for classifying the
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Sealed Document. On May 26, 2006, the government filed a Motion to Prevent Plaintiffs’ Access to the Sealed Classified Document.
On June 21, 2006, the government filed a Motion to Dismiss or, in the Alternative, for Summary Judgment. In this motion, the government asserts the military and state secrets privilege (“state secrets privilege”), arguing that the case should be dismissed or, in the alternative, that summary judgment should be granted in favor of the government based on the privilege. In support of its assertion of the privilege, the government provided unclassified declarations of John D. Negroponte, Director of National Intelligence, and Lieutenant General Keith B. Alexander, Director, National Security Agency. In addition, the government lodged classified materials for in camera, ex parte review. Specifically, the government submitted classified declarations of Negroponte and Alexander, as well as classified versions of its memorandum and reply in support of its motion to dismiss, and its opposition to plaintiffs’ motion to compel. Plaintiffs objected to the lodging of the materials for in camera, ex parte review.
In order to better prepare myself for oral argument, and to assess the government’s assertion of the state secrets privilege, I ruled on August 18, 2006 that I would review the government’s in camera, ex parte materials filed with the Court on June 21, 2006 and July 25, 2006. The Ninth Circuit has noted that it is “unexeceptionable” for the government to elaborate on public filings with in camera submissions and for judges to review such filings to determine the validity of the claim of privilege. Kasza v. Browner, 133 F.3d 1159, 1169 (9th Cir. 1998) (collecting cases); see also United States v. Ott, 827 F.2d 473, 476-77 (9th Cir. 1987) (ex parte, in camera review of FISA material does not deprive a defendant of due process). The D.C. Circuit
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has noted that it is also “well settled” that evaluation of the legitimacy of a state secrets privilege claim should not involve the participation of plaintiff’s counsel in the in camera examination of putatively privileged material. Ellsberg v. Mitchell, 709 F.2d 51, 61 (D.C. Cir. 1983) (describing district court and court of appeals inspection of in camera submissions). However, since the government had not yet asserted the state secrets privilege at the time of filing the in camera, ex parte declarations on April 14, 2006 and May 12, 2006, supporting its opposition to the Oregonian’s motion, I declined to review those submissions.
DISCUSSION I. The State Secrets Privilege
The government’s assertion of the state secrets privilege is the threshold issue in this case. According to the government, its invocation of the privilege requires that plaintiffs’ case be dismissed for several alternative reasons, that it supports the government’s motion to prevent plaintiffs’ access to the Sealed Document, and that it justifies the denial of the plaintiffs’ motion for an order compelling discovery.
The state secrets privilege is a common law evidentiary privilege that allows the government to deny discovery of military and state secrets. United States v. Reynolds, 345 U.S. 1, 7-8 (1953); Kasza, 133 F.3d at 1165. Once the government properly invokes the privilege, the court’s task is to determine whether there is a reasonable danger that national security would be harmed by the disclosure of state secrets. Kasza, 133 F.3d at 1166. Once the court is so satisfied, the privilege is absolute. Id.
The state secrets privilege does not allow a balancing of necessity to the party seeking disclosure against potential harm from disclosure. Reynolds, 345 U.S. at 11; Kasza, 133 F.3d at
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1166. Indeed, the court must treat the invocation of the privilege with the “utmost deference” and apply a “narrow” scope of review when evaluating the claim. Kasza, 133 F.3d at 166. However, the Supreme Court in Reynolds noted that where there is a strong showing of necessity, the assertion of privilege should not be “lightly accepted.” Reynolds, 345 U.S. at 11.
The state secrets privilege may require dismissal of a case for any of three reasons: (1) if specific evidence must be removed from the case as privileged, but plaintiff can no longer prove the prima facie elements of the claim without that evidence; (2) if the defendant is unable to assert a valid defense without evidence covered by the privilege; (3) even if the plaintiff is able to produce nonprivileged evidence, the “very subject matter of the action” is a state secret. Kasza, 133 F.3d at 1166.
Courts have characterized outright dismissal of a suit based on the state secrets privilege as a “drastic” and “draconian” remedy. In re United States, 872 F.2d 472, 477 (D.C. Cir. 1989); Fitzgerald v. Penthouse Int’l, Ltd., 776 F.2d 1236, 1242 (4th Cir. 1985). Indeed, one court has noted that “whenever possible, sensitive information must be disentangled from nonsensitive information to allow for the release of the latter.” Ellsberg, 709 F.2d at 57. However, courts have recognized that there are inherent limitations in trying to separate classified and unclassified information, comparing contemporary electronic intelligence gathering to the construction of a “mosaic,” from which pieces of “seemingly innocuous information” can be analyzed and cobbled together to reveal the full operational picture. Kasza, 133 F.3d at 1166 (quoting Halkin v. Helms, 598 F.2d 1, 8 (D.C. Cir. 1978)).
In attempting to limit the application of the state secrets privilege and allow cases to proceed despite the absence of some privileged information, courts have endorsed the item-by-
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item in camera review of evidence to determine which evidence was properly subject to the state secrets privilege, or have encouraged other procedural innovations to allow trials to proceed while limiting disclosure of information covered by the privilege. See e.g., In re United States, 872 F.2d at 479 (item-by-item in camera review of evidence for privilege was within the district court’s discretion); Ellsberg, 709 F.2d at 64 (recognizing that the trial judge had discretion to develop procedural innovations to ensure that the government justifies its privilege); Hepting v. AT&T Corp., No. C-06-672 VRW, 2006 WL 2038464, at * 34 (N.D. Cal. July 20, 2006) (requesting guidance from the parties on how best to carry out the court’s duty to disentangle sensitive information from non-sensitive information, including a proposal to appoint a special master to consider classified evidence).
A. Procedural Invocation of the Privilege The parties do not dispute that the government followed the proper steps to invoke the privilege when the heads of the responsible departments lodged a formal claim of privilege. See Reynolds, 345 U.S. at 7. B. Plaintiffs’ Showing of Necessity for the Information I must next determine whether plaintiffs have demonstrated a strong showing of necessity for the information over which the government claims the privilege. Reynolds, 345 U.S. at 11. While plaintiffs expressly state that they have no need to learn any secret information about the nature and severity of the al Qaeda threat, or about the means and methods of the Surveillance Program, they have asserted a need for information contained in the Sealed Document. According to plaintiffs, the document shows that their communications were intercepted under the Surveillance Program, demonstrating their standing to sue, and “bolstering . . . the inference
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that defendants had the requisite intent for a FISA violation.” Pls.’ Mem. in Opp’n to Defs.’ Mot. to Dismiss at 15. Accordingly, plaintiffs need some information in the Sealed Document to establish their standing and a prima facie case, and they have no other available source for this information. See Reynolds, 345 U.S. at 11. As a result, I cannot “lightly accept” the government’s claim of privilege. Id.
C. What Information is Secret The government lists four categories of information that it says are implicated by this case, and that it contends must be protected from disclosure: (i) information regarding the al Qaeda threat, (ii) information regarding the Surveillance Program; (iii) information that would confirm or deny whether plaintiffs have been subject to surveillance under the Surveillance Program or under any other government program; and (iv) information pertaining to the Sealed Document. Prior to determining whether the state secrets privilege requires dismissal of plaintiff’s case, I first determine whether this information qualifies as a secret. Hepting, 2006 WL 2038464, * 9; El-Masri v. Tenet, 437 F. Supp. 2d 530, 536 (E.D. Va. 2006), American Civil Liberties Union v. Nat’l Security Agency, 06-CV-10204, 2006 WL 2371463, at *7 (E.D. Mich., August 17, 2006). Taking the second category of information first, I summarize what has been publicly disclosed by official sources about the Surveillance Program. President George W. Bush announced in a radio address that he had authorized the NSA to begin a program to intercept international communications of people with known links to al Qaeda and related terrorist organizations. He explained generally how it works:
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The activities I authorized are reviewed approximately every 45 days. Each review is based on a fresh intelligence assessment of terrorist threats to the continuity of our government and the threat of catastrophic damage to our homeland. During each assessment, previous activities under the authorization are reviewed. The review includes approval by our nation’s top legal officials, including the Attorney General and the Counsel to the President. I have reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for as long as our nation faces a continuing threat from al Qaeda and related groups.
President’s Radio Address (Dec. 17, 2005), available at http://www.whitehouse.gov//news/releases/2005/12/20051217.html. It is clear from this description that the government does not seek a warrant prior to intercepting communications under the Surveillance Program.
Two days later, Attorney General Alberto Gonzalez verified that the Surveillance Program intercepts communications where one party to the communication is outside the United States and the government has “a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda.” Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence (Dec. 19, 2005), available at http://www.whitehouse.gov//news/releases/2005/12/20051219-1.html.
In addition, the United States Department of Justice issued a 42-page white paper explaining its legal theories in support of the Surveillance Program. See U.S. Department of Justice, Legal Authorities Supporting the Activities of the National Security Agency Described By the President (Jan. 19, 2006), available at http://www.usdoj.gov/opa/whitepaperonnsalegalauthorities.pdf. Page 12 - OPINION AND ORDER

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Finally, the public filings in this case disclose other details about the program. Negroponte testifies in his public affidavit, for example, that the NSA utilizes its “SIGINT [signals intelligence] capabilities to collect certain international communications originating or terminating in the United States where there are reasonable grounds to conclude that one party to the communication is a member or agent of al Qaeda or an affiliated terrorist organization.” Negroponte Unclassified Decl. ¶ 12.
As a result of these official statements and publications, the existence of the Surveillance Program is not a secret, the subjects of the program are not a secret, and the general method of the program–including that it is warrantless–is not a secret. As Judge Walker pointed out in Hepting, the government has freely acknowledged that with respect to surveillance of communications content, it has “disclosed the universe of possibilities in terms of whose communications it monitors and where those communicating parties are located.” 2006 WL 2038464, at * 19 (emphasis in original).
With regard to the third and fourth categories of information–whether plaintiffs were subject to surveillance and information contained in the Sealed Document–I summarize what has been publicly disclosed. Both the foundation Al-Haramain and one of its directors, Al-Buthi, are “specially designated global terrorists.” Plaintiffs Belew and Ghafoor are lawyers who office in the United States and who represent Al-Haramain. Al-Buthi and Sedaghaty are directors of AlHaramain who are believed to be living overseas, and Al-Buthi is a citizen of Saudi Arabia. AlButhi, Sedaghaty, Belew and Ghafoor received a copy of the Sealed Document, among other individuals including a reporter at the Washington Post. As a result of receiving the document, Al-Buthi, Sedaghaty, Belew and Ghafoor know what information the Sealed Document contains,
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which means they know whether or not the government has conducted electronic surveillance of communications between Al-Haramain’s director or directors and Belew and Ghafoor.3
Based on this information, plaintiffs could fall within the category of entities subject to the Surveillance Program. Nevertheless, because the government has not officially confirmed or denied whether plaintiffs were subject to surveillance, even if plaintiffs know they were, this information remains secret. Furthermore, while plaintiffs know the contents of the Sealed Document, it too remains secret. As I explain in section III, the government did not waive its state secrets privilege by its inadvertent disclosure of the document.
As for the first category of information, because plaintiffs concede that the al Qaeda threat is irrelevant to their case, and because I decline to consider at this time whether that information is necessary for the government to defend itself (see section II.B.), I decline to determine at this point whether the information is secret.
In summary, as a result of official statements and publications, general information about the Surveillance Program is not a secret. Additionally, while it is not a secret to plaintiffs whether their communications have been intercepted as may be disclosed in the Sealed Document, the government has made no official statement confirming or denying this information and it remains a secret. Finally, I have made no findings about whether specific information about the al Qaeda threat is a secret.
3I make this conclusion based on plaintiff's allegations and not based on the contents of the Sealed Document. Page 14 - OPINION AND ORDER

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D. Whether Disclosing the Information Would Cause Harm to the National Security Despite the fact that it is not a secret to plaintiffs whether their communications have been intercepted, the government has not confirmed or denied whether plaintiffs have been subject to surveillance, and it claims that to do so would be to disclose matters which should not be divulged due to national security concerns. The government gives several reasons for its conclusion. The government argues that confirmation or denial of its surveillance of a particular individual might lead that individual to change his pattern of behavior, jeopardizing the ability to collect intelligence information. Negroponte Unclassified Decl. ¶ 13. This rationale does not apply to the Sealed Document; the government already inadvertently disclosed the Sealed Document to plaintiffs, thus alerting the individuals or organizations mentioned in the document that their communications have been intercepted in the past. Even if plaintiffs are not identified in the document, if they engaged in electronic communications during the period of time described in the document, and discussed the subjects identified in the document, they also know whether their communications have been intercepted. Those individuals can be presumed to have already changed their behavior as a result of any information they learned from reading the Sealed Document. In addition, the government argues that the NSA cannot publicly confirm or deny whether any individual is subject to surveillance because to do so would tend to reveal information, sources and methods. Again, at least as to the information contained in the Sealed Document, this rationale is irrelevant. Any information, sources or methods disclosed in the Sealed Document has also been revealed to plaintiffs. In addition, plaintiffs claim that this information
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is irrelevant to their case and will not need to be disclosed to the public, thereby avoiding further disclosure of any state secrets.
Finally, the government contends that even confirming or denying whether an individual has not been subject to surveillance would be harmful to national security. “If the NSA denied allegations about intelligence targets in cases where such allegations were false, but remained silent in cases where the allegations were accurate, it would tend to reveal that the individuals in the latter cases were targets.” Alexander Unclassified Decl. ¶ 9. This is a valid point, but plaintiffs already know whether their communications have been intercepted, and can argue in camera,4 based on what they believe the Sealed Document reveals, that they were targets. If the Sealed Document does not reflect that plaintiffs were targets, confirming this point says nothing about plaintiffs’ target-status generally.
As I have explained, in these particular circumstances, where plaintiffs know whether their communications have been intercepted, no harm to the national security would occur if plaintiffs are able to prove the general point that they were subject to surveillance as revealed in the Sealed Document, without publicly disclosing any other information contained in the Sealed Document.
However, plaintiffs do not know whether or not their communications were intercepted beyond any that may be identified in the Sealed Document, and they do not know whether their communications continue to be intercepted. The government’s rationale for wanting to maintain the secrecy of other surveillance events rings true where plaintiffs do not know whether or not their communications have been intercepted. I am convinced that, based on the record as it
4I explain the use of in camera affidavits in Section III below. Page 16 - OPINION AND ORDER

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stands now, forcing the government to confirm or deny whether plaintiffs’ communications have been or continue to be intercepted, other than any communications contained in the Sealed Document, would create a reasonable danger that national security would be harmed by the disclosure of state secrets. More details about when, and whose, communications were intercepted, would allow greater insight into the methods used in the Surveillance Program, which might jeopardize the success of the Program if it is legal.
Based on the above, I have determined there is no reasonable danger that the national security would be harmed if it is confirmed or denied that plaintiffs were subject to surveillance, but only as to the surveillance event or events disclosed in the Sealed Document, and without publicly disclosing any other information in the Sealed Document. I have also concluded that disclosing whether plaintiffs were subject to any other surveillance efforts could harm the national security. II. Government’s Motion to Dismiss or in the Alternative for Summary Judgment
A. Whether State Secrets are the “Very Subject Matter of the Action” The government argues that the Surveillance Program is the very subject matter of plaintiffs’ action because, it argues, plaintiffs’ goal in the litigation is to determine whether the NSA has undertaken warrantless surveillance of them and, if so, whether that action was lawful. The government asserts that litigating these matters will necessarily require and risk the disclosure of state secrets. The government principally relies on Fitzgerald, 776 F.2d 1236, Kasza, 133 F.3d 1159, and El-Masri, 437 F. Supp. 2d 530.
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Plaintiffs respond that the President and other Executive Branch officials have acknowledged the existence of the Surveillance Program, and that the inadvertent production of the Sealed Document makes the program no longer a secret as applied to plaintiffs.
In Fitzgerald, plaintiff claimed published statements about his purported sale of top secret marine mammal weapons systems to other countries was libelous. The court held, “Due to the nature of the question presented in this action and the proof required by the parties to establish or refute the claim, the very subject of this litigation is itself a state secret.” Fitzgerald, 776 F.2d at 1243. Nevertheless, it was only after the court determined that “there was simply no way this particular case could be tried without compromising sensitive military secrets,” that the case was dismissed. Id. The court warned that “[o]nly when no amount of effort and care on the part of the court and the parties will safeguard privileged material is dismissal warranted.” Id. at 1244.
In Kasza, former employees at a classified United States Air Force facility claimed violations of the Resource Conservation and Recovery Act (“RCRA”). The Secretary of the Air Force declared that the privilege was necessary to protect ten categories of classified information, including scientific and technological matters, physical characteristics, and environmental data. As a result, plaintiffs could not establish their prima facie case and, additionally, “any further proceeding in this matter would jeopardize national security.” Kasza, 133 F.3d at 1170.
Finally, El-Masri involved claims arising from plaintiff’s alleged detention pursuant to the Central Intelligence Agency’s “extraordinary rendition” program. Despite the fact that the government had confirmed the existence of a rendition program, it had offered no details about “the means and methods employed in these renditions, or the persons, companies or governments involved”–facts put directly at issue by plaintiff’s case. El-Masri, 437 F. Supp. 2d at 537. As a
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result, “the whole object of the suit and of the discovery is to establish a fact that is a state secret.” Id. at 539.
In contrast to these cases, the purpose of plaintiffs’ suit is not to “establish a fact that is a state secret.” See id. The government has lifted the veil of secrecy on the existence of the Surveillance Program and plaintiffs only seek to establish whether interception of their communications–an interception they purport to know about–was unlawful. As I explained above, if plaintiffs are able to prove what they allege–that the Sealed Document demonstrates they were under surveillance–no state secrets that would harm national security would be disclosed. Accordingly, while this Court may eventually terminate some or all of plaintiffs’ claims, this case should not be dismissed outright because the very subject matter of the case is not a state secret.
B. Whether Plaintiffs are Unable to Demonstrate Standing or to State a Prima Facie Case, or the Government is Unable to Defend Without Privileged Information
The government argues that because of the state secrets at issue in this case, plaintiffs must be denied access to the Sealed Document or any further discovery, and, as a result, plaintiffs cannot prove standing or make out a prima facie case on their claims. The government, relying on the “mosaic” theory described in Halkin, asserts that any disclosure of any information related to the Surveillance Program or the Sealed Document would tend to allow enemies to discern, and therefore avoid, the means by which surveillance takes place under the program. see 598 F.2d at 8. Accordingly, the government argues, plaintiffs’ claims must be dismissed.
The government also points to the Halkin case for the principle that a number of inferences flow from the confirmation or denial of a particular individual’s international communications, including that the individual would know what circuits were used and that Page 19 - OPINION AND ORDER

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foreign organizations who communicated with the targeted individuals would know what circuits were monitored and what methods of acquisition were employed. The government contends that Halkin recognized the need to protect against disclosure of information that would confirm or deny alleged surveillance, in part because it might tend to reveal other sensitive, classified information.
Plaintiffs dismiss this argument, scoffing at the mosaic theory in the context of this case where the government has already disclosed information that would trigger the Halkin concerns to the surveilled parties, albeit inadvertently. Plaintiffs also argue that the government’s justification for the assertion of privilege based on possible disclosure of the nature and severity of the al Qaeda threat and the means and methods of surveillance are inapplicable to this case. They argue that no secret information regarding these issues will need to be addressed in this case, and that the merits issues are purely legal: whether there was an intentional violation of FISA, and whether the 2001 Authorization for Use of Military Force or the President’s constitutional power trump FISA. Plaintiffs point out that the government presented these legal arguments already in a January 2006 white paper explaining its legal theories in support of the Surveillance Program, without revealing state secrets.
I decline to decide at this time whether this case should be dismissed on the ground that the government’s state secrets assertion will preclude evidence necessary for plaintiffs to establish standing or make a prima facie case, or for the government to assert a defense. I recognize that disclosing information regarding the al Qaeda threat or disclosing non-public details of the Surveillance Program may harm national security, but I am not yet convinced that this information is relevant to the case and will need to be revealed.
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In addition, based on my ruling that plaintiffs know from the Sealed Document whether their communications were intercepted, plaintiffs should have an opportunity to establish standing and make a prima facie case, even if they must do so in camera. Since plaintiffs already know a few pieces of the mosaic, I am unable to accept the theory that the release of any facts related to the Surveillance Program as applied to these plaintiffs will jeopardize national security. Contrary to Halkin, in which the plaintiffs only had proof that their names may have been on a watchlist and as a result their communications may have been acquired, plaintiffs here purport to have evidence that their communications were intercepted. See 598 F.2d at 10-11. Indeed, even the government concedes that “Plaintiffs remain free to make any allegations and assert any arguments in support of their standing, or any other argument, as they deem appropriate, and the Court has the power to review the sealed classified document in order to assess Plaintiffs’ claims and arguments.” Reply in Supp. of Defs.’ Mot. to Prevent Pls.’ Access to the Sealed Classified Document at 19.
Nevertheless, I may conclude, after exploring the procedures described in section VII below, that there is no way plaintiffs can prove their case without compromising state secrets, or no possibility that the government can properly defend the allegations.5 I recognize that the government believes any further proceedings in this case would be futile, but I am just not
5I note, for example, the fact that the government has claimed the state secrets privilege, in addition to statutory privileges, in answer to plaintiffs’ interrogatory requesting information about whether a warrant was obtained. Plaintiffs indicated in oral argument that they would rely on public statements and statements in the Sealed Document to prove the surveillance was warrantless. If after holding the discovery conference discussed in section V, I uphold the government’s invocation of the privilege, plaintiffs will have to proceed based on what is publicly disclosed and what they are able to argue in camera that the Sealed Document discloses. Simply put, plaintiffs should have an opportunity to make that argument. Page 21 - OPINION AND ORDER

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prepared to dismiss this case without first examining all available options and allowing plaintiffs their constitutional right to seek relief in this Court. See Spock v. United States, 464 F. Supp. 510, 519 (S.D.N.Y. 1978) (“[a]n aggrieved party should not lightly be deprived of the constitutional right to petition the courts for relief”).
C. Dismissal Based on Statutory Privileges The government argues that two statutory privileges also protect the intelligence-related information, sources and methods in this case, requiring the dismissal of the action. It claims that Section 6 of the National Security Act, 50 U.S.C. § 402 prohibits disclosure of any information in this case. That section provides that “nothing in this Act or any other law . . . shall be construed to require the disclosure of the organization or any function of the National Security Agency, of any information with respect to the activities thereof . . . .” 50 U.S.C. § 402. The government makes the same claim for Section 102A(i)(1) of the Intelligence Reform and Terrorism Prevention Act of 2004, 50 U.S.C. § 403-1(i)(1), which requires the Director of National Intelligence to protect intelligence sources and methods from unauthorized disclosure. Plaintiffs argue that neither statutory privilege applies because they are co-extensive with the state secrets privilege, and because plaintiffs’ claims can be litigated on the merits without any need to know defendants’ secret sources and methods. Plaintiffs point out that none of the cases cited by the government involved the dismissal of a case based on the assertion of one of the statutory privileges. The statutory privileges at issue here do not direct the dismissal of this action, nor am I yet convinced that they will block evidence necessary to plaintiffs’ case. Plaintiffs should have an opportunity to attempt to show standing and a prima facie case based on what is currently
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available to them and any evidence that I have determined is not covered by the state secrets privilege. In proceeding with the discovery process, the government is free to identify discovery requests that fall within these other statutory privileges, and explain specifically why this is so, and I will determine whether the privileges prevent plaintiffs from discovering that specific evidence.
Based on the analysis above, I deny the government’s motion to dismiss. I also deny the government's motion for summary judgment in order to allow plaintiffs to conduct discovery, but I give the government leave to renew its motion. III. Defendants’ Motion to Deny Plaintiffs’ Access to Sealed Document
The government argues in its Motion to Prevent Plaintiff’s Access to the Sealed Document that the document remains classified, regardless of the inadvertent and unauthorized disclosure. See Exec. Order No. 12,958, § 1.1(b), as amended by Exec. Order No. 13,292 (“Classified information shall not be declassified automatically as a result of any unauthorized disclosure of identical or similar information.”). According to the government, the Executive has sole power to protect classified information. The decision to authorize or deny a security clearance lies exclusively with the Executive, and a district court cannot assess the merits of such a decision. Dormfort v. Brown, 913 F.2d 1399, 1401 (9th Cir. 1990). The government further argues that plaintiffs cannot be allowed access to the Sealed Document because such access would carry with it an unacceptable risk of unauthorized disclosure. The government also invokes the state secrets privilege over the document. Finally, the government requests that I order plaintiffs to return to the government all copies of the Sealed Document.
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Plaintiffs respond that, under the doctrine of separation of powers, the court has inherent authority to allow access to documents under its control, as the Sealed Document now is. Plaintiffs also argue that if the court rules that they may have access to the Sealed Document, such a decision is subject to judicial immunity. Furthermore, plaintiffs assert that the court has the authority to ensure that the decision to classify a document was not made for the purpose of concealing unlawful conduct, citing cases in which courts have conducted de novo review of the classified status of documents.
Plaintiffs correctly point out that the Supreme Court has recognized that district courts have “the latitude to control any discovery process which may be instituted so as to balance respondent’s need for access to proof which would support a colorable constitutional claim against the extraordinary needs of the CIA for confidentiality and the protection of its methods, sources, and mission.” Webster v. Doe, 486 U.S. 592, 604 (1988). Plaintiffs then contend that because defense counsel have access to the Sealed Document, due process requires that plaintiffs’ counsel have access as well.
I accept the government’s argument that the inadvertent disclosure of the Sealed Document does not declassify it or waive the state secrets privilege. In addition, I am unwilling to use any “inherent authority” of the Court to give plaintiffs access to the document, and I decline at this time to accept plaintiffs’ invitation to overrule any classification decision made by the government as to the entire document. The cases plaintiffs rely on in support of their demand that I review de novo the reasons for the classification of the Sealed Document caution that courts are to proceed very carefully in reviewing classification decisions and should not “secondguess” classification decisions when the “judiciary lacks the requisite expertise.” See McGehee
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v. Casey, 718 F.2d 1137, 1149 (D.C. Cir. 1983); American Library Ass’n v. Faurer, 631 F. Supp. 416, 423 (D.D.C. 1986) (citing McGehee); ACLU v. Dep’t of Defense, 389 F. Supp. 2d 547, 564 (S.D.N.Y. 2005) (within CIA’s ken to evaluate the risks of disclosure to intelligence-gathering); Salisbury v. United States, 690 F.2d 966, 970 (D.C. Cir. 1982) (“accord substantial weight” to classification decision).
The Executive has not granted authority to plaintiffs to review classified materials, and the document remains classified. In addition, if plaintiffs were given full access to the document, plaintiffs may refer back to it and reflect on what it does or does not disclose. For example, they may confirm which modes of communication were vulnerable to interception and avoid those modes. The government has raised sufficient grounds for concern and I grant the government’s motion.
At the same time, since the government expressly concedes that “the Court has the power to review the sealed classified document in order to assess Plaintiffs’ claims and arguments,” I will permit plaintiffs to file in camera any affidavits attesting to the contents of the document from their memories to support their standing in this case and to make a prima facie case. See Reply in Supp. of Defs.’ Mot. to Prevent Pls.’ Access to the Sealed Classified Document at 19. The government may request that these declarations be deposited in the SCIF.
In addition, I urge the government to consider again whether redactions to the document may be undertaken given my ruling that it is no longer a secret to plaintiffs as to what information the Sealed Document contains. For example, perhaps some of the information in the Sealed Document should be shared with plaintiffs, subject to a protective order, as it is now innocuous, such as the fact of this particular surveillance event, and any dates contained in the
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document. If it is possible to disentangle those details from whatever else the Sealed Document may reveal about the Surveillance Program more generally, and if this information is necessary to plaintiffs’ case, I may want to attempt such an exercise.
Therefore, I grant the government’s Motion to Deny Plaintiffs’ Access to the Sealed Document in that plaintiffs may not have physical control over the entire document. Plaintiffs may, however, submit affidavits in camera to support their standing and to make a prima facie case. After exploring possible redactions, I may require that plaintiffs be provided with information that is now no longer “secret,” subject to a protective order.
Finally, pursuant to the government’s request, I order plaintiffs to deliver to my chambers all copies of the Sealed Document in their possession or under their control.6 I will contact the government upon receipt of any copies, at which time the government may collect the copies and deposit them in the SCIF. IV. Whether FISA Preempts the State Secrets Privilege
Plaintiffs argue in their opposition both to the government’s motion to dismiss and the motion to deny access to the Sealed Document that FISA preempts the state secrets privilege. Specifically, plaintiffs argue that FISA vests the courts with control over materials relating to electronic surveillance, subject to “appropriate security procedures and protective orders.” 50 U.S.C. § 1806(f). As a result, plaintiffs contend that Section 1806(f) renders the state secrets privilege superfluous in FISA litigation.
6I note that both Belew and Ghafoor have testified via declaration that they complied fully with the FBI’s request to destroy or return all copies of the Sealed Document. Page 26 - OPINION AND ORDER

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The government responds that Section 1806(f) is inapplicable to this case, because the provision was enacted for the benefit of the government. The government argues that Section 1806(f) authorizes district courts, at the request of the government, to review in camera and protect classified information when the government intends to use evidence against an individual. Indeed, the government contends, the statute and the case law demonstrate that the “aggrieved person” language is “someone as to whom FISA surveillance has been made known, typically in a criminal proceeding.” Defs.’ Reply in Supp. of Mot. to Dismiss/Summ. J. at 18. In this case, it argues, where the threshold question of whether or not plaintiffs have been subject to surveillance is itself a state secret, plaintiffs cannot use FISA to confirm their belief. In addition, the government argues, there is no clear congressional statement to overturn the privilege.
The relevant inquiry in deciding whether a statute preempts a federal common law privilege7 is whether the statute speaks directly to the question otherwise answered by federal common law. Kasza, 133 F.3d at 1167. There is a presumption in favor of the privilege “except when a statutory purpose to the contrary is evident.” Id.
The language of § 1806(f) is broad, providing, in relevant part: Whenever a court . . . is notified pursuant to subsection (c) or (d) of this section [describing occasions when the government intends to use information obtained through surveillance], or whenever a motion is made pursuant to subsection (e) [motion to suppress], or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States . . . to discover or obtain applications or orders or other materials relating to
7The government argues that the state secrets privilege is also constitutionally-based, deriving from the President’s “most basic constitutional duty” to protect the Nation from armed attack, and suggests a different method of evaluating whether FISA preempts the state secrets privilege. Specifically, according to the government, Congress must set forth a “clear statement” that it intended to intrude on powers of the Executive. United States v. Bass, 404 U.S. 336, 350 (1971). Page 27 - OPINION AND ORDER

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electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter, the United States district court . . . shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.
50 U.S.C. § 1806(f) (emphasis added). The provision goes on to state that:
In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.
Id.
“Aggrieved person” is defined by the statute to mean, “a person who is the target of an
electronic surveillance or any other person whose communications or activities were subject to
electronic surveillance.” 50 U.S.C. § 1801(k). Finally, under Section 1810, “An aggrieved
person, other than a foreign power or an agent of a foreign power, . . . who has been subjected to
an electronic surveillance . . . in violation of section 1809 [engages in electronic surveillance
except as authorized by statute] shall have a cause of action against any person who committed
such violation . . . .” 50 U.S.C. § 1810.
To summarize, Section 1810 gives a private right of action to an “aggrieved person,” so
long as the person is not a foreign power or an agent of a foreign power. An “aggrieved person”
is someone whose communications have been subject to surveillance. Pursuant to Section
1806(f), a plaintiff, if he is able to show he is an “aggrieved person,” may seek “to discover or
obtain applications or orders or other materials relating to electronic surveillance or to discover,
obtain, or suppress evidence or information obtained or derived from electronic surveillance
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under this chapter [FISA].” Upon an affidavit from the Attorney General that “disclosure or an adversary hearing would harm the national security of the United States,” the court may 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.” To accept the government’s argument that Section 1806(f) is only applicable when the government intends to use information against a party would nullify FISA’s private remedy and would be contrary to the plain language of Section 1806(f).
The question then becomes whether Section 1806(f) preempts the state secrets privilege. I decline to reach this very difficult question at this time, which involves whether Congress preempted what the government asserts is a constitutionally-based privilege. Given that the government has already permitted the court to review the Sealed Document in camera and has expressly conceded that I may evaluate plaintiffs’ claims based on my review of that document, I need not resolve this question presently. V. Plaintiffs’ Motion for Order Compelling Discovery
Plaintiffs’ Motion for Order Compelling Discovery seeks responses from the government to interrogatories. The interrogatories request answers to whether electronic surveillance was conducted of Al-Haramain or its director and counsel, dates of such surveillance, and whether the FISA court issued warrants for such surveillance. The interrogatories also seek information about the classification of the Sealed Document, including what date the decision to classify it as SCI was made, what officials made that decision, and the reason for that classification.
The government makes substantially the same arguments in support of its opposition to plaintiffs’ motion to compel discovery as it does in its memorandum in support of its motion to
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dismiss. It argues that it has not acknowledged the specific surveillance alleged in this case, even if it has acknowledged the Surveillance Program more generally, and that it cannot respond to the interrogatories because all possible answers would be subject to the state secrets privilege.
Given my rulings that it is no longer secret to plaintiffs whether their communications were intercepted as described in the Sealed Document, and that there would be no harm to national security if plaintiffs’ general allegations were confirmed or denied as to that specific circumstance, I will hold a discovery conference to determine to which interrogatories plaintiffs need answers, and to which interrogatories the government should be required to respond. I may require the government to provide specific responses to the interrogatories for in camera, ex parte review on an item-by-item basis as was generally approved by In re United States. See 872 F.2d at 478. Nevertheless, I will ensure that further steps in the discovery process are taken with the Supreme Court’s caution in mind; the claim of privilege is accorded the “utmost deference,” unless a court is not satisfied under the particular circumstances of the case that “there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.” Reynolds, 345 U.S. at 10.
As a result, I deny Plaintiffs’ Motion for Order Compelling Discovery, with leave to renew after the discovery conference. VI. Oregonian’s Motion to Unseal Records
The Oregonian argues in its motion to unseal records that there is a strong presumption supporting access to court records, and that a court must state the compelling interest requiring an order to seal, “along with findings specific enough so that a reviewing court can determine whether the closure order was properly entered.” Oregonian Publishing Co. v. United States
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Dist. Ct. for the Dist. of Or., 920 F.2d 1462, 1464 (9th Cir. 1990). The Oregonian suggests that even if the Sealed Document is classified, sealing of the document may be inappropriate if it is possible to redact only the few lines that require confidential treatment. United States v. Ressam, 221 F. Supp. 2d 1252, 1263-64 (W.D. Wash. 2002). The newspaper argues that the Sealed Document should be unsealed because no compelling interest supports further sealing and, in any event, any interest is outweighed by the constitutional and common law rights of public access to court documents.
The government responds that the document was and remains classified as SCI and “TOP SECRET,” notwithstanding its inadvertent disclosure to the plaintiffs, and that the Executive has sole authority to classify or declassify information.8 The government further asserts that before the court evaluates whether a compelling interest requires continued protection of a document, the court must first address whether the place and process have historically been open to the press and general public and whether public access plays a significant positive role in the functioning of the particular process in question. Phoenix Newspapers, Inc. v. United States Dist. Ct. for the Dist. of Arizona, 156 F.3d 940, 946 (9th Cir. 1998). Here, according to the government, the Sealed Document remains a classified document of the sort to which the press or public have historically not had access.
Given my decision above that the inadvertent disclosure of the Sealed Document does not declassify it or waive application of the state secrets privilege, I must deny the Oregonian’s
8On April 14, 2006, the government submitted a Classified Declaration in Opposition to Oregonian Publishing Company’s Motion to Intervene and Unseal Records, and on May 12, 2006, the government filed a Superseding Classified Declaration. I have not reviewed either of these declarations submitted in camera and ex parte. Page 31 - OPINION AND ORDER

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Motion to Unseal Records. Even if the document were one to which the press or public have historically had access by virtue of its being filed with the Court, the government has asserted a compelling national security interest that overrides any public interest in the document. While I may entertain the possibility that plaintiff may have access to any innocuous information in the document based on the fact that it is no longer secret to them, and subject to a protective order, the document contains highly classified information that must not be disclosed to the public. VII. Further Proceedings
I will schedule a discovery conference at which the parties should be prepared to discuss the following issues: possible redactions to the Sealed Document, possible stipulations, item by item review of interrogatory requests to consider whether in camera responses would be appropriate, depositions, hiring an expert to assist the Court in determining whether any of these disclosures may reasonably result in harm to the national security, and any other appropriate discovery issues. The parties should confer on a few mutually convenient dates and times and contact the Court to reserve a time. VIII. Certification for Appeal
Since I recognize, as did Judge Walker in Hepting, that my rulings on the Motion to Dismiss or, in the Alternative, for Summary Judgment and Motion to Prevent Plaintiffs’ Access to the Sealed Classified Document “involve[] a controlling question of law” about which there is “substantial ground for difference of opinion,” and since “an immediate appeal from the order may materially advance the ultimate termination of this litigation,” I certify these rulings for immediate appeal. U.S.C. § 1292(b). If the parties choose to appeal, and if the appeal is taken, the parties may move to stay proceedings in the district court.
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CONCLUSION

The government’s Motion to Dismiss or, in the Alternative, for Summary Judgment (#58)

is denied, but the government has leave to renew its Motion for Summary Judgment. The

government’s Motion to Prevent Plaintiffs’ Access to the Sealed Classified Document (#39) is

granted. Plaintiffs’ Motion for Order Compelling Discovery (#35) is denied with leave to renew.

Oregonian Publishing Company’s Motion to Intervene was previously granted, but its Motion to

Unseal Records (#7) is denied.

IT IS SO ORDERED.

Dated this 7th

day of September, 2006.

/s/ Garr M. King Garr M. King United States District Judge

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 1

2

3

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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9 IN RE:

MDL Docket No 06-1791 VRW

United States District Court For the Northern District of California

10 NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS
11 LITIGATION

12

13 This order pertains to:

14

AL-HARAMAIN ISLAMIC FOUNDATION, INC, an Oregon

15

Nonprofit Corporation; WENDELL BELEW, a United States Citizen

and Attorney at Law; ASIM 16 GHAFOOR, a Unites States Citizen

and Attorney at Law,

17

Plaintiffs,

18 v

19 BARACK H OBAMA, President of the

20

United States; NATIONAL SECURITY AGENCY and KEITH B ALEXANDER,

its Director; OFFICE OF FOREIGN

21 ASSETS CONTROL, an office of the

United States Treasury, and ADAM

22 J SZUBIN, its Director; FEDERAL

BUREAU OF INVESTIGATION and

23

ROBERT S MUELLER III, its Director, in his official and

24 personal capacities,

Defendants. 25
/ 26

Case No C 07-0109 VRW
MEMORANDUM OF DECISION AND ORDER

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United States District Court For the Northern District of California

1

SUMMARY OF DECISION

2

Plaintiffs seek an order finding defendants civilly

3 liable to them under section 1810 of the Foreign Intelligence

4 Surveillance Act (“FISA”), 50 USC §§ 1801-71, for eavesdropping on

5 their telephone conversations without a FISA warrant. In the

6 course of lengthy proceedings in this court and the court of

7 appeals, described more fully in the decision that follows, this

8 court determined that: FISA affords civil remedies to “aggrieved

9 persons” who can show they were subjected to warrantless domestic

10 national security surveillance; FISA takes precedence over the

11 state secrets privilege in this case; a prima facie case of

12 unlawful electronic surveillance under FISA requires plaintiffs to

13 present to the court specific facts based on non-classified

14 evidence showing that they are “aggrieved persons”; and plaintiffs

15 have met their burden of establishing their “aggrieved person”

16 status using non-classified evidence. Because defendants denied

17 plaintiffs’ counsel access to any classified filings in the

18 litigation, even after top secret clearances were obtained for

19 plaintiffs’ counsel and protective orders suitable for top secret

20 documents proposed, the court directed the parties to conduct this

21 phase of the litigation without classified evidence. Both

22 plaintiffs’ motion for summary judgment of liability and

23 defendants’ cross-motions for dismissal and for summary judgment

24 were, therefore, based entirely on non-classified evidence.

25

The court now determines that plaintiffs have submitted,

26 consistent with FRCP 56(d), sufficient non-classified evidence to

27 establish standing on their FISA claim and to establish the absence

28 of any genuine issue of material fact regarding their allegation of

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United States District Court For the Northern District of California

1 unlawful electronic surveillance; plaintiffs are therefore entitled

2 to summary judgment in their favor on those matters. Defendants’

3 various legal arguments for dismissal and in opposition to

4 plaintiffs’ summary judgment motion lack merit: defendants have

5 failed to meet their burden to come forward, in response to

6 plaintiffs’ prima facie case of electronic surveillance, with

7 evidence that a FISA warrant was obtained, that plaintiffs were not

8 surveilled or that the surveillance was otherwise lawful.

9

In the absence of a genuine issue of material fact

10 whether plaintiffs were subjected to unlawful electronic

11 surveillance within the purview of FISA and for the reasons fully

12 set forth in the decision that follows, plaintiffs’ motion for

13 summary judgment on the issue of defendants’ liability under FISA

14 is GRANTED. Defendants’ motion to dismiss the amended complaint

15 for lack of jurisdiction is DENIED and defendants’ cross-motion for

16 summary judgment is DENIED. Because the court has determined that

17 the sole defendant sued in both official and individual capacities

18 acted wholly in his official capacity and not as an individual, the

19 individual-capacity claims are DISMISSED.

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United States District Court For the Northern District of California

1

DECISION

2

Contending that United States government officials acting

3 without warrants intercepted and eavesdropped on their

4 international telephone conversations, plaintiffs Al-Haramain

5 Islamic Foundation, Inc, an Oregon nonprofit corporation (“Al-

6 Haramain”), and Wendell Belew and Asim Ghafoor, individuals who

7 allege they are United States citizens and attorneys for Al-

8 Haramain, seek summary judgment of liability on their FISA claim.

9 Doc #657/099.1 Defendants, certain high-ranking government

10 officials and associated government agencies, oppose plaintiffs’

11 motion and bring their fourth motion for dismissal and/or summary

12 judgment. Doc #668/103. In compliance with the court’s orders of

13 June 3 and June 5, 2009, Doc #643/096, the parties have presented

14 only non-classified evidence to the court in support of these

15 motions. Upon consideration of that evidence and the arguments

16 presented by the parties, the court now GRANTS plaintiffs’ motion

17 and DENIES defendants’ motions. The court on its own motion

18 dismisses all claims against defendant FBI Director Robert Mueller

19 in his individual capacity.

20

21

I

22

Plaintiffs filed their lawsuit in the United States

23 District Court for the District of Oregon on February 28, 2006.

24 Their complaint alleged that plaintiffs had been subject to

25 warrantless electronic surveillance and sought civil damages under

26

27

1 Documents will be cited both to the MDL docket number (No

28

M 06-1791) and to the individual docket number (No C 07-0109) in the following format: Doc #xxx/yyy.

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United States District Court For the Northern District of California

1 section 1810 of the Foreign Intelligence Surveillance Act, 50 USC

2 §§ 1801-71 (West 2009) (“FISA”). Plaintiffs also alleged

3 violations of the separation of powers principle, the First, Fourth

4 and Sixth Amendments of the United States Constitution and the

5 International Covenant on Civil and Political Rights. Along with

6 their complaint, plaintiffs filed under seal a copy of what has

7 been referred to throughout this litigation as the “Sealed

8 Document,” a classified document that had inadvertently been

9 disclosed by defendant Office of Foreign Assets Control (“OFAC”) to

10 counsel for Al-Haramain as part of a production of unclassified

11 documents relating to Al-Haramain’s designation as a “Specially

12 Designated Global Terrorist” (“SDGT”) organization.2 Al-Haramain

13 Islamic Foundation, Inc v Bush, 451 F Supp 2d 1215, 1218 (D Or

14 2006). The previous phases of this litigation largely focused on

15 whether plaintiffs could use the Sealed Document.

16

Defendants filed their first motion for dismissal or for

17 summary judgment, arguing that the Sealed Document could not be

18 used in the litigation and that the common-law state secrets

19 privilege (“SSP”) required dismissal of the case. Id at 1217. The

20 Oregon district court (King, J) denied the motion, explaining that

21 “plaintiffs should have an opportunity to establish standing and

22 make a prima facie case, even if they must do so in camera.” Id at

23 1226-27. The court noted that “plaintiffs need some information in

24 the Sealed Document to establish their standing and a prima facie

25 case, and they have no other available source for this

26

27

2 Under Executive Order 13224, a SDGT designation authorizes the

28

Department of the Treasury to block assets and prohibit transactions with designated individuals and organizations.

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United States District Court For the Northern District of California

1 information,” id at 1221, and that given defendants’ many public

2 acknowledgments of the warrantless electronic surveillance program

3 beginning in 2005, the program itself was not a secret. Id at

4 1221-23. Nonetheless, the court determined that the Sealed

5 Document remained highly classified, ordered plaintiffs to hand

6 over all copies of the Sealed Document to the court, refused media

7 requests to unseal records and plainly contemplated maintaining the

8 secrecy of the Sealed Document while proceeding with the

9 litigation. Id at 1229, 1232.

10

The Oregon district court declined to reach the question

11 whether “FISA preempts the [SSP].” Id at 1229. The court

12 observed: “[t]o accept the government’s argument that Section

13 1806(f) is only applicable when the government intends to use

14 information against a party would nullify FISA’s private remedy

15 [under section 1810] and would be contrary to the plain language of

16 Section 1806(f).” Id at 1231. The court certified its other

17 rulings for interlocutory appeal. During the pendency of the

18 appeal, this case was reassigned by the Judicial Panel on

19 Multidistrict Litigation (MDL) to the undersigned.

20

The court of appeals considered three issues on

21 interlocutory review: (1) whether the very subject matter of the

22 litigation is a state secret; (2) whether Al-Haramain can establish

23 standing to bring suit, absent the Sealed Document; and (3) whether

24 Al-Haramain can establish a prima facie case, and the government

25 can defend against Al-Haramain’s assertions, without resorting to

26 state secrets. In a footnote, the court of appeals observed that

27 the third issue had not been addressed by the district court. 507

28 F3d at 1197 & n 4.

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United States District Court For the Northern District of California

1

As to the first issue, the court of appeals held that

2 while Al-Haramain’s case involved privileged information, “that

3 fact alone does not render the very subject matter of the action a

4 state secret” and affirmed the district court’s denial of dismissal

5 on that basis. 507 F3d at 1201.

6

The court of appeals determined that defendants had

7 properly invoked the SSP and, based on Al-Haramain’s “showing of

8 necessity” or “admittedly substantial need for the document to

9 establish its case,” quoting United States v Reynolds, 345 US 1, 10

10 (1953), conducted an in camera review of the Sealed Document. 507

11 F3d at 1203. Based on that review, the court wrote: “We are

12 satisfied that the basis for the privilege is exceptionally well

13 documented” and that disclosure of “information concerning the

14 Sealed Document and the means, sources and methods of intelligence

15 gathering in the context of this case would undermine the

16 government’s capabilities and compromise national security.” 507

17 F3d at 1204. The court of appeals then held: “The Sealed

18 Document, its contents, and any individuals’ memories of its

19 contents, even well-reasoned speculation as to its contents, are

20 completely barred from further disclosure in this litigation by the

21 common law [SSP].” Id.

22

The court of appeals next turned to the question of Al-

23 Haramain’s standing and determined that plaintiffs could not

24 establish standing to proceed with their lawsuit without the Sealed

25 Document because they could not establish a “concrete and

26 particularized” injury-in-fact under the principles set forth in

27 Lujan v Defenders of Wildlife, 504 US 555 (1992), unless the courts

28 determined that FISA, rather than the SSP, governed this case:

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United States District Court For the Northern District of California

1 “Al-Haramain cannot establish that it has standing, and its claims

2 must be dismissed, unless FISA preempts the [SSP].” 507 F3d at

3 1205. As noted above, the Oregon district court had declined to

4 rule on this complex issue, which now had become pivotal to the

5 fate of the litigation.

6

On the basis of the rule set forth in Singleton v Wulff,

7 428 US 106 (1976), that a court of appeals should not ordinarily

8 consider an issue not ruled on in the district court, the court of

9 appeals declined to decide whether FISA preempts the SSP. Instead,

10 writing that “the FISA issue remains central to Al-Haramain’s

11 ability to proceed with this lawsuit,” it remanded the case to this

12 court to consider that question “and for any proceedings collateral

13 to that determination.” 507 F3d at 1206. The court of appeals did

14 not comment either on the likely consequences of a determination by

15 this court that FISA preempted the SSP for this litigation in

16 general or for the Sealed Document’s role in this litigation in

17 particular.

18

Following remand, defendants filed a second motion to

19 dismiss plaintiffs’ claims (Doc #432/017), asserting, inter alia,

20 that: FISA did not preempt the SSP; the SSP presented

21 insurmountable obstacles to plaintiffs’ action; plaintiffs lacked

22 standing to seek prospective relief; and the doctrine of sovereign

23 immunity barred recovery under FISA’s section 1810. Plaintiffs

24 argued that FISA preempted the SSP and that dismissal would be

25 improper. By order dated July 2, 2008, the court held that FISA’s

26 legislative history unequivocally established Congress’s intent that

27 FISA preempt or displace the SSP in cases within the reach of its

28 provisions. In Re National Security Agency Telecommunications

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United States District Court For the Northern District of California

1 Records Litigation (“In re NSA Telecom Litigation”), 564 F Supp 2d

2 1109, 1124 (N D Cal 2008). The court noted, however, the

3 substantial obstacles facing any litigant hoping to bring an action

4 for damages under FISA’s section 1810, which the court described as

5 “not user-friendly.” Id at 1136.

6

Specifically, the court noted, unlike the electronic

7 surveillance carried out by federal law enforcement agencies under

8 the general wiretap statute, Title III, 18 USC §§ 2510-22, much of

9 the electronic surveillance undertaken for national security

10 purposes does not result in criminal proceedings in which the

11 existence of the surveillance evidence would be disclosed as a

12 matter of course. Moreover, unlike Title III, FISA does not require

13 that the target of an electronic surveillance ever be informed of

14 its occurrence. The July 2 order detailed FISA’s provisions

15 requiring certain agencies to report periodically to Congress on the

16 number of warrants applied for and other actions taken under FISA.

17 The July 2 order, meanwhile, underscored the absence of any regular

18 legal mechanism by which an individual who had been subject to

19 electronic surveillance within FISA’s purview could learn of the

20 surveillance. 564 F Supp 2d at 1125-30.

21

A further obstacle to litigation under section 1810, the

22 court noted, is “the lack of a practical vehicle for obtaining

23 and/or using admissible evidence * * * sufficient to establish

24 standing to proceed as an aggrieved party and, later, to withstand

25 motions for dismissal and/or summary judgment.” 564 F Supp 2d at

26 1131. The court, however, noted that FISA’s section 1806(f)

27 provides for United States district courts to conduct in camera

28 reviews of “applications or orders or other materials relating to

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United States District Court For the Northern District of California

1 electronic surveillance” in certain narrowly-defined circumstances

2 “to determine whether the surveillance of the aggrieved person was

3 lawfully authorized and conducted.” 564 F Supp 2d at 1131 (quoting

4 section 1806(f)). Hence, section 1806(f) could be used to discover

5 evidence of electronic surveillance for purposes of establishing

6 “aggrieved person” status within the meaning of FISA’s

7 section 1801(k) if an individual had a “colorable basis for

8 believing he or she had been surveilled.” 564 F Supp 2d at 1133.

9 50 USC § 1801(k) defines an “aggrieved person” as “a person who is

10 the target of an electronic surveillance or any other person whose

11 communications or activities were subject to electronic

12 surveillance.” The court ruled that plaintiffs “must first

13 establish ‘aggrieved person’ status without the use of the Sealed

14 Document and may then bring a ‘motion or request’ under § 1806(f)

15 * * *.” Id at 1134.

16

Noting that the civil liability provision of Title III (18

17 USC § 2520) had been in effect for a decade when FISA was enacted

18 and therefore could have served as a model had Congress intended

19 FISA’s civil liability provision to resemble Title III’s, the court

20 wrote that although “Congress enacted section 1810 in order to

21 provide a private cause of action for unlawful surveillance, section

22 1810 bears but faint resemblance to 18 USC section 2520. While the

23 court must not interpret and apply FISA in a way that renders

24 section 1810 superfluous * * * the court must be wary of unwarranted

25 interpretations of FISA that could make section 1810 a more robust

26 remedy than Congress intended it to be.” 564 F Supp 2d at 1135.

27 Accordingly, the court determined that among approaches employed

28 within the Ninth Circuit for making out a prima facie case of

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United States District Court For the Northern District of California

1 electronic surveillance, the more stringent end of the spectrum was

2 appropriate for FISA cases and that “plaintiffs’ showing thus far

3 with the Sealed Document excluded falls short of the mark.” Id at

4 1134-35. The court dismissed plaintiffs’ complaint with leave to

5 amend, explaining: “[t]o proceed with their FISA claim, plaintiffs

6 must present to the court enough specifics based on non-classified

7 evidence to establish their ‘aggrieved person’ status under FISA.”

8 Id.

9

Plaintiffs timely filed an amended pleading, the First

10 Amended Complaint (“FAC”). Doc #458/035. It named generally the

11 same defendants but replaced one office-holder with his replacement

12 and specified that plaintiffs were suing one defendant in both his

13 official and individual capacities.3 Id at 1-2 & ¶¶ 7-13. The FAC

14 retained the same six causes of action as the original complaint,

15 including, as relevant here, one cause of action under FISA

16 encompassing both a request under 50 USC § 1806(g) for suppression

17 of evidence obtained through warrantless electronic surveillance and

18 a claim for damages under section 1810. Doc #458/035 at 14.

19

The most noteworthy change in the FAC was the ten-fold

20 expansion of plaintiffs’ factual recitation, which newly detailed a

21 number of public pronouncements by government officials and

22 publicly-available press reports disclosing post-9/11 warrantless

23 electronic surveillance activities, as well as events publicly known

24 about these activities, such as a much-publicized hospital room

25 confrontation between former Attorney General John Ashcroft and

26

27

3 Pursuant to FRCP 25(d), President Barack H Obama is now substituted for former President George W Bush because a suit against

28

a government official in his or her official capacity is deemed to be against the current holder of the office.

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United States District Court For the Northern District of California

1 then-White House counsel (later Attorney General) Alberto Gonzales.

2 Id at 5. The FAC also recited a sequence of events pertaining

3 directly to the government’s investigations of Al-Haramain, a sine

4 qua non, in the court’s view, to establishing their “aggrieved

5 person” status.

6

The FAC may be briefly summarized in the following two

7 paragraphs:

8

Various government officials admitted the existence of a

9 program of warrantless surveillance under which the NSA was

10 authorized by the President to intercept certain international

11 communications in which one party was outside the United States and

12 one party was reasonably believed to be a member or agent of

13 international terrorist network al-Qaeda or an affiliated terrorist

14 organization. FAC ¶¶ 16-18. Al-Haramain’s assets were blocked by

15 the Treasury Department in February 2004 pending an investigation of

16 “possible crimes relating to currency reporting and tax laws,” but

17 neither OFAC’s press release nor March 2004 congressional testimony

18 of a FBI official about the investigation suggested that Al-Haramain

19 had links to al-Qaeda. FAC ¶¶ 24-26, 30. In June 2004, an OFAC

20 official testified in Congress that in investigating terrorist

21 financing, OFAC used classified information sources. FAC ¶ 28.

22

Between March and June 2004, several phone conversations

23 took place between plaintiffs Belew and Ghafoor in the United States

24 on the one hand and Soliman al-Buthi, a director of Al-Haramain

25 located in Saudi Arabia, on the other; in these conversations, the

26 participants made reference to various individuals associated with

27 Osama bin-Laden, the founder of al-Qaeda. FAC ¶¶ 32-35. In

28 September 2004, OFAC formally designated Al-Haramain as a SDGT

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United States District Court For the Northern District of California

1 organization and, in a press release, specifically cited “direct

2 links between the US branch [of Al-Haramain]” and Osama bin-Laden;

3 this was the first “public claim of purported links between [] Al-

4 Haramain and [] bin-Laden.” FAC ¶¶ 30-35, 39-40. The FBI and the

5 Treasury Department have stated publicly that they relied on

6 classified information, including “surveillance” information, to

7 designate Al-Haramain as a terrorist organization associated with

8 al-Qaeda and bin-Laden. FAC ¶¶ 36-43. In testimony before Congress

9 in 2006 and 2007, top intelligence officials including defendant

10 Keith B Alexander stated that a FISA warrant is required before

11 certain wire communications in the United States can be intercepted.

12 FAC ¶ 48. In a separate criminal proceeding against Ali al-Timimi

13 in 2005, the government disclosed that it had intercepted

14 communications between al-Timimi and Al-Haramain’s director

15 al-Buthi. FAC ¶ 51.

16

The FAC’s allegations also appear in the court’s statement

17 of material facts not genuinely at issue in section III B, infra.

18

On September 30, 2008, the parties filed cross-motions.

19 Plaintiffs moved under FISA’s section 1806(f) for discovery of

20 evidence pertaining to the lawfulness of the alleged surveillance.

21 Doc #472/046. Defendants brought their third motion to dismiss or,

22 in the alternative, for summary judgment. Doc #475/049.

23

In support of their motion under section 1806(f), as noted

24 above, plaintiffs submitted evidence substantiating the allegations

25 of their FAC. In addition to numerous documents drawn from United

26 States government websites and the websites of news organizations

27 (exhibits to Doc #472-1/046-1, passim), plaintiffs submitted the

28 sworn declarations of plaintiffs Belew and Ghafoor attesting to the

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United States District Court For the Northern District of California

1 specifics and contents of the telephone conversations described in

2 paragraphs 32 and 33 of the FAC. Doc ##472-6/046-6, 472-7/046-7.

3

Defendants’ third motion to dismiss (Doc #475/049) largely

4 ignored the court’s prior rulings regarding FISA’s displacement of

5 the SSP in this case and the necessity of giving effect to Congress’

6 intent in enacting FISA’s section 1810. Instead, defendants

7 reiterated standing arguments made previously (at 16-17), asserted

8 that “the law does not support an attempt to adjudicate whether the

9 plaintiffs are ‘aggrieved persons’ in the face of the Government’s

10 successful [SSP] assertion” (at 27-30) and contended that the

11 adjudication of ‘aggrieved person’ status for any or all plaintiffs

12 could not be accomplished without revealing information protected by

13 the SSP. As for the standard required for a plaintiff to establish

14 “aggrieved person” status under section 1810, defendants contended

15 that only the government’s frank admission of the unlawful

16 electronic surveillance and active cooperation in the litigation

17 against it under FISA would suffice. They also requested

18 interlocutory appellate review of the court’s orders following

19 remand. Id at 31.

20

In its order of January 5, 2009, the court ruled that

21 plaintiffs had made out a prima facie case that they are “aggrieved

22 persons” who had been subjected to “electronic surveillance” within

23 the meaning of section 1810. In doing so, the court employed the

24 analysis and standard for establishing a prima facie case of

25 electronic surveillance used by the Ninth Circuit in United States v

26 Alter, 482 F2d 1016 (9th Cir 1973) (applying 18 USC § 3504(a)(1))

27 and more recently by the DC Circuit in In re Sealed Case (Horn v

28 Huddle), 494 F3d 139 (DC Cir 2007), a case in which, as in Al-

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United States District Court For the Northern District of California

1 Haramain, the plaintiff sought damages under FISA’s section 1810.

2 In re NSA Telecom Litigation, 595 F Supp 2d at 1083-84.

3

The court explained that the approach employed in Alter

4 was appropriate in this case arising under FISA’s section 1810 given

5 the lack of precedent in the Ninth Circuit because the Alter test’s

6 “stringency makes it appropriate in cases arising in the somewhat

7 more restrictive environment where national security dimensions are

8 present.” 595 F Supp 2d at 1084.

9

The court rejected defendants’ contention that only when

10 the government has openly acknowledged conducting warrantless

11 electronic surveillance of an individual can that individual

12 establish standing to sue:

13

The court declines to entertain further challenges to

plaintiffs’ standing; the July 2 order gave

14

plaintiffs the opportunity to “amend their claim to

establish that they are ‘aggrieved persons’ within

15

the meaning of 50 USC § 1801(k).” Plaintiffs have

alleged sufficient facts to withstand the

16

government’s motion to dismiss. To quote the Ninth

Circuit in Alter, “[t]he [plaintiff] does not have to

17

plead and prove his entire case to establish standing

and to trigger the government’s responsibility to

18

affirm or deny.” Contrary to defendants’ assertions,

proof of plaintiffs’ claims is not necessary at this

19

stage. The court has determined that the allegations

“are sufficiently definite, specific, detailed, and

20

nonconjectural, to enable the court to conclude that

a substantial claim is presented.”

21

22 595 F Supp 2d at 1085 (citations omitted). The court concluded:

23 “[w]ithout a doubt, plaintiffs have alleged enough to plead

24 ‘aggrieved person’ status so as to proceed to the next step in the

25 proceedings under FISA’s sections 1806(f) and 1810.” Id at 1086.

26

The January 5 order announced several next steps in the

27 litigation that were designed to prioritize two interests:

28 \\

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United States District Court For the Northern District of California

1 “protecting classified evidence from disclosure and enabling

2 plaintiffs to prosecute their action.” Id at 1089.

3

The court announced its intention to review the Sealed

4 Document ex parte and in camera, then to issue an order stating

5 whether plaintiffs could proceed —— specifically, whether the Sealed

6 Document established that plaintiffs were subject to electronic

7 surveillance not authorized by FISA. The court explained:

8

As the court understands its obligation with regard

to classified materials, only by placing and

9

maintaining some or all of its future orders in this

case under seal may the court avoid indirectly

10

disclosing some aspect of the Sealed Document’s

contents. Unless counsel for plaintiffs are granted

11

access to the court’s rulings and, possibly, to at

least some of defendants’ classified filings,

12

however, the entire remaining course of this

litigation will be ex parte. This outcome would

13

deprive plaintiffs of due process to an extent

inconsistent with Congress’s purpose in enacting

14

FISA’s sections 1806(f) and 1810.

15 595 F Supp 2d at 1089. The order directed the government to begin

16 processing security clearances for members of plaintiffs’ litigation

17 team so that they would be able to read and respond to sealed

18 portions of the court’s future orders and, if necessary, some

19 portion of defendants’ classified filings.

20

The court also directed defendants to review their

21 classified submissions to date and to determine whether the Sealed

22 Document and/or any of defendants’ classified submissions could be

23 declassified. Upon completion of this review, defendants informed

24 the court that nothing they had filed under seal during the three

25 years in which the case had by then been pending could be

26 declassified. Doc #577/078.

27

What followed were several months of which the defining

28 feature was defendants’ refusal to cooperate with the court’s

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United States District Court For the Northern District of California

1 orders punctuated by their unsuccessful attempts to obtain untimely

2 appellate review. Expressing alarm that the January 5 order would

3 result in the disclosure of privileged information without the

4 opportunity for further review, defendants sought interlocutory and

5 direct appeal. Doc #544/059; 545/060. The court denied

6 defendants’ request to certify the case for interlocutory review

7 and the court of appeals dismissed defendants’ appeal for lack of

8 jurisdiction because no disclosure of classified information had

9 been ordered by the court. Doc #562/071 and Al-Haramain Islamic

10 Foundation, Inc v Obama, No 09-15266 (9th Cir February 27, 2009).

11

In response to the court’s directive to “inform the court

12 how [they intend] to comply with the January 5 order” (Doc #562/071

13 at 3), defendants presented three similar-sounding alternatives,

14 all of which appeared geared toward obtaining a stay of this

15 court’s proceedings pending review by the court of appeals. Doc

16 #600/084 at 1-2. The court next ordered the parties to meet and

17 confer regarding the entry of an appropriate protective order,

18 noting that the United States District Court for the District of

19 Columbia had successfully used protective orders for highly

20 classified information in the In Re Guantánamo Bay Detainee

21 Litigation, D DC No Misc 08-0442 TFH, and that defendants had given

22 no reason why a such a protective order would not adequately

23 protect the classified information at issue in this case. Id at 2.

24

Next, after the United States completed suitability

25 determinations for two of plaintiffs’ attorneys and found them

26 suitable for top secret/secure compartmented information (“TS/SCI”)

27 clearances, government officials in one or more defendant agencies,

28 including defendant Keith B Alexander, refused to cooperate with

17

United States District Court For the Northern District of California

1 the court’s orders, asserting that plaintiffs’ attorneys did not

2 “need to know” the information that the court had determined

3 plaintiffs attorneys would need in order to participate in the

4 litigation. Declaration of Ariane E Cherlenko [NSA] in Support of

5 Defendants’ Motion of Stay Pending Appeal and for Certification of

6 an Interlocutory Appeal, Doc #545-1/060-1 at 5. Moreover,

7 according to the parties’ joint submission regarding a protective

8 order (Doc #626/089 at 35), defendants refused to agree to any

9 terms of the protective order proposed by plaintiffs and refused to

10 propose one of their own. Doc #630/090 at 3.

11

The court ordered defendants to show cause why, as a

12 sanction for failing to obey the court’s orders: (1) defendants

13 should not be prohibited, under FRCP 37(b)(2)(ii), from opposing

14 the liability component of plaintiffs’ claim under 50 USC § 1810 ——

15 that is, from denying that plaintiffs are “aggrieved persons” who

16 had been subjected to electronic surveillance; and (2) the court

17 should not deem liability under 50 USC § 1810 established and

18 proceed to determine the amount of damages to be awarded to

19 plaintiffs. The court also ordered plaintiffs to submit a

20 memorandum addressing whether it would be appropriate for them to

21 file a motion for summary judgment on their FISA claim. Doc

22 #630/090 at 3.

23

After hearing argument on the order to show cause, the

24 court directed plaintiffs to move for summary judgment on their

25 FISA claim relying only on non-classified evidence. See Doc

26 #643/096. It further ordered that if and only if defendants were

27 to rely upon the Sealed Document or other classified evidence in

28 response, the court would enter a protective order and produce such

18

United States District Court For the Northern District of California

1 classified evidence to plaintiffs’ counsel who have obtained

2 security clearances. Id.

3

The instant cross-motions ensued.

4

5

II

6

Turning first to defendants’ motion to dismiss,

7 defendants move under Rule 12(b)(1) for dismissal of plaintiffs’

8 FAC arguing that: (1) plaintiffs lack standing to obtain

9 prospective declaratory or injunctive relief with respect to

10 alleged warrantless surveillance under the Terrorist Surveillance

11 Program (“TSP”) because the TSP lapsed or was terminated in January

12 2007 and (2) the court lacks jurisdiction to review plaintiffs’

13 claim for retrospective damages against the United States under

14 section 1810 of FISA, because section 1810 assertedly does not

15 expressly waive the sovereign immunity of the United States.

16

Defendants’ first argument for dismissal attacks

17 plaintiffs’ non-FISA claims, arguing that these claims seek only

18 “prospective declaratory and injunctive relief against alleged TSP

19 surveillance” and that such relief is not available because the TSP

20 ended in January 2007. Doc #668/103 at 18-19. This mootness

21 argument is essentially a re-tread of standing arguments made in

22 March 2008 that were also based on the TSP’s purported January 2007

23 termination. Doc #432/017 at 17. Defendants further assert:

24 “declaratory and injunctive relief are equitable and should for

25 similar reasons be denied as a prudential matter.” Doc #668/103 at

26 19. But defendants’ argument rests on a mistaken premise;

27 plaintiffs’ prayer for relief seeks various items of equitable

28 relief, but most are not predicated on the continued existence of

19

United States District Court For the Northern District of California

1 the TSP or other wiretapping activities. Doc #458/035 at 16.

2 Plaintiffs seek, for example, a declaration that defendants’

3 warrantless surveillance of plaintiffs “is” unlawful, which may be

4 construed to encompass past surveillance; and orders requiring

5 defendants to turn over to plaintiffs, purge and/or destroy files

6 and records containing information obtained by means of unlawful

7 electronic surveillance. Defendants do not explain what prudential

8 considerations would prohibit such equitable relief, and the court

9 is aware of none.

10

Defendants’ second argument for dismissal is a familiar

11 one; indeed, defendants admit that they have made it before, noting

12 that “the Government respectfully and briefly preserves its

13 position that Section 1810 of the FISA does not waive the sovereign

14 immunity of the United States.” Doc #668/103. The court

15 considered and ruled on this issue in its order of July 2, 2008:

16

It is, of course, true that section 1810 does not

contain a waiver of sovereign immunity analogous to

17

that in 18 USC section 2712(a) which expressly

provides that aggrieved persons may sue the United

18

States for unlawful surveillance in violation of Title

III. But FISA directs its prohibitions to “Federal

19

officers and employees” (see, e g, 50 USC §§ 1806,

1825, 1845) and it is only such officers and employees

20

acting in their official capacities that would engage

in surveillance of the type contemplated by FISA. The

21

remedial provision of FISA in section 1810 would

afford scant, if any, relief if it did not lie against

22

such “Federal officers and employees” carrying out

their official functions. Implicit in the remedy that

23

section 1810 provides is a waiver of sovereign

immunity.

24

25 In re NSA Telecom Litigation, 564 F Supp 2d at 1125. The court’s

26 view of this issue has not changed.

27

Accordingly, the motion to dismiss for lack of

28 jurisdiction is DENIED.

20

United States District Court For the Northern District of California

1

III

2

The parties’ cross-motions for summary judgment present

3 more substantial questions. Rule 56(a) of the Federal Rules of

4 Civil Procedure provides: “A party claiming relief may move, with

5 or without supporting affidavits, for summary judgment on all or

6 part of the claim.” Rule 56(d)(2) provides: “An interlocutory

7 summary judgment may be rendered on liability alone, even if there

8 is a genuine issue on the amount of damages.” Rule 56(d)(1),

9 moreover, provides that “the court should, to the extent

10 practicable, determine what material facts are not genuinely at

11 issue.”

12

Plaintiffs’ motion seeks summary adjudication of two

13 issues: (1) plaintiffs’ Article III standing and (2) defendants’

14 liability under FISA’s civil liability provision, 50 USC § 1810.

15 Doc #657/099. Defendants cross-move for summary judgment on

16 plaintiffs’ FISA claim and “any remaining claim,” arguing that:

17 (1) the Ninth Circuit’s mandate in this case “forecloses”

18 plaintiffs’ motion; (2) plaintiffs’ evidence is too conjectural or

19 circumstantial to establish that plaintiffs are “aggrieved persons”

20 for FISA purposes; and (3) all other potentially relevant evidence

21 —— including whether the government possessed a FISA warrant

22 authorizing surveillance of plaintiffs —— is barred from disclosure

23 by operation of the SSP. Doc #668/103.

24

Of particular note concerning these motions is the

25 principle that: “[W]hen parties make cross-motions for summary

26 judgment, they are not thereby relieved from filing materials in

27 opposition to the other party’s motion.” William W Schwarzer, Alan

28 Hirsch & David J Barrans, The Analysis and Decision of Summary

21

United States District Court For the Northern District of California

1 Judgment Motions: A Monograph on Rule 56 of the Federal Rules of

2 Civil Procedure 74 (Federal Judicial Center 1991).

3

4

A

5

Plaintiffs have submitted twenty-eight public documents

6 and two declarations as evidence in support of their motion.

7 Defendants had submitted many of the same documents in support of

8 their third motion to dismiss and for summary judgment (Doc

9 #475/049) (see section III B, infra) and plaintiffs had submitted

10 all but two of the items in support of plaintiffs’ motion for

11 discovery under FISA section 1806(f) (see declaration of Jon B

12 Eisenberg in support of motion pursuant to 50 USC § 1806(f) to

13 discover or obtain material relating to electronic surveillance,

14 Doc #472-1/046-1). Not previously submitted are the government’s

15 so-called “white paper” by the United States Department of Justice

16 dated January 19, 2006 under the heading “Legal Authorities

17 Supporting the Activities of the [NSA] Described by the President”

18 (Declaration of Jon B Eisenberg (“Eisenberg Decl”) Exh AA, Doc

19 #657-5/099-5) and the amicus brief submitted in ACLU v NSA, 493 F2d

20 644 (6th Cir 2007), by the Center for National Security Studies and

21 the Constitution Project (Eisenberg Decl Exh BB, Doc #657-5/099-5).

22 These new items do not bear specifically on defendants’ alleged

23 surveillance of Al-Haramain. Plaintiffs also submit the

24 declarations of plaintiffs Asim Ghafoor and Wendell Belew (Doc ##

25 657/099-6; 657/099-7). The substance of these declarations is

26 identical to that of the Ghafoor and Belew declarations submitted

27 in support of plaintiffs’ motion under section 1806(f). Doc ##472-

28 6/046-6; 472-7/046-7.

22

United States District Court For the Northern District of California

1

The court has already determined, based on the body of

2 evidence submitted with plaintiffs’ motion under section 1806(f)

3 (Doc #472/046), that plaintiffs have made out a prima facie case of

4 electronic surveillance under the standard set forth in United

5 States v Alter. Under Alter, “the burden was then on the

6 government to squarely affirm or deny those charges * * * [with an

7 affidavit that is] factual, unambiguous and unequivocal.” 482 F2d

8 at 1027. In FISA proceedings, 50 USC § 1806(f) provides a

9 procedure by which the government may do this in camera, thus

10 avoiding the disclosure of sensitive national security information.

11 See In Re NSA Telecom Litigation, 564 F Supp 2d at 1131-35.

12 Defendants declined to avail themselves of section 1806(f)’s in

13 camera review procedures and have otherwise declined to submit

14 anything to the court squarely addressing plaintiffs’ prima facie

15 case of electronic surveillance.

16

Instead, defendants have interposed three arguments

17 intended to undermine plaintiffs’ claim for relief. All three

18 arguments lack merit.

19

20

1

21

First, defendants contend that “the mandate of the Court

22 of Appeals in this case forecloses plaintiffs’ motion. The Ninth

23 Circuit expressly held that the information necessary for

24 plaintiffs to establish their standing has been excluded from this

25 case pursuant to the [SSP],” citing Al-Haramain Islamic Foundation,

26 Inc v Bush, 507 F3d at 1203-05. The passages to which defendants

27 refer are as follows:

28

Al–Haramain cannot establish that it suffered injury

in fact, a “concrete and particularized” injury,

23

United States District Court For the Northern District of California

1

because the Sealed Document, which Al–Haramain

alleges proves that its members were unlawfully

2

surveilled, is protected by the [SSP]. At oral

argument, counsel for Al–Haramain essentially

3

conceded that Al–Haramain cannot establish standing

without reference to the Sealed Document. When asked

4

if there is data or information beyond the Sealed

Document that would support standing, counsel offered

5

up no options, hypothetical or otherwise. Thus,

Al–Haramain has indicated that its ability to

6

establish injury in fact hinges entirely on a

privileged document. It is not sufficient for

7

Al–Haramain to speculate that it might be subject to

surveillance under the TSP simply because it has been

8

designated a “[SDGT].”

9

* * *

10

Because we affirm the district court’s conclusion

that the Sealed Document, along with data concerning

11

surveillance, are privileged, and conclude that no

testimony attesting to individuals’ memories of the

12

document may be admitted to establish the contents of

the document, Al–Haramain cannot establish that it

13

has standing, and its claims must be dismissed,

unless FISA preempts the [SSP].

14

15 Al-Haramain, 507 F3d at 1205.

16

Defendants’ enthusiasm for these passages is

17 understandable, but the court does not agree that plaintiffs are

18 now “foreclosed” from attempting to establish standing without the

19 Sealed Document. It is apparent from the opinion that the court of

20 appeals, having asked plaintiffs’ counsel whether the Sealed

21 Document was necessary for plaintiffs to establish standing, simply

22 did not contemplate plaintiffs’ later attempt, in light of newly-

23 available public evidence, to build a non-classified evidentiary

24 basis for their suit.

25

During oral argument on the instant cross-motions, the

26 court asked plaintiffs’ attorney about the apparent discrepancy

27 between his representation to the court of appeals in August 2007

28 that plaintiffs required the Sealed Document to establish standing

24

United States District Court For the Northern District of California

1 and his contention in the district court in 2009 that plaintiffs

2 could establish standing without classified evidence of any kind.

3

At oral argument counsel for Al-Haramain

essentially conceded that Al-Haramain cannot

4

establish standing without reference to the Sealed

Document. What’s the background of that? And what

5

is the effect of that statement for purpose[s] of

the standing determination here?

6

7 RT September 23, 2009, as amended Doc #712/1144 at 26-27.

8 Plaintiffs’ counsel responded that he had not attempted to marshal

9 public evidence because the Oregon district court had ruled that

10 plaintiffs could use the Sealed Document. Counsel went on to

11 explain that there were two crucial pieces of public evidence that

12 he had not discovered as of the August 2007 oral argument: (1) a

13 speech given on October 22, 2007 by FBI Deputy Director John S

14 Pistole to the American Banker’s Association stating that, in

15 developing OFAC’s case against Al-Haramain, “we used other

16 investigative tools —— like records checks, surveillance, and

17 interviews of various subjects” (see Eisenberg Decl Exh S, Doc

18 #657-3/099-3 at 51) and (2) “the testimony by members of the Bush

19 administration before Congress that told us how they intercept

20 communications, which is they do it on a wire from routing stations

21 within the United States, which makes it electronic surveillance

22 within the meaning of FISA * * *.” Doc #712/114 at 28. Counsel

23 further expressed doubt that the court of appeals could have

24

25

26

4 The original transcript of the September 23, 2009 hearing was

filed on October 6, 2009 (Doc #711/107). At the stipulated request 27 of the parties, the transcript was corrected and an amended version

of the transcript was filed on February 22, 2010 (Doc #712/114). 28 Citations herein to the record of proceedings at the September 23,

2009 hearing are to the amended transcript.

25

United States District Court For the Northern District of California

1 anticipated that the FBI would “post on the FBI’s website an

2 admission like that.” Id at 29.

3

Simply put, to deem plaintiffs “foreclosed” by part IV of

4 the court of appeals’ 2007 opinion from building their case with

5 later-disclosed, publicly-available evidence —— especially in light

6 of defendants’ intransigence following the court’s January 5, 2009

7 order and the limited progress made to date along the normal arc of

8 civil litigation —— would violate basic concepts of due process in

9 our system of justice. Defendants’ reading of part IV of the court

10 of appeals’ opinion fails to account for these circumstances and

11 would lead to a crabbed result the court of appeals could not have

12 contemplated or intended.

13

14

2

15

Defendants’ second major contention in opposition to

16 plaintiffs’ motion is that defendants cannot —— and therefore

17 should not be required to —— respond to plaintiffs’ prima facie

18 case by showing that “plaintiffs’ alleged electronic surveillance

19 was authorized by a FISA warrant, or * * * plaintiffs were not in

20 fact electronically surveilled.” Doc #668/103 at 10. “[T]his,”

21 defendants argue, “is precisely what was precluded by the Ninth

22 Circuit when it squarely held that ‘information as to whether the

23 government surveilled [plaintiffs]’ is protected by the [SSP] and

24 is categorically barred from use in this litigation.” Id, quoting

25 Al-Haramain, 507 F3d at 1203-04. Defendants’ reading of the court

26 of appeals’ opinion would require the court to impose a result

27 contrary to the intent of Congress in enacting FISA and, indeed,

28 \\

26

United States District Court For the Northern District of California

1 contrary to the court of appeals’ interpretation of FISA in Al-

2 Haramain.

3

Under defendants’ theory, executive branch officials may

4 treat FISA as optional and freely employ the SSP to evade FISA, a

5 statute enacted specifically to rein in and create a judicial check

6 for executive-branch abuses of surveillance authority. For

7 example, the House Report on FISA noted: “In the past several

8 years, abuses of domestic national security surveillances have been

9 disclosed. This evidence alone should demonstrate the

10 inappropriateness of relying solely on [E]xecutive branch

11 discretion to safeguard civil liberties.” Foreign Intelligence

12 Surveillance Act of 1978, H R Rep No 95-1283 Part I at 21. See

13 also In Re NSA Telecom Litigation, 564 F Supp 2d at 1117-24.

14

Perhaps sensitive to the obvious potential for

15 governmental abuse and overreaching inherent in defendants’ theory

16 of unfettered executive-branch discretion, defendants protest that

17 “the Government does not rely on an assertion of the [SSP] to cover-

18 up alleged unlawful conduct.” Doc #668/103 at 37. Rather, they

19 assert, it does so because “[d]isclosure of whether or not

20 communications related to al Qaeda have been intercepted, when, how,

21 of who [sic], and under what authority would reveal methods by which

22 the government has or has not monitored certain communications

23 related to that organization.” Id. By “under what authority,”

24 presumably, defendants mean “whether or not pursuant to a FISA

25 warrant” —— the very heart of the cause of action under 50 USC

26 § 1810. This fact —— the presence or absence of a FISA warrant ——

27 is something defendants assert may be cloaked by the SSP,

28 notwithstanding this court’s July 2008 determination, pursuant to

27

United States District Court For the Northern District of California

1 the court of appeals’ remand instructions, that FISA displaces the

2 SSP in cases within the reach of its provisions and that “this is

3 such a case.” In re NSA Telecom Litigation, 564 F Supp 2d at 1124.

4

In an impressive display of argumentative acrobatics,

5 defendants contend, in essence, that the court’s orders of June 3

6 and June 5, 2009 setting the rules for these cross-motions make

7 FISA inapplicable and that “the Ninth Circuit’s rulings on the

8 privilege assertion therefore control the summary judgment motions

9 now before the Court.” Doc #672/105 at 6. In other words,

10 defendants contend, this is not a FISA case and defendants are

11 therefore free to hide behind the SSP all facts that could help

12 plaintiffs’ case. In so contending, defendants take a flying leap

13 and miss by a wide margin. Defendants forewent the opportunity to

14 invoke the section 1806(f) procedures Congress created in order for

15 executive branch agencies to establish “the legality of the

16 surveillance,” including whether a FISA warrant for the

17 surveillance existed. Rather, in response to plaintiffs’ motion

18 under section 1806(f), defendants declined to make the submissions

19 provided for by that section and instead asserted:

20

The discretion to invoke Section 1806(f) belongs to

the Attorney General, and under the present

21

circumstances —— where there has been no final

determination that those procedures apply in this case

22

to overcome the Government’s successful assertion of

privilege and where serious harm to national security

23

is at stake —— the Attorney General has not done so.

24 Doc #499/051 at 26-27 and 595 F Supp 2d at 1088. Similarly,

25 defendants could readily have availed themselves of the court’s

26 processes to present a single, case-dispositive item of evidence at

27 one of a number of stages of this multi-year litigation: a FISA

28 warrant. They never did so, and now illogically assert that the

28

United States District Court For the Northern District of California

1 existence of a FISA warrant is a fact within the province of the

2 SSP, not FISA.

3

But the court of appeals’ opinion contemplated that the

4 case would move forward under FISA if FISA were deemed to displace

5 the SSP. The court of appeals did not contemplate that the

6 judicial process should be intentionally stymied by defendants’

7 tactical avoidance of FISA:

8

Under FISA, 50 USC §§ 1801 et seq, if an “aggrieved

person” requests discovery of materials relating to

9

electronic surveillance, and the Attorney General

files an affidavit stating that the disclosure of

10

such information would harm the national security of

the United States, a district court may review in

11

camera and ex parte the materials “as may be

necessary to determine whether the surveillance of

12

the aggrieved person was lawfully authorized and

conducted.” 50 USC § 1806(f). The statute further

13

provides that the court may disclose to the aggrieved

person, using protective orders, portions of the

14

materials “where such disclosure is necessary to make

an accurate determination of the legality of the

15

surveillance.” Id. The statute, unlike the common

law [SSP], provides a detailed regime to determine

16

whether surveillance “was lawfully authorized and

conducted.” Id.

17

* * *

18

[T]he FISA issue remains central to Al–Haramain’s

19

ability to proceed with this lawsuit.

20 Al-Haramain, 507 F3d at 1205-06.

21

At oral argument, plaintiffs’ counsel argued that the

22 burden was on defendants to show that they had a warrant because,

23 given that the TSP was in place “in order to evade FISA, * * * why

24 on earth would [defendants] get a FISA warrant to perform

25 surveillance that they believed they had no need to get a FISA

26 warrant for?” and because knowledge of the existence or non-

27 existence of a FISA warrant was “within [defendants’] exclusive

28 \\

29

United States District Court For the Northern District of California

1 knowledge.” Doc #712/114 at 8. The court finds merit in these

2 arguments.

3

In summary, because FISA displaces the SSP in cases

4 within its purview, the existence of a FISA warrant is a fact that

5 cannot be concealed through the device of the SSP in FISA

6 litigation for the reasons stated in the court’s July 8, 2008

7 order, 564 F Supp 2d 1109. Plaintiffs have made out a prima facie

8 case and defendants have foregone multiple opportunities to show

9 that a warrant existed, including specifically rejecting the method

10 created by Congress for this very purpose. Defendants’ possession

11 of the exclusive knowledge whether or not a FISA warrant was

12 obtained, moreover, creates such grave equitable concerns that

13 defendants must be deemed estopped from arguing that a warrant

14 might have existed or, conversely, must be deemed to have admitted

15 that no warrant existed. The court now determines, in light of all

16 the aforementioned points and the procedural history of this case,

17 that there is no genuine issue of material fact whether a warrant

18 was obtained for the electronic surveillance of plaintiffs. For

19 purposes of this litigation, there was no such warrant for the

20 electronic surveillance of any of plaintiffs.

21

22

3

23

Defendants’ third argument is essentially to quarrel with

24 the court’s finding that plaintiffs have made out a prima facie

25 case of electronic surveillance, asserting that plaintiffs’

26 “evidence falls far short of establishing that the Government

27 conducted warrantless electronic surveillance under the TSP of

28 \\

30

United States District Court For the Northern District of California

1 plaintiffs’ conversations in March and April 2004.” Doc #668/103

2 at 28.

3

Because defendants’ argument rests on a faulty

4 understanding of the parties’ burdens as discussed in the preceding

5 section, a lengthy discussion of these points is not warranted.

6 The following discussion of defendants’ handling of certain items

7 of evidence is included for the sake of completeness and is

8 intended to be illustrative. Plaintiffs must —— and have —— put

9 forward enough evidence to establish a prima facie case that they

10 were subjected to warrantless electronic surveillance.

11

Among plaintiffs’ exhibits is a memorandum from Howard

12 Mendelsohn, Deputy Assistant Secretary at the Department of the

13 Treasury to defendant Adam J Szubin, Director of OFAC, dated

14 February 6, 2008. Eisenberg Decl Exh Z, Doc #657-4/099-4. This

15 lengthy, redacted document bearing the words “Top Secret” at the

16 top has a stated subject of “redesignation of Al-Haramain Islamic

17 Foundation locations in the United States (AHF-OREGON) and AHF

18 official Soliman AL-BUTHE pursuant to [Executive Order] 13224.” Id

19 at 126. In it, Soliman al-Buthe (referred elsewhere in the record

20 as “Al-Buthi”) is described as “the Treasurer of AHF-OREGON.” Id

21 at 127. The document states that “AL-BUTHE was intercepted in some

22 four conversations with Al-Timimi” on February 1, 2003. Id at 131.

23 Al-Buthi, meanwhile, is alleged in the FAC to be a director of Al-

24 Haramain (Doc #458/035 ¶ 34) and the individual whose conversations

25 with Ghafoor and Belew plaintiffs allege were intercepted by means

26 of electronic surveillance in March and April 2004. Id at ¶¶ 32,

27 33 and Ghafoor & Belew Decls, Doc ##657-6/099-6, 657-7/099-7.

28 These documents buttress each other, as does the published speech

31

United States District Court For the Northern District of California

1 by John Pistole to the American Bankers’ Association admitting

2 “surveillance” of Al-Haramain Oregon. Eisenberg Decl Exh S, Doc

3 #657-3/099-3.

4

Defendants attack as insufficient each item of evidence

5 individually, ignoring the cumulative impact of the various

6 documents. As to the Pistole speech, they quibble: “The mere

7 statement that ‘surveillance [] was used’ in investigating the

8 connections between al Qaeda and [Al-Haramain Islamic Foundation’s]

9 worldwide activities establishes nothing as to who, where, when,

10 and how any such surveillance was directed.” Doc #668/103 at 32.

11 As to the al-Buthi/al-Timimi intercepts, defendants write: “That

12 Mr Al-Timimi was the target of interception and was overheard

13 speaking with Mr Al-Buthe * * * does not indicate that any of the

14 named plaintiffs in this case were the target of or subject to

15 surveillance, or where or how any such surveillance had occurred,

16 including whether or not it was warrantless surveillance on a wire

17 in the United States or authorized under FISA.” Id at 32.

18

This argument ignores that one need not be a target of

19 electronic surveillance to be an “aggrieved person” under FISA’s

20 section 1801(k) but may be “any other person whose communications

21 or activities were subject to electronic surveillance.” Section

22 1801(k) is quoted in section I, supra. It also ignores that Al-

23 Haramain is the primary plaintiff in this action and surveillance

24 of one of its officers or directors amounts to surveillance of Al-

25 Haramain. And there is the further point that, even assuming

26 arguendo that al-Timimi was the original target of surveillance, a

27 productive wiretap of al-Timimi’s conversations with al-Buthi would

28 have led to separate electronic surveillance of al-Buthi beginning

32

United States District Court For the Northern District of California

1 in early 2003. This inference lends credence to the allegations of

2 Belew and Ghafoor that their conversations with al-Buthi in 2004

3 were wiretapped.

4

At oral argument, defendants’ counsel commented rather

5 obliquely about the al-Buthi/al-Timimi intercept memorandum that

6 “[t]his demonstrates that the surveillance that may have been at

7 issue in this case did not, in fact, have to be of an individual

8 associated with Al-Haramain, could have been of someone else, could

9 have been other sources.” Doc #712/114 at 34. Counsel then

10 asserted “[t]hat surveillance * * * could well have been authorized

11 by the FISA. I actually believe that it was.” Id. Further

12 embellishing their attempts to create an aura of uncertainty and

13 mystery around plaintiffs’ prima facie evidence, defendants note:

14 “even if the plaintiffs had been subject to surveillance (which

15 itself is not established by the evidence cited), nothing

16 establishes how such surveillance may have occurred.” Doc #668/103

17 at 29.

18

Defendants have also attacked plaintiffs’ prima facie

19 case by arguing that some of the documents, including the al-

20 Buthi/al-Timimi intercept memorandum, demonstrate that links

21 between Al-Haramain and al-Qaeda were suspected or known well

22 before September 2004, the date on which OFAC designated Al-

23 Haramain as a SDGT organization and publicly announced a connection

24 between it and Osama bin-Laden. See, for example, Defendants’

25 Third Motion to Dismiss, Doc #475/049 at 23. But later-disclosed,

26 formerly Top Secret information about secret investigations before

27 2004 cannot refute plaintiffs’ assertion that at no time before

28 September 2004 did the government publicly assert that Al-Haramain

33

United States District Court For the Northern District of California

1 had links to Osama bin-Laden, a fact that suggests recently-

2 acquired information in which the government had great confidence.

3 Alone, no single item of evidence is sufficient, but together the

4 various pieces establish a prima facie case.

5

Defendants’ nit-picking of each item of plaintiffs’

6 evidence, their remarkable insinuation (unsupported by any evidence

7 of their own) that the al-Buthi/al-Timimi intercepts might have

8 been pursuant to a FISA warrant and their insistence that they need

9 proffer nothing in response to plaintiffs’ prima facie case do not

10 amount to an effective opposition to plaintiffs’ motion for summary

11 judgment.

12

13

B

14

The parties’ submissions establish that there is no

15 genuine issue as to the following material facts. These facts,

16 most of which are summarized from plaintiffs’ pleadings in the FAC,

17 are annotated with citations to plaintiffs’ evidence and, in many

18 cases, with citations to identical evidence previously submitted to

19 the court by defendants with their third motion to dismiss

20 purportedly for calling attention to “the inadequacy of plaintiffs’

21 evidence.” Doc #475/049 at 18 n 4. Defendants have not disputed

22 the authenticity or accuracy of the items of evidence they

23 submitted with the motion to dismiss nor the veracity or

24 credibility of any statements in declarations for the truth of any

25 matter asserted therein; rather, they have challenged the

26 inferences that could properly be drawn. The court rejected

27 defendants’ legal arguments in its order dated January 5, 2009 (595

28 F Supp 2d 1077) and above.

34

United States District Court For the Northern District of California

1

1. During or after the fall of 2001, President

2

George W Bush authorized the NSA to intercept

3

international communications into and out of the United

4

States of persons linked to “al-Qaeda or related

5

terrorist organizations.” United States Department of

6

Justice, “Legal Authorities Supporting the Activities of

7

the National Security Agency Described by the

8

President,” January 19, 2006 (Eisenberg Decl Exh AA, Doc

9

#657-5/099-5 at 6).

10

2. In October 2001, the Treasury Department

11

created “Operation Green Quest” to track financing of

12

terrorist activities, one of the targets of which were

13

foreign branches of the Saudi Arabia-based Al-Haramain

14

Islamic Foundation, a fact admitted by Treasury

15

Department Deputy Secretary Kenneth W Dam in testimony

16

before Congress on August 1, 2002. FAC ¶ 24. Exhibit 5

17

to Defendants’ Third Motion to Dismiss or, in the

18

Alternative, for Summary Judgment (“Defs’ 3rd MTD Exh

19

5”), Doc #475-2/049-2 at 157, 159.

20

3. In April 2002, the FBI created its Terrorist

21

Financing Operations Section (“TFOS”), as admitted by

22

FBI Counterterrorism Division Acting Assistant Director

23

Gary M Bald in testimony before Congress on March 4,

24

2004; Eisenberg Decl Exh J, Doc #657-3/099-3 at 2; on

25

May 13, 2003, through a Memorandum of Understanding

26

between the Department of Justice and the Department of

27

Homeland Security, the FBI was designated as the lead

28

department to investigate potential terrorist-related

35

United States District Court For the Northern District of California

1

financial transactions; id at 4; the TFOS acquired,

2

analyzed and disseminated data and information,

3

including telecommunications data from a variety of

4

sources, including “Internet Service Providers, the

5

Telecommunications Industry,” among others; id at 4;

6

TFOS took over the investigation of Al-Haramain Islamic

7

Foundation “pertaining to terrorist financing;” id at 7;

8

in February 2004, the FBI executed a search warrant on

9

plaintiff Al-Haramain’s office in Ashland, Oregon and

10

TFOS provided operational support, including document

11

and data analysis, in the investigation of plaintiff Al-

12

Haramain. FAC ¶ 25. Eisenberg Decl Exh J, Doc #657-

13

3/099-3 at 7; Defs’ 3rd MTD Exh 6, Doc #475-2/049-2 at

14

164-66, 168. Bald’s March 4, 2004 testimony included no

15

mention of purported links between plaintiff Al-Haramain

16

and Osama bin-Laden. FAC ¶ 26. Eisenberg Decl Exh J,

17

Doc #657-3/099-3 at 7; Doc #475-2 at 168.

18

4. TFOS “has access to data and information” from

19

“the Intelligence Community” and has “[t]he ability to

20

access and obtain this type of information in a time

21

sensitive and urgent manner” as admitted by FBI Deputy

22

Director John S Pistole in testimony before Congress on

23

September 25, 2003. FAC ¶ 27. Eisenberg Decl Exh L,

24

Doc #657-3/099-3 at 18.

25

5. In conducting investigations of terrorist

26

financing, OFAC officers use “classified * * *

27

information sources” as admitted by OFAC Director R

28

Richard Newcomb in testimony before Congress on June 16,

36

United States District Court For the Northern District of California

1

2004. FAC ¶ 28. Eisenberg Decl Exh M, Doc #657-3/099-3

2

at 27; Defs’ 3rd MTD Exh 8, Doc #475-2/049-2 at 199.

3

6. In 2004 the FBI, under the direction of

4

defendant Mueller, undertook activity using information

5

produced by the NSA through the warrantless surveillance

6

program as admitted by defendant Mueller in testimony

7

before the House Judiciary Committee on July 26, 2007.

8

FAC ¶ 27. Eisenberg Decl Exh I, Doc #657-2/099-2 at 43;

9

Defs’ 3rd MTD Exh 2, Doc #475-2/049-2 at 81.

10

7. The FBI’s search warrant on Al-Haramain’s

11

Ashland, Oregon, office was executed on February 18,

12

2004. Eisenberg Decl Exh Z, Doc #657-4/099-4 at 33;

13

Defs’ 3rd MTD Exh 19, Doc #475-3/049-3 at 213. On

14

February 19, 2004, the Treasury Department’s OFAC

15

blocked Al-Haramain’s assets pending an investigation of

16

possible crimes relating to currency reporting and tax

17

laws as admitted in a press release of that date by the

18

Treasury Department’s Office of Public Affairs; the

19

press release contained no mention of purported links

20

between plaintiff Al-Haramain and Osama bin-Laden. FAC

21

¶¶ 30-31. Eisenberg Decl Exh K, Doc #657-3/099-3 at 13;

22

Defs’ 3rd MTD Exh 9, Doc #475-2/049-2 at 208.

23

8. Soliman al-Buthi was subjected to electronic

24

surveillance by one or more United States government

25

entities during telephone conversations with al-Timimi

26

on February 1, 2003. Eisenberg Decl Exh Z, Doc #657-

27

4/099-4 at 36-37; Defs’ 3rd MTD Exh 19, Doc #475-3/049-3

28

37

United States District Court For the Northern District of California

1

at 216-17. Soliman al-Buthi was a senior official of

2

Al-Haramain in 2003. FAC ¶ 32; Doc #475-3/049-3 at 213.

3

9. Soon after the blocking of plaintiff Al-

4

Haramain’s assets on February 19, 2004, plaintiff Belew

5

spoke by telephone with Soliman al-Buthi on the

6

following dates: March 10, 11 and 25, April 16, May 13,

7

22 and 26, and June 1, 2 and 10, 2004. Belew was

8

located in Washington DC; al-Buthi was located in

9

Riyadh, Saudi Arabia. During the same period, plaintiff

10

Ghafoor spoke by telephone with al-Buthi approximately

11

daily from February 19 through February 29, 2004 and

12

approximately weekly thereafter. Ghafoor was located in

13

Washington DC; al-Buthi was located in Riyadh, Saudi

14

Arabia. (The FAC includes the telephone numbers used in

15

the telephone calls referred to in this paragraph.) FAC

16

¶¶ 34-35. Declarations of Asim Ghafoor, Doc #657-6/099-

17

6 and Wendell Belew, Doc #657-7/099-7.

18

10. In the telephone conversations between Belew

19

and al-Buthi, the parties discussed issues relating to

20

the legal representation of defendants, including Al-

21

Haramain, named in a lawsuit brought by victims of the

22

September 11, 2001 attacks. Names al-Buthi mentioned in

23

the telephone conversations with Ghafoor included

24

Mohammad Jamal Khalifa, spouse of one of Osama bin-

25

Laden’s sisters, and Safar al-Hawali and Salman al-Auda,

26

clerics whom Osama bin-Laden claimed had inspired him.

27

In the telephone conversations between Ghafoor and al-

28

Buthi, the parties also discussed logistical issues

38

United States District Court For the Northern District of California

1

relating to payment of Ghafoor’s legal fees as defense

2

counsel in the lawsuit. Ghafoor & Belew Decls, Doc

3

##657-6/099-6, 657-7/099-7.

4

11. In a letter to Al-Haramain’s lawyer Lynne

5

Bernabei dated April 23, 2004, OFAC Director Newcomb

6

stated that OFAC was considering designating Al-Haramain

7

as a SDGT organization based on unclassified information

8

“and on classified documents that are not authorized for

9

public disclosure.” FAC ¶ 36. Eisenberg Decl Exh N,

10

Doc #657-3/099-3 at 29; Defs’ 3rd MTD Exh 10, Doc #475-

11

2/049-2 at 210. In a follow-up letter to Bernabei dated

12

July 23, 2004, Newcomb reiterated that OFAC was

13

considering “classified information not being provided

14

to you” in determining whether to designate Al-Haramain

15

as an SDGT organization. ¶ 37. Eisenberg Decl Exh O,

16

Doc #657-3/099-3 at 31; Defs’ 3rd MTD Exh 11, Doc #475-

17

2/049-2 at 212. On September 9, 2004, OFAC declared

18

plaintiff Al-Haramain to be an SDGT organization. FAC

19

¶ 38. Eisenberg Decl Exh P, Doc #657-3/099-3 at 33;

20

Defs’ 3rd MTD Exh 12, Doc #475-2/049-2 at 214.

21

12. In a press release issued on September 9,

22

2004, the Treasury Department stated that the

23

investigation of Al-Haramain showed “direct links

24

between the US branch [of Al-Haramain] and Usama bin

25

Laden”; this was the first public claim of purported

26

links between Al-Haramain and Osama bin-Laden. FAC

27

¶¶ 39-40. Eisenberg Decl Exh P, Doc #657-3/099-3 at 33;

28

Defs’ 3rd MTD Exh 12, Doc #475-2/049-2 at 214.

39

United States District Court For the Northern District of California

1

13. In a public declaration filed in this

2

litigation dated May 10, 2006, FBI Special Agent Frances

3

R Hourihan stated that “the classified document that was

4

inadvertently disclosed by a government employee without

5

proper authorization” (i e, the Sealed Document) “was

6

related to the terrorist designation” of Al-Haramain.

7

FAC ¶ 41. Eisenberg Decl Exh Q, Doc #657-3/099-3 at 36-

8

37.

9

14. FBI Deputy Director Pistole acknowledged that

10

the FBI “used * * * surveillance” in connection with

11

defendant OFAC’s 2004 investigation of Al-Haramain but

12

stated that “it was the financial evidence” provided by

13

financial institutions “that provided justification for

14

the initial designation” of Al-Haramain, in a speech

15

delivered by Mr Pistole on October 22, 2007 at a

16

conference of the American Bankers Association and

17

American Bar Association on money laundering, the text

18

of which appears on the FBI’s official Internet website.

19

FAC ¶¶ 42-43. Eisenberg Decl Exh S, Doc #657-3/099-3 at

20

51; Defs’ 3rd MTD Exh 13, Doc #475-3/049-3 at 6. A

21

court document filed by the United States Attorney for

22

the District of Oregon on August 21, 2007 referred to

23

the February 19, 2004 asset-blocking order as a

24

“preliminary designation” and the September 9, 2004

25

order as “a formal designation.” FAC ¶ 44. Eisenberg

26

Decl Exh U, Doc #657-4/099-4 at 8.

27

15. To allege that the above-referenced

28

telecommunications between al-Buthi and plaintiffs Belew

40

United States District Court For the Northern District of California

1

and Ghafoor were wire communications and were

2

intercepted by defendants within the United States,

3

plaintiffs cite to several public statements by

4

government officials that most international

5

communications today are “on a wire” and therefore

6

subject to FISA’s warrant requirements, including: July

7

26, 2006 testimony by defendant Alexander and CIA

8

Director Michael Hayden (Eisenberg Decl Exh V, Doc #657-

9

4/099-4 at 12(see also id Exh W at 19-20); Defs’ 3rd MTD

10

Exh 15, Doc #475-3/049-3 at 23); May 1, 2007 testimony

11

by Director of National Intelligence Michael McConnell

12

(Eisenberg Decl Exh W, Doc #657-4/099-4 at 16-18); and

13

September 20, 2007 testimony by McConnell before the

14

House Select Intelligence Committee: “[t]oday * * *

15

[m]ost international communications are on a wire, fiber

16

optical cable,” and “on a wire, in the United States,

17

equals a warrant requirement [under FISA] even if it was

18

against a foreign person located overseas.” FAC ¶ 48a-

19

c. Eisenberg Decl Exh X, Doc #657-4/099-4 at 24; Defs’

20

3rd MTD Exh 16, Doc #475-3/049-3 at 60-61.

21

16. A memorandum dated February 6, 2008, to

22

defendant Szubin from Treasury Department Office of

23

Intelligence and Analysis Deputy Assistant Secretary

24

Howard Mendelsohn, which was publicly disclosed during a

25

2005 trial, acknowledged electronic surveillance of four

26

of al-Buthi’s telephone calls on February 1, 2003. FAC

27

¶ 51. Eisenberg Decl Exh Z, Doc #657-4/099-4 at 32-38;

28

Defs’ 3rd MTD Exh 19, Doc #475-3/049-3 at 216-17.

41

United States District Court For the Northern District of California

1

Because defendants have failed to establish the existence

2 of a genuine issue of material fact warranting denial of

3 plaintiffs’ motion for summary judgment on the issue of defendants’

4 liability under FISA, plaintiffs’ motion must be, and hereby is,

5 GRANTED. Defendants’ motion for summary judgment is DENIED.

6

7

IV

8

Among the unresolved minor issues in this litigation is

9 that of the liability of defendant FBI Director Robert S Mueller

10 III in his individual, as opposed to official, capacity. The

11 original complaint did not specify whether the four individual

12 defendants were sued in their individual, as opposed to official,

13 capacities but plaintiffs later asserted that “a nonspecific

14 complaint may be characterized as alleging both official and

15 personal capacity liability” and sought to serve defendants in

16 their individual capacities some two years after filing the

17 complaint. Doc #447/030. In its July 2008 order dismissing the

18 complaint, the court granted plaintiffs leave, if they chose to

19 amend their pleading, to serve “all unserved defendants” with their

20 amended complaint within fifteen days of filing it with the court.

21 564 F Supp 2d at 1137.

22

In the FAC, defendant Mueller is the only individual

23 defendant named “in his official and personal capacities.” Doc

24 #458/035 at 1, 2. Shortly after the FAC was filed, plaintiffs

25 filed an acknowledgement of service relating to defendant Mueller

26 (Doc #463/041) and counsel appeared for defendant Mueller in his

27 individual capacity (Doc # 460/037). There were no similar filings

28 relating to the other individual defendants and no subsequent

42

United States District Court For the Northern District of California

1 discussion of proceedings against any individual defendant but

2 Mueller in the individual capacity. Mueller is therefore the only

3 defendant against whom plaintiffs seek to proceed in an individual

4 capacity.

5

In a footnote to their moving papers, plaintiffs merely

6 note that their motion does not “address the personal liability of

7 defendant [Mueller], who, by agreement of the parties, has not yet

8 made an appearance in this action.” Doc #657/099 at 39 n 5. At

9 oral argument, plaintiffs’ counsel stated “at this point we believe

10 Mr Mueller is a corollary we needn’t get to” and “we really don’t

11 see any need to pursue that avenue.” Doc #712/114 at 26. The

12 court sees no reason to allow this issue to be held open for future

13 proceedings. The court concludes that the nature of the wrongdoing

14 by governmental actors alleged and established herein is official

15 rather than individual or personal. See discussion in section II,

16 supra. The specific factual allegations against defendant Mueller,

17 moreover, plainly concern actions taken in his official capacity:

18 the FAC alleges that Mueller testified before Congress that he had

19 had “serious reservations about the warrantless wiretapping

20 program.” Doc #458/035 at 5.

21

Accordingly, the court now DISMISSES without leave to

22 amend all claims in the FAC as to defendant Mueller in his

23 individual capacity. Defendant Mueller will remain a party to this

24 action only in his official capacity.

25

26

V

27

Finally, the court turns to plaintiffs’ request that the

28 court make two rulings on the substantive matters before it on

43

United States District Court For the Northern District of California

1 these cross-motions —— one based on the public evidence presented,

2 and an alternate ruling based on its in camera review of the Sealed

3 Document. Doc #671/104 at 6. At oral argument, counsel argued

4 that only with the alternate ruling would the court have made a

5 complete record for appellate review. Doc #712/114 at 10-15.

6 While the court recognizes the merit of counsel’s argument, it has

7 concluded that including an alternative ruling based on the Sealed

8 Document would complicate the record unduly and, perhaps, be

9 perceived as unfair to defendants (who have refrained from

10 submitting classified evidence in connection with this round of

11 briefing). Accordingly, the request to consider the Sealed

12 Document in connection with these cross-motions is DENIED.

13

14

VI

15

Having prevailed on their motion for summary judgment of

16 liability on their FISA claim, plaintiffs now face a decision

17 regarding the course of the remaining proceedings in this case.

18 They may either: (1) take steps to prosecute the remaining claims

19 in the FAC or (2) they may voluntarily dismiss those claims in

20 order to take the steps necessary for the entry of judgment on the

21 FISA claim. Plaintiffs shall advise the court, no later than April

22 16, 2010 and in the manner set forth below, of their election.

23

Should plaintiffs elect the first course —— to pursue

24 their remaining claims in lieu of seeking entry of judgment —— they

25 shall, by April 16, 2010, contact the clerk to obtain a date for a

26 case management conference to be held not later than May 28, 2010.

27

Should plaintiffs choose the second course, they shall

28 submit a request for dismissal of their remaining claims together

44

United States District Court For the Northern District of California

1 with a proposed form of judgment reflecting: their computation of

2 damages under 50 USC § 1810 consistent with counsel’s statements at

3 oral argument (Doc #712/114 at 24-25) and that statute; their

4 entitlement to attorney fees “and other investigation and

5 litigation costs” under section 1810(c); and the items of equitable

6 relief sought in the FAC to which they believe they are entitled

7 under this order. If plaintiffs believe that further proceedings

8 are required in order for the court to determine the quantum of

9 damages or other specifics of the judgment, they shall so advise

10 the court in a separate written request accompanying their proposed

11 form of judgment.

12

Defendants may submit an alternative proposed form of

13 judgment or a written response to plaintiffs’ submissions within

14 fourteen days after plaintiffs file their proposed form of

15 judgment. Following entry of judgment herein, plaintiffs’ motion

16 for attorney fees and costs shall be filed in accordance with FRCP

17 54(d) and Civil Local Rule 54.

18

The parties are admonished that all future submissions to

19 the court shall comply with paragraph 1.4 of the undersigned

20 judge’s standing order: “Chambers copies * * * must include on

21 each page the running header created by the ECF system.”

22

23

IT IS SO ORDERED.

24

25

26

VAUGHN R WALKER

27

United States District Chief Judge

28

45

 
 Case3:07-cv-00109-VRW Document134 Filed12/21/10 Page1 of 47

United States District Court For the Northern District of California

1

2

3

4

5

6

7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9

10

11 IN RE:

MDL Docket No 06-1791 VRW

12 NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS
13 LITIGATION

Case No C 07-0109 VRW ORDER

14

This order pertains to:

15 AL-HARAMAIN ISLAMIC FOUNDATION,

16

INC, an Oregon Nonprofit Corporation; WENDELL BELEW, a

17

United States Citizen and Attorney at Law; ASIM GHAFOOR, a

United States Citizen and 18 Attorney at Law,

19

Plaintiffs,

20 v

21

BARACK H OBAMA, President of the United States; NATIONAL SECURITY

22

AGENCY and KEITH B ALEXANDER, its Director; OFFICE OF FOREIGN

ASSETS CONTROL, an office of the

23 United States Treasury, and ADAM

J SZUBIN, its Director; FEDERAL

24 BUREAU OF INVESTIGATION and ROBERT S MUELLER III, its

25 Director,

26

Defendants.

/ 27

28

Case3:07-cv-00109-VRW Document134 Filed12/21/10 Page2 of 47

United States District Court For the Northern District of California

1

Al-Haramain Islamic Foundation, Inc (“Al-Haramain”), an

2 Oregon nonprofit corporation, and two of its attorneys filed an

3 action for damages and equitable relief against the President of

4 the United States; the National Security Agency (“NSA”) and its

5 Director; the Treasury Department’s Office of Foreign Assets

6 Control (“OFAC”) and its Director; and the Federal Bureau of

7 Investigation (“FBI”) and its Director, Robert S Mueller III, in

8 both his official and personal capacities. Plaintiffs allege that

9 defendants conducted an illegal and unconstitutional program of

10 electronic surveillance of United States citizens and entities. On

11 March 31, 2010, the court granted plaintiffs’ motion for summary

12 judgment of liability on their claim that defendants violated the

13 Foreign Intelligence Surveillance Act (“FISA”), 50 USC §§ 1801 et

14 seq. The court dismissed the claims against FBI Director Mueller

15 in his personal capacity. This order concerns plaintiffs’ claims

16 for recovery of damages, equitable relief and attorney fees.

17

After plaintiffs prevailed on their FISA claim, they

18 requested recovery of damages. Specifically, each plaintiff seeks

19 $20,400 in liquidated damages and $183,600 in punitive damages.

20 Doc ##723/1171 at 2; 729/122. For the reasons set forth below, the

21 court GRANTS the motion for liquidated damages as to plaintiffs

22 Ghafoor and Belew and awards liquidated damages to those plaintiffs

23 in the amount of $20,400 per plaintiff. The court DENIES the

24 motion for liquidated damages as to plaintiff Al-Haramain. The

25 court DENIES plaintiffs’ motion for punitive damages.

26

27

1 Documents will be cited both to the MDL docket number (No M

28

06-1791) and to the individual docket number (No C 07-0109) in the following format: Doc #(MDL)/(individual).

2

Case3:07-cv-00109-VRW Document134 Filed12/21/10 Page3 of 47

United States District Court For the Northern District of California

1

Plaintiffs also seek equitable relief in two forms: (1) a

2 declaration that defendants’ warrantless electronic surveillance

3 was unlawful as a violation of FISA; and (2) an order that any

4 information obtained by means of the defendants’ unlawful

5 surveillance shall not be used by the United States government in

6 any proceeding and shall be expunged from defendants’ files and

7 records. Doc #723/117. For the reasons set forth below, the court

8 DENIES both requests for equitable relief.

9

Plaintiffs move for the entry of an award of attorney

10 fees and expenses. Doc #738/128; 746/131; 748/132. For the

11 reasons set forth below, the court GRANTS the motion of plaintiffs

12 Ghafoor and Belew and awards attorney fees and expenses in the

13 amount of $2,537,399.45. The court DENIES the motion of plaintiff

14 Al-Haramain for attorney fees and expenses.

15

16

I

17

The factual background and procedural history of this

18 litigation is thoroughly summarized in the March 31, 2010 order and

19 will not be rescribed at length here. Doc #721/115. The facts

20 relevant to the present order are as follows.

21

22

A

23

Shortly after the September 11, 2001 terrorist attacks,

24 George W Bush, the President of the United States, authorized the

25 NSA to engage in various new activities aimed at gathering

26 intelligence. Doc #671-2/104-2 at 10. These activities are

27 collectively known as the “President’s Surveillance Program”

28 (“PSP”), and all but one remain highly classified. Id at 6 & 10.

3

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United States District Court For the Northern District of California

1 The only one of these activities that has been publicly disclosed,

2 and the one that forms the basis for the plaintiffs’ claims, is

3 known as the “Terrorist Surveillance Program” (“TSP”). Id at 11.

4 This program involved interception, without court order, of

5 international communications where there was “a reasonable basis to

6 conclude that one party to the communication is a member of al-

7 Qa’ida, affiliated with al-Qa’ida, or a member of an organization

8 affiliated with al-Qa’ida.” Id (citation omitted). After its

9 inception in late September 2001, the president reauthorized the

10 PSP approximately every 45 days. Id.

11

On September 18, 2001, “Congress authorized the President

12 to ‘use all necessary and appropriate force against those nations,

13 organizations, or persons he determines planned, authorized,

14 committed, or aided the terrorist attacks’ of September 11 in order

15 to prevent ‘any future acts of international terrorism against the

16 United States.’” Doc #657-5/99-5 at 3. Between this date and

17 December 16, 2005 (when the existence of the TSP was publicly

18 revealed in media reports), NSA director Michael Hayden briefed

19 various members of Congress on the PSP. Doc #657-2/99-2 at 3; Doc

20 #671-2/104-2 at 21. According to Hayden, no member of Congress

21 ever suggested that the NSA should discontinue the program. Doc

22 #671-2/104-2 at 21.

23

Between October 2001 and May 2003, Deputy Assistant

24 Attorney General John Yoo in the Department of Justice (“DOJ”)

25 Office of Legal Counsel (“OLC”) was the only OLC official who was

26 informed of the existence of the PSP. Doc #671-2/104-2 at 15. Yoo

27 drafted a November 2, 2001 memo supporting the legality of the PSP

28 and in particular focusing on the TSP and its legality in light of

4

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United States District Court For the Northern District of California

1 FISA. Id at 16. Yoo reasoned that FISA should not be construed to

2 restrict the president’s authority in the national security area in

3 the absence of a clear statement in the statute and that such a

4 construction would unconstitutionally infringe upon the president’s

5 Article II authority. Id at 17.

6

After Yoo resigned in May 2003, his successor, Patrick

7 Philbin, was briefed on the PSP and became the new advisor to the

8 Attorney General concerning the PSP. Doc #671-2/104-2 at 24.

9 Philbin’s supervisor, Assistant Attorney General Jack Goldsmith,

10 was also briefed on the PSP. Id at 24-25. Philbin and Goldsmith

11 found flaws in Yoo’s legal analysis supporting the legality of the

12 PSP. Id at 25. They noted that Yoo had failed to address a

13 provision of FISA demonstrating that the statute was intended to

14 apply to the president’s wartime actions. Id. Philbin and

15 Goldsmith began to develop a new analysis to support the legality

16 of parts of the PSP (including the TSP) based on the 2001

17 Congressional Authorization for Use of Military Force (“AUMF”).

18 Specifically, Philbin and Goldsmith noted that FISA prohibits

19 electronic surveillance “except as authorized by statute,” and

20 posited that the AUMF statute implicitly authorized some PSP

21 activities. Id. But Philbin and Goldsmith believed that even this

22 analysis would not justify some of the activities conducted under

23 the PSP. Id. They first shared their concerns with Attorney

24 General Ashcroft in August 2003; Ashcroft gave Philbin permission

25 to prepare a new memorandum analyzing the legality of the PSP. Id.

26

In December 2003, Philbin and Goldsmith began to discuss

27 their concerns about the legality of the PSP with White House

28 officials, including White House Counsel Alberto Gonzales and

5

Case3:07-cv-00109-VRW Document134 Filed12/21/10 Page6 of 47

United States District Court For the Northern District of California

1 Counsel to the Vice President David Addington. Doc #671-2/104-2 at

2 25. That same month, James Comey was confirmed as Deputy Attorney

3 General and was briefed on the PSP shortly thereafter. Id at 26.

4 Comey also found Yoo’s analysis of the program’s legality to be

5 questionable. Id.

6

By early March 2004, Ashcroft and FBI Director Robert

7 Mueller agreed that there were significant problems with the legal

8 justification for some parts of the PSP. Doc #671-2/104-2 at 26-

9 27. Ashcroft was hospitalized on March 4, 2004. Id at 26. On

10 March 5, 2004, Gonzales spoke to Goldsmith and requested that the

11 OLC produce a letter stating that Yoo’s earlier memoranda had found

12 the PSP to be legal, but Goldsmith, Philbin and Comey concluded

13 that they could not certify this because Yoo’s memoranda had not

14 accurately described some of the PSP activities in discussing their

15 legality. Id at 27-27. Between March 6 and March 9, Goldsmith,

16 Philbin and Comey continued to discuss the PSP with White House

17 officials including Gonzales and Addington and requested that

18 certain activities be discontinued; White House officials disagreed

19 with this request and pressed them for a reauthorization of the

20 PSP, which was soon to expire. Id at 27-28.

21

On the evening of March 10, 2004, Gonzales and White

22 House Chief of Staff Andrew Card went to the hospital to persuade

23 Ashcroft to reauthorize the PSP. Doc #671-2/104-2 at 30. Ashcroft

24 stated his legal concerns with the PSP “in very strong terms” and

25 told Gonzales that Ashcroft’s deputy, Comey, was the acting

26 Attorney General at the time. Id. Comey did not authorize the

27 program.

28

On March 11, 2004, President Bush signed a new

6

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United States District Court For the Northern District of California

1 authorization for the PSP; instead of being certified by the

2 Attorney General, as in every previous instance, it was certified

3 by White House Counsel Gonzales. Doc #671-2/104-2 at 31. The

4 authorization asserted that the president’s commander-in-chief

5 authority under Article II displaced any contradictory provisions

6 of law, including FISA. Id. Various DOJ and FBI officials,

7 including Ashcroft, Comey, Goldsmith and Mueller, considered

8 resigning if the president continued to operate the PSP without

9 approval of the Attorney General. Id at 32. President Bush met

10 with Comey and Mueller on March 12, 2004 and expressed his wish to

11 “fix” the legality of the PSP through legislative or other means

12 before May 6, 2004 (the day on which the current authorization was

13 set to expire). Id at 33.

14

On March 12, 2004, Comey did not direct the FBI to stop

15 cooperating with the NSA on PSP activities. Doc #671-2/104-2 at

16 33. Instead, Goldsmith wrote a memorandum to Comey explaining that

17 the president had the constitutional duty to “take care that the

18 laws are faithfully executed” and that his determination of the

19 PSP’s lawfulness was binding on the entire executive branch. Id.

20 In the days following, Comey, Goldsmith and others continued to

21 express doubts that some of the PSP activities (not including the

22 TSP) could be legally supported. Id at 33-34. On March 17, 2004,

23 President Bush decided to modify or discontinue certain PSP

24 activities that DOJ officials had declared legally unsupportable.

25 Id at 34.

26

On May 6, 2004, Goldsmith and Philbin issued a new

27 memorandum supporting the legality of the PSP as revised by

28 President Bush. Doc #671-2/104-2 at 34. The memorandum explained

7

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1 that the 2001 AUMF authorizing “all necessary and appropriate

2 force” to prevent future terrorist attacks also necessarily

3 authorized targeted electronic surveillance against al-Qa’ida and

4 affiliated groups and thereby justified the PSP. Id at 34-35.

5

In the midst of these activities, the Department of the

6 Treasury’s OFAC blocked Al-Haramain’s assets on February 19, 2004,

7 pending an investigation for violations of tax and currency

8 reporting laws. Doc #458/35 at 7. On September 9, 2004, OFAC

9 declared Al-Haramain a “Specially Designated Global Terrorist”

10 (“SDGT”) organization. Id at 8-9.

11

For almost seventeen months after Al-Haramain’s

12 designation as a SDGT organization, the DOJ continued to rely on

13 the argument that surveillance under the PSP did not violate FISA

14 because it was authorized by the AUMF statute. Doc #657-5/99-5 at

15 3-4. This was summarized in a DOJ white paper issued on January

16 19, 2006. Id. On February 1, 2007, President Bush allowed the

17 final authorization for the PSP to expire. Doc #671-2/104-2 at 35.

18

19

B

20

Plaintiffs filed their action in the United States

21 District Court for the District of Oregon on February 28, 2006,

22 alleging, among other things, that the NSA conducted electronic

23 surveillance of telephonic attorney-client communications without

24 obtaining a warrant or otherwise complying with FISA, and that the

25 FBI used this surveillance in connection with OFAC’s investigation

26 of Al-Haramain.

27

On January 9, 2007, plaintiffs’ action was transferred to

28 this district. On July 9, 2009, plaintiffs moved for partial

8

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1 summary judgment on the issue of defendants’ liability under

2 section 1810 of FISA. Doc #657/99. Defendants subsequently moved

3 to dismiss the amended complaint and cross-moved for summary

4 judgment. Doc #668/103. On March 31, 2010 the court issued a

5 memorandum of decision and order granting plaintiffs’ motion and

6 denying defendants’ motion (the “March 31 order”). Doc #721/115.

7 As more fully described in the March 31 order, the court found that

8 plaintiffs established standing on their FISA claim and established

9 a prima facie case of electronic surveillance. Doc #721/115 at 2-

10 3. Defendants failed to meet their burden to come forward with any

11 evidence, in response to plaintiffs’ prima facie case of electronic

12 surveillance, that a FISA warrant was obtained or that the

13 surveillance was otherwise lawful. Doc #721/115 at 3. Because

14 there was no genuine issue of material fact whether a warrant was

15 obtained for the electronic surveillance of plaintiffs or that such

16 surveillance was otherwise lawful, this court granted plaintiffs’

17 motion for summary judgment on the issue of defendants’ liability

18 under FISA, denied defendants’ motion to dismiss the amended

19 complaint and denied defendants’ cross-motion for summary judgment.

20 Doc #721/115 at 3. The court dismissed plaintiffs’ claims against

21 FBI Director Mueller in his personal capacity. Id.

22

After prevailing on their motion for partial summary

23 judgment, plaintiffs submitted a proposed judgment on April 16,

24 2010. Doc #723/117. Plaintiffs’ proposed judgment seeks $20,400

25 in liquidated damages per plaintiff (computed at a rate of $100 per

26 day, pursuant to 50 USC § 1801(a), for violations spanning a period

27 of 204 days) and $183,600 in punitive damages per plaintiff, for a

28 total award of $204,000 per plaintiff and a grand total of $612,000

9

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1 for all three plaintiffs. Doc #723/117. Plaintiffs’ proposed

2 judgment also seeks equitable relief in two forms: (1) a

3 declaration that defendants’ warrantless electronic surveillance of

4 plaintiffs was unlawful as a violation of FISA; and (2) an order

5 that any information obtained by means of defendants’ unlawful

6 surveillance shall not be used by the United States government in

7 any proceeding and shall be expunged from defendants’ files and

8 records. Doc #723/117. Plaintiffs’ proposed judgment also

9 specified that plaintiffs would dismiss their remaining claims

10 against defendants. Doc #723/117. Finally, plaintiffs’ proposed

11 judgment seeks reasonable attorney fees and other investigation and

12 litigation costs (although the issue is not briefed in plaintiffs’

13 proposed judgment). Doc #723/117.

14

Defendants responded to plaintiffs’ proposed judgment and

15 submitted an alternative form of judgment on April 30, 2010. Doc

16 ##727/119; 727-1/119-1. Defendants’ response argues that only

17 plaintiffs Belew and Ghafoor are entitled to liquidated damages, in

18 the amount of $1,000 per plaintiff. Doc #727-1/119-1 at 3.

19 Defendants further contend that plaintiffs are not entitled to

20 recover any punitive damages and are not entitled to any equitable

21 relief. Doc #727-1/119-1 at 3.

22

On July 7, 2010, plaintiffs moved for an award of

23 attorney fees. Doc #738/128. Plaintiffs’ motion seeks

24 $2,630,122.80 in attorney fees and $22,012.36 in expenses. Doc

25 #738/128 at 11. Defendants opposed this motion, arguing that

26 plaintiffs’ requested fees are “excessive and unreasonable.” Doc

27 #746/131 at 4. Defendants argue that even if plaintiffs obtain all

28 relief sought, no more than $606,116 could reasonably be awarded in

10

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1 attorney fees, and that this amount would have to be reduced if

2 punitive damages are not awarded. Doc #746/131 at 6. Defendants

3 also argue that plaintiffs are not entitled to recover any of the

4 claimed costs they seek. Doc #746/131 at 26-27.

5

6

II

7

A

8

Each of the three plaintiffs seeks $20,400 in liquidated

9 damages. Doc #723/117. In the event of a FISA violation, 50 USC §

10 1810(a) provides for recovery of “actual damages, but not less than

11 liquidated damages of $1,000 or $100 per day for each day of

12 violation, whichever is greater.” 50 USC § 1810(a). Plaintiffs do

13 not request actual damages and instead seek liquidated damages

14 based on the number of days that defendants violated FISA. Doc

15 #723/117. Plaintiffs base the requested amount of $20,400 for each

16 plaintiff on the inference that they were unlawfully surveilled for

17 204 days beginning February 19, 2004 (the date on which the

18 Department of the Treasury blocked the assets of Al-Haramain and

19 defendants announced the investigation of Al-Haramain) and ending

20 September 9, 2004 (the date on which Al-Haramain was first

21 designated as a Specially Designated Global Terrorist with ties to

22 Osama bin Laden). Doc ##721/115 at 38-39; 729/121 at 6-7; see Doc

23 #727/119.

24

Defendants claim that plaintiffs lack evidentiary support

25 for their conclusion that the surveillance lasted 204 days and

26 should only recover the statutory minimum liquidated damages of

27 $1,000 provided by 50 USC § 1801(a). Doc #727/119 at 9-11.

28 Defendants point to plaintiff Belew’s identification of ten

11

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1 specific dates over three months in 2004 on which he spoke over the

2 telephone with Al-Haramain director Soliman al-Buthi (also spelled

3 “al-Buthe”) in Saudi Arabia and plaintiff Ghafoor’s statement that

4 he spoke with al-Buthi “approximately daily from February 19 to

5 February 29, 2004 and approximately weekly thereafter.” Doc ##657-

6 7/99-7 at 2; 657-6/99-6 at 2. Defendants claim that this is “the

7 extent of the communications that plaintiffs’ [sic] claim were

8 unlawfully surveilled, and * * * the extent of the evidence

9 submitted by plaintiffs as to the duration of any alleged

10 surveillance.” Doc #727/119 at 10.

11

The evidence in the record undermines defendants’

12 argument. Plaintiffs have produced a wide range of evidence from

13 unclassified sources that establishes a prima facie case showing

14 that they were electronically surveilled. See March 31 order, Doc

15 #721/115, for extended discussion. It is apparent that defendants

16 continued to monitor plaintiffs over a prolonged period. Although

17 the evidence does not disclose a precise start and end date of the

18 surveillance, it is evident that it continued for at least the 204

19 days plaintiffs claim, if not longer. Plaintiffs’ estimate of the

20 duration of unlawful surveillance appears conservative. See Doc

21 #729/121 at 7.

22

It is true that neither plaintiffs nor the court have

23 been informed of the precise dates on which plaintiffs were

24 surveilled. Defendants, the only parties who have access to this

25 information, have not admitted or disclosed whether “plaintiffs

26 were in fact subject to electronic surveillance” (Doc #727/119 at

27 12), although the fact of such surveillance is not in doubt.

28 Defendants have had ample opportunity in this litigation to produce

12

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1 evidence in their exclusive possession concerning the details of

2 the surveillance; they have simply chosen not to do so.

3 Accordingly, the court must draw a reasonable inference regarding

4 the length of the surveillance based on the evidence offered by

5 plaintiffs to establish their prima facie case.

6

The evidence shows that an inferred surveillance period

7 lasting from February 19, 2004 to September 9, 2004 is reasonable.

8 Based on statements by the Office of Intelligence and Analysis, at

9 least four of al-Buthi’s telephone calls were intercepted as early

10 as February 2003. Doc #657-4/99-4 at 32-38. Between this time and

11 September 9, 2004, when the OFAC declared Al-Haramain a SDGT

12 organization, governmental interest in Al-Haramain’s activities

13 appears to have increased. Various officials involved acknowledged

14 using surveillance and other classified information in this

15 investigation. See Doc #721/115 at 37-41.

16

Accordingly, the most reasonable inference is that

17 defendants had already begun electronic surveillance of Al-Haramain

18 before its assets were blocked on February 19, 2004 and continued

19 the surveillance at least through September 9, 2004. Plaintiffs

20 Belew and Ghafoor were associated and in frequent contact with Al-

21 Haramain and its officials during this time and were similarly

22 subjected to electronic surveillance. See Doc ##657-6/99-6; 657-

23 7/99-7. Although plaintiffs have not had access to classified

24 information that could prove the precise details of defendants’

25 surveillance, plaintiffs have nevertheless put forth sufficient

26 evidence to raise a strong inference that the period of

27 surveillance lasted at least 204 days. Defendants have proffered

28 nothing in response. Accordingly, the motion of plaintiffs Ghafoor

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1 and Belew for statutory damages is GRANTED. The court ORDERS that

2 plaintiffs Ghafoor and Belew shall each recover liquidated damages

3 in the amount of $20,400.

4

The distribution of any funds to plaintiff Al-Haramain is

5 impossible because Al-Haramain’s assets are blocked as a result of

6 its designation as a SDGT organization. Executive Order No 13,224

7 (66 CFR 49,079), issued pursuant to the International Emergency

8 Economic Powers Act (50 USC §§ 1701 et seq), authorizes the

9 Secretary of Treasury to designate any foreign person or group

10 engaging in or supporting terrorist activities as a SDGT and block

11 all assets of such person or group. “[A]ny attachment, judgment,

12 decree, lien, execution, garnishment, or other judicial process is

13 null and void with respect to any property in which on or since the

14 effective date there existed an interest of a person whose property

15 or interests in property are blocked.” 31 CFR 594.202.

16

Al-Haramain challenged its 2004 SDGT designation in an

17 action filed in the United States District Court for the District

18 of Oregon. Al-Haramain Islamic Foundation, Inc v United States

19 Dept of the Treasury, 585 F Supp 2d 1233, 1239 (D Or 2008). The

20 court found that the OFAC’s designation was proper and dismissed

21 the complaint. Id at 1273; Al-Haramain Islamic Foundation, Inc v

22 United States Dept of the Treasury (“Al-Haramain II”), 2009 US Dist

23 LEXIS 103373 at *52-53 (D Or). Al-Haramain has appealed to the

24 Ninth Circuit. Doc #727/119 at 13 n11. As explained more fully

25 below in the discussion of punitive damages, there is ample

26 evidence supporting Al-Haramain’s designation as a SDGT.

27

FISA specifies that a “foreign power or an agent of a

28 foreign power” is not eligible to recover damages under the

14

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1 statute. 50 USC § 1810. The statute broadly defines “foreign

2 power” and specifically includes “a group engaged in international

3 terrorism or activities in preparation therefor.” 50 USC §

4 1801(a)(4). As described in section IIC2, the OFAC has determined

5 that Al-Haramain provided aid and support to terrorist

6 organizations. These activities, coupled with the fact that Al-

7 Haramain was designated a SDGT organization, demonstrate that Al-

8 Haramain is a “foreign power” that has engaged in “international

9 terrorism or activities in preparation therefor” as defined in the

10 FISA statute. 50 USC §§ 1801(a)(4), 1810. Al-Haramain is

11 therefore not entitled to recover any damages in this action.

12

Plaintiffs propose that, in lieu of a transfer of

13 compensatory damages to Al-Haramain’s blocked account, the court

14 order a cy pres distribution “to one or more other charitable

15 organizations whose missions are ‘consistent with the nature of the

16 underlying action.’” Doc #122 at 21 (quoting In re Agent Orange

17 Product Liab Litig, 818 F2d 179, 186 (2d Cir 1987)). Plaintiffs’

18 cy pres argument fails at the threshold because, as described

19 above, Al-Haramain is a “foreign power” under FISA and is therefore

20 not entitled to any award of damages. Moreover, even if Al-

21 Haramain were entitled to recover damages, because Al-Haramain is a

22 SDGT “any damages awarded to [Al-Haramain] would constitute assets

23 in which it has a property interest, and any transfer of that

24 interest by court order to any party would still be subject to the

25 blocking and licensing requirement under CFR §§ 594.201(a),

26 202(b).” Doc #730 at 26 n22.

27

The cy pres doctrine is “a rule of construction used to

28 preserve testamentary charitable gifts that otherwise would fail.”

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1 Democratic Cent Comm of Dist of Columbia v Washington Metro Area

2 Transit Comm’n, 84 F3d 451, 455 n1 (DC Cir 1996). The doctrine has

3 been extended by some courts to class actions, where undistributed

4 damage or settlement funds may be distributed to the “next best”

5 use when plaintiffs cannot be compensated individually. Id at 455.

6 “The object of applying funds to the ‘next best’ class is to

7 parallel the intended use of the funds as nearly as possible by

8 maximizing the number of plaintiffs compensated.” Id (citation

9 omitted).

10

Plaintiffs have provided no precedent applying the cy

11 pres doctrine to the distribution of a damages award in

12 circumstances analogous to those at bar. To do so here would

13 require the court to speculate as to the “intended use of the

14 funds” and the degree to which the missions of charitable

15 organizations are “consistent with the nature of the underlying

16 action.” Democratic Cent Comm of DC, 84 F3d at 455 n1; In re Agent

17 Orange, 818 F2d at 186. In the absence of any legal authority and

18 any compelling reason, the court declines to apply the cy pres

19 doctrine in this case.

20

Accordingly, the court DENIES plaintiff Al-Haramain’s

21 motion for recovery of statutory damages.

22

23

B

24

Plaintiffs seek two types of equitable relief. First,

25 plaintiffs seek a declaration that defendants’ warrantless

26 electronic surveillance of plaintiffs was unlawful as a violation

27 of FISA. Doc #723/117. Second, plaintiffs seek an order directing

28 that:

16

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1

[I]nformation obtained by means of plaintiffs’ unlawful

electronic surveillance shall not be used by the United

2

States government, either directly or derivatively, in

any administrative, civil or criminal proceeding in which

3

the United States is a party. Upon the final resolution

of all such proceedings potentially involving such

4

information, all files and records containing such

information shall be purged and destroyed, except to the

5

extent that defendants may have an existing legal

obligation to preserve exculpatory evidence.

6

7 Doc #723/117 at 3. Defendants argue that plaintiffs are not

8 entitled to either form of equitable relief. Doc #727/119.

9

The court first turns to plaintiffs’ request for a

10 declaration that the warrantless electronic surveillance of

11 plaintiffs was unlawful as a violation of FISA. Defendants argue

12 that FISA does not authorize the entry of any declaratory relief.

13 Doc #727/119. Defendants further argue that a declaratory judgment

14 cannot issue if the “program or activity” no longer exists. Doc

15 #727/119.

16

It is unnecessary to decide whether and under what

17 circumstances FISA authorizes the entry of a declaratory judgment

18 because the equitable relief sought by plaintiffs is neither

19 necessary nor appropriate. This court already determined in its

20 March 31 order that plaintiffs established a prima facie case of

21 unlawful electronic surveillance in violation of FISA. Doc

22 #721/115 at 3. In the present order, the court awards compensatory

23 damages and attorney fees based on defendants’ actions. A

24 declaration that defendants’ actions were illegal would not provide

25 plaintiffs with any additional relief or remedy.

26

Furthermore, because the TSP under which plaintiffs were

27 monitored in violation of FISA ended in January 2007, Doc #668/103

28 at 18, there is no reason to believe that plaintiffs will be

17

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1 subjected to the same injury in the future. Under 28 USC § 2201, a

2 declaratory judgment is available only when there is “a substantial

3 controversy, between parties having adverse legal interests, of

4 sufficient immediacy and reality.” Golden v Zwickler, 394 US 103,

5 108 (1969). “[P]ast wrongs do not in themselves amount to that

6 real and immediate threat of injury necessary to make out a case or

7 controversy.” City of Los Angeles v Lyons, 461 US 95, 103 (1983).

8 Accordingly, plaintiffs’ request that the court declare defendants’

9 actions unlawful is DENIED.

10

Plaintiffs’ second request for equitable relief seeks an

11 order prohibiting the United States government from using any

12 information obtained during the surveillance at issue and ordering

13 the destruction of such information. Again, to enter declaratory

14 relief, there must be an “actual controversy” before the court. 28

15 USC § 2201. No such controversy exists here.

16

As authority for their request, plaintiffs cite a section

17 of FISA authorizing the suppression of certain “unlawfully

18 acquired” evidence. Doc #723/117 at 2. The suppression remedy

19 authorized by FISA is limited to situations in which evidence

20 obtained or derived from unlawful surveillance is used against an

21 “aggrieved person” in “any trial, hearing, or other proceeding in

22 or before any court, department, officer, agency, regulatory body,

23 or other authority of the United States [or] a State.” 50 USC §

24 1806(e). Upon the motion of the “aggrieved person” to the

25 authority in that proceeding, evidence determined to be acquired

26 unlawfully will be suppressed. 50 USC § 1806(g). No party here

27 has brought a motion to suppress evidence in an ongoing “trial,

28 hearing, or other proceeding.” 50 USC § 1806(e). Plaintiffs’

18

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1 request to have evidence “suppressed” for purposes of other,

2 unnamed proceedings is not authorized by section 1806(e) or (g).

3 Furthermore, the suppression remedy provided by section 1806 does

4 not authorize the court to order expungement of records in the

5 government’s possession, and no other provisions of FISA authorize

6 such a remedy. For these reasons, plaintiffs’ request that the

7 information be suppressed and expunged is DENIED.

8

9

C

10

Plaintiffs seek punitive damages in the amount of

11 $183,600 per plaintiff. Doc #723/117. The FISA statute provides

12 that an “aggrieved person, other than a foreign power or an agent

13 of a foreign power * * * who has been subjected to an electronic

14 surveillance * * * in violation of Section 1809 of this title * * *

15 shall be entitled to recover * * * punitive damages.” 50 USC §

16 1810. Plaintiffs claim that defendants conducted unauthorized

17 electronic surveillance and are therefore liable for punitive

18 damages.

19

As a threshold matter, plaintiff Al-Haramain is not

20 eligible to recover punitive damages. As explained in section IIA,

21 Al-Haramain is a “foreign power” as defined in FISA and is

22 therefore exempted from recovery of punitive damages. 50 USC §

23 1810. Al-Haramain’s motion for punitive damages is therefore

24 DENIED. The court will thus turn to the claims for punitive

25 damages brought by plaintiffs Belew and Ghafoor.

26

27

1

28

It is settled law that municipalities are not liable for

19

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1 punitive damages. In the context of cities and counties,

2 municipalities are not liable for punitive damages “unless

3 expressly authorized by statute.” Cook County v United States ex

4 rel Chandler, 539 US 119, 129 (2003) (quoting Newport v Fact

5 Concerns, Inc, 453 US 247, 260 n21 (1981)). This rule is supported

6 both by a long history in the common law and by logic. Punitive

7 damages serve the purpose “of punishing the defendant, of teaching

8 him not to do it again, and of deterring others from following his

9 example.” Protectus Alpha Navigation Co v North Pacific Grain

10 Growers, Inc, 767 F2d 1379, 1385 (9th Cir 1985) (quoting Prosser,

11 The Law of Torts § 2, at 9 (1971)). None of these purposes is well

12 served by imposing penalties upon the taxpayers of a city or county

13 rather than the officials who are directly responsible for

14 wrongdoing. The same reasoning applies to punitive damage awards

15 against the United States and its agencies, and the Supreme Court

16 has expressed its concern with “imposing punitive damages on

17 taxpayers under any circumstances.” Vermont Agency of Natural

18 Resources v United States ex rel Stevens, 529 US 765, 785 n15

19 (2000).

20

The primary retributive purpose of punitive damages is

21 not advanced by laying the burden of punishment “upon the shoulders

22 of blameless or unknowing taxpayers.” Newport, 453 US at 267.

23 Punitive damages are not intended to compensate the injured

24 plaintiff, and in such a situation they “are in effect a windfall

25 to a fully compensated plaintiff, and are likely accompanied by an

26 increase in taxes or a reduction of public services for the

27 citizens footing the bill.” Id. “Under ordinary principles of

28 retribution, it is the wrongdoer himself who is made to suffer for

20

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1 his unlawful conduct,” and “neither reason nor justice” suggests

2 that taxpayers should suffer for the malicious acts of their

3 officials. Id.

4

The deterrent purpose of punitive damages is also ill

5 served by imposing punitive damages upon the government. It is far

6 from clear that government officials will be meaningfully deterred

7 from future acts of official conduct by the fear that punitive

8 damages may be imposed upon the government. It is possible that

9 awards of punitive damages against municipalities or other

10 governments may “induce voters to condemn official misconduct

11 through the electoral process,” but there is “no reason to suppose

12 that corrective action, such as the discharge of offending

13 officials who were appointed and the public excoriation of those

14 who were elected, will not occur unless punitive damages are

15 awarded against the municipality.” Newport, 453 US at 268.

16

Plaintiffs have requested punitive damages against four

17 officials in their official capacities — President Barack Obama,

18 NSA Director Keith Alexander, OFAC Director Adam Szubin and FBI

19 Director Robert Mueller — as well as the NSA, the OFAC and the FBI

20 as entities. Doc #723/117 at 2. A suit against an officer in his

21 official capacity “is not a suit against the official but rather is

22 a suit against the official’s office,” and is therefore a suit

23 against the government. Will v Michigan Dept of State Police, 491

24 US 58, 71 (1989) (quoting Brandon v Holt, 469 US 464, 471 (1985)).

25 Notably, none of the named defendants except Mueller held his

26 office during the time of the illegal conduct at issue in this

27 case. This helps to illustrate the illogic of punitive damages

28 here. An award of punitive damages against the current president

21

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1 based on the actions of his predecessor serves no coherent

2 retributive or deterrent purpose.

3

Plaintiffs argue that FISA expressly authorizes punitive

4 damages against the United States. Doc #729/122 at 12. This court

5 has previously ruled that the United States is included in the FISA

6 definition of “person” and that sovereign immunity has therefore

7 been waived. In re National Security Telecom Records Litig, 564 F

8 Supp 2d 1109, 1124-25 (ND Cal 2008). Plaintiffs argue that the

9 same reasoning exposes the government to punitive damages. Doc

10 #729/122 at 12. The plain text of 50 USC § 1810 states that an

11 aggrieved person “shall be entitled to recover” actual or

12 liquidated damages, punitive damages and attorney fees from “any

13 person who committed such violation,” and does not explicitly

14 exempt the United States from punitive damages. But this language

15 is by no means an express authorization of punitive damages. The

16 court must assume that Congress is aware of existing law —

17 including the presumption against awarding punitive damages against

18 the government — when it passes legislation. Miles v Apex Marine

19 Corp, 498 US 19, 32 (1990). The legislature will not be presumed

20 to overturn long-established legal principles unless such intention

21 plainly appears in the statute. See 73 American Jurisprudence 2d,

22 Statutes § 97. Congress must surely have been aware of the long-

23 standing presumption against awarding punitive damages against the

24 government. Nothing in the text of FISA can be read to explicitly

25 overturn the general presumption that it is not appropriate to

26 award punitive damages against the government.

27 //

28 //

22

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1

2

2

Even if this court were to determine that Congress had

3 authorized punitive damages against the United States under FISA,

4 punitive damages would not be appropriate here. As plaintiffs

5 admit, FISA does not explicitly provide for mandatory recovery of

6 punitive damages. Both parties concede that section 1810(b) is

7 silent as to how a court should decide whether to award punitive

8 damages in a given case. Doc ##729/122 at 13 (explaining that “the

9 statute offers no guidance as to the specific standard a court is

10 to apply when deciding whether to award such damages in a

11 particular case”); 730/123 at 15 (“Section 1810 does not provide

12 any standard governing the determination of whether punitive

13 damages should be awarded”). Moreover, no judicial precedent

14 elucidates the standard that applies to an award of punitive

15 damages under FISA. Doc #730/123 at 15.

16

Plaintiffs instead look to a statutory analogue, 42 USC §

17 1983 (“section 1983”), which concerns damages actions against

18 government officials for depriving persons of federally secured

19 rights. Doc #729/122 at 13-14. Defendants assume, for the sake of

20 argument, that section 1983 provides a proper analogy. Doc

21 #730/123 at 15. Under section 1983, punitive damages may be

22 awarded for conduct found to be malicious, oppressive or in

23 reckless disregard of a plaintiff’s rights. See Smith v Wade, 461

24 US 30, 56 (1983). Stated somewhat differently, punitive damages

25 may be appropriate “when the defendant’s conduct is shown to be

26 motivated by evil motive or intent, or when it involves reckless or

27 callous indifference to the federally protected rights of others.”

28 Id. Further, any award of punitive damages must be based on harm

23

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1 caused by the defendants to the plaintiffs specifically, as opposed

2 to nonparties to the action. Philip Morris USA v Williams, 549 US

3 346, 353-55 (2007).

4

The punitive damages standard articulated in Wade was

5 drawn from the common law of torts “with such modification or

6 adaptation as might be necessary to carry out the purpose and

7 policy of [section 1983].” Wade, 461 US at 34. The Court, finding

8 “no reason why a person whose federally guaranteed rights have been

9 violated should be granted a more restrictive remedy than a person

10 asserting an ordinary tort cause of action,” held that no such

11 modification or adaptation was necessary. Id at 48-49.

12

This reasoning applies equally to FISA, which was enacted

13 primarily to safeguard the constitutional rights of United States

14 citizens. See Senate Select Committee to Study Governmental

15 Operations with Respect to Intelligence Activities (“Church

16 Committee Report”) Book II: Intelligence Activities and the Rights

17 of Americans, S Rep No 94-755, 289 (1976); Doc #453/33 at 10-14.

18 Accordingly, this court will consider plaintiffs’ request for

19 punitive damages under FISA using the common law standard for

20 awarding punitive damages as restated in Wade. This court has

21 found defendants liable for violating FISA for a period of 204 days

22 between February 19, 2004 and September 9, 2004. Punitive damages

23 must be based on this particular conduct and not on any larger

24 pattern of misconduct.

25

Plaintiffs argue that “defendants conducted plaintiffs’

26 unlawful surveillance in reckless disregard of their rights, having

27 acted ‘in the face of a perceived risk’ that the surveillance would

28 ‘violate the plaintiff’s rights under federal law.’” Doc #729/122

24

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1 at 16 (quoting Model Civ Jury Instr 9th Cir 5.5 (2008)). Further,

2 plaintiffs argue that the “unlawful surveillance was oppressive in

3 that it occurred ‘by misuse or abuse of authority or power.’” Doc

4 #729/122 at 17 (quoting Dang v Cross, 422 F3d 800, 809-10 (9th Cir

5 2005)).

6

The court cannot find that the surveillance of plaintiffs

7 in 2004 pursuant to the TSP involved “reckless or callous

8 indifference to [their] federally protected rights.” Smith, 461 US

9 at 56. The record shows that the government had reason to believe

10 that Al-Haramain supported acts of terrorism and that critical

11 intelligence could be obtained by monitoring Al-Haramain. Al-

12 Haramain, 585 F Supp 2d at 1251-53. The parent organization of

13 plaintiff Al-Haramain is Al-Haramain Islamic Foundation (“AHIF”).2

14 AHIF is headquartered in Saudi Arabia and has had operations in as

15 many as fifty countries “providing support for the [al-Qa’ida]

16 network and promoting militant Islamic doctrine worldwide.” Id at

17 1241. Among other activities, AHIF was involved in planning and

18 financing terrorist attacks against United States embassies in

19 Kenya and Tanzania and attempted attacks against United States

20 consulates in India. Id. Beginning in 2002, the United States

21 Secretary of Treasury designated numerous AHIF divisions around the

22 world as SDGTs. Id. AHIF was designated as a SDGT on September 9,

23 2004. Id at 1245-46.

24

Al-Haramain was founded in Oregon between 1997 and 1999.

25 Id at 1243. In March 2000, Al-Haramain transferred $150,000 to

26

27

2

The Oregon branch of Al-Haramain, a plaintiff in this case,

28

is consistently referred to as “Al-Haramain” in this order. parent organization is consistently referred to as “AHIF.”

Its

25

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1 AHIF, which the OFAC believed was used to support terrorist

2 activities by the Chechen mujahideen. Id at 1243-45; Doc #657-

3 4/99-4 at 34-36. The OFAC began investigating Al-Haramain in

4 February 2004 and first designated Al-Haramain as a SDGT on

5 September 9, 2004. Al-Haramain, 585 F Supp 2d at 1245-46; Doc

6 #721/115 at 38-39. Soliman al-Buthi, a founding member, was also

7 designated a SDGT in September 2004. Al-Haramain, 585 F Supp 2d at

8 1242. Given the connections between Al-Haramain and AHIF,

9 including the provision of funds that the OFAC believed were used

10 to support terrorist activities, the court does not find that

11 defendants’ surveillance of Al-Haramain was conducted in reckless

12 disregard for plaintiffs’ rights.

13

While the facts show a clear dispute among DOJ and White

14 House officials over the legality of some PSP activities, the

15 evidence does not demonstrate that defendants knowingly acted in

16 the face of a significant risk that their actions violated

17 plaintiffs’ rights. Importantly, for the entire period at issue in

18 this case, defendants relied upon legal analyses by the OLC

19 supporting the legality of the TSP. Between late 2001 and March

20 11, 2004, the TSP was operating under the authorization of the

21 president and the certification of the attorney general. Doc #671-

22 2/104-2 at 16-18, 25, 31-32. Yoo in the Office of Legal Counsel

23 had provided an analysis supporting the legality of the TSP and

24 other PSP activities. Id. After Yoo resigned in 2003, Philbin and

25 Goldsmith began to share their concerns about the legality of some

26 PSP activities with Ashcroft and White House officials. But these

27 concerns remained a matter of internal discussion and debate within

28 the Office of Legal Counsel and in no way altered its prior

26

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1 official analysis stating that the PSP was legal.

2

In early 2004, various officials, including Ashcroft,

3 Comey and Mueller, continued to voice concern regarding Yoo’s

4 analysis of the PSP. These concerns focused primarily on still-

5 undisclosed “other activities” authorized under the PSP, not the

6 TSP (the program at issue here). Doc #671-2/104-2 at 26-31. Then-

7 White House Counsel Gonzales expressed disagreement with such

8 criticisms, and the President reauthorized the PSP without the

9 certification of the Attorney General on March 11, 2004. Id. On

10 March 17, 2004, however, President Bush discontinued certain PSP

11 activities that the DOJ believed were not legally supported. Id at

12 34. On May 6, 2004, Goldsmith and Philbin completed an analysis of

13 the newly-modified PSP (including the TSP) and found it to be

14 legally supported by the 2001 AUMF. Id. The DOJ has never

15 repudiated this analysis or conclusion. Therefore, despite the

16 high-level disagreement over the legality of certain aspects of the

17 PSP, there is no basis to find that defendants acted in the face of

18 a significant risk that their actions violated plaintiffs’ legal

19 rights or that defendants engaged in “misuse or abuse of authority

20 or power.”

21

Plaintiffs repeatedly emphasize the weakness of the legal

22 rationales advanced for the TSP and have apparently inferred that

23 defendants acted in bad faith. This court has, of course, held

24 that plaintiffs established a prima facie case that defendants’

25 actions were in violation of FISA and that defendants did not rebut

26 this showing. Questions of defendants’ intent, however, are more

27 difficult than plaintiffs allow.

28

For the reasons made clear momentarily, the court has

27

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1 little difficulty concluding that the government’s conduct here

2 does not merit imposition of punitive damages. In doing so,

3 however, the undersigned must acknowledge that the facts of this

4 case, at a minimum, do not cast a flattering light on certain

5 executive branch officials. Wholly apart from the apparent

6 weakness of Yoo’s legal analysis, it is disquieting that for more

7 than a year and a half, sole responsibility for determining the

8 legality of the TSP was reposed in a single official.

9

This aside, it is essential to remember that the precise

10 limits of the president’s power to act in defense of the nation are

11 not specifically delineated, and due to the nature of our

12 Constitution will never be spelled out in every detail.

13 Intelligent and sincere officials disagree about the scope of these

14 powers, and the existence of such disagreement should not in every

15 case prevent action from being taken. The president and other

16 senior executive branch officials responsible for national security

17 necessarily bear some risk that their actions may one day be held

18 to be unlawful; they must balance this risk against the harm that

19 may come to the nation if they fail to act. While the court has

20 the constitutional duty to apply the law in cases before it and

21 hold violators accountable, it need not mete out punitive measures

22 on officials for perceived “recklessness” in dealing with a

23 serious, proven threat to the national security.

24

For these and the foregoing reasons, the motion of

25 plaintiffs Ghafoor and Belew for punitive damages is DENIED.

26

27

D

28

As the prevailing parties on their claims under FISA,

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1 plaintiffs Ghafoor and Belew may recover their reasonable attorney

2 fees and costs of suit. 50 USC § 1810. Defendants do not dispute

3 that FISA provides for fee-shifting to a prevailing plaintiff.

4 Defendants contend, however, that an award of attorney fees and

5 costs is premature and, in any event, dispute plaintiffs’

6 calculation of attorney fees and costs.

7

As discussed in section IIA, Al-Haramain is a “foreign

8 power” as defined by FISA. FISA specifically exempts foreign

9 powers from recovery of attorney fees and expenses. 50 USC §§ 1810

10 (b) and (c). The motion of Al-Haramain for attorney fees and

11 litigation expenses is therefore DENIED.

12

The court thus turns to the claims for attorney fees and

13 expenses brought by plaintiffs Belew and Ghafoor. Despite

14 defendants’ protestations, it is not premature to address this

15 issue. The Federal Rules of Civil Procedure establish that

16 “[u]nless * * * a court order provides otherwise,” a motion for

17 attorney fees must be filed “no later than 14 days after the entry

18 of judgment.” FRCP 54(d)(2)(B)(i). The notes of the advisory

19 committee specifically state that the rule “permits the court to

20 require submissions of fee claims in advance of entry of judgment.”

21 FRCP 54, Notes of Advisory Committee on 1993 amendments. Although

22 the court has granted a motion for summary judgment on the issue of

23 liability, defendants claim that they cannot fully address the

24 reasonableness of a fee award without knowing the specific amount

25 of damages awarded. Doc #746/131 at 8-9. But defendants have

26 argued at length that the amount requested by plaintiffs is

27 excessive and unreasonable even if the full amount of damages

28 sought is obtained and have specifically addressed the

29

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1 proportionality of the requested fee in relation to various

2 hypothetical damages awards. Doc #746/131 at 7-9, 16-17. Having

3 effectively disputed plaintiffs’ attorney fee motion, defendants’

4 argument that it is premature to address the issue fails.

5

Plaintiffs propose that the fee award be calculated by a

6 straightforward application of the lodestar approach. Doc #738/128

7 at 3. This approach starts by multiplying “the number of hours

8 reasonably expended on the litigation” by “a reasonable hourly

9 rate.” Hensley v Eckerhart, 461 US 424, 433 (1983). This method

10 has “achieved dominance in the federal courts” and has “become the

11 guiding light of [the Supreme Court’s] fee-shifting jurisprudence.”

12 Perdue v Kenny A, 130 S Ct 1662, 1672 (2010) (quoting Gisbrecht v

13 Barnhart, 535 US 789, 801 (2002)).

14

15

1

16

To determine reasonable hourly rates in a case involving

17 attorneys with widely varying experience and billing rates, this

18 court uses the well-established Laffey matrix. See Laffey v

19 Northwest Airlines, Inc, 572 F Supp 354 (DDC 1983), aff’d in part,

20 rev’d in part on other grounds, 746 F2d 4 (DC Cir 1984). This

21 matrix compiles average billing rates for attorneys in the District

22 of Columbia area, divided into categories based on years of

23 experience. See http://www.justice.gov/usao/dc/Divisions/Civil_Div

24 ision/Laffey_Matrix_8.html. Because the cost of living in the

25 District of Columbia differs from that of other cities, the court

26 will adjust the rates to the appropriate locality using the federal

27 locality pay differentials based on federally compiled cost of

28 living data. See, for example, In re HPL Technologies, Inc

30

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United States District Court For the Northern District of California

1 Securities Litigation, 366 F Supp 2d 912, 921 (ND Cal 2005).

2

Defendants argue that the Laffey rates should be adjusted

3 for the locality in which each of plaintiffs’ attorneys operates

4 rather than for the locality where the district court sits. Doc

5 #746/131 at 26. Although the undersigned declined to adjust for

6 the locality of the district court in one unusual case involving

7 two actions pending simultaneously in two district courts, see

8 Martin v FedEx Ground Package System, 2008 WL 5478576, *1-2, 7 (ND

9 Cal 2008), the Ninth Circuit has held that “[g]enerally, when

10 determining a reasonable hourly rate, the relevant community is the

11 forum in which the district court sits.” Prison Legal News v

12 Schwarzenegger, 608 F3d 446, 454-55 (9th Cir 2010) (quoting Camacho

13 v Bridgeport Fin, Inc, 523 F3d 973, 979 (9th Cir 2008)).

14 Accordingly, the court will use the San Francisco Bay area as the

15 locality in computing all rates.

16

Plaintiffs propose that the court use the current hourly

17 rates from the Laffey matrix for all the hours worked going back to

18 2005. Doc #748/132 at 19. As a general matter, a trial court has

19 the discretion to apply current rates to all hours billed over the

20 course of the litigation as a means of compensating a plaintiff’s

21 attorney for the delay in payment. Welch v Metropolitan Life Ins

22 Co, 480 F3d 942, 947 (9th Cir 2007) (citing In re Wash Pub Power

23 Sys Sec Litig, 19 F3d 1291, 1305 (9th Cir 1994)). Alternately, a

24 court may use the attorney’s historical rates and add an

25 enhancement in the form of interest based on the prime rate. Id.

26 But this principle of compensating for delay does not apply in

27 suits against the United States. Rather, the longstanding “no-

28 interest rule” holds that “[i]n the absence of express

31

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1 congressional consent to the award of interest separate from a

2 general waiver of immunity to suit, the United States is immune

3 from an interest award.” Library of Congress v Shaw, 478 US 310,

4 314 (1986). In the Ninth Circuit’s view, an award of attorney fees

5 at current rates is tantamount to an award of interest. See

6 Sorenson v Mink, 239 F3d 1140, 1148 (9th Cir 2001).3 Because

7 Congress has not consented to an award of interest in cases such as

8 this, the court is constrained to use historical rates. Moreover,

9 there is a relatively modest difference between the use of current

10 rates ($2,724,355.79) compared to historical rates ($2,515,387.09).

11 Because the weight of authority supports the use of historical

12 rates and because the difference between the two awards is not

13 great, the attorney fees here will be calculated based on

14 historical rates.

15

To calculate the amount of compensation for each attorney

16 for each year the court must first determine each attorney’s years

17 of experience and then find the rate for the appropriate year in

18 the Laffey matrix. This rate must then be adjusted based on the

19 federal locality pay differential for that year. See

20 http://www.opm.gov/oca/10tables/index.asp and linked pages for

21 historical data. Finally, this rate is multiplied by the number of

22 hours the attorney worked in that year. The Laffey matrix provides

23

24

3 The Ninth Circuit appears to conflate compensation for the delay in payment with compensation for the erosion in the value of

25

money (inflation). But the concepts are distinct; the former typically takes the form of interest while the latter typically

26

entails a price or cost of living adjustment. Where litigation spans a lengthy period or interest rates are high, or both, using current

27

billing rates instead of historical billing rates with interest can significantly under-compensate prevailing parties or their counsel.

28

See Theme Promotions, Inc v News America Marketing FSI, In,c__ F Supp 2d __, 2010 WL 2464961 (ND Cal 2010).

32

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1 billing data for each year starting with June 1 and running to the

2 following May 31. Accordingly, the number of hours worked per year

3 is calculated based on the same dates. The federal locality pay

4 differential and the attorney’s years of experience are calculated

5 based on the later date; for example, for the Laffey year June 1,

6 2009 - May 31, 2010, both the locality pay and years of experience

7 are calculated using 2010 data. The only exception is the final

8 Laffey year, June 1, 2010 - May, 31, 2011; because 2011 locality

9 pay information is not yet available, data from 2010 are used.

10

Table 1: Years of Experience of Plaintiffs’ Counsel

11 Name 12 Eisenberg

2006 27

2007 28

2008 29

2009 30

2010 31

13 Hancock

24

25

26

27

28

14 Goldberg

31

32

33

34

35

15 Nelson

33

34

35

36

37

Jaskol 16
Hassan 17
Albies
18 Kreuscher

18

19

20

21

22

10

11

12

13

14

1

2

3

4

5

0

1

2

3

4

19 Table 2: Laffey Rates for Plaintiffs’ Counsel
20

Name 21
Eisenberg 22
Hancock
23 Goldberg

2005-06 2006-07 2007-08 2008-09 2009-10 2010-11

$405

$425

$440

$465

$465

$475

$405

$425

$440

$465

$465

$475

$405

$425

$440

$465

$465

$475

24 Nelson

$405

$425

$440

$465

$465

$475

25 Jaskol

$360

$375

$440

$465

$465

$475

26 Hassan 27 Albies 28 Kreuscher

$290 $195 $195

$375 $205 $205

$390 $215 $215

$410 $270 $225

$410 $270 $270

$420 $275 $275

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1

Table 3: Federal Locality Pay Differentials and Adjustments4

2 Year 3 2010

San Francisco Washington, DC

35.15%

24.22%

Adjustment 8.80%

4 2009

34.35%

23.10%

9.14%

5 2008 6 2007
2006 7
8

32.53% 30.33% 28.68%

20.89% 18.59% 17.50%

Table 4: Laffey Rates Adjusted to San Francisco

9.63% 9.90% 9.52%

9 Name

2005-06 2006-07 2007-08 2008-09 2009-10 2010-11

10 Eisenberg
11 Hancock Goldberg
12 Nelson
13 Jaskol
14 Hassan
15 Albies
16 Kreuscher

$443.56 $467.07 $482.37 $507.50 $505.91 $516.79 $443.56 $467.07 $482.37 $507.50 $505.91 $516.79 $443.56 $467.07 $482.37 $507.50 $505.91 $516.79 $443.56 $467.07 $482.37 $507.50 $505.91 $516.79 $394.27 $412.12 $482.37 $507.50 $505.91 $516.79 $317.61 $412.12 $427.55 $447.47 $446.08 $456.96 $213.56 $225.29 $235.70 $294.68 $293.76 $299.20 $213.56 $225.29 $235.70 $245.56 $293.76 $299.20

17

18

2

19

Plaintiffs have submitted affidavits from the eight

20 attorneys who worked on the case summarizing the various tasks

21 performed and the number of hours spent on each task. See Doc

22 ##738-1/128-1 to 738-8/128-8; 748/132 at 20 n8. Because the Laffey

23 matrix provides billing data for each year starting with June 1

24 (and ending the following May 31), the hours worked by each

25 attorney have been divided in the same way. When a summarized task

26

27

4

The adjustment represents the percentage by which the

Washington, DC rate must be multiplied to calculate the San Francisco

28

rate, that is: ((100 + SF) - (100 + DC)) / (100 + DC). for 2010, (135.15 - 124.22)/(124.22) = 8.80.

For example,

34

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1 fell into more than one year, the hours were counted toward the

2 year in which the task ended. The total number of hours worked by

3 each lawyer for each Laffey year is given in the first table below;

4 the combined number of hours is 5518.8. The second table below

5 contains the total fee award for each attorney and combined.

6

Table 5: Hours Worked by Plaintiffs’ Counsel by Laffey Years

7 Name 8 Eisenberg

2005-06 2006-07 2007-08 2008-09 2009-10 2010-11 129.1 582.9 630.8 688.9 409.4 97.9

9 Hancock

0

30.1

72.2

55.9

64.7

18.9

10 Goldberg

89

137.2 176.5 123.2 123.8 41.3

11 Nelson

273.8 287.2 200.8 34

113

7.1

Jaskol 12
Hassan 13
Albies
14 Kreuscher

38 78.2 139.3 0

124 94.4 174.9 18.5

39.4 73 55.5 0

62.2 51 21.7 0

15.4 33.4 66.6 0

13.1 17.7 12.9 1.9

15 Table 6: Attorney Fee Award by Individual and Total
16

Name 17
Jon B Eisenberg 18
William N Hancock
19 Steven Goldberg

Attorney fee award $1,241,127.74 $119,754.88 $335,196.23

20 Thomas H Nelson

$430,541.17

21 Lisa Jaskol

$131,217.98

22 Zaha S Hassan 23 J Ashlee Albies 24 Kenneth A Kreuscher 25 TOTAL

$140,760.61 $112,052.13
$4,736.35 $2,515,387.09

26

Defendants argue that the number of hours for which

27 plaintiffs seek compensation is unreasonable for a variety of

28 reasons. Defendants first claim that “the documentation provided

35

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1 by plaintiffs is plainly inadequate” because plaintiffs have

2 provided declarations summarizing their work rather than

3 contemporaneous billing records. Doc #746/131 at 5. Plaintiffs

4 have complied with Local Rule 54-5, which requires that a motion

5 for attorney fees be supported by “declarations or affidavits”

6 containing a “statement of the services rendered by each person for

7 whose services fees are claimed together with a summary of the time

8 spent by each person.” Defendants imply that Hensley, which holds

9 that a prevailing party “should maintain billing time records in a

10 manner that will enable a reviewing court to identify distinct

11 claims,” effectively nullifies the rule by requiring a district

12 court in every case to examine such detailed billing records.

13 Hensley, 461 US at 437. Plaintiffs have maintained contemporaneous

14 time records, see Doc #748/132 at 7, and Local Rule 54-5 allows a

15 court to require production of these for in camera inspection.

16 Such a production is not necessary here. The court has no

17 difficulty in determining from plaintiffs’ detailed billing

18 summaries that their legal work was related to the successful FISA

19 claims of Ghafoor and Belew. As discussed in more detail below,

20 even though only these two plaintiffs ultimately have succeeded on

21 only one of their original six claims, all of the claims “involve a

22 common core of facts or [are] based on related legal theories” and

23 therefore “cannot be viewed as a series of discrete claims.”

24 Hensley, 461 US at 435.

25

Defendants similarly object to plaintiffs’ summaries as a

26 form of “block billing.” Doc #746/131 at 5. But again, according

27 to plaintiffs’ sworn declarations, detailed contemporaneous time

28 records have in fact been kept throughout the litigation and may be

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1 reviewed by the court. Using these records to create the summaries

2 required by the local rules does not amount to an objectionable

3 form of “block billing.”

4

Defendants maintain that plaintiffs’ fee award should be

5 reduced due to “overstaffing and duplicative work by multiple

6 counsel on the same task.” Doc #746/131 at 14. Defendants argue

7 that “[a]t most, a reasonable fee would compensate two attorneys”

8 for attending various hearings in this case. Id at 15. As the

9 lengthy procedural history makes clear, this case has been

10 vigorously litigated. Defendants frequently sent three or four

11 government attorneys to attend hearings. Doc ##746/131 at 17;

12 748/132 at 11-12. Indeed, defendants utilized at least twenty-two

13 different government attorneys to write briefs and to attend

14 hearings. Doc #748/132 at 11. Even if defendants proved that two

15 attorneys at a hearing is “reasonable” in the abstract, their own

16 litigation practices confirm that plaintiffs’ use of resources was

17 reasonable in this particular case. “The government cannot

18 litigate tenaciously and then be heard to complain about the time

19 necessarily spent by the plaintiff in response.” Copeland v

20 Marshall, 641 F2d 880, 904 (DC Cir 1980).

21

The fact that seven attorneys seek compensation for

22 working on each of several important motions also does not

23 demonstrate the “excess” and “needless duplication” alleged by

24 defendants. Doc #746/131 at 14. The declarations of plaintiffs’

25 attorneys demonstrate that different attorneys worked on different

26 elements of the larger project. See, for example, Doc #748/132 at

27 12. This appears to be an efficient division of labor among a team

28 whose members each specialize in particular tasks.

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1

Defendants argue that plaintiffs have not attempted to

2 exercise billing judgment because they have “simply summarized all

3 of the hours and activities they undertook since 2006.” Doc

4 #746/131 at 4-5. It is true that a fee applicant should “exercise

5 ‘billing judgment’ with respect to hours worked.” Hensley, 461 US

6 at 437. However, defendants’ argument “misreads the mandate of

7 Hensley” by suggesting that an attorney “should necessarily be

8 compensated for less than the actual number of hours spent

9 litigating the case.” City of Riverside v Rivera, 477 US 561, 570

10 n4 (1986) (plurality). Rather, the law requires that the number of

11 hours for which an attorney seeks compensation be “reasonable.”

12 Id.

13

As Judge Kozinski has explained, “lawyers are not likely

14 to spend unnecessary time on contingency fee cases in the hope of

15 inflating their fees” because “[t]he payoff is too uncertain, as to

16 both the result and the amount of the fee.” Moreno v City of

17 Sacramento, 534 F3d 1106, 1112 (9th Cir 2008). “By and large, the

18 court should defer to the winning lawyer’s professional judgment as

19 to how much time he was required to spend on the case; after all,

20 he won, and might not have, had he been more of a slacker.” Id.

21 This reasoning is especially apt here. Plaintiffs are the only

22 parties to have obtained a liability finding on a FISA claim in

23 this multi-district litigation concerning warrantless electronic

24 surveillance. Plaintiffs had little reason to believe that they

25 would recover anything at all when this case began. It is

26 therefore unlikely that plaintiffs’ attorneys, believing that they

27 were probably working pro bono and trying to fit the case into a

28 schedule that also included work for paying clients, spent more

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1 time than they felt was absolutely necessary to win the case.

2

3

3

4

Defendants also argue that plaintiffs’ fee award should

5 not include “unproductive” or “unnecessary” hours. Doc #746/131 at

6 3. By this, defendants mean “hours that had no direct bearing on

7 the grant of partial summary judgment on plaintiffs’ FISA claim.”

8 Doc #746/131 at 3. Defendants point to various issues throughout

9 the litigation that have been resolved in their favor — such as the

10 government’s successful assertion of the state secrets privilege,

11 plaintiffs’ failed attempts to obtain access to classified

12 information, plaintiffs’ failure in July 2008 to present enough

13 evidence to establish standing, and a handful of other motions —

14 and suggest that the hours spent on these issues should not be

15 compensated because they had no bearing on the grant of summary

16 judgment. Doc #746/131 at 19-23. What defendants propose is close

17 to the “mathematical approach comparing the total number of issues

18 in the case with those actually prevailed upon” that was rejected

19 in Hensley. 461 US at 435 n11.

20

To take one particular example, defendants argue that it

21 would be unreasonable for plaintiffs to be compensated for the time

22 spent between July 2008 and June 2009 fighting to gain access to

23 classified information because this dispute “ended in no access

24 being granted.” Doc #746/131 at 22-23. Of course, the reason that

25 plaintiffs never gained access to the information is that

26 defendants disobeyed direct court orders to negotiate an

27 appropriate protective order and to give plaintiffs’ counsel access

28 to some of the information once they had obtained security

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1 clearances. See Doc #721/115 at 16-18. Defendants claim that

2 because “the Court declined to enter any sanctions or issue a

3 protective order granting the disclosure of classified information

4 to plaintiffs’ counsel,” they essentially won the issue. Doc

5 #746/131 at 23. A defendant “cannot prolong the litigation through

6 its own obdurate behavior and then protest that [plaintiffs’

7 counsel] has spent too much time prosecuting the action.” O’Neill,

8 Lysaght & Sun v Drug Enforcement Admin, 951 F Supp 1413, 1426 (CD

9 Cal 1996). The time spent by plaintiffs’ counsel seeking access to

10 classified information was made necessary by defendants’ litigation

11 tactics and is therefore compensable.

12

Defendants correctly point out that “the most critical

13 factor” in determining whether a fee award is reasonable is “the

14 degree of success obtained.” Hensley, 461 US at 436. In

15 particular, when a plaintiff succeeds on only some claims for

16 relief, two questions must be addressed: “First, did the plaintiff

17 fail to prevail on claims that were unrelated to the claims on

18 which he succeeded? Second, did the plaintiff achieve a level of

19 success that makes the hours reasonably expended a satisfactory

20 basis for making a fee award?” Id at 434. “A plaintiff is not

21 eligible to receive attorney’s fees for time spent on unsuccessful

22 claims that are unrelated to a plaintiff’s successful * * * claim,”

23 and is not entitled to a fee award not “commensurate with the

24 extent of the plaintiff’s success.” McCown v Fontana, 550 F3d 918,

25 923-24 (9th Cir 2008) (quotation omitted). “A reduced fee award is

26 appropriate if the relief, however significant, is limited in

27 comparison to the scope of the litigation as a whole.” Hensley,

28 461 US at 439. But “[w]here a plaintiff has obtained excellent

40

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United States District Court For the Northern District of California

1 results, his attorney should recover a fully compensatory fee,”

2 which normally “will encompass all hours reasonably expended on the

3 litigation,” and may justify an enhanced award “in some cases of

4 exceptional success.” Hensley, 461 US at 435.

5

Although plaintiffs Belew and Ghafoor have prevailed on

6 only one of their six original claims for relief, it is clear that

7 the remaining five claims — rising from violations of the First,

8 Fourth and Sixth Amendments, as well as the principle of separation

9 of powers and the International Covenant on Civil and Political

10 Rights — “involve a common core of facts” and are “based on related

11 legal theories.” Doc #458/35 at 14-16; Hensley, 461 US at 435.

12 Each of these claims was based on the same instances of the

13 government’s illegal wiretapping of plaintiffs, and each sought to

14 vindicate plaintiffs’ legal and constitutional rights against

15 claims of expanded executive power. Plaintiffs “in good faith

16 * * * raise[d] alternative legal grounds for a desired outcome, and

17 the court’s rejection of or failure to reach certain grounds is not

18 a sufficient reason for reducing a fee.” Hensley, 461 US at 435.

19 Nor should the overall award of attorney fees be reduced because

20 Al-Haramain is not entitled to recover damages or attorney fees.

21 The surveillance of plaintiffs Al-Haramain, Ghafoor and Belew

22 involved the same set of facts. As a result, the litigation

23 involving the surveillance of Al-Haramain cannot be separated from

24 the litigation involving the surveillance of Belew and Ghafoor.

25

This court must also consider whether the level of

26 success achieved is commensurate with the fee award requested by

27 plaintiffs’ counsel. Although plaintiffs Belew and Ghafoor have

28 fully obtained the $100 per day of liquidated damages sought for a

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1 total of $40,800, they have obtained none of the $1,000,000 of

2 punitive damages requested in the first amended complaint or the

3 $550,800 of punitive damages requested in the proposed judgment.

4 Doc ##458/35 at 16; 723/117 at 2. Similarly, Al-Haramain is barred

5 from recovering any relief and none of the plaintiffs have obtained

6 the equitable relief sought. Doc ##458/35 at 16; 723/117 at 3.

7

The Supreme Court has previously rejected a rule of

8 proportionality between damages recovered in a civil rights case

9 and attorney fees awarded under a fee-shifting statute. See City

10 of Riverside v Rivera, 477 US 561, 574 (1986) (plurality); Id at

11 585 (Powell concurring). “Where recovery of private damages is the

12 purpose of a civil rights litigation, a district court, in fixing

13 fees, is obligated to give primary consideration to the amount of

14 damages awarded as compared to the amount sought.” Id at 585

15 (Powell concurring). But “[i]n some civil rights cases, * * * the

16 court may consider the vindication of constitutional rights in

17 addition to the amount of damages recovered.” Id. Because damages

18 recovered in such cases “contribute[] significantly to the

19 deterrence of civil rights violations in the future” and otherwise

20 “serve[] the public interest,” the “damages award[ed] do not

21 reflect fully the public benefit advanced” by the litigation. Id

22 at 574-75.

23

FISA was enacted primarily to address Congress’s concern

24 that the constitutional rights of American citizens were being

25 undermined by various intelligence activities. See Church

26 Committee Report, S Rep No 94-755, 289 (1976); Doc #453/33 at 10-

27 14. Plaintiffs’ success in obtaining damages under FISA must

28 therefore be viewed as a vindication of constitutional rights that

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United States District Court For the Northern District of California

1 serves the greater public interest. This court’s judgment under

2 FISA awarding damages against defendants for unlawful surveillance,

3 as well as its previous order holding that the state secrets

4 privilege is preempted by FISA, contributes to the deterrence of

5 future violations of constitutional rights by warrantless

6 wiretapping. For these reasons, strict proportionality here is a

7 particularly unsuitable measure of the reasonableness of

8 plaintiffs’ requested attorney fees.

9

“Where the relief sought and obtained is limited to

10 money, the terms ‘extent of success’ and ‘level of success’ are

11 euphemistic ways of referring to money.” McGinnis v Kentucky Fried

12 Chicken, 51 F3d 805, 810 (9th Cir 1995). But this case, from the

13 start, has been about more than money. Plaintiffs began this

14 litigation five years ago because they believed that they had been

15 illegally wiretapped by executive branch officials and wanted both

16 to vindicate their own constitutional rights and enforce the laws

17 that they believed were being violated. With the award of

18 liquidated damages under FISA, plaintiffs have essentially obtained

19 what they sought.

20

The difficulties faced and overcome by plaintiffs in this

21 case add significantly to their “level of success.” Plaintiffs

22 here stand alone among the dozens of plaintiffs in this

23 consolidated litigation that have had any success in pursuing

24 claims against the government. The government has fiercely

25 litigated this case from the beginning and has used every available

26 tactic in defense. Plaintiffs have gone to extraordinary lengths

27 in their attempts to obtain classified evidence from in the

28 government’s possession and have ultimately managed to win their

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United States District Court For the Northern District of California

1 case despite the government’s refusal to provide them with this

2 evidence. Plaintiffs’ counsel have clearly obtained “excellent”

3 results for their clients and accordingly are entitled to a “fully

4 compensatory fee” that includes “all hours reasonably expended on

5 the litigation.” Hensley, 461 US at 435. Accordingly, the court

6 GRANTS the motion for attorney fees brought by Belew and Ghafoor

7 and awards $2,515,387.09. The court DENIES the motion for attorney

8 fees brought by Al-Haramain.

9

10

4

11

Plaintiffs also request to be compensated for a total of

12 $22,012.36 in expenses. Doc #738/128 at 11. FISA provides that,

13 in addition to “reasonable attorney’s fees,” a prevailing party may

14 recover “other litigation and investigation costs reasonably

15 incurred.” 50 USC § 1810(c). Even absent express statutory

16 authority, judges are authorized to award certain specific

17 litigation-related expenses, known as “taxable costs,” to a

18 prevailing party. 28 USC § 1920. The specific authorization of

19 FISA goes further than this, though, and clearly contemplates

20 recovery of additional “non-taxable” costs. In any case, federal

21 fee-shifting statutes awarding “reasonable attorney’s fees” may

22 include various non-taxable costs at the court’s discretion. Grove

23 v Wells Fargo Financial California, Inc, 606 F3d 577, 579-81 (9th

24 Cir 2010). This award may include such expenses as travel and

25 computerized legal research if it is standard practice in the local

26 legal community to bill these expenses separately from hourly

27 rates. Id.

28

Attorneys Albies, Eisenberg, Jaskol, Goldberg and Hassan

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1 describe in their declarations the expenses for which they seek

2 compensation; the total amount is $8,808.18. Doc ##738-2/128-2 at

3 5-6; 738-3/128-3 at 13; 738-5/128-5 at 8; 738-6/128-6 at 9-10; 738-

4 8/128-8 at 7. These expenses relate to travel, computerized legal

5 research and courier services, and all of the attorneys state that

6 they believe that such expenses are normally billed separately from

7 hourly rates in their communities. Id. This is a small figure in

8 the context of litigation that has lasted nearly five years, and an

9 inspection of the declarations reveals that the attorneys have

10 omitted a large percentage of the expenses that they must have

11 incurred in this litigation. The court finds that the request for

12 expenses is reasonable.

13

Attorney Thomas Nelson seeks reimbursement for $6,715.00

14 that he paid to an ethics consultant and $6,489.18 that he spent on

15 travel. Doc #738-7/128-7 at 4-6. Mr. Nelson retained the ethics

16 consultant, Mark Fucile, to help him decide an ethical matter that

17 he felt was “unprecedented” – that is, what he should do to protect

18 the confidential communications of his client when he had reason to

19 believe that the government was monitoring his client. Id at 5-6;

20 Doc #748-1/132-1 at 3-4. Based on the same concerns, Mr. Nelson

21 felt compelled to discuss confidential matters in person rather

22 than through electronic communications, which required him to

23 travel. Doc #748-1/132-1 at 3. He seeks reimbursement for two

24 trips to Saudi Arabia, two trips to Washington, D C, and three

25 trips to San Francisco, although he claims to have “made

26 approximately 40 trips to the Middle East” to provide legal counsel

27 to the director of Al-Haramain. Doc #738-7/128-7 at 6.

28

The court acknowledges that the ethical questions arising

45

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1 from this case are in fact novel and difficult. The duty to

2 safeguard confidential client information is one of the most

3 critical ethical obligations of a lawyer, and Mr Nelson’s actions

4 to protect this information were not unreasonable by any measure.

5 Mr Nelson’s request for expenses is, accordingly, approved. In

6 sum, the court GRANTS the request for $22,012.36 in costs and

7 expenses brought by plaintiffs Belew and Ghafoor.

8

9

III

10

For the reasons stated herein, the court GRANTS the

11 motion of plaintiffs Ghafoor and Belew for liquidated damages and

12 awards liquidated damages to those plaintiffs in the amount of

13 $20,400 to each plaintiff. The court DENIES the motion of

14 plaintiff Al-Haramain for liquidated damages and all other relief,

15 DENIES the motion of all plaintiffs for punitive damages and DENIES

16 the motion of all plaintiffs for equitable relief (a declaration

17 that defendants’ warrantless electronic surveillance was unlawful

18 as a violation of FISA and an order that any information obtained

19 by means of the defendants’ unlawful surveillance shall not be used

20 by the United States government in any proceeding and shall be

21 expunged from defendants’ files and records). Doc #723/117.

22

The court GRANTS the motion of plaintiffs Ghafoor and

23 Belew for the entry of an award of attorney fees and expenses, Doc

24 #738/128; 746/131; 748/132, and awards plaintiffs Ghafoor and Belew

25 attorney fees in the amount of $2,515,387.09 and expenses in the

26 amount of $22,012.36. The court DENIES the motion of plaintiff Al-

27 Haramain for attorney fees and expenses.

28

Plaintiffs request that the court dismiss the Second,

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United States District Court For the Northern District of California

1 Third, Fourth, Fifth and Sixth claims for relief pleaded in the

2 First Amended Complaint pursuant to Federal Rule of Civil Procedure

3 41(a)(2). Doc #722/116 at 1. Defendants’ opposition to

4 plaintiffs’ proposed judgment states that defendants do not oppose

5 the dismissal of these claims. Doc #727/119 at 15. Accordingly,

6 the court GRANTS plaintiffs’ request to dismiss without prejudice

7 the Second, Third, Fourth, Fifth, and Sixth claims for relief. Doc

8 #722/116.

9

The clerk is directed to enter judgment, terminate any

10 remaining motions and close the file for Case Number 07-0109.

11

12

IT IS SO ORDERED.

13

__________________________________

14

VAUGHN R WALKER

United States District Chief Judge

15

16

17

18

19

20

21

22

23

24

25

26

27

28

47

 
 1

2

3

4 IN THE UNITED STATES DISTRICT COURT
5 FOR THE NORTHERN DISTRICT OF CALIFORNIA
6

7

8 IN RE:
9 NATIONAL SECURITY AGENCY
10 TELECOMMUNICATIONS RECORDS LITIGATION
11

MDL Docket No 06-1791 VRW ORDER

United States District Court For the Northern District of California

12 This order pertains to:

13

Al-Haramain Islamic Foundation et al v Bush et al (C07-0109 VRW),

14

/

15

16

On November 16, 2007, the court of appeals remanded this

17 case for this court to consider whether the Foreign Intelligence

18 Surveillance Act, 50 USC §§ 1801-71, (“FISA”) “preempts the state

19 secrets privilege and for any proceedings collateral to that

20 determination.” Al-Haramain Islamic Foundation, Inc v Bush, 507

21 F3d 1190, 1206 (9th Cir 2007). This court entertained briefing and

22 held a hearing on that issue and, on July 2, 2008, issued a ruling

23 that: (1) FISA preempts the state secrets privilege in connection

24 with electronic surveillance for intelligence purposes and would

25 appear to displace the state secrets privilege for purposes of

26 plaintiffs’ claims; and (2) FISA did not appear to provide

27 plaintiffs with a viable remedy unless they could show that they

28 were “aggrieved persons” within the meaning of FISA. In re

1 National Security Agency Telecommunications Records Litigation, 564 2 F Supp 2d 1109, 1111 (N D Cal 2008). The court dismissed the 3 complaint with leave to amend. Plaintiffs timely filed an amended 4 pleading (Doc #458/351) and defendants, for the third time, moved 5 to dismiss (Doc #475/49). Plaintiffs simultaneously filed a motion 6 to “discover or obtain material relating to electronic

7 surveillance” under 50 USC § 1806(f) (Doc #472/46), which

8 defendants oppose (Doc #496/50).

9

This pair of cross-motions picks up, at least in theory,

10 where the court’s July 2, 2008 order left off. At issue on these

United States District Court For the Northern District of California

11 cross-motions is the adequacy of the first amended complaint (Doc

12 #35/458)(“FAC”) to enable plaintiffs to proceed with their suit.

13 Accordingly, the court’s discussion will address the motions 14 together.2

15

16

I

17

As with the original complaint, plaintiffs are the Al-

18 Haramain Islamic Foundation, Inc, an Oregon non-profit corporation

19 (“Al-Haramain Oregon”), and two of its individual attorneys,

20 Wendell Belew and Asim Ghafoor, both United States citizens

21 (“plaintiffs”). Plaintiffs sue generally the same defendants but

22 replace one office-holder with his replacement, make minor

23 punctuation and wording changes and specify that they are suing one

24

25

1 Documents will cited both to the MDL docket number (No M 06-

1791) and to the individual docket number (No C 07-0109) in the

26 following format: Doc #xxx/yy.

27

2 These motions do not implicate the recent amendments to FISA

enacted after the July 2 order (FISA Amendments Act of 2008, Pub L No

28 110-261, 122 Stat 2436 (FISAAA), enacted July 10, 2008).

2

United States District Court For the Northern District of California

1 defendant in both his official and personal capacities: “George W

2 Bush, President of the United States, National Security Agency and

3 Keith B Alexander, its Director; Office of Foreign Assets Control,

4 an office of the United States Treasury, and Adam J Szubin, its

5 Director; Federal Bureau of Investigation and Robert S Mueller,

6 III, its Director, in his official and personal capacities”

7 (“defendants”).

8

The FAC retains the same six causes of action as the

9 original complaint. First, plaintiffs allege a cause of action

10 under FISA that encompasses both a request, under 50 USC § 1806(g),

11 for suppression of evidence obtained through warrantless electronic

12 surveillance and a claim for damages under § 1810. Doc #458/35 at

13 14. Then, plaintiffs allege violations of the following

14 Constitutional provisions: the “separation of powers” principle

15 (i e, that the executive branch has exceeded its authority under

16 Article II); the Fourth Amendment through warrantless surveillance

17 of plaintiffs’ electronic communications; the First Amendment

18 through warrantless surveillance, impairing plaintiffs’ “ability to

19 obtain legal advice, to freely form attorney-client relationships,

20 and to petition the government * * * for redress of grievances

21 * * *”; and the Sixth Amendment through surveillance of plaintiffs’

22 electronic communications without probable cause or warrants. Id

23 at 14-15. And finally, plaintiffs allege violations of the

24 International Covenant on Civil and Political Rights. Id at 15-16.

25

In drafting the FAC, plaintiffs have greatly expanded

26 their factual recitation, which now runs to ten pages (id at 3-12),

27 up from a little over one page. The FAC recites in considerable

28 detail a number of public pronouncements of government officials

3

United States District Court For the Northern District of California

1 about the Terrorist Surveillance Project (“TSP”) and its

2 surveillance activities as well as events publicly known about the

3 TSP including a much-publicized hospital room confrontation between

4 former Attorney General John Ashcroft and then-White House counsel

5 (later Attorney General) Alberto Gonzales (id at 5).

6

Of more specific relevance to plaintiffs’ effort to

7 allege sufficient facts to establish their “aggrieved person”

8 status, the FAC also recites a sequence of events pertaining

9 directly to the government’s investigations of Al-Haramain Oregon.

10 A slightly abbreviated version of these allegations follows:

11

On August 1, 2002, Treasury Department Deputy Secretary

12 Kenneth W Dam testified in Congress that, in October of 2001, the

13 Treasury Department created “Operation Green Quest” to track

14 financing of terrorist activities, one of the targets of which were

15 foreign branches of the Saudi Arabia-based Al-Haramain Islamic

16 Foundation. ¶ 24.

17

On March 4, 2004, FBI Counterterrorism Division Acting

18 Assistant Director Gary M Bald testified in Congress that: in April

19 of 2002, the FBI created its Terrorist Financing Operations Section

20 (TFOS); on May 13, 2003, through a Memorandum of Understanding

21 between the Department of Justice and the Department of Homeland

22 Security, the FBI was designated as the lead Department to

23 investigate potential terrorist-related financial transactions; the

24 TFOS acquired, analyzed and disseminated classified electronic

25 intelligence data, including telecommunications data from sources

26 in government and private industry; TFOS took over the

27 investigation of Al-Haramain Islamic Foundation “pertaining to

28 terrorist financing”; on February 18, 2004, the FBI executed a

4

United States District Court For the Northern District of California

1 search warrant on plaintiff Al-Haramain Oregon’s office in Ashland,

2 Oregon; and TFOS provided operational support, including document

3 and data analysis, in the investigation of plaintiff Al-Haramain

4 Oregon. ¶ 25. Bald’s March 4, 2004 testimony included no mention

5 of purported links between plaintiff Al-Haramain Oregon and Osama

6 bin-Laden. ¶ 26.

7

On September 25, 2003, FBI Deputy Director John S Pistole

8 testified in Congress that the TFOS “has access to data and

9 information” from “the Intelligence Community” and has “[t]he

10 ability to access and obtain this type of information in a time

11 sensitive and urgent manner.” ¶ 27.

12

On June 16, 2004, OFAC Director R Richard Newcomb

13 testified in Congress that in conducting investigations of

14 terrorist financing, OFAC officers use “classified * * *

15 information sources.” ¶ 28.

16

On July 26, 2007, defendant Mueller testified before the

17 House Judiciary Committee that in 2004 the FBI, under his

18 direction, undertook activity using information produced by the NSA

19 through the warrantless surveillance program.

20

On February 19, 2004, the Treasury Department issued a

21 press release announcing that OFAC had blocked Al-Haramain Oregon’s

22 assets pending an investigation of possible crimes relating to

23 currency reporting and tax laws; the document contained no mention

24 of purported links between plaintiff Al-Haramain Oregon and Osama

25 bin-Laden. ¶¶ 30-31.

26

Soon after the blocking of plaintiff Al-Haramain Oregon’s

27 assets on February 19, 2004, plaintiff Belew spoke by telephone

28 with Soliman al-Buthi (alleged to be one of Al-Haramain Oregon’s

5

United States District Court For the Northern District of California

1 directors) on the following dates: March 10, 11 and 25, April 16,

2 May 13, 22 and 26, and June 1, 2 and 10, 2004. Belew was located

3 in Washington DC; al-Buthi was located in Riyadh, Saudi Arabia.

4 During the same period, plaintiff Ghafoor spoke by telephone with

5 al-Buthi approximately daily from February 19 through February 29,

6 2004 and approximately weekly thereafter. Ghafoor was located in

7 Washington DC; al-Buthi was located in Riyadh, Saudi Arabia. (The

8 FAC includes the telephone numbers used in the telephone calls

9 referred to in this paragraph.) ¶¶ 34-35.

10

In the telephone conversations between Belew and al-

11 Buthi, the parties discussed issues relating to the legal

12 representation of defendants, including Al-Haramain Oregon, named

13 in a lawsuit brought by victims of the September 11, 2001 attacks.

14 Names al-Buthi mentioned in the telephone conversations with

15 Ghafoor included Mohammad Jamal Khalifa, who was married to one of

16 Osama bin-Laden’s sisters, and Safar al-Hawali and Salman al-Auda,

17 clerics whom Osama bin-Laden claimed had inspired him. In the

18 telephone conversations between Ghafoor and al-Buthi, the parties

19 also discussed logistical issues relating to payment of Ghafoor’s

20 legal fees as defense counsel in the lawsuit. Id.

21

In a letter to Al-Haramain Oregon’s lawyer Lynne Bernabei

22 dated April 23, 2004, OFAC Director Newcomb stated that OFAC was

23 considering designating Al-Haramain Oregon as a Specially

24 Designated Global Terrorist (SDGT) organization based on

25 unclassified information “and on classified documents that are not

26 authorized for public disclosure.” ¶ 36. In a follow-up letter to

27 Bernabei dated July 23, 2004, Newcomb reiterated that OFAC was

28 considering “classified information not being provided to you” in

6

United States District Court For the Northern District of California

1 determining whether to designate Al-Haramain Oregon as an SDGT

2 organization. ¶ 37. On September 9, 2004, OFAC declared plaintiff

3 Al-Haramain Oregon to be an SDGT organization. ¶ 38.

4

In a press release issued on September 9, 2004, the

5 Treasury Department stated that the investigation of Al-Haramain

6 Oregon showed “direct links between the US branch [of Al-Haramain]

7 and Usama bin Laden”; this was the first public claim of purported

8 links between Al-Haramain Oregon and Osama bin-Laden. ¶¶ 39-40.

9

In a public declaration filed in this litigation dated

10 May 10, 2006, FBI Special Agent Frances R Hourihan stated that a

11 classified document “was related to the terrorist designation” of

12 Al-Haramain Oregon.

13

On October 22, 2007, in a speech at a conference of the

14 American Bankers Association and American Bar Association on money

15 laundering, the text of which appears on the FBI’s official

16 Internet website, FBI Deputy Director Pistole stated that the FBI

17 “used * * * surveillance” in connection with defendant OFAC’s 2004

18 investigation of Al-Haramain Oregon but that “it was the financial

19 evidence” provided by financial institutions “that provided

20 justification for the initial designation” of Al-Haramain Oregon.

21 ¶¶ 42-43. A court document filed by the United States Attorney for

22 the District of Oregon on August 21, 2007 referred to the February

23 19, 2004 asset-blocking order as a “preliminary designation” and

24 the September 9, 2004 order as “a formal designation.” ¶ 44.

25

To allege that the above-referenced telecommunications

26 between al-Buthi and plaintiffs Belew and Ghafoor were wire

27 communications and were intercepted by defendants within the United

28 States, plaintiffs cite in their FAC several public statements by

7

United States District Court For the Northern District of California

1 government officials, including: July 26, 2006 testimony by

2 defendant Alexander and CIA Director Michael Hayden that

3 telecommunications between the United States and abroad pass

4 through routing stations located within the United States from

5 which the NSA intercepts such telecommunications; May 1, 2007

6 testimony by Director of National Intelligence Mike McConnell that

7 interception of surveilled electronic communications between the

8 United States and abroad occurs within the United States and thus

9 requires a warrant under FISA; September 20, 2007 testimony by

10 McConnell testified before the House Select Intelligence Committee

11 that “[t]oday * * * [m]ost international communications are on a

12 wire, fiber optical cable,” and “on a wire, in the United States,

13 equals a warrant requirement [under FISA] even if it was against a

14 foreign person located overseas.” ¶ 48a-c.

15

A memorandum dated February 6, 2008, to defendant Szubin

16 from Treasury Department Office of Intelligence and Analysis Deputy

17 Assistant Secretary Howard Mendelsohn, which was publicly disclosed

18 during a 2005 trial, acknowledged electronic surveillance of four

19 of Al-Buthi’s telephone calls with an individual unrelated to this

20 case on February 1, 2003. ¶ 51.

21

In support of their motion under § 1806(f), plaintiffs

22 submit evidence substantiating the allegations of their FAC. In

23 addition to numerous documents drawn from United States government

24 websites and the websites of news organizations (Exhibits to Doc

25 #472-1/46-1, passim), plaintiffs submit the sworn declarations of

26 plaintiffs Wendell Belew and Asim Ghafoor attesting to the

27 specifics and contents of the telephone conversations described in

28 paragraphs 32 and 33 of the FAC. Doc ##472-6/46-6, 472-7/46-7.

8

United States District Court For the Northern District of California

1

II

2

Defendants’ papers attack the sufficiency of plaintiffs’

3 allegations in their FAC and the evidence presented in their motion

4 under § 1806(f) to establish that they are “aggrieved persons”

5 under FISA and thereby have standing to utilize the special

6 procedures set forth in § 1806(f) of FISA to investigate the

7 alleged warrantless surveillance and to seek civil remedies under

8 § 1810. An “aggrieved person” under FISA is defined in 50 USC

9 §1801(k) as the “target of an electronic surveillance” or a person

10 “whose communications or activities were subject to electronic

11 surveillance.” Defendants contend that “nothing in the [FAC] comes

12 close to establishing that plaintiffs are ‘aggrieved persons’ under

13 FISA and thus have standing to proceed under Section 1806(f) to

14 litigate any claim.” Doc #475/49 at 6.

15

Plaintiffs’ motion, by contrast, asserts that the FAC

16 presents “abundant unclassified information demonstrating

17 plaintiffs’ electronic surveillance in March and April of 2004”

18 and, on that basis, seeks a determination of “aggrieved person”

19 status under FISA. Plaintiffs also “propose several possible

20 security measures by which plaintiffs can safely be given access to

21 portions of” the classified document that was accidentally revealed

22 to plaintiffs during discovery and returned under orders of the

23 Oregon District Court (the “Sealed Document”) and which has been

24 the subject of considerable attention in this litigation. Doc

25 #472/46 at 5-6.

26 \\

27 \\

28 \\

9

United States District Court For the Northern District of California

1

A

2

Both FISA sections under which plaintiffs seek to

3 proceed, §§ 1810 and 1806(f), are available only to “aggrieved

4 persons” as defined in 50 USC § 1801(k). The court’s July 2 order

5 discussed the lack of precedents under FISA and devoted

6 considerable space to opinions applying 18 USC § 3504(a)(1),

7 governing litigation concerning sources of evidence. 564 F Supp 2d

8 at 1133-35. The Ninth Circuit’s standards under § 3504(a)(1),

9 while not directly transferrable to FISA, appear to afford a source

10 of relevant analysis to use by analogy in interpreting FISA,

11 subject to that statute’s national-security-oriented context:

12

The flexible or case-specific standards articulated by

the Ninth Circuit for establishing aggrieved status under

13

section 3504(a)(1), while certainly relevant, do not

appear directly transferrable to the standing inquiry for

14

an “aggrieved person” under FISA. While attempting a

precise definition of such a standard is beyond the scope

15

of this order, it is certain that plaintiffs’ showing

thus far with the Sealed Document excluded falls short of

16

the mark.

17

Plaintiff amici hint at the proper showing when they

refer to “independent evidence disclosing that plaintiffs

18

have been surveilled” and a “rich lode of disclosure to

support their claims” in various of the MDL cases. ***

19

To proceed with their FISA claim, plaintiffs must present

20

to the court enough specifics based on non-classified

evidence to establish their “aggrieved person” status

21

under FISA.

22 Id at 1135.

23

Defendants’ opening brief (Doc #475/49) largely fails to

24 engage with the question posed by the court, instead reiterating

25 standing arguments made previously (at 16-17) and asserting that

26 “the law does not support an attempt to adjudicate whether the

27 plaintiffs are ‘aggrieved persons’ in the face of the Government’s

28 successful state secrets privilege assertion” (at 27-30).

10

United States District Court For the Northern District of California

1 Defendants advance one apparently new argument in this regard: that

2 the adjudication of “aggrieved person” status for any or all

3 plaintiffs cannot be accomplished without revealing information

4 protected by the state secrets privilege (“SSP”). This argument

5 rests on the unsupported assertion that “[t]he Court cannot

6 exercise jurisdiction based on anything less than the actual facts”

7 (id at 28), presumably in contrast to inferences from other facts

8 (on which defendants contend the FAC exclusively relies).

9 Defendants’ position boils down to this: only affirmative

10 confirmation by the government or equally probative evidence will

11 meet the “aggrieved person” test; the government is not required to

12 confirm surveillance and the information is not otherwise available

13 without invading the SSP. In defendants’ view, therefore,

14 plaintiffs simply cannot proceed on their claim without the

15 government’s active cooperation —— and the government has evinced

16 no intention of cooperating here.

17

Defendants’ stance does not acknowledge the court’s

18 ruling in the July 2, 2008 order that FISA “preempts” or displaces

19 the SSP for matters within its purview and that, while obstacles

20 abound, canons of construction require that the court avoid

21 interpreting and applying FISA in a way that renders FISA’s § 1810

22 superfluous. Accordingly, the court ruled, there must be some

23 legally sufficient way to allege that one is an “aggrieved person”

24 under § 1801(k) so as to survive a motion to dismiss. Of note,

25 defendants also continue to maintain, notwithstanding the July 2

26 rulings, that the SSP requires dismissal and that FISA does not

27 preempt the SSP. They also suggest that appellate review of the

28 preemption ruling and several of the issues implicated in the

11

United States District Court For the Northern District of California

1 instant motions might be “appropriate” if the court decides to

2 proceed under § 1806(f). Doc #475/49 at 31. (Plaintiffs counter

3 that an interlocutory appeal of the preemption question would not

4 be timely. Doc #496/50 at 28).

5

Plaintiffs urge the court to adopt the Ninth Circuit’s

6 prima facie approach under 18 USC § 3504(a)(1) set forth in United

7 States v Alter, 482 F2d 1016 (9th Cir 1973), that is, that a prima

8 facie case of electronic surveillance requires “evidence

9 specifically connecting them with the surveillance —— i e showing

10 that they were surveilled” without requiring that they “plead and

11 prove [their] entire case.” Plaintiffs further suggest that the

12 prima facie case does not require the determination of any

13 contested facts but rather is “a one-sided affair —— the

14 plaintiff’s side.” Doc #472/46 at 20.

15

Plaintiffs also point to the DC Circuit’s recent decision

16 in In Re Sealed Case, 494 F 3d 139 (DC Cir 2007), which reversed

17 the district court’s dismissal of a Bivens action by a Drug

18 Enforcement Agency employee based on the government’s assertion of

19 the SSP. The district court had concluded that the plaintiff’s

20 unclassified allegations of electronic eavesdropping in violation

21 of the Fourth Amendment were insufficient to establish a prima

22 facie case. Id at 147. The DC Circuit upheld the dismissal as to

23 a defendant called “Defendant II” of whom the court wrote “nothing

24 about this person would be admissible in evidence at trial,” but

25 reversed the dismissal as to defendant Huddle, noting that although

26 plaintiff’s case “is premised on circumstantial evidence ‘as in any

27 lawsuit, the plaintiff may prove his case by direct or

28 circumstantial evidence.’” Id. Plaintiffs accordingly argue that

12

United States District Court For the Northern District of California

1 circumstantial evidence of electronic surveillance should be

2 sufficient to establish a prima facie case. The court agrees with

3 plaintiffs that this approach comports with the intent of Congress

4 in enacting FISA as well as concepts of due process which are

5 especially challenging —— but nonetheless especially important ——

6 to uphold in cases with national security implications and

7 classified evidence.

8

Plaintiffs articulate their proposed standard, in

9 summary, as follows: “plaintiffs’ burden of proving their

10 ‘aggrieved person’ status is to produce unclassified prima facie

11 evidence, direct and/or circumstantial, sufficient to raise a

12 reasonable inference on a preponderance of the evidence that they

13 were subjected to electronic surveillance.” Doc #472/46 at 19.

14

Defendants attack plaintiffs’ proposed prima facie case

15 approach by suggesting, as to plaintiffs’ motion, that “no court

16 has ever used Section 1806(f) in this manner” and that it would

17 “open a floodgate of litigation whereby anyone who believes he can

18 ‘infer’ from ‘circumstantial evidence’ that he was subject to

19 electronic surveillance could compel a response by the Attorney

20 General under Section 1806(f) and seek discovery of the matter

21 through ex parte, in camera proceedings.” Doc # 499/51 at 12-13.

22 These points are without merit.

23

The lack of precedents for plaintiffs’ proposed approach

24 is not meaningful given the low volume of FISA litigation in the

25 thirty years since FISA was first enacted. It is, moreover,

26 unlikely that this court’s order allowing plaintiffs to proceed

27 will prompt a “flood” of litigants to initiate FISA litigation as a

28 means of learning about suspected unlawful surveillance of them by

13

United States District Court For the Northern District of California

1 the government. And finally, the court has ruled that allegations

2 sufficient to allege electronic surveillance under FISA must be, to

3 some degree, particularized and specific, a ruling that discourages

4 weakly-supported claims of electronic surveillance. In re National

5 Security Agency, 564 F Supp 2d at 1135.

6

In Alter, the Ninth Circuit specifically noted the

7 competing considerations and special challenges for courts in cases

8 of alleged electronic surveillance:

9

We * * * seek to create a sound balance among the

competing demands of constitutional safeguards

10

protecting the witness and the need for orderly grand

jury processing. We do not overlook the intrinsic

11

difficulty in identifying the owner of an invisible

ear; nor do we discount the need to protect the

12

Government from unwarranted burdens in responding to

ill-founded suspicions of electronic surveillance.

13

14 482 F2d at 1026. The prima facie approach employed by the Ninth

15 Circuit fairly balances the important competing considerations at

16 work in electronic surveillance cases. Its stringency makes it

17 appropriate in cases arising in the somewhat more restrictive

18 litigation environment where national security dimensions are

19 present. The DC Circuit’s recent use of a prima facie approach in

20 such a case underscores that this is a proper manner in which to

21 proceed. In re Sealed Case,494 F 3d 139. It appears consistent,

22 moreover, with the intent of Congress in enacting FISA’s sections

23 1810 and 1806(f).

24

25

B

26

Defendants devote considerable space to their argument

27 that plaintiffs have not established “Article III standing.” E g,

28 Doc #475/49 at 17. In support of this contention, they largely re-

14

United States District Court For the Northern District of California

1 hash and re-purpose the standing arguments made in support of their

2 previous two motions to dismiss.

3

The court will limit its discussion of this issue to

4 defendants’ reliance on Alderman v United States, 394 US 165

5 (1969), which they cite in all of their briefs on these motions in

6 support of their contention that plaintiffs lack standing. Doc

7 #475/49 at 17; Doc # 499/51 at 9, 10, 26 and 27; Doc #516/54 at 9.

8 In Alderman, the Supreme Court considered, in connection with legal

9 challenges brought under the Fourth Amendment, “the question of

10 standing to object to the Government’s use of the fruits of illegal

11 surveillance” in criminal prosecutions. Id at 169. Explaining

12 that “[w]e adhere to * * * the general rule that Fourth Amendment

13 rights are personal rights which, like some other constitutional

14 rights, may not be vicariously asserted,” the Court held that the

15 Fourth Amendment protects not only the private conversations of

16 individuals subjected to illegal electronic surveillance, but also

17 the owner of the premises upon which the surveillance occurs.

18 While the Court made mention of the then-recently-enacted Omnibus

19 Crime Control and Safe Streets Act of 1968 codified at chapter 119

20 of Title 18 of the United States Code, 18 USC §§ 2510-22 (“Title

21 III”), Alderman did not arise under Title III.

22

The footnote about standing that defendants repeatedly

23 cite on the instant motions merely amplified the statement in the

24 text of Alderman that “Congress or state legislatures may extend

25 the exclusionary rule and provide that illegally seized evidence is

26 inadmissible against anyone for any purpose,” with the observation

27 that Congress had not provided for such an expansion of standing to

28 suppress illegally intercepted communications in Title III. Id at

15

United States District Court For the Northern District of California

1 175 & n9. Defendants’ reliance on Alderman is somewhat baffling

2 because here, the individuals who were allegedly subjected to the

3 warrantless electronic surveillance are parties to the lawsuit and

4 are specifically seeking relief under provisions of FISA intended

5 to provide remedies to individuals subjected to warrantless

6 electronic surveillance. The disposition in Alderman further

7 undermines defendants’ broader contention that only acknowledged

8 warrantless surveillance confers standing: the Court remanded the

9 cases to the district court for “a hearing, findings, and

10 conclusions” whether there was electronic surveillance that

11 violated the Fourth Amendment rights of any of the petitioners and,

12 if so, as to the relevance of the surveillance evidence to the

13 criminal conviction at issue. Id at 186.

14

The court declines to entertain further challenges to

15 plaintiffs’ standing; the July 2 order (at 1137) gave plaintiffs

16 the opportunity to “amend their claim to establish that they are

17 ‘aggrieved persons’ within the meaning of 50 USC § 1801(k).”

18 Plaintiffs have alleged sufficient facts to withstand the

19 government’s motion to dismiss. To quote the Ninth Circuit in

20 Alter, “[t]he [plaintiff] does not have to plead and prove his

21 entire case to establish standing and to trigger the government’s

22 responsibility to affirm or deny.” 482 F2d at 1026. Contrary to

23 defendants’ assertions, proof of plaintiffs’ claims is not

24 necessary at this stage. The court has determined that the

25 allegations “are sufficiently definite, specific, detailed, and

26 nonconjectural, to enable the court to conclude that a substantial

27 claim is presented.” Id at 1025.

28 \\

16

United States District Court For the Northern District of California

1

C

2

Defendants summarize plaintiffs’ allegations thusly,

3 asserting that they are “obviously” insufficient “under any

4 standard”:

5

the sum and substance of plaintiffs’ factual

allegations are that: (i) the [TSP] targeted

6

communications with individuals reasonably believed to

be associated with al Qaeda; (ii) in February 2004, the

7

Government blocked the assets of AHIF-Oregon based on

its association with terrorist organizations; (iii) in

8

March and April of 2004, plaintiffs Belew and Ghafoor

talked on the phone with an officer of AHIF-Oregon in

9

Saudi Arabia (Mr al-Buthe [sic]) about, inter alia,

persons linked to bin-Laden; (iv) in the September 2004

10

designation of AHIF-Oregon, [OFAC] cited the

organization’s direct links to bin-Laden as a basis for

11

the designation; (v) the OFAC designation was based in

part on classified evidence; and (vi) the FBI stated it

12

had used surveillance in an investigation of the Al-

Haramain Islamic Foundation. Plaintiffs specifically

13

allege that interception of their conversations in

March and April 2004 formed the basis of the September

14

2004 designation, and that any such interception was

electronic surveillance as defined by the FISA

15

conducted without a warrant under the TSP.

16 Doc #516/54 at 12 (citations to briefs omitted).

17

The court does not find fault with defendants’ summary

18 but disagrees with defendants’ sense of the applicable legal

19 standard. Defendants seem to agree that legislative history and

20 precedents defining “aggrieved person” from the Title III context

21 may be relevant to the FISA context (Doc #475/49 at 17 n 3), but

22 argue that “Congress incorporated Article III standing requirements

23 in any determination as to whether a party is an ‘aggrieved person’

24 under the FISA” (Doc #516/54 at 7) and assert that “the relevant

25 case law makes clear that Congress intended that ‘aggrieved

26 persons’ would be solely those litigants that meet Article III

27 standing requirements to pursue Fourth Amendment claims.” Id at 5.

28 Tellingly, defendants in their reply brief consistently refer to

17

United States District Court For the Northern District of California

1 their motion as a “summary judgment motion” and argue that

2 plaintiffs cannot sustain their burden on “summary judgment” based

3 on the allegations of the FAC. Defendants are getting ahead of

4 themselves.

5

Defendants attack plaintiffs’ FAC by asserting that

6 plaintiffs seek to proceed with the lawsuit based on “reasonable

7 inferences” and “logical probabilities” but that they cannot avoid

8 summary judgment because “their evidence does not actually

9 establish that they were subject to the alleged warrantless

10 surveillance that they challenge in this case.” Id at 11. At oral

11 argument, moreover, counsel for defendants contended that the only

12 way a litigant can sufficiently establish aggrieved person status

13 at the pleading stage is for the government to have admitted the

14 unlawful surveillance. Transcript of hearing held December 2,

15 2008, Doc #532 at 5-17.

16

Without a doubt, plaintiffs have alleged enough to plead

17 “aggrieved person” status so as to proceed to the next step in

18 proceedings under FISA’s sections 1806(f) and 1810. While the

19 court is presented with a legal problem almost totally without

20 directly relevant precedents, to find plaintiffs’ showing

21 inadequate would effectively render those provisions of FISA

22 without effect, an outcome the court is required to attempt to

23 avoid. See In re National Security Agency, 564 F Supp 2d at 1135

24 (“While the court must not interpret and apply FISA in way that

25 renders section 1810 superfluous, Dole Food Co v Patrickson, 538 US

26 468, 476–77, 123 S Ct 1655 (2003), the court must be wary of

27 unwarranted interpretations of FISA that would make section 1810 a

28 more robust remedy than Congress intended it to be.”) More

18

United States District Court For the Northern District of California

1 importantly, moreover, plaintiffs’ showing is legally sufficient

2 under the analogous principles set forth in Alter and In re Sealed

3 Case.

4

5

IV

6

Because plaintiffs have succeeded in alleging that they

7 are “aggrieved persons” under FISA, their request under § 1806(f)

8 is timely. Section 1806(f), discussed at some length in the

9 court’s July 2 order (564 F Supp at 1131), is as follows:

10

Whenever a court or other authority is notified

pursuant to subsection (c) or (d) of this section, or

11

whenever a motion is made pursuant to subsection (e) of

this section, or whenever any motion or request is made

12

by an aggrieved person pursuant to any other statute or

rule of the United States or any State before any court

13

or other authority of the United States or any State to

discover or obtain applications or orders or other

14

materials relating to electronic surveillance or to

discover, obtain, or suppress evidence or information

15

obtained or derived from electronic surveillance under

this chapter, the United States district court or,

16

where the motion is made before another authority, the

United States district court in the same district as

17

the authority, shall, notwithstanding any other law, if

the Attorney General files an affidavit under oath that

18

disclosure or an adversary hearing would harm the

national security of the United States, review in

19

camera and ex parte the application, order, and such

other materials relating to the surveillance as may be

20

necessary to determine whether the surveillance of the

aggrieved person was lawfully authorized and conducted.

21

In making this determination, the court may disclose to

the aggrieved person, under appropriate security

22

procedures and protective orders, portions of the

application, order, or other materials relating to the

23

surveillance only where such disclosure is necessary to

make an accurate determination of the legality of the

24

surveillance.

25

Plaintiffs propose several approaches for the court to

26 allow plaintiffs to discover information about the legality of the

27 electronic surveillance under § 1806(f):

28 \\

19

United States District Court For the Northern District of California

1

(1) allow plaintiffs to examine a redacted version of

the Sealed Document that allows them to see anything

2

indicating whether defendants intercepted plaintiffs’

international telecommunications in March and April of

3

2004 and lacked a warrant to do so;

4

(2) impose a protective order prohibiting disclosure of

any of the Sealed Document’s contents;

5

(3) one or more of plaintiffs’ counsel may obtain

6

security clearances prior to examining the Sealed

Document (plaintiffs note that precedent exists for this

7

approach, pointing to attorneys at the Center for

Constitutional Rights who are involved in Guantanamo Bay

8

detention litigation and attaching the declaration of

one such attorney, Shayana Kadidal, describing the

9

process of obtaining Top Secret/Sensitive Compartmented

Information (“TS/SCI”) clearance for work on those cases

10

(Doc #472-8/46-8)); and

11

(4) because they have already seen the Sealed Document,

plaintiffs’ need would be satisfied by the court “simply

12

acknowledging [its] existence and permitting

[plaintiffs] to access portions of it and then reference

13

it —— e g, in a sealed memorandum of points and

authorities —— in our arguments on subsequent

14

proceedings to determine plaintiffs’ standing.

15 Doc # 472/46 at 27.

16

In their opposition, defendants do not fully engage with

17 plaintiffs’ motion, but rather seem to hold themselves aloof from

18 it:

19

[A]side from the fact that plaintiffs have failed to

establish their standing to proceed as “aggrieved

20

persons” under the FISA, their motion should also be

denied because Section 1806(f) does not apply in this

21

case —— and should not be applied —— for all the reasons

previously set forth by the Government. Specifically,

22

the Government holds to its position that Section

1806(f) of the FISA does not preempt the state secrets

23

privilege, but applies solely where the Government has

acknowledged the existence of surveillance in

24

proceedings where the lawfulness of evidence being used

against someone is at issue.

25

26 Doc #499/51 at 24. Defendants have not lodged classified

27 declarations with their opposition as seems to be called for by

28 § 1806(f) upon the filing of a motion or request by an aggrieved

20

United States District Court For the Northern District of California

1 person. Defendants, rather, assert that

2

The discretion to invoke Section 1806(f) belongs to the

Attorney General, and under the present circumstances ——

3

where there has been no final determination that those

procedures apply in this case to overcome the

4

Government’s successful assertion of privilege and where

serious harm to national security is at stake —— the

5

Attorney General has not done so. Section 1806(f) does

not grant the Court jurisdiction to invoke those

6

procedures on its own to decide a claim or grant a

moving party access to classified information, and any

7

such proceedings would raise would raise serious

constitutional concerns.

8

9 Id at 26-27, citing Department of the Navy v Egan, 484 US 518, 529

10 (1988) for the proposition that “the protection of national security

11 information lies within the discretion of the President under

12 Article II).” Of note, the court specifically rejected this very

13 reading of Egan in its July 2 order. See 564 F Supp 2d at 1121.

14

Defendants simply continue to insist that § 1806(f)

15 discovery may not be used to litigate the issue of standing; rather,

16 they argue, plaintiffs have failed to establish their “Article III

17 standing” and their case must now be dismissed. But defendants’

18 contention that plaintiffs must prove more than they have in order

19 to avail themselves of section 1806(f) conflicts with the express

20 primary purpose of in camera review under § 1806(f): “to determine

21 whether the surveillance of the aggrieved person was lawfully

22 authorized and conducted.” § 1806(f).

23

In reply, plaintiffs call attention to the circular nature

24 of the government’s position on their motion:

25

Do defendants mean to assert their theory of unfettered

presidential power over matters of national security ——

26

the very theory plaintiffs seek to challenge in this

case —— as a basis for disregarding this court’s FISA

27

preemption ruling and defying the current access

proceedings under section 1806(f)? So it seems.

28

21

United States District Court For the Northern District of California

1 Doc #515/53 at 17. So it seems to the court also.

2

It appears from defendants’ response to plaintiffs’ motion

3 that defendants believe they can prevent the court from taking any

4 action under 1806(f) by simply declining to act.

5

But the statute is more logically susceptible to another,

6 plainer reading: the occurrence of the action by the Attorney

7 General described in the clause beginning with “if” makes mandatory

8 on the district court (as signaled by the verb “shall”) the in

9 camera/ex parte review provided for in the rest of the sentence.

10 The non-occurrence of the Attorney General’s action does not

11 necessarily stop the process in its tracks as defendants seem to

12 contend. Rather, a more plausible reading is that it leaves the

13 court free to order discovery of the materials or information sought

14 by the “aggrieved person” in whatever manner it deems consistent

15 with section 1806(f)’s text and purpose. Nothing in the statute

16 prohibits the court from exercising its discretion to conduct an in

17 camera/ex parte review following the plaintiff’s motion and entering

18 other orders appropriate to advance the litigation if the Attorney

19 General declines to act.

20

21

V

22

For the reasons stated herein, defendants’ motion to

23 dismiss or, in the alternative, for summary judgment (Doc #475/49),

24 is DENIED. Plaintiffs’ motion pursuant to 50 USC § 1806(f) is

25 GRANTED (Doc #472/46).

26

The court has carefully considered the logistical

27 problems and process concerns that attend considering classified

28 evidence and issuing rulings based thereon. Measures necessary to

22

United States District Court For the Northern District of California

1 limit the disclosure of classified or other secret evidence must in

2 some manner restrict the participation of parties who do not

3 control the secret evidence and of the press and the public at

4 large. The court’s next steps will prioritize two interests:

5 protecting classified evidence from disclosure and enabling

6 plaintiffs to prosecute their action. Unfortunately, the important

7 interests of the press and the public in this case cannot be given

8 equal priority without compromising the other interests.

9

To be more specific, the court will review the Sealed

10 Document ex parte and in camera. The court will then issue an

11 order regarding whether plaintiffs may proceed —— that is, whether

12 the Sealed Document establishes that plaintiffs were subject to

13 electronic surveillance not authorized by FISA. As the court

14 understands its obligation with regard to classified materials,

15 only by placing and maintaining some or all of its future orders in

16 this case under seal may the court avoid indirectly disclosing some

17 aspect of the Sealed Document’s contents. Unless counsel for

18 plaintiffs are granted access to the court’s rulings and, possibly,

19 to at least some of defendants’ classified filings, however, the

20 entire remaining course of this litigation will be ex parte. This

21 outcome would deprive plaintiffs of due process to an extent

22 inconsistent with Congress’s purpose in enacting FISA’s sections

23 1806(f) and 1810. Accordingly, this order provides for members of

24 plaintiffs’ litigation team to obtain the security clearances

25 necessary to be able to litigate the case, including, but not

26 limited to, reading and responding to the court’s future orders.

27

Given the difficulties attendant to the use of classified

28 material in litigation, it is timely at this juncture for

23

United States District Court For the Northern District of California

1 defendants to review their classified submissions to date in this

2 litigation and to determine whether the Sealed Document and/or any

3 of defendants’ classified submissions may now be declassified.

4 Accordingly, the court now directs defendants to undertake such a

5 review.

6

The next steps in this case will be as follows:

7

1. Within fourteen (14) days of the date of this order,

8 defendants shall arrange for the court security officer/security

9 specialist assigned to this case in the Litigation Security Section

10 of the United States Department of Justice to make the Sealed

11 Document available for the court’s in camera review. If the Sealed

12 Document has been included in any previous classified filing in

13 this matter, defendants shall so indicate in a letter to the court.

14

2. Defendants shall arrange for Jon B Eisenberg, lead

15 attorney for plaintiffs herein and up to two additional members of

16 plaintiffs’ litigation team to apply for TS/SCI clearance and shall

17 expedite the processing of such clearances so as to complete them

18 no later than Friday, February 13, 2009. Defendants shall

19 authorize the court security officer/security specialist referred

20 to in paragraph 1 to keep the court apprised of the status of these

21 clearances. Failure to comply fully and in good faith with the

22 requirements of this paragraph will result in an order to show

23 cause re: sanctions.

24

3. Defendants shall review the Sealed Document and their

25 classified submissions to date in this litigation and determine

26 whether the Sealed Document and/or any of defendants’ classified

27 submissions may be declassified, take all necessary steps to

28 declassify those that they have determined may be declassified and,

24

United States District Court For the Northern District of California

1 no later than forty-five (45) days from the date of this order,

2 serve and file a report of the outcome of that review.

3

4. The parties shall appear for a further case

4 management conference on a date to be determined by the deputy

5 clerk within the month of January 2009. Counsel should be prepared

6 to discuss adjudication of any and all issues that may be conducted

7 without resort to classified information, as well as those issues

8 that may require such information. Counsel shall, after

9 conferring, submit brief statements of their respective plans or a

10 joint plan, if they agree to one.

11

12

IT IS SO ORDERED.

13

14

15

VAUGHN R WALKER

16

United States District Chief Judge

17

18

19

20

21

22

23

24

25

26

27

28

25

 
 1

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7

8 IN RE:

MDL Docket No 06-1791 VRW

9 NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS
10 LITIGATION

ORDER

United States District Court For the Northern District of California

11
This order pertains to: 12
Al-Haramain Islamic Foundation et 13 al v Bush et al (C-07-0109 VRW),

14

/

15

16

The court of appeals has remanded the above case for this

17 court “to consider whether FISA preempts the state secrets

18 privilege and for any proceedings collateral to that

19 determination.” Al-Haramain Islamic Foundation, Inc v Bush, 507

20 F3d 1190, 1206 (9th Cir 2007).

21

Plaintiffs’ complaint alleges six causes of action of

22 which the first is under the Foreign Intelligence Surveillance Act,

23 50 USC §§ 1801-71 (“FISA”). In that claim, plaintiffs allege in

24 pertinent part:

25

Defendants’ engagement in electronic surveillance to

26

monitor conversations between and among plaintiffs as targeted persons without obtaining prior court

27

authorization, and defendants’ subsequent use of the information obtained against plaintiffs, is in

28

violation of the civil and criminal provisions of

United States District Court For the Northern District of California

1

FISA. As a result, all evidence obtained by this

illegal surveillance must be suppressed pursuant to

2

50 USC § 1806(g). Further, plaintiffs are entitled

to liquidated and punitive damages pursuant to 50 USC

3

§ 1810.

4 Complaint, Al-Haramain Islamic Foundation, Inc v Bush, No C 06-0274

5 KI Doc # 1 ¶ 27, United States District Court for the District of

6 Oregon, filed February 28, 2006.

7

Plaintiffs’ other causes of action are for alleged

8 violations of the “separation of powers” principle in the

9 Constitution, the First, Fourth and Sixth amendments and the

10 International Covenant on Civil and Political Rights. But it is to

11 plaintiffs’ FISA claims that the parties have directed their

12 arguments and the court of appeals its attention. All of

13 plaintiffs’ claims would appear to depend on FISA. This order,

14 therefore, devotes itself exclusively to FISA and the question

15 posed by the court of appeals remand.

16

For the reasons stated herein, the court has determined

17 that: (1) FISA preempts the state secrets privilege in connection

18 with electronic surveillance for intelligence purposes and would

19 appear to displace the state secrets privilege for purposes of

20 plaintiffs’ claims; and (2) FISA nonetheless does not appear to

21 provide plaintiffs a viable remedy unless they can show that they

22 are “aggrieved persons” within the meaning of FISA. The lack of

23 precedents interpreting the remedial provisions of FISA, the

24 failure of the parties to consider the import of FISA preemption

25 and the undeveloped factual record in this case warrant allowing

26 plaintiffs to attempt to make that showing and, therefore, support

27 dismissal of the FISA claim with leave to amend.

28 \\

2

United States District Court For the Northern District of California

1

I

2

Plaintiffs are the Al-Haramain Islamic Foundation, Inc, an

3 Oregon non-profit corporation, and two of its individual attorneys,

4 Wendell Belew and Asim Ghafoor, both United States citizens

5 (“plaintiffs”). Plaintiffs brought suit in the United States

6 District Court for the District of Oregon against “George W Bush,

7 President of the United States, National Security Agency, Keith B

8 Alexander, its Director, Office of Foreign Assets Control, an office

9 of the United States Treasury, Robert W Werner, its Director,

10 Federal Bureau of Investigation, Robert S Mueller, III, its

11 Director” (“defendants”). Complaint at 1.

12

Along with their complaint, plaintiffs filed under seal a

13 copy of a classified document that had inadvertently been disclosed

14 by defendant Office of Foreign Assets Control (“OFAC”) to counsel

15 for Al-Haramain as part of a production of unclassified documents

16 relating to Al-Haramain’s potential status as a “specially

17 designated global terrorist.” Al-Haramain Islamic Foundation, Inc

18 v Bush, 451 F Supp 2d 1215, 1218 (D Or 2006).1 This document,

19 which has proven central to all phases of this litigation including

20 the issues now before this court, will be referred to herein as the

21 “Sealed Document.”

22

The complaint alleges that the National Security Agency

23 (“NSA”) conducted warrantless electronic surveillance of

24 communications between a director or directors of Al-Haramain and

25

26

1 On June 19, 2008, the United States De partment of the Treasury

designated “the entirety” of the Al-Haramain Islamic Foundationincluding 27 its headquarters in Saudi Arabia, having previously des ignated branch

offices in thirteen individual countries, including the Unite d States. 28 See http://www.treasury.gov/press/releases/hp1043.htm.

3

United States District Court For the Northern District of California

1 the two attorney plaintiffs without regard to the procedures

2 required by FISA, that the NSA turned over logs from this

3 surveillance to OFAC and that OFAC then consequently froze

4 Al-Haramain’s assets. Id.

5

The Oregon district court entertained motions by the

6 Oregonian Publishing Company to intervene in the suit and unseal

7 records, by plaintiffs to compel discovery of information about the

8 electronic surveillance of plaintiffs and regarding the reasons for

9 classifying the Sealed Document and by defendants to prevent

10 plaintiffs’ access to the Sealed Document and to dismiss or, in the

11 alternative, for summary judgment based on the state secrets

12 privilege.

13

On September 7, 2006, the Oregon district court issued a

14 lengthy opinion and order. Several points in that order remain

15 salient to the matter now before this court. The court held that

16 “plaintiffs need some information in the Sealed Document to

17 establish their standing and a prima facie case, and they have no

18 other available source for this information.” Id at 1221. It also

19 held that given defendants’ many public acknowledgments of the

20 warrantless electronic surveillance program beginning in 2005, the

21 program was not a secret. Id at 1221-23. It rejected defendants’

22 contention that litigation concerning the program would necessarily

23 compromise national security and held that, contrary to defendants’

24 contention, “the very subject matter of the case” was not a state

25 secret. It ordered plaintiffs to deliver to the court all copies

26 of the Sealed Document in their possession or under their control,

27 to be deposited in the sealed compartmentalized information

28 facility (“SCIF”) provided by the Portland FBI office for the

4

United States District Court For the Northern District of California

1 storage of classified documents. Id at 1229. It denied without

2 prejudice plaintiffs’ request for discovery and denied the

3 Oregonian’s motion to unseal records. Id at 1232.

4

The Oregon district court ruled that there was “no

5 reasonable danger that the national security would be harmed if it

6 is confirmed or denied that plaintiffs were subject to

7 surveillance, but only as to the surveillance event or events

8 disclosed in the Sealed Document” while also ruling that

9 “disclosing whether plaintiffs were subject to any other

10 surveillance efforts could harm the national security.” Id at 1224

11 (emphasis added). On the rationale that plaintiffs should be

12 allowed to proceed based on the surveillance already disclosed to

13 them, substantiated by evidence in a form yet to be determined, the

14 court denied defendants’ motion to dismiss: “plaintiffs should have

15 an opportunity to establish standing and make a prima facie case,

16 even if they must do so in camera.” Id at 1226-27.

17

The Oregon district court declined to reach one further

18 issue presented to it by the parties——the issue this court is

19 charged to decide on remand from the court of appeals:

20

Plaintiffs argue * * * that FISA preempts the

state secrets privilege. Specifically, plaintiffs

21

argue that FISA vests the courts with control over

materials relating to electronic surveillance,

22

subject to “appropriate security procedures and

protective orders.” 50 USC §1806(f). As a

23

result, plaintiffs contend that Section 1806(f)

renders the state secrets privilege superfluous in

24

FISA litigation.

25 Id at 1229.

26

The Oregon district court summarized defendants’ argument

27 to be that section 1806(f) only benefits the government——that it

28 exists, in essence, for the sole purpose of providing for in camera

5

United States District Court For the Northern District of California

1 review of documents and information the government intends to use

2 against a criminal defendant. The Oregon district court quoted

3 section 1810, FISA’s civil liability provision, together with

4 FISA’s definition of an “aggrieved person” entitled to sue under

5 section 1810 (see infra Part III) and observed: “[t]o accept the

6 government’s argument that Section 1806(f) is only applicable when

7 the government intends to use information against a party would

8 nullify FISA’s private remedy and would be contrary to the plain

9 language of Section 1806(f).” Id at 1231 (emphasis added).

10

Concluding that “[t]he question becomes then whether

11 Section 1806(f) preempts the state secrets privilege,” the Oregon

12 district court wrote, “I decline to reach this very difficult

13 question at this time, which involves whether Congress preempted

14 what the government asserts is a constitutionally-based privilege.”

15 Id. The Oregon district court certified its other rulings for

16 immediate appeal. Defendants appealed and, during the pendency of

17 the appeal, this case was reassigned by the Judicial Panel on

18 Multidistrict Litigation (“MDL”) to the undersigned.

19

The court of appeals granted interlocutory review and

20 consolidated the appeal in this matter with the interlocutory

21 appeal from an order by the undersigned concerning the state

22 secrets privilege and related issues in Hepting v AT&T Corp, 439 F

23 Supp 2d 974 (N D Cal 2006). The cases were argued on the same day

24 before the same panel, but the court of appeals later determined

25 that “the claimed facts and circumstances of each case are

26 distinct” and entered an order concurrently with the opinion in the

27 instant matter stating that “the cases are no longer consolidated

28 for any purpose.” 507 F3d at 1196 n 3. The court of appeals

6

United States District Court For the Northern District of California

1 subsequently issued an order withdrawing the submission of the

2 Hepting appeal; that matter remains on appeal. Order, Hepting v

3 AT&T Corporation, Inc, No 06-17137 Doc #128, United States Court of

4 Appeals for the Ninth Circuit, filed November 16, 2007.

5

In its opinion in this case, the court of appeals

6 determined that review of a district court’s rulings on the state

7 secrets privilege should be de novo, having previously only

8 “intimated” as much. 507 F3d at 1196. After considering the

9 history of the state secrets privilege, the court of appeals

10 considered three contentions by the government on appeal: (1) the

11 very subject matter of the litigation is a state secret; (2)

12 Al-Haramain cannot establish standing to bring suit, absent the

13 Sealed Document; and (3) Al-Haramain cannot establish a prima facie

14 case, and the government cannot defend against Al-Haramain’s

15 assertions, without resorting to state secrets. In a footnote, the

16 court of appeals observed that the third issue had not been

17 addressed by the district court. 507 F3d at 1197 & n 4.

18

As to the first issue, the court of appeals made note of

19 the government’s extensive, intentional public disclosures by

20 President George W Bush, Attorney General Alberto Gonzales and

21 especially General Michael V Hayden, which had “provided to the

22 American public a wealth of information about the [Terrorist

23 Surveillance Program],” and declined to follow either Kasza v

24 Browner, 133 F3d 1159 (9th Cir 1998) or El-Masri v United States,

25 479 F3d 296 (4th Cir 2007), both cases in which dismissals based on

26 the state secrets privilege were affirmed on appeal. The court

27 held that while Al-Haramain’s case involved privileged information,

28 “that fact alone does not render the very subject matter of the

7

United States District Court For the Northern District of California

1 action a state secret” and affirmed the district court’s denial of

2 dismissal on that basis. 507 F3d at 1201.

3

Before turning to the second issue on appeal, the court of

4 appeals next considered whether the state secrets privilege had been

5 properly invoked and determined that it had. Based on that

6 determination, the court of appeals concluded that Al-Haramain’s

7 “showing of necessity” or “admittedly substantial need for the

8 document to establish its case,” United States v Reynolds, 345 US 1,

9 10 (1953), required an in camera review of the Sealed Document. 507

10 F3d at 1203. After describing in general terms the nature of the in

11 camera review, the court wrote: “We are satisfied that the basis

12 for the privilege is exceptionally well documented” and that

13 disclosure of “information concerning the Sealed Document and the

14 means, sources and methods of intelligence gathering in the context

15 of this case would undermine the government’s intelligence

16 capabilities and compromise national security.” 507 F3d at 1204.

17 The court of appeals then held that the Oregon district court’s

18 compromise allowing plaintiffs to submit sealed affidavits attesting

19 to the contents of the document from their memories was “contrary to

20 established Supreme Court precedent”—— specifically Reynolds, 345 US

21 at 11——and wrote that “the state secrets privilege * * * does not

22 lend itself to a compromise solution in this case.” Id.

23

Regarding use of the Sealed Document in this litigation,

24 the court of appeals held: “The Sealed Document, its contents, and

25 any individuals’ memories of its contents, even well-reasoned

26 speculation as to its contents, are completely barred from further

27 disclosure in this litigation by the common law state secrets

28 privilege.” Id.

8

United States District Court For the Northern District of California

1

Having thus dealt with the first issue, the court of

2 appeals turned to the government’s second issue on appeal——Al-

3 Haramain’s standing——and held that plaintiffs could not establish

4 standing to proceed with their lawsuit without the Sealed Document

5 because they could not establish a “concrete and particularized”

6 injury-in-fact under the principles of Lujan v Defenders of

7 Wildlife, 504 US 555 (1992): “Al-Haramain cannot establish that it

8 has standing, and its claims must be dismissed, unless FISA

9 preempts the state secrets privilege.” 507 F3d 1205.

10

Citing Singleton v Wulff, 428 US 106 (1976), that a court

11 of appeals should not ordinarily consider an issue not ruled on in

12 the district court, the court of appeals declined to decide whether

13 FISA preempts the state secrets privilege. Instead, writing that

14 “the FISA issue remains central to Al-Haramain’s ability to proceed

15 with this lawsuit,” it remanded the case to this court to consider

16 that question “and for any proceedings collateral to that

17 determination.” 507 F3d at 1206. The court of appeals did not

18 consider the consequences of FISA preempting the state secrets

19 privilege and the implications of such a determination for possible

20 use in this litigation of the Sealed Document.

21

In accordance with orders entered at a status conference

22 in this matter on February 7, 2008, defendants filed a second motion

23 to dismiss plaintiffs’ claims on the grounds that FISA does not

24 preempt the state secrets privilege and that plaintiffs lack

25 standing to seek prospective relief and are barred from seeking

26 relief under FISA by the doctrine of sovereign immunity. Doc

27 \\

28 \\

9

United States District Court For the Northern District of California

1 #432/17.2 Plaintiffs filed an opposition (Doc #435/20) and the

2 court accepted two amicus briefs, one by plaintiffs in other MDL

3 cases and the other by certain telecommunications defendants in the

4 MDL cases (Doc ##440/23 & 442/25).

5

6

II

7

A

8

The enactment of FISA was the fruition of a period of

9 intense public and Congressional interest in the problem of

10 unchecked domestic surveillance by the executive branch. In 1975,

11 Congress formed the Senate Select Committee to Study Governmental

12 Operations with Respect to Intelligence Activities known as the

13 “Church Committee” for its chairman, Senator Frank Church, to

14 investigate alleged intelligence-gathering abuses in the domestic

15 sphere by the various executive branch agencies with intelligence-

16 gathering authority. The Church Committee’s two-volume final report

17 was transmitted to Congress in 1976; the following passage from

18 among the report’s conclusions and recommendations illustrates the

19 tone and substance of the findings:

20

Our findings and the detailed reports which

supplement this volume set forth a massive record of

21

intelligence abuses over the years. Through the use

of a vast network of informants, and through the

22

uncontrolled or illegal use of intrusive

techniques——ranging from simple theft to

23

sophisticated electronic surveillance——the Government

has collected, and then used improperly, huge amounts

24

of information about the private lives, political

beliefs and associations of numerous Americans.

25

26

27

2 Citations to documents in the docket of this case will be cited both

to the MDL docket (No M 06-1791 VRW) and to the individual docket (No C 07-
28 0109) in the following format: Doc #xxx/yy.

10

United States District Court For the Northern District of California

1 Senate Select Committee to Study Governmental Operations with

2 Respect to Intelligence Activities (“Church Committee Report”) Book

3 II: Intelligence Activities and the Rights of Americans, S Rep No

4 94-755, 290 (1976).

5

The Church Committee Report further concluded that

6 “intelligence activities have undermined the constitutional rights

7 of citizens and that they have done so primarily because checks and

8 balances designed by the framers of the Constitution to assure

9 accountability have not been applied.” Id at 289. The Church

10 Committee Report set the stage for Congress to begin the effort to

11 enact comprehensive legislation to address the intelligence-related

12 abuses identified therein. That effort began in the very next

13 Congress.

14

In 1978, after the introduction of several competing bills

15 and extensive deliberation and debate, Congress enacted FISA. To

16 summarize FISA’s provisions in a brief and general manner, FISA set

17 out in detail roles for all three branches of government, providing

18 judicial and congressional oversight of the covert surveillance

19 activities by the executive branch combined with measures to

20 safeguard secrecy necessary to protect national security. FISA set

21 out procedures by which the executive branch could undertake

22 electronic surveillance and physical searches for foreign

23 intelligence purposes in the domestic sphere. Any application for

24 electronic surveillance was required, among other things, to

25 establish probable cause justifying the surveillance, describe the

26 information being sought and aver that the information could not be

27 obtained through normal investigative techniques. 50 USC § 1804(a).

28 \\

11

United States District Court For the Northern District of California

1

FISA also provided for the creation of two courts staffed

2 by federal judges to conduct sealed proceedings to consider requests

3 by the government for warrants to conduct foreign intelligence

4 surveillance. 50 USC §§ 1803(a),(b). The Foreign Intelligence

5 Surveillance Court (“FISC”) was established to consider applications

6 in the first instance, with the Court of Review reviewing denials of

7 applications by the FISC and the Supreme Court acting as the final

8 appellate court. Id. FISA allowed the United States attorney

9 general to authorize electronic surveillances in emergency

10 situations without FISC approval if the appropriate judge was

11 informed and an application made within twenty-four hours after

12 authorization. 50 USC §§ 1802, 1805(f).

13

FISA provided for continuing oversight of the government’s

14 foreign intelligence surveillance activities by Congress, requiring

15 regular, highly detailed reports to Congress of all actions taken

16 under FISA. E g, 50 USC §§ 1808, 1826. The reporting requirements

17 are discussed in more detail in Part III A below.

18

Of special relevance to the court’s present inquiry,

19 Congress included in the FISA bill a declaration that the FISA

20 regime, together with the Omnibus Crime Control and Safe Streets Act

21 of 1968 codified at chapter 119 of Title 18 of the United States

22 Code, 18 USC §§ 2510-22 (“Title III”), were to be the “exclusive

23 means” by which domestic electronic surveillance for national

24 security purposes could be conducted:

25

procedures in this chapter or chapter 121 and the

Foreign Intelligence Surveillance Act of 1978 shall be

26

the exclusive means by which electronic surveillance,

as defined in section 101 of such Act, and the

27

interception of domestic wire, oral, and electronic

communications may be conducted.

28

12

United States District Court For the Northern District of California

1 18 USC § 2511(2)(f). This provision and its legislative history

2 left no doubt that Congress intended to displace entirely the

3 various warrantless wiretapping and surveillance programs undertaken

4 by the executive branch and to leave no room for the president to

5 undertake warrantless surveillance in the domestic sphere in the

6 future.

7

The Report of the Senate Select Committee on Intelligence

8 stated that the FISA bill’s “exclusive means” statement “puts to

9 rest the notion that Congress recognizes an inherent Presidential

10 power to conduct such surveillances in the United States outside of

11 the procedures contained in chapters 119 and 120.” Foreign

12 Intelligence Surveillance Act, S Rep No 95-701, 95th Cong 2d Sess

13 71, reprinted in 1978 USCCAN 3973, 4040. That report cited

14 Congress’s authority over FISA’s subject matter in Article I

15 section 8 of the Constitution and the power to “make all laws which

16 shall be necessary and proper for carrying into execution the

17 foregoing powers.” US Const cl 1, 18. The report also both

18 discussed Justice Jackson’s concurring opinion in Youngstown Sheet

19 and Tube Co v Sawyer, 343 US 579, 635 (1952) and included the

20 following passage from the opinion:

21

When the President takes measures incompatible with the

expressed or implied will of Congress, his power is at

22

its lowest ebb, for then he can rely only upon his own

constitutional powers minus any constitutional power of

23

Congress over the matter.

24 See also Foreign Intelligence Surveillance Act, H Conf Rep No 95-

25 1720, 95th Cong 2d Sess 35, reprinted in 1978 USCCAN 4048, 4064.

26 (“The intent of the conferees is to apply the standard set forth in

27 Justice Jackson’s concurring opinion in [Youngstown Sheet & Tube].”)

28

A lesser-known provision of FISA also expressly limited

13

United States District Court For the Northern District of California

1 presidential power to conduct foreign intelligence surveillance by

2 repealing 18 USC section 2511(3) which had provided:

3

Nothing in this chapter * * * shall limit the

constitutional power of the President to take such

4

measures as he deems necessary to protect the nation

against actual or potential attack * * * or to protect

5

national security against foreign intelligence

activities. * * * The contents of any wire or oral

6

communication intercepted by authority of the President

in the exercise of the foregoing powers may be received

7

in evidence in any trial hearing [sic], or other

proceeding only where such interception was reasonable,

8

and shall not be otherwise used or disclosed except as

is necessary to implement that power.

9

10 18 USC § 2511(3)(1976). The Report of the Senate Select Committee

11 on Intelligence explained that the repeal of this section

12 “eliminat[ed] any congressional recognition or suggestion of

13 inherent Presidential power with respect to electronic

14 surveillance.” S Rep 95-701, 72.

15

In the floor debate on Senate Bill 1566, Senator Gaylord

16 Nelson related the history of the Senate’s efforts to enact a

17 foreign intelligence surveillance law to curb the abuses reported by

18 the Church Committee; he noted that a “principal issue” with prior,

19 unsuccessful legislative proposals was the reservation or reference

20 to “inherent Presidential power,” but that Senate Bill 1566 had no

21 such reservation or reference: “Once enacted, it would represent

22 the sole authority for national security electronic surveillance in

23 the United States.” Foreign Intelligence Surveillance Act, S 1566,

24 95th Cong, 2d Sess, in 124 Cong Rec S 10903 (April 30, 2978).

25 Senator Nelson further stated: “Along with the existing statute

26 dealing with criminal wiretaps, this legislation blankets the field.

27 If enacted, the threat of warrantless electronic surveillance will

28 be laid to rest.” Id.

14

United States District Court For the Northern District of California

1

B

2

“Preemption” usually refers to Congress asserting its

3 authority under the Supremacy Clause to override state law that

4 interferes with federal interests. In the present context,

5 “preemption” refers to Congress overriding or replacing the

6 interstitial lawmaking that judges create through federal common

7 law. In Milwaukee v Illinois, 451 US 304, 314 (1980) the Supreme

8 Court explained the latter type of preemption: “Federal common law

9 is a ‘necessary expedient’ and when Congress addresses a question

10 previously governed by a decision rested on federal common law the

11 need for such an unusual exercise of lawmaking by federal courts

12 disappears.” The Court further explained that federal courts need

13 not find a “clear and manifest purpose” to replace or displace

14 federal common law as would be required for a determination that

15 Congress had pre-empted state law because there are no corresponding

16 concerns for “our embracing federal system, including the principle

17 of diffusion of power * * * as a promoter of democracy.” Id at 316-

18 17. On the contrary, the Court noted that federal courts are not

19 general common-law courts and do not possess “a general power to

20 develop and apply their own rules of decision.” Id at 312, citing

21 Erie R Co v Tompkins, 304 US 64, 78 (1934). Federal common law

22 applies “[u]ntil the field has been made the subject of

23 comprehensive legislation.” 451 US at 314.

24

In Milwaukee v Illinois, the Court held that the 1972

25 amendments to the Federal Water Pollution Control Act preempted the

26 application of the common law of nuisance by federal courts in

27 disputes over water pollution. In so holding, the Court looked to

28 the legislative history, making special note of remarks by the Act’s

15

United States District Court For the Northern District of California

1 sponsors, in determining that Congress’s purpose was to establish an

2 “all-encompassing program of water pollution regulation” 451 US at

3 318. The Court noted that “[n]o Congressman’s remarks were complete

4 without reference to the ‘comprehensive’ nature of the Amendments.”

5 Id. “The establishment of such a self-consciously comprehensive

6 program by Congress * * * strongly suggests that there was no room

7 for courts to attempt to improve on that program with federal common

8 law.” Id at 319.

9

Both the plain text and the legislative history make clear

10 that Congress intended FISA to “occupy the field through the

11 establishment of a comprehensive regulatory program supervised by an

12 expert administrative agency.” Id at 317. Congress through FISA

13 established a comprehensive, detailed program to regulate foreign

14 intelligence surveillance in the domestic context. The

15 establishment of the specialized FISA courts specifically dedicated

16 to considering requests for foreign intelligence surveillance by the

17 executive branch paralleled the “expert administrative agency”

18 referred to with approval in Milwaukee v Illinois.

19

The present preemption analysis departs from that in

20 Milwaukee v Illinois with respect to the scope and nature of what is

21 being displaced. The court is charged with determining whether FISA

22 preempts or displaces not a common-law set of rules for conducting

23 foreign intelligence surveillance, but rather a privilege asserted

24 by the government to avoid public and judicial scrutiny of its

25 activities related to national security. In this case, those

26 activities include foreign intelligence surveillance, the subject

27 matter that Congress through FISA sought comprehensively to

28 regulate. This imperfect overlap between the preempting statute and

16

United States District Court For the Northern District of California

1 the common-law rule being preempted does not, however, create

2 serious problems with finding the state secrets privilege preempted

3 or displaced by FISA in the context of matters within FISA’s

4 purview. FISA does not preempt the state secrets privilege as to

5 matters that are not within FISA’s purview; for such matters, the

6 lack of comprehensive federal legislation leaves an appropriate role

7 for this judge-made federal common law privilege.

8

“The state secrets privilege is a common law evidentiary

9 privilege that protects information from discovery when disclosure

10 would be inimical to the national security. [It] has its modern

11 roots in United States v Reynolds.” In re United States, 872 F2d

12 472, 474 (DC Cir 1989). “The state secrets privilege is a common

13 law evidentiary privilege that permits the government to bar the

14 disclosure of information if ‘there is a reasonable danger’ that

15 disclosure will ‘expose military matters which, in the interest of

16 national security, should not be divulged.’” Al-Haramain Islamic

17 Foundation v Bush, 507 F3d at 1196, citing Reynolds, 345 US at 10.

18 The undersigned discussed the history and operation of the state

19 secrets privilege at some length in Hepting v AT&T Corp, 439 F Supp

20 2d 974 at 980-85 (N D Cal 2006).

21

Reynolds largely demarcated the state secrets privilege as

22 it is understood today, that is: it belongs to the government; it

23 must be properly invoked by means of a “formal claim of privilege,

24 lodged by the head of the department which has control over the

25 matter” after “actual consideration”; the court must then “determine

26 whether the circumstances are appropriate for the claim of

27 privilege, and yet do so without forcing a disclosure of the very

28 thing the privilege is designed to protect”; the precise nature,

17

United States District Court For the Northern District of California

1 extent and manner of this inquiry depends in part on the extent of a

2 party’s need for the information sought tested against the strength

3 of the government’s claim of privilege; and in camera review might

4 be appropriate in some cases, but not all. “When compulsion of the

5 evidence will expose military matters which, in the interest of

6 national security, should not be divulged, * * * the court should

7 not jeopardize the security which the privilege is meant to protect

8 by insisting upon an examination of the evidence, even by the judge

9 alone, in chambers.” 345 US at 7-10.

10

Plaintiffs argue that the in camera procedure described in

11 FISA’s section 1806(f) applies to preempt the protocol described in

12 Reynolds in this case. Doc # 435/20 at 11-14. The court agrees.

13 Section 1806(f), which is quoted in full and discussed at greater

14 length in Part III B below, provides that in cases in federal courts

15 in which “aggrieved persons” seek to discover materials relating to,

16 or information derived from, electronic surveillance, the United

17 States attorney general may file “an affidavit under oath that

18 disclosure or an adversary hearing would harm the national security

19 of the United States.” In that event, the court “shall” conduct an

20 in camera, ex parte review of such materials relating to the

21 surveillance “as may be necessary to determine whether the

22 surveillance * * * was lawfully authorized and conducted.” The

23 procedure described in section 1806(f), while not identical to the

24 procedure described in Reynolds, has important characteristics in

25 common with it——enough, certainly, to establish that it preempts the

26 state secrets privilege as to matters to which it relates. Section

27 1806(f) is Congress’s specific and detailed prescription for how

28 courts should handle claims by the government that the disclosure of

18

United States District Court For the Northern District of California

1 material relating to or derived from electronic surveillance would

2 harm national security; it leaves no room in a case to which section

3 1806(f) applies for a Reynolds-type process. Moreover, its

4 similarities are striking enough to suggest that section 1806(f),

5 which addresses a range of circumstances in which information

6 derived from electronic surveillance might become relevant to

7 judicial proceedings, is in effect a codification of the state

8 secrets privilege for purposes of relevant cases under FISA, as

9 modified to reflect Congress’s precise directive to the federal

10 courts for the handling of materials and information with purported

11 national security implications. In either event, the Reynolds

12 protocol has no role where section 1806(f) applies. For that

13 reason, the court of appeals’ reliance on Reynolds in connection

14 with the Sealed Document, while perhaps instructive, would not

15 appear to govern the treatment of that document under FISA.

16

The legislative history, moreover, buttresses the court’s

17 reading of the statutory text as intending that FISA replace judge-

18 made federal common law rules:

19

[T]he development of the law regulating electronic

surveillance for national security purposes has been

20

uneven and inconclusive. This is to be expected

where the development is left to the judicial branch

21

in an area where cases do not regularly come before

it. Moreover, the development of standards and

22

restrictions by the judiciary with respect to

electronic surveillance for foreign intelligence

23

purposes accomplished through case law threatens both

civil liberties and the national security because

24

that development occurs generally in ignorance of the

facts, circumstances, and techniques of foreign

25

intelligence electronic surveillance not present in

the particular case before the court. * * * [T]he

26

tiny window to this area which a particular case

affords provides inadequate light by which judges may

27

be relied upon to develop case law which adequately

balances the rights of privacy and national security.

28

19

United States District Court For the Northern District of California

1 Foreign Intelligence Surveillance Act of 1978, HR Rep No 95-1283

2 Part I at 21. This legislative history is evidence of Congressional

3 intent that FISA should displace federal common law rules such as

4 the state secrets privilege with regard to matters within FISA’s

5 purview.

6

Defendants advance essentially three points in support of

7 their contention that “nothing in FISA indicates any intention by

8 Congress * * * to abrogate the state secrets privilege” in the case

9 of intelligence-driven electronic surveillance. Doc #432/17 at 13.

10 First, defendants argue that the privilege derives, not only from

11 the common law, but also from the president’s Article II powers, so

12 that a “clear expression” of congressional intent is required to

13 abrogate that privilege; furthermore, abrogation would raise

14 fundamental constitutional problems which should be avoided. Doc

15 #432/17 at 13-14. Second, defendants note the common law origins of

16 the state secrets privilege and advert to the principle that

17 abrogation of common law requires a “clear and direct” legislative

18 expression of intent, which they contend is absent. Id at 14-15.

19 Finally, defendants contend that section 1806(f) serves a

20 fundamentally different purpose from the state secrets privilege and

21 that the former cannot therefore “preempt” the latter because

22 section 1806(f) governs disclosure by the government of intelligence

23 derived from electronic surveillance whereas the state secrets

24 privilege is fundamentally a rule of non-disclosure. Id at 15-22.

25 The court disagrees with all three of these contentions, the second

26 and third of which have been fully addressed in the paragraphs

27 above.

28 \\

20

United States District Court For the Northern District of California

1

The weakness of defendants’ first argument——that the

2 Constitution grants the executive branch the power to control the

3 state secrets privilege——is evident in the authorities they marshal

4 for it. Defendants rely on United States v Nixon, 418 US 683

5 (1974), in which the Supreme Court rejected President Nixon’s

6 efforts to quash subpoenas under Federal Rule of Criminal Procedure

7 17(c) seeking tape recordings and documents pertaining to the

8 Watergate break-in and ensuing events. The Court rejected the

9 president’s “undifferentiated claim of public interest in the

10 confidentiality of [White House] conversations” between the

11 president and his advisors, contrasting the need for confidentiality

12 of these conversations with “a claim of need to protect military,

13 diplomatic or sensitive national security secrets.” Id at 706. In

14 the course of making this comparison, the Court observed that

15 privileges against forced disclosure find their sources in the

16 Constitution, statutes or common law. At bottom, however, Nixon

17 stands for the proposition that in the case of a common law

18 privilege such as that asserted by President Nixon, it is the

19 judiciary that defines the metes and bounds of that privilege and

20 even the confidential communications of the president must yield to

21 the needs of the criminal justice system. This hardly counts as

22 authority that the president’s duties under Article II create a

23 shield against disclosure.

24

Even the Court’s comparative weighing of the imperatives

25 of confidentiality for “undifferentiated” presidential discussions

26 and “military, diplomatic or sensitive national security secrets”

27 affords defendants little help in this case. Department of the Navy

28 v Egan, 484 US 518 (1988), upon which defendants rely, confirms that

21

United States District Court For the Northern District of California

1 power over national security information does not rest solely with

2 the president. Egan recognized the president’s constitutional power

3 to “control access to information bearing on national security,”

4 stating that this power “falls on the President as head of the

5 Executive Branch and as Commander in Chief” and “exists quite apart

6 from any explicit congressional grant.” Id at 527. But Egan also

7 discussed the other side of the coin, stating that “unless Congress

8 specifically has provided otherwise, courts traditionally have been

9 reluctant to intrude upon the authority of the Executive in military

10 and national security affairs.” Id at 530 (emphasis added). Egan

11 recognizes that the authority to protect national security

12 information is neither exclusive nor absolute in the executive

13 branch. When Congress acts to contravene the president’s authority,

14 federal courts must give effect to what Congress has required.

15 Egan’s formulation is, therefore, a specific application of Justice

16 Jackson’s more general statement in Youngstown Sheet & Tube.

17

It is not entirely clear whether defendants acknowledge

18 Congress’s authority to enact FISA as the exclusive means by which

19 the executive branch may undertake foreign intelligence surveillance

20 in the domestic context. While their papers do not explicitly

21 assert otherwise, defendants’ attorney in this matter stated in open

22 court during the hearing herein held on April 23, 2008 that, while

23 he conceded that “Congress sought to take over the field” of foreign

24 intelligence surveillance (Doc #452 at 29:2-3), whether the

25 president actually had constitutional authority under Article II to

26 order such surveillance in disregard of FISA remained an open

27 question: “[D]oes the president have constitutional authority under

28 Article II to authorize foreign intelligence surveillance? Several

22

United States District Court For the Northern District of California

1 courts said that he did. Congress passed the FISA, and the issue

2 has never really been resolved. That goes to the issue of the

3 authority to authorize surveillance.” Id at 33:7-12. Counsel

4 repeatedly asserted that this issue was entirely separate from the

5 preemption inquiry relevant to the state secrets privilege and urged

6 the court not to “conflate” the two inquiries. E g, id at 32:8-10.

7

To the contrary, the court believes that the two areas of

8 executive branch activity pertaining to foreign intelligence

9 surveillance are not distinct for purposes of this analysis as

10 defendants’ counsel asserts. Congress appears clearly to have

11 intended to——and did——establish the exclusive means for foreign

12 intelligence surveillance activities to be conducted. Whatever

13 power the executive may otherwise have had in this regard, FISA

14 limits the power of the executive branch to conduct such activities

15 and it limits the executive branch’s authority to assert the state

16 secrets privilege in response to challenges to the legality of its

17 foreign intelligence surveillance activities.

18

Of note, many Congressional enactments regulate the use of

19 classified materials by the executive branch, putting FISA in good

20 company. Title 50 chapter 15 of the United States Code relates to

21 national security generally and national security information in

22 particular. Some of its provisions restrict disclosure and impose

23 minimum security requirements on the executive branch. Fifty USC

24 section 435 requires the president to “establish procedures to

25 govern access to classified information,” such as background checks.

26 Others authorize disclosure. Fifty USC section 403-5d, part of the

27

28

23

United States District Court For the Northern District of California

1 USA PATRIOT Act3, permits federal law enforcement officials to share

2 foreign intelligence information obtained as part of a criminal

3 investigation. Other provisions allocate control of classified

4 material among executive branch agencies. For instance, 50

5 USC section 435a(d) gives the director of the Central Intelligence

6 Agency the power to control the State Department’s use of classified

7 information. Congress elsewhere requires the executive branch to

8 disclose national security information to Congressional intelligence

9 committees. 50 USC §§ 413(a), 413b(c). Congress left the executive

10 branch no “authority to withhold information from the intelligence

11 committees on the grounds that providing the information to the

12 intelligence committees would constitute the unauthorized disclosure

13 of classified information or information relating to intelligence

14 sources and methods.” 50 USC § 413(e). See also 50 USC § 425

15 (“Nothing” in subchapter IV, which pertains to “Protection of

16 Certain National Security Information,” “may be construed as

17 authority to withhold information from the Congress or from a

18 committee of either House of Congress.”) And 50 USC section 413(b)

19 requires that “[t]he President shall ensure that any illegal

20 intelligence activity is reported promptly to the intelligence

21 committees * * *.” Congressional regulation of the use of

22 classified information by the executive branch through FISA and

23 other statutes is therefore well-established.

24

As part of their argument that the state secrets privilege

25 has a constitutional basis in Article II, defendants contend that a

26

27

3 Uniting and Strengthening America by Providing Appropriate Tools

Required to Intercept and Obstruct Terrorism (“USA PATRIOT”) Act of 2001,
28 Pub L No 107-56, § 215, 115 Stat 287, amended by USA Patriot Improvement and

Reauthorization Act of 2005, Pub L 109-178, 120 Stat 282 (2006).

24

United States District Court For the Northern District of California

1 “clear statement of congressional intent” to abrogate the privilege

2 is required, citing Franklin v Massachusetts, 505 US 788, 800-01

3 (1992). Franklin held that the office of the president was not an

4 executive “agency” whose actions were subject to judicial review

5 under the Administrative Procedures Act. The APA broadly described

6 its scope to include “each authority of the Government of the United

7 States” except Congress, the courts, the governments of United

8 States territories and the government of Washington, DC. The Court

9 nonetheless held that, when the APA did not explicitly include the

10 president and the legislative history did not suggest that Congress

11 intended for courts to review the president’s actions under the APA,

12 the APA’s “textual silence” was insufficient to infer that Congress

13 intended to subject the president to lawsuits under the APA: “We

14 would require an express statement by Congress before assuming it

15 intended the President’s performance of his statutory duties to be

16 reviewed for abuse of discretion.” See also Nixon v Fitzgerald, 457

17 US 731, 748, n27 (1982) (Court would require an explicit statement

18 by Congress before assuming Congress had created a damages action

19 against the president).” Franklin, 505 US at 800-01.

20

Franklin is readily distinguishable. The impetus for the

21 enactment of FISA was Congressional concern about warrantless

22 wiretapping of United States citizens conducted under a

23 justification of inherent presidential authority under Article II.

24 Congress squarely challenged and explicitly sought to prohibit

25 warrantless wiretapping by the executive branch by means of FISA,

26 as FISA’s legislative history amply documented. This was a

27 different situation from Franklin, in which the Court required

28 certainty about Congressional intent to regulate the office of the

25

United States District Court For the Northern District of California

1 president that was absent on the record before it.

2

In the case of FISA, Congress attempted not only to put a

3 stop to warrantless wiretapping by the executive branch but also to

4 establish checks and balances involving other branches of

5 government in anticipation of efforts by future administrations to

6 undertake warrantless surveillance in some other manner:

7

In the past several years, abuses of domestic

national security surveillances have been

8

disclosed. This evidence alone should demonstrate

the inappropriateness of relying solely on

9

executive branch discretion to safeguard civil

liberties. This committee is well aware of the

10

substantial safeguards respecting foreign

intelligence electronic surveillance currently

11

embodied in classified Attorney General procedures,

but this committee is also aware that over the past

12

thirty years there have been significant changes in

internal executive branch procedures, and there is

13

ample precedent for later administrations or even

the same administration loosening previous

14

standards.

15 H R Rep No 95-1283(I) at 21. Given the possibility that the

16 executive branch might again engage in warrantless surveillance and

17 then assert national security secrecy in order to mask its conduct,

18 Congress intended for the executive branch to relinquish its near-

19 total control over whether the fact of unlawful surveillance could

20 be protected as a secret.

21

Reynolds itself, holding that the state secrets privilege

22 is part of the federal common law, leaves little room for

23 defendants’ argument that the state secrets privilege is actually

24 rooted in the constitution. Reynolds stated that the state secrets

25 privilege was “well-established in the law of evidence.” 345 US at

26 6-7. At the time, Congress had not yet approved the Federal Rules

27 of Evidence, and therefore the only “law of evidence” to apply in

28 federal court was an amalgam of common law, local practice and

26

United States District Court For the Northern District of California

1 statutory provisions with indefinite contours. John Henry Wigmore

2 (revised by Peter Tillers), I Evidence §6.1 at 384-85 (Little,

3 Brown & Co 1983). The Court declined to address the constitutional

4 question whether Congress could limit executive branch authority to

5 withhold sensitive documents, but merely interpreted and applied

6 federal common law. See Reynolds, 345 US at 6 & n9.

7

Defendants’ attempt to establish a strict dichotomy

8 between federal common law and constitutional interpretation is,

9 moreover, misconceived because all rules of federal common law have

10 some grounding in the Constitution. “Federal common law implements

11 the federal Constitution and statutes, and is conditioned by them.

12 Within these limits, federal courts are free to apply the

13 traditional common-law technique of decision and to draw upon all

14 the sources of the common law in cases such as the present.”

15 D’Oench, Duhme & Co v FDIC, 315 US 447, 472 (1942) (Jackson

16 concurring). The rules of federal common law on money and banking,

17 for instance, all derive from the Constitution. See Clearfield

18 Trust Co v United States, 318 US 363, 366 (1943) (in disbursements

19 of funds and payment of debts, United States exercises a

20 constitutional function or power). The federal common law

21 pertaining to tort suits brought by United States soldiers against

22 private tortfeasors flows from Congress’s powers under Article I

23 section 8. United States v Standard Oil Co, 332 US 301, 306 n7

24 (1947). Accordingly, all rules of federal common law perform a

25 function of constitutional significance.

26

In the specific context of the state secrets privilege,

27 it would be unremarkable for the privilege to have a constitutional

28 “core” or constitutional “overtones.” See Robert M Chesney, State

27

United States District Court For the Northern District of California

1 Secrets and the Limits of National Security Litigation, 75 George

2 Wash L Rev 1249, 1309-10 (2007). Article II might be nothing more

3 than the source of federal policy that courts look to when applying

4 the common law state secrets privilege. But constitutionally-

5 inspired deference to the executive branch is not the same as

6 constitutional law.

7

In any event, the parties’ disagreement over the origins

8 of the state secrets privilege is of little practical significance.

9 Whether a “clear statement,” a comprehensive legislative scheme or

10 something less embracing is required, Congress has provided what is

11 necessary for this court to determine that FISA preempts or

12 displaces the state secrets privilege, but only in cases within the

13 reach of its provisions. This is such a case.

14

15

C

16

In addition to their more substantial arguments,

17 defendants advance two arguments why the court should not even take

18 up the issue remanded by the court of appeals. Defendants’ first

19 such argument in this regard may be easily dispatched. Defendants

20 argue that the court may not reach the question remanded for

21 consideration by the court of appeals because the court lacks

22 jurisdiction over plaintiffs’ claims. Wholly apart from the

23 disregard for the court of appeals——whose decisions bind this

24 court, after all——that acceptance of defendants’ argument would

25 entail, defendants’ argument lacks merit.

26

Defendants premise their argument on plaintiffs’ lack of

27 standing to obtain prospective relief; that is, because plaintiffs

28 cannot show that they have been injured or face a “real and

28

United States District Court For the Northern District of California

1 immediate threat” of harm in the future, defendants conclude that

2 Article III standing is absent. Doc # 432/17 at 7-8. Plaintiff

3 cannot show injury, contend defendants, because the state secrets

4 privilege prevents the government from confirming or denying that

5 plaintiffs have been subjected to unlawful surveillance.

6

The circularity of defendants’ argument to one side,

7 defendants conflate the state secrets privilege with the “aggrieved

8 person” requirement of section 1810, discussed in Part III infra.

9 If plaintiffs can show that they are “aggrieved” as section 1810

10 contemplates, then plaintiffs have adequately demonstrated injury

11 for purposes of establishing Article III standing.

12

Somewhat more substantially, defendants argue that

13 plaintiffs cannot pursue their claims because section 1810 does not

14 waive the United States’ sovereign immunity against suits naming

15 the government or individuals acting in their official capacity.

16 Employing a variety of arguments, defendants assert that civil

17 liability under section 1810 is “linked to intentional misconduct

18 by individual federal employees and officials.” Doc # 446/29 at 7.

19 They also assert that “[t]he Complaint does not name any of the

20 individual defendants in their individual capacity.” Doc # 432 at

21 9. And they point out that plaintiffs have not served defendants

22 in their individual capacities, an assertion that plaintiffs do not

23 dispute. Doc # 450/31 at 2.

24

Plaintiffs counter that defendants made similar arguments

25 before the court of appeals but that the court of appeals did not

26 address those points in its disposition of defendants’ appeal. Doc

27 # 435/20 at 24. Plaintiffs also contend that for the court to take

28 up this issue and, especially, to entertain defendants’ assertion

29

United States District Court For the Northern District of California

1 that governmental immunity bars adjudication of the other issues

2 before the court, would violate the court of appeals’ instructions

3 to this court in its order remanding the case. Id.

4

It is, of course, true that section 1810 does not contain

5 a waiver of sovereign immunity analogous to that in 18 USC section

6 2712(a) which expressly provides that aggrieved persons may sue the

7 United States for unlawful surveillance in violation of Title III.

8 But FISA directs its prohibitions to “Federal officers and

9 employees” (see, e g, 50 USC §§ 1806, 1825, 1845) and it is only

10 such officers and employees acting in their official capacities

11 that would engage in surveillance of the type contemplated by FISA.

12 The remedial provision of FISA in section 1810 would afford scant,

13 if any, relief if it did not lie against such “Federal officers and

14 employees” carrying out their official functions. Implicit in the

15 remedy that section 1810 provides is a waiver of sovereign

16 immunity.

17

Of no small moment to this court’s consideration of

18 defendants’ sovereign immunity contention, it appears that

19 defendants asserted the same argument in the court of appeals which

20 seems simply to have ignored it, presumably as insubstantial or

21 premature given the present state of the record.

22

In Part IV of this order, the court discusses whether

23 plaintiffs should be granted leave to serve defendants in their

24 individual capacities.

25

26

III

27

The determination that FISA preempts the state secrets

28 privilege does not necessarily clear the way for plaintiffs to

30

United States District Court For the Northern District of California

1 pursue their claim for relief against these defendants under FISA’s

2 section 1810. That section provides:

3

An aggrieved person, other than a foreign power or an

agent of the foreign power * * * who has been

4

subjected to an electronic surveillance or about whom

information obtained by electronic surveillance of

5

such person has been disclosed or used in violation

of section 1809 of this title shall be entitled to

6

recover——

7

(a) actual damages * * *

8

(b) punitive damages; and

9

(c) reasonable attorney’s fees and other

investigation and litigation costs reasonably

10

incurred.

11 50 USC § 1810. An “aggrieved person” is “a person who is the

12 target of an electronic surveillance or any other person whose

13 communications or activities were subject to electronic

14 surveillance.” 50 USC § 1801(i). Section 1809, violation of which

15 forms the basis for liability under section 1810, criminalizes two

16 types of conduct: (1) intentionally “engag[ing] in electronic

17 surveillance under color of law except as authorized by statute”

18 and (2)

19

disclos[ing] or us[ing] information obtained under

color of law by electronic surveillance, knowing or

20

having reason to know that the information was

obtained through electronic surveillance not

21

authorized by statute.

22 A host of obstacles, however, make section 1810 a mostly

23 theoretical, but rarely, if ever, a practical vehicle for seeking a

24 civil remedy for unlawful surveillance.

25

26

A

27

Before an aggrieved person can bring an action for

28 damages under section 1810, the person must learn somehow of the

31

United States District Court For the Northern District of California

1 electronic surveillance and thus the cause to be “aggrieved.” The

2 primary circumstance FISA describes in which a person learns of

3 this surveillance arises from a criminal proceeding——i e, if and

4 when the individual is arrested and charged with a crime. For

5 example, section 1806(c) provides:

6

Whenever the Government intends to enter into evidence

or otherwise use or disclose in any trial, hearing, or

7

other proceeding in or before any court, department,

officer, agency, regulatory body, or other authority of

8

the United States, against an aggrieved person, any

information obtained or derived from an electronic

9

surveillance of that aggrieved person pursuant to the

authority of this subchapter, the Government shall,

10

prior to the trial, hearing, or other proceeding or at

a reasonable time prior to an effort to so disclose or

11

so use that information or submit it in evidence,

notify the aggrieved person and the court or other

12

authority in which the information is to be disclosed

or used that the Government intends to so disclose or

13

so use such information.

14 Nearly identical requirements applicable to state governments

15 require notification to the attorney general of the United States

16 as well as to the aggrieved party and the court. § 1806(d). An

17 analogous pair of notification provisions pertaining to evidence

18 obtained pursuant to physical searches applies to the United States

19 and to state governments, respectively. § 1825(d) and (e). See

20 also § 1845(c) and (d)(pertaining to pen registers and trap and

21 trace devices) and 50 USC § 1861(h)(part of the USA PATRIOT Act

22 enacted in 2001 and amended in 2006, pertaining to “information

23 acquired from tangible things”).

24

FISA’s section 1806(j) provides for notice to be given to

25 the United States person targeted for surveillance when “an

26 emergency employment of electronic surveillance is authorized under

27 section 1805(e) * * * and a subsequent order approving the

28 surveillance is not obtained.” In that circumstance, the judge

32

United States District Court For the Northern District of California

1 “shall cause to be served” on the affected United States persons

2 notice of the fact of the application, the period of the

3 surveillance and “the fact that during the period information was

4 or was not obtained.” The notice provided for under section

5 1806(j) may be postponed or suspended once for up to ninety days

6 upon an ex parte showing of good cause by the government. Upon a

7 further ex parte showing of good cause, the notice requirement

8 under section 1806(j) may be forever waived.

9

FISA contains a provision requiring direct notification

10 to a “United States person” whose residence has been searched under

11 FISA’s section 1824 if “at any time after the search the Attorney

12 General determines there is no national security interest in

13 continuing to maintain the secrecy of the search.” 50 USC §

14 1825(b). In that event, the attorney general “shall provide notice

15 to the United States person * * * of the fact of the search

16 conducted * * * and shall identify any property of such person

17 seized, altered, or reproduced during such search.” Id.

18

Intelligence-gathering related to national security is

19 generally not for law enforcement; in fact, the initiation of law

20 enforcement actions may work at cross-purposes to the goals of the

21 intelligence-gathering by disrupting surveillance that is more

22 valuable to national security goals if left intact. The sense that

23 intelligence-gathering under FISA was rarely for the purpose of

24 criminal prosecution emerges from the text of FISA as crafted in

25 Congress and from its legislative history. In the context of

26 allowing the destruction of surveillance records acquired under

27 FISA, the Senate Report distinguished FISA from Title III, noting:

28 \\

33

United States District Court For the Northern District of California

1

Although there may be cases in which information

acquired from a foreign intelligence surveillance

2

will be used as evidence of a crime, these cases

are expected to be relatively few in number,

3

unlike Title III interceptions the very purpose of

which is to obtain evidence of criminal activity.

4

The Committee believes that in light of the

relatively few cases in which information acquired

5

under this chapter may be used as evidence, the

better practice is to allow the destruction of

6

information that is not foreign intelligence

information or evidence of criminal activity.

7

This course will more effectively safeguard the

privacy of individuals * * *.

8

9 Foreign Intelligence Surveillance Act of 1978, S Rep No 95-604 Part

10 I, 95th Cong 2d Sess 39 (1978), reprinted in 1978 USCCAN 3940-41.

11 Situations in which individuals subject to FISA warrants would be

12 notified of such warrants are therefore narrowly circumscribed

13 under FISA and this appears to be by design.

14

FISA also contains reporting requirements to facilitate

15 Congressional oversight of FISA, but these are of little help to an

16 individual seeking to learn of having been the subject of a FISA

17 warrant: sections 1808 (electronic surveillance), 1826 (physical

18 searches), 1846 (pen registers and trap and trace devices) and 1862

19 (requests for production of tangible things). Each of these

20 provisions, under the heading “Congressional oversight,” requires

21 semiannual reporting by the United States attorney general to

22 Congress.

23

As relevant to the subject matter of the instant action,

24 section 1808(a)(1) requires that the attorney general on a

25 semiannual basis “fully inform” certain Congressional committees

26 “concerning all electronic surveillance under this subchapter.”

27 Section 1801(a)(2) requires that each report under section

28 1808(a)(1) include a description of:

34

United States District Court For the Northern District of California

1

(A) the total number of applications made for orders

and extensions of orders approving electronic

2

surveillance under this subchapter where the nature

and location of each facility or place at which the

3

electronic surveillance will be directed is unknown;

4

(B) each criminal case in which information acquired

under this chapter has been authorized for use at

5

trial during the period covered by such report; and

6

(C) the total number of emergency employments of

electronic surveillance under section 1805(f) of this

7

title and the total number of subsequent orders

approving or denying such electronic surveillance.

8

9 Of note, these provisions only require itemized information about

10 surveillances to be reported to Congress if the information

11 pertains to criminal cases in which the information is intended to

12 be used at trial. All other surveillances and/or uses need be

13 reported in the form of aggregate numbers only.

14

A further reporting requirement newly adopted in 2004 as

15 part of the Intelligence Reform and Terrorism Prevention Act of

16 2004, PL 108-458, requires the attorney general to report

17 semiannually to the Congressional intelligence committees:

18

(1) the aggregate number of persons targeted for

orders issued under this chamber [broken down by

19

type of warrant or search];

20

(2) the number of individuals covered by an order

issued pursuant to [§ 1801(b)(1)(C) (i e non-

21

United States persons who are “agent[s] of a

foreign power” engaged in “international terrorism

22

or activities in preparation therefor”)];

23

(3) the number of times that the Attorney General

has authorized that information obtained under

24

this chapter may be used in a criminal proceeding

* * *;

25

(4) a summary of significant legal interpretations

26

of this chapter involving matters before the FISC

or the FISCR * * *; and

27

(5) copies of all decisions (not including orders)

28

or opinions of the FISC or FISCR that include

35

United States District Court For the Northern District of California

1

significant construction or interpretation of the

provisions of this chapter.

2

3 50 USC § 1871(a). These reports are presumably not available to

4 the press or the public; in any event, they do not provide any

5 means for an individual to learn of having been subject to

6 surveillance or search under a FISA warrant.

7

A provision requiring periodic reporting to Congress by

8 the Department of Justice of the number of pen register orders and

9 orders for trap and trace devices applied for under 18 USC § 3123

10 and under FISA by law enforcement agencies of the Department of

11 Justice was enacted in 1986 as part of the Electronic

12 Communications Privacy Act of 1986, Pub L 99-508, 100 Stat 1871.

13 18 USC §§ 3121(a), 3126. The report to Congress must include

14 certain specifics as to each order: the period of interceptions,

15 including extensions, the offense, the number of investigations,

16 the number and nature of facilities affected and the identity of

17 the applying agency and the person authorizing the order. Id §

18 3126. There are, however, no specific notification requirements in

19 that chapter (Chapter 206).

20

By contrast, Title III, 18 USC §§ 2510-22, the federal

21 wiretapping statute used by law enforcement to conduct electronic

22 surveillance domestically, provides not only for reporting to

23 Congress to facilitate oversight of the executive branch’s

24 surveillance activities, but also for notice as a matter of course

25 to individuals surveilled and for civil liability to such

26 individuals in the event of unlawful surveillance.

27

Reporting to Congress on electronic surveillance under

28 Title III is the responsibility of the judiciary, the Department of

36

United States District Court For the Northern District of California

1 Justice and the individual states’ attorneys general. All three

2 are separately and independently obligated to provide data about

3 applications for electronic surveillance to the Administrative

4 Office of the United States Courts, which in turn must transmit

5 annually to Congress “a full and complete report concerning the

6 number of applications for orders and extensions granted or denied

7 pursuant to this chapter during the preceding calendar year.” 18

8 USC § 2519. “The reports are not intended to include confidential

9 material [but] should be statistical in character * * * It will

10 assure the community that the system of court-order electronic

11 surveillance envisioned by the proposed chapter is properly

12 administered * * *.” Omnibus Crime Control and Safe Streets Act of

13 1968, S Rep No 1097, 90th Cong 2d Sess (1968), reprinted in 1968

14 USCCAN at 2196.

15

Regarding notice to surveilled individuals, 18 USC

16 section 2518(d) provides that, “within a reasonable time but not

17 later than ninety days after the filing of an application [for

18 interception of electronic communications],” whether successful or

19 unsuccessful, the judge in the matter “shall cause to be served” on

20 the individuals affected “an inventory” notifying them of the fact,

21 date and disposition of the order or application and whether or not

22 wire, oral or electronic communications were intercepted. The

23 statute further authorizes the judge, upon motion by an individual

24 so notified, to allow inspection of “such portions of the

25 intercepted communications, applications and orders as the judge

26 determines to be in the interest of justice.” Id. The serving of

27 the inventory may be postponed “on an ex parte showing of good

28 cause * * *.” Id.

37

United States District Court For the Northern District of California

1

The legislative history of this provision both

2 acknowledges and addresses the potential implications for national

3 security of section 2518(d)’s notice requirement and expressly

4 contemplates civil actions based on the inventories:

5

[W]here the interception relates, for example, to a

matter involving or touching on the national security

6

interest, it might be expected that the period of

postponement could be extended almost indefinitely.

7

Yet the intent of the provision is that the principle

of postuse notice will be retained. This provision

8

alone should insure the community that the techniques

are reasonably employed. Through its operation all

9

authorized interceptions must eventually become known

at least to the subject. He can then seek

10

appropriate civil redress for example, under section

2520 * * * if he feels that his privacy has been

11

unlawfully invaded.

12 1968 USCCAN at 2194. In describing the civil damages available

13 under section 2520, the Senate report stated that Congress

14 expressly contemplated the provisions requiring notice to affected

15 individuals to form the basis for civil suits: “It is expected

16 that civil suits, if any, will instead grow out of the filing of

17 * * * inventories under section 2518(8)(d).” Id at 2196.

18

Eighteen USC section 2520, in turn, provides for civil

19 remedies in the form of injunctive relief, declaratory relief and

20 damages and sets out specific measures of damages based on the

21 number of violations ($50-500 for the first finding of liability,

22 $100-1000 for the second and, for the third or other subsequent

23 finding of liability, actual damages and profits reaped or $100 per

24 day or $10,000). 18 USC § 2520(c). Defenses include, inter alia,

25 good faith reliance on a court warrant or order, grand jury

26 subpoena or legislative or statutory authorization. Id.

27

In summary, FISA makes little provision for notice to

28 surveilled individuals except when the government chooses to

38

United States District Court For the Northern District of California

1 disclose surveillance materials and the provisions that exist are

2 easy for the government to avoid. This must be presumed to be part

3 of Congress’s design for FISA because the notification procedure in

4 Title III——which, moreover, contemplated special handling of cases

5 involving national security concerns——predated FISA by a decade.

6 Congress could have modeled FISA on Title III in this regard, but

7 did not do so. In consequence, the cases are few and far between

8 in which an individual ever learns of having been subject to

9 electronic surveillance within FISA’s purview and therefore

10 possibly having standing as an aggrieved party for FISA section

11 1810 purposes.

12

One of the few cases in which an individual surveilled

13 under a FISA warrant became aware of his status as an “aggrieved

14 party” is that of Brendan Mayfield, an American-born United States

15 citizen, attorney and former United States Army officer who brought

16 suit against the United States after being arrested and imprisoned

17 in 2004 upon suspicion of involvement in the conspiracy to detonate

18 bombs on commuter trains in Madrid, Spain. Mayfield v United

19 States, 504 F Supp 2d 1023 (D Or 2007). The Mayfield case is

20 instructive. The investigation leading to the arrest and the

21 arrest itself were apparently the result of a false fingerprint

22 match which led the FBI, among other things, to seek and obtain

23 from the FISC an order authorizing electronic surveillance of

24 Mayfield’s home and his law office. Id at 1028. The published

25 opinion in Mayfield noted, without providing specifics, that

26 Mayfield had settled claims for “past injuries,” id at 1033;

27 Mayfield, however, continued to press his claims for a declaration

28 that FISA, as amended by the USA PATRIOT Act, violated the Fourth

39

United States District Court For the Northern District of California

1 Amendment by undermining the requirement of probable cause as a

2 pre-condition for obtaining a search warrant and for collecting,

3 disseminating and retaining information thus obtained. Mayfield

4 also claimed that FISA violated the Fourth Amendment by permitting

5 warrants to be issued under FISA without a showing that the

6 “primary purpose” of the search is to obtain foreign intelligence

7 information. Id at 1032.

8

The district court agreed with Mayfield and granted, on

9 summary judgment, a declaration finding FISA unconstitutional. The

10 United States appealed this order and the appeal is now pending

11 before the court of appeals.

12

The district court drew particular attention to the

13 “notice problem” under FISA:

14

Nor does FISA require notice. The Fourth Amendment

ordinarily requires that the subject of a search be

15

notified that the search has occurred. Although in

some circumstances the government is permitted to

16

delay the provision of notice, the Supreme Court has

never upheld a statute that, like FISA, authorizes

17

the government to search a person’s home or intercept

his communications without ever informing the person

18

that his or her privacy has been violated. Except

for the investigations that result in criminal

19

prosecutions, FISA targets never learn that their

homes or offices have been searched or that their

20

communications have been intercepted. Therefore,

most FISA targets have no way of challenging the

21

legality of the surveillance or obtaining any remedy

for violations of their constitutional rights.

22

23 Id at 1039.

24

Ironically, the Mayfield case seems an ideal one for the

25 government to provide notification under section 1825(b), discussed

26 above, which directs the attorney general to notify United States

27 persons whose residences have been subjected to physical search

28 after the attorney general “determines there is no national

40

United States District Court For the Northern District of California

1 security interest in continuing to maintain the secrecy of the

2 search.” Yet the government leaned toward secrecy rather than

3 candor. Only after Mayfield had filed litigation and moved to

4 compel notification did the government notify him of the physical

5 search and, in doing so, contended that both the fact and the

6 extent of notification were entirely within the attorney general’s

7 discretion. Agency Defendants’ Reply In Support Of Motion to

8 Dismiss Counts Twelve and Thirteen and Opposition to Motion to

9 Compel, Mayfield v Gonzales, CV 04-1427-AA Doc # 72 at 6-10, United

10 States District Court for the District of Oregon, filed April 15,

11 2005. Mayfield later challenged the sufficiency of the

12 government’s disclosure. Mayfield v Gonzales, 2005 WL 1801679, *17

13 (D Or 2005). The Mayfield case illustrates the limited

14 effectiveness of FISA’s narrowly-defined notice provision relating

15 to physical searches. Limited and imperfect as FISA’s notification

16 provision for physical searches may be, FISA contains no comparable

17 provision for United States persons who have been subjected to

18 electronic surveillance as opposed to physical search.

19

In the Al-Haramain case, notification to plaintiffs of

20 their potential status as “aggrieved parties” came in the form of

21 an accident: the inadvertent disclosure of the Sealed Document

22 during discovery proceedings, a disclosure that the various United

23 States entities involved took immediate and largely successful

24 steps to undo. To speak metaphorically, the inadvertent disclosure

25 by OFAC of the Sealed Document amounted to a small tear in the

26 thick veil of secrecy behind which the government had been

27 conducting its electronic surveillance activities. The Oregon

28 district court refused to allow plaintiffs to learn more by

41

United States District Court For the Northern District of California

1 conducting discovery, but held that no further harm could result

2 from working with the salient information divulged thus far. By

3 refusing to allow the use of the Sealed Document in any form for

4 the adjudication of plaintiffs’ claims in this matter, the court of

5 appeals required that the small tear be stitched closed, leaving

6 plaintiffs with actual but not useful notice and without the sole

7 item of evidence they had offered in support of their claims.

8

9

B

10

Difficult as it is to learn of one’s status as an

11 aggrieved party for section 1810 purposes, an aggrieved party needs

12 more than mere knowledge of the surveillance to be able to proceed

13 with a lawsuit under section 1810. The next major obstacle to

14 seeking civil remedies under FISA is the lack of a practical

15 vehicle for obtaining and/or using admissible evidence in support

16 of such claims. An aggrieved party must be able to produce

17 evidence sufficient to establish standing to proceed as an

18 “aggrieved party” and, later, to withstand motions for dismissal

19 and/or summary judgment. This effort is encumbered with legal and

20 practical obstacles.

21

As noted above in Part III A, FISA does not provide for

22 the preservation of recordings and other information obtained

23 pursuant to a FISA warrant. Rather, Congress intended to allow

24 such material to be destroyed, the idea being that to allow

25 destruction would better protect the privacy of individuals

26 surveilled than to require preservation. S Rep No 95-604 Part I at

27 39. By contrast, Title III expressly requires intercepted

28 communications to be recorded and expressly prohibits destruction

42

United States District Court For the Northern District of California

1 of the recordings except upon an order of the issuing or denying

2 judge. Also, “in any event [they] shall be kept for ten years.”

3 18 USC § 2518(8)(a). It provides, moreover, that “custody of the

4 recordings shall be wherever the judge orders.” Id. These

5 provisions ensure that a body of evidence establishing the fact of

6 the surveillance is brought into existence and safeguarded under a

7 a judge’s control. By failing to impose parallel obligations on

8 the government agencies and officials who are the putative

9 defendants in an action alleging FISA violations, FISA provides

10 little help to “aggrieved persons” who might seek to become civil

11 plaintiffs.

12

Plaintiffs and plaintiff amici contend that FISA’s

13 section 1806(f) provides the means for them to overcome this

14 evidentiary hurdle. The court has carefully studied section

15 1806(f) and does not agree.

16

As relevant here, section 1806(f) provides:

17

whenever any motion or request is made by an aggrieved

person pursuant to any other statute or rule of the

18

United States * * * before any court * * * of the

United States * * * to discover or obtain applications

19

or orders or other materials relating to electronic

surveillance or to discover, obtain, or suppress

20

evidence or information obtained or derived from

electronic surveillance under this chapter, the United

21

States district court * * * shall, notwithstanding any

other law, if the Attorney General files an affidavit

22

under oath that disclosure or an adversary hearing

would harm the national security of the United States,

23

review in camera and ex parte the application, order,

and such other materials relating to the surveillance

24

as may be necessary to determine whether the

surveillance of the aggrieved person was lawfully

25

authorized and conducted. In making this

determination, the court may disclose to the aggrieved

26

person, under appropriate security procedures and

protective orders, portions of the application, order,

27

or other materials relating to the surveillance only

where such disclosure is necessary to make an accurate

28

determination of the legality of the surveillance.

43

United States District Court For the Northern District of California

1 The parties have argued at length in their papers and in court

2 about the meaning and application of this convoluted pair of

3 sentences. Both plaintiff amici and telecommunications carrier

4 defendant amici (“defendant amici”) have devoted their entire

5 amicus briefs to this subject. Doc # 440/23, 442/25.

6

Defendants contend that section 1806(f) does not come

7 into play unless and until the government has acknowledged that it

8 surveilled the “aggrieved person” in question (by, for example,

9 initiating criminal proceedings), but that it is not available as a

10 means for an individual to discover having been surveilled absent

11 such governmental acknowledgment. See, e g, Doc #432/17 at 16-20.

12 Defendants further assert that, assuming arguendo that FISA

13 “preempts” the state secrets privilege, as this court holds it does

14 for purposes of electronic surveillance, plaintiffs would still be

15 unable to establish their standing as “aggrieved persons” for

16 section 1810 purposes without “inherently risk[ing] or requir[ing]

17 the disclosure of state secrets to the plaintiffs and the public at

18 large.” Id at 22-23.

19

The defendant amici present more detailed arguments about

20 section 1806(f) that are in accord with defendants’ position. They

21 assert that the “motion * * * to discover” provision at issue in

22 this case “creates no rights for aggrieved persons; it provides

23 procedures to implement their existing right to seek discovery in

24 support of efforts to suppress evidence obtained or derived from

25 electronic surveillance.” Doc #442/25 at 5. Defendant amici

26 further assert that section 1806(f)’s purpose was to preserve for

27 the prosecution a “dismiss option” when the legality of

28 surveillance evidence is challenged, so that the prosecution could

44

United States District Court For the Northern District of California

1 choose not to proceed rather than risk the disclosure of classified

2 information. Id at 10-11. In support of this contention, they

3 point to section 1806(f)’s language providing for the United States

4 attorney general to invoke its procedures and argue that the

5 section does not provide for courts to compel the disclosure of

6 information absent the attorney general’s involvement. Id at 11.

7

Defendant amici also contrast FISA’s section 1806(f) with

8 18 USC section 3504(a)(1), enacted in 1970 as part of the Organized

9 Crime Control Act. The latter establishes a procedure by which “a

10 party aggrieved” seeking to exclude evidence based on a claim that

11 it was obtained illegally may obligate “the opponent of the claim”

12 (i e, the government) “to affirm or deny the occurrence of the

13 alleged unlawful act.” Defendant amici argue that “[t]he existence

14 of the carefully circumscribed discovery right in § 3504 negates any

15 suggestion that § 1806(f) implicitly covers the same ground” and

16 cite United States v Hamide, 914 F2d 1147 (9th Cir 1990) for the

17 proposition that section 3504(a) and section 1806(f) can be used

18 together but that they accomplish different objectives and cannot be

19 construed as serving similar purposes. Doc # 442/25 at 15-16.

20

In Hamide, an immigration judge had entertained a motion

21 under section 3504(a)(1) by an individual in deportation proceedings

22 requesting that the government affirm or deny the existence of

23 electronic surveillance. After the government disclosed that it had

24 conducted electronic surveillance of the individual, it filed in the

25 district court a “Petition of the United States for Judicial

26 Determination of Legality of Certain Electronic Surveillance” under

27 FISA’s section 1806(f), together with the FISA materials relevant to

28 the authorization of the surveillance filed under seal and a request

45

United States District Court For the Northern District of California

1 that the matter be handled ex parte for national security reasons.

2 914 F2d at 1149. The district court then ruled ex parte in the

3 government’s favor. Id at 1149-50.

4

Defendant amici argue that Congress could have

5 incorporated into FISA a procedure like that provided for in

6 section 3504(a)(1) by which an individual could require the

7 executive branch to confirm or deny the existence of electronic

8 surveillance and, since Congress did not do so, it must be presumed

9 not to have intended such a procedure to be available under FISA.

10 Doc #442/25 at 16.

11

Plaintiff amici counter defendants’ arguments against

12 plaintiffs’ proposed use of section 1806(f) with several major

13 contentions. First, they argue that section 1806(f)’s scope is

14 expansive enough to provide for in camera review in any civil or

15 criminal case——not merely cases arising under FISA——in which a

16 claim of unlawful surveillance is raised. Doc #440/23 at 11-13,

17 17. They point out that the text of section 1806(f) referring to

18 “any motion or request * * * pursuant to any other statute or rule

19 of the United States” does not suggest a limitation to criminal

20 statutes. Id at 11. They also point to language in the conference

21 report on the final version of FISA stating “[t]he conferees agree

22 that an in camera and ex parte proceeding is appropriate for

23 determining the lawfulness of electronic surveillance in both

24 criminal and civil cases.” Id at 13, citing H Conf Rep 95-1720 at

25 32. And plaintiff amici find support in the District of Columbia

26 Circuit’s opinion in ACLU Foundation of Southern California v Barr,

27 952 F2d 457, 465 n 7 (D C Cir 1991), which cited FISA’s legislative

28 history for the proposition that Congress had intended a court’s in

46

United States District Court For the Northern District of California

1 camera, ex parte review under section 1806(f) to “determine whether

2 the surveillance was authorized and conducted in a manner that did

3 not violate any constitutional or statutory right.” Thus,

4 plaintiff amici contend, section 1810 is one such “other statute”

5 referred to in section 1806(f) under which in camera review is

6 available.

7

Next, plaintiff amici characterize defendants’ contention

8 that section 1806(f) is only available in cases in which the

9 government has acknowledged having surveilled a party as “look[ing]

10 at section 1806(f) through the wrong end of the telescope.” Doc

11 #440/23 at 14. Plaintiff amici correctly observe that section

12 1806(f) only comes into play when the attorney general notifies the

13 court that “disclosure or an adversary hearing would harm the

14 national security”——for example, in opposing a discovery request.

15 A “motion or request * * * by an aggrieved person” alone is not

16 sufficient to trigger in camera review. Therefore, they argue,

17 defendants’ position that the government must have acknowledged

18 surveillance sets the bar higher than FISA prescribes.

19

Third, plaintiff amici address what they believe the bar

20 should be——that is, what an individual must show to establish being

21 “aggrieved” for section 1806(f) purposes. They assert that a

22 person need only have a “colorable basis for believing he or she

23 had been surveilled.” Doc #440/23 at 11-16. Lacking examples

24 arising directly under section 1806(f), plaintiff amici look to

25 cases decided under 18 USC section 3504(a)(1) (discussed above),

26 including United States v Vielguth, 502 F2d 1257, 1258 (9th Cir

27 1974). In Vielguth, the Ninth Circuit held that the government’s

28 obligation to affirm or deny the occurrence of electronic

47

United States District Court For the Northern District of California

1 surveillance under section 3504(a)(1) “is triggered by the mere

2 assertion that unlawful wiretapping has been used against a party.”

3 Plaintiff amici argue that the standard articulated in Vielguth is

4 the applicable standard for an “aggrieved person” for purposes of

5 FISA’s section 1806(f). Doc #440/23 at 16.

6

The court agrees with plaintiffs that section 1806(f) is

7 not limited to criminal proceedings, but may also be invoked in

8 civil actions, including actions brought under section 1810. The

9 court disagrees with defendants’ proposed limitation of section

10 1806(f) to cases in which the government has acknowledged the

11 surveillance at issue. The plain language of the statute, which

12 the court must use as its primary compass, United States v Ron Pair

13 Enterprises, Inc, 489 US 235, 242 (1988), does not support

14 defendants’ purported limitations.

15

The court parts company with plaintiffs, however, with

16 regard to what an individual must show to establish being

17 “aggrieved” for section 1806(f) purposes and, consequently, the

18 availability of section 1806(f) to plaintiffs in this case in its

19 current posture. As the court reads section 1806(f), a litigant

20 must first establish himself as an “aggrieved person” before

21 seeking to make a “motion or request * * * to discover or obtain

22 applications or orders or other materials relating to electronic

23 surveillance [etc].” If reports are to be believed, plaintiffs

24 herein would have had little difficulty establishing their

25 “aggrieved person” status if they were able to support their

26 request with the Sealed Document. But the court of appeals,

27 applying the state secrets privilege, has unequivocally ruled that

28 plaintiffs in the current posture of the case may not use “the

48

United States District Court For the Northern District of California

1 Sealed Document, its contents, and any individuals’ memories of its

2 contents, even well-reasoned speculation as to its contents.” 507

3 F3d at 1204. Pplaintiffs must first establish “aggrieved person”

4 status without the use of the Sealed Document and may then bring a

5 “motion or request” under § 1806(f) in response to which the

6 attorney general may file an affidavit opposing disclosure. At

7 that point, in camera review of materials responsive to the motion

8 or request, including the Sealed Document, might well be

9 appropriate.

10

The court disagrees with plaintiff amici’s suggestion

11 that Vielguth, an opinion that established a claimant’s burden to

12 invoke 18 USC section 3504(a)(1), should also be relied on to

13 define the burden for an individual to establish standing as an

14 “aggrieved person” for purposes of FISA section 1806(f). The bar

15 set by Vielguth is too low given the text and structure of FISA.

16 Moreover, a review of other Ninth Circuit cases reveals that

17 Vielguth did not define the standard for all purposes under section

18 3504(a)(1). The court in Vielguth was at pains to distinguish its

19 earlier decision in United States v Alter, 482 F2d 1016 (9th Cir

20 1973), which, while stating that a witness “does not have to plead

21 and prove his entire case to establish standing and to trigger the

22 Government’s responsibility to affirm or deny,” nonetheless

23 established a stringent test for making out a prima facie issue of

24 electronic surveillance of counsel for a grand jury witness. The

25 court held required affidavits that established:

26

(1) the specific facts which reasonably lead the

affiant to believe that named counsel for the named

27

witness has been subjected to electronic

surveillance;

28

(2) the dates of such suspected surveillance;

49

United States District Court For the Northern District of California

1

(3) the outside dates of representation of the

witness by the lawyer during the period of

2

surveillance;

3

(4) the identity of the person(s), by name or

description, together with their respective telephone

4

numbers, with whom the lawyer (or his agents or

employees) was communicating at the time the claimed

5

surveillance took place; and

6

(5) facts showing some connection between possible

electronic surveillance and the grand jury witness

7

who asserts the claim or the grand jury proceeding in

which the witness is involved.

8

9 Id at 1026. Vielguth distinguished Alter by limiting the latter to

10 “a claim by the person under interrogation that questions put to

11 him are tainted by unlawful surveillance of conversations in which

12 he did not participate” and did so only over the dissent of one of

13 the three panel members. 502 F2d at 1259-61.

14

Not long after Vielguth, the Ninth Circuit clarified the

15 standard, but only slightly. In United States v See, 505 F2d 845,

16 855-56 (9th Cir 1974), the court rejected a claim under section

17 3504 as “vague to the point of being a fishing expedition” and held

18 that correspondingly little was required of the government. The

19 court noted that “a general claim requires only a response

20 appropriate to such a claim” and that “varying degrees of

21 specificity in a claim will require varying degrees of specificity

22 in a response.” Id at 856 & n 18.

23

The flexible or case-specific standards articulated by

24 the Ninth Circuit for establishing aggrieved status under section

25 3504(a)(1), while certainly relevant, do not appear directly

26 transferrable to the standing inquiry for an “aggrieved person”

27 under FISA. While attempting a precise definition of such a

28 standard is beyond the scope of this order, it is certain that

50

United States District Court For the Northern District of California

1 plaintiffs’ showing thus far with the Sealed Document excluded

2 falls short of the mark. Plaintiff amici hint at the proper

3 showing when they refer to “independent evidence disclosing that

4 plaintiffs have been surveilled” and a “rich lode of disclosure to

5 support their claims” in various of the MDL cases. Doc #440 at 16-

6 17. To proceed with their FISA claim, plaintiffs must present to

7 the court enough specifics based on non-classified evidence to

8 establish their “aggrieved person” status under FISA.

9

10

C

11

It is a testament to the obstacles to seeking civil

12 remedies for alleged violations of FISA that section 1810 has lain

13 “dormant for nearly thirty years.” Andrew Adler, Note, The Notice

14 Problem, Unlawful Electronic Surveillance, and Civil Liability

15 Under the Foreign Intelligence Surveillance Act, 61 U Miami L Rev

16 393, 397 (2006-07). Dormant indeed. The print version of the

17 United States Code Annotated contains no case notes under section

18 1810. The parties have cited no other case in which a plaintiff

19 has actually brought suit under section 1810, let alone secured a

20 civil judgment under it. By contrast, the civil liability

21 provisions of Title III, 18 USC § 2520, have been used successfully

22 by “aggrieved persons” with regularity since they were enacted in

23 1968. See, e g, Jacobsen v Bell Telephone Co, 592 F2d 515 (9th Cir

24 1978), Dorris v Absher, 179 F3d 420 (6th Cir 1999).

25

While Congress enacted section 1810 in order to provide a

26 private cause of action for unlawful surveillance, section 1810

27 bears but faint resemblance to 18 USC section 2520. While the

28 court must not interpret and apply FISA in way that renders section

51

United States District Court For the Northern District of California

1 1810 superfluous, Dole Food Co v Patrickson, 538 US 468, 476-77

2 (2003), the court must be wary of unwarranted interpretations of

3 FISA that would make section 1810 a more robust remedy than

4 Congress intended it to be. As noted, Title III predated FISA by a

5 full decade. If Congress had so intended, it could have written

6 FISA to offer a more fulsome and accessible remedy patterned on

7 Title III. Congress may therefore be presumed to have intended not

8 to provide such a remedy and the court should not strain to

9 construe FISA in a manner designed to give section 1810 greater

10 effect than Congress intended. See id. The same applies with

11 regard to the procedure set forth in 18 USC section 3504(a)(1),

12 enacted in 1970. This is not to say that it is impossible to

13 obtain relief under section 1810, but the fact that no one has ever

14 done so reinforces the court’s reading of the plain terms of the

15 statute: section 1810 is not user-friendly and the impediments to

16 using it may yet prove insurmountable.

17

18

IV

19

On April 17, 2008, less than a week before the hearing on

20 defendants’ second motion to dismiss, plaintiffs filed a motion for

21 an order extending the time to serve defendants Bush, Alexander,

22 Werner and Mueller individually, presumably in response to

23 defendants’ sovereign immunity arguments in their moving and reply

24 papers. Doc # 447/30. In that motion, plaintiffs do not

25 specifically state whether they intended to sue defendants in both

26 their official and individual capacities, but they assert that “a

27 nonspecific complaint may be characterized as alleging both

28 official and personal capacity liability.” Id at 2. Plaintiffs

52

United States District Court For the Northern District of California

1 explain their failure to serve the individual defendants

2 individually within the 120-day deadline for service under Federal

3 Rule of Civil Procedure 4(m) as follows: “Within weeks [of serving

4 their complaint upon the Attorney General] this case became focused

5 on the classified document that Plaintiffs filed under seal with

6 the Complaint.” Id at 1. They assert that issues pertaining to

7 the Sealed Document, including defendants’ assertion of the state

8 secrets privilege, “have driven this litigation to date in the

9 trial and appellate courts and have overshadowed all other aspects

10 of this case.” Id.

11

Plaintiffs also contend that the individual defendants

12 will not be prejudiced by late service of the complaint because:

13 (1) they have been on notice of the litigation either through

14 personal, open participation in the defense (e g, Declaration of

15 NSA Director & Declaration of Keith B Alexander, Al-Haramain, No C

16 06-0274 KI Doc #55-2, 59, United States District Court for the

17 District of Oregon, filed June 21, 2006) or due to the large amount

18 of publicity surrounding these cases and (2) because the case has

19 advanced little due to the courts’ focus on the Sealed Document,

20 the state secrets privilege and legal issues under FISA. Doc

21 #447/30 at 2-3.

22

Defendants vigorously oppose plaintiffs’ motion,

23 asserting that plaintiffs have failed to establish “good cause”

24 warranting relief from the 120-day deadline. They assert that

25 plaintiffs have been on notice of the defendants’ sovereign

26 immunity defense for well over a year and of the particular point

27 that individual defendants had not been served for “at least nine

28 months.” Doc # 448/31 at 3. Defendants assert that they will be

53

United States District Court For the Northern District of California

1 prejudiced by the proposed late service because the suit has been

2 pending and actively litigated without notice to defendants as

3 individuals for over two years. Id at 5.

4

Defendants also point out——correctly——that plaintiffs’

5 motion is not in accordance with this court’s local rules as it was

6 filed less than one week before the April 23 hearing without a

7 hearing date specified on the moving papers. Defendants filed a

8 short opposition the day before the hearing requesting, inter alia,

9 that the motion be placed on the calendar and briefed in accordance

10 with the local rules.

11

Plaintiffs’ motion mentions Civil Local Rule 6-3 (Doc #

12 447/30 at 1), but does not properly invoke or comply with it. Rule

13 6-3 provides the procedure for obtaining a hearing on shortened

14 time. It requires the filing of a motion to shorten time and sets

15 forth detailed requirements for such a motion. Plaintiffs filed no

16 such motion. On the other hand, plaintiffs did not expressly seek

17 to have their motion heard on shortened time and, at the April 23

18 hearing, it was defendants’ attorney who first sought to be heard

19 on the matter. Hearing transcript, Doc # 452 at 44-45.

20

Notwithstanding the inartful manner in which plaintiffs

21 brought their motion, the court finds the briefing and arguments

22 for and in opposition to plaintiffs’ motion adequate. No further

23 briefing on this matter will be required. Plaintiffs, however, are

24 admonished to review the local rules of this court and to abide by

25 them for the duration of this litigation.

26

Rule 4(m) provides two alternative courses for a court to

27 follow if a plaintiff has failed to serve one or more defendants

28 within the 120-day time limit. As something like 680 days had

54

United States District Court For the Northern District of California

1 elapsed between plaintiffs’ filing of their action and the date of

2 their motion for an extension of time to serve the individual

3 defendants individually, plaintiffs have indisputably exceeded the

4 120-day limit by a wide margin. Rule 4(m) requires the court to

5 dismiss the action without prejudice against the particular

6 defendants in question “or order that service be made within a

7 specified time.” If plaintiff shows good cause for the failure,

8 however, the court “must extend the time for service for an

9 appropriate period.” The determinations required to adjudicate the

10 motion for an extension of time to serve defendants are committed

11 to the discretion of the court. Puett v Blandford, 912 F2d 270,

12 273 (9th Cir 1990).

13

The court agrees with plaintiffs that although more than

14 two years have elapsed, little has occurred in the litigation that

15 would prejudice a late-served individual defendant. This is

16 particularly the case given the specific individuals at issue, all

17 of whom are high-level government officials closely and publicly

18 connected to the policies and practices at issue in this

19 litigation. Dismissal on the ground of failure to serve individual

20 defendants would needlessly complicate the litigation and would not

21 advance the interests of justice in this case. Without reaching

22 the question whether plaintiffs have established “good cause” for

23 their failure to serve the individual defendants, the court instead

24 GRANTS the motion to extend time for service. Should plaintiffs

25 choose to amend their complaint in accordance with this order, they

26 may serve all unserved defendants with their amended complaint

27 within fifteen (15) days of filing it with the court.

28 \\

55

United States District Court For the Northern District of California

1

V

2

The lack of precedents under section 1810 complicates the

3 task of charting a path forward. The court of appeals reversed the

4 Oregon district court’s plan for allowing plaintiffs to proceed

5 with their suit, but did not suggest a way for plaintiffs to

6 proceed without using the Sealed Document. Nonetheless, the court

7 believes that dismissal with prejudice is not appropriate.

8 Accordingly, plaintiffs’ FISA claim will be dismissed with leave to

9 amend. Plaintiffs should have the opportunity to amend their claim

10 to establish that they are “aggrieved persons” within the meaning

11 of 50 USC § 1801(k). In the event plaintiffs meet this hurdle, the

12 court will have occasion to consider the treatment of the Sealed

13 Document under section 1806(f) and the significant practical

14 challenges of adjudicating plaintiffs’ claim under section 1810.

15

For the reasons stated herein, plaintiffs’ claim under

16 FISA is DISMISSED with leave to amend. Plaintiffs shall have

17 thirty (30) days to amend their complaint in accordance with this

18 order. Should plaintiffs seek to amend their non-FISA claims, they

19 shall do so by means of a noticed motion before this court in

20 accordance with the local rules.

21

22

IT IS SO ORDERED.

23

24

VAUGHN R WALKER

25

United States District Chief Judge

26

27

28

56

 
 1

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7

8 IN RE:

MDL Docket No 06-1791 VRW

9 NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS
10 LITIGATION

ORDER

United States District Court For the Northern District of California

11
This order pertains to: 12
Al-Haramain Islamic Foundation et 13 al v Bush et al (C-07-0109 VRW),

14

/

15

16

This order corrects typographical errors in the order

17 filed July 2, 2008 in this matter (Doc #452/33). On page 4:27-28,

18 the words “sensitive compartmented” should be substituted for

19 “sealed compartmentalized” in the original order.

20

21

IT IS SO ORDERED.

22

23

VAUGHN R WALKER

24

United States District Chief Judge

25

26

27

28

 
 Case3:07-cv-00109-VRW Document35 Filed07/29/08 Page1 of 17

1 Jon B. Eisenberg, California Bar No. 88278 (jon@eandhlaw.com) William N. Hancock, California Bar No. 104501 (bill@eandhlaw.com)
2 Eisenberg & Hancock LLP 1970 Broadway, Suite 1200 • Oakland, CA 94612
3 510.452.258l – Fax 510.452.3277

4 Steven Goldberg, Oregon Bar No. 75134 (steven@stevengoldberglaw.com) River Park Center, Suite 300 • 205 SE Spokane St.• Portland, OR 97202
5 503.445.4622 – Fax 503.238.7501

6 Thomas H. Nelson, Oregon Bar No. 78315 (nelson@thnelson.com) P.O. Box 1211, 24525 E. Welches Road • Welches, OR 97067
7 503.622.3123 - Fax: 503.622.1438

8 Zaha S. Hassan, California Bar No. 184696 (zahahassan@comcast.net) 8101 N.E. Parkway Drive, Suite F-2 • Vancouver, WA 98662
9 360.213.9737 - Fax 866.399.5575

10 J. Ashlee Albies, Oregon Bar No. 05184 (ashlee@sstcr.com) Steenson, Schumann, Tewksbury, Creighton and Rose, PC
11 815 S.W. Second Ave., Suite 500 • Portland, OR 97204 503.221.1792 – Fax 503.223.1516
12
Lisa R. Jaskol, California Bar No. 138769 (ljaskol@earthlink.net) 13 610 S. Ardmore Ave.• Los Angeles, CA 90005
213.385.2977 – Fax 213.385.9089
14
Attorneys for Al-Haramain Islamic Foundation, Inc., Wendell Belew and Asim Ghafoor
15
IN THE UNITED STATES DISTRICT COURT
16
FOR THE NORTHERN DISTRICT OF CALIFORNIA
17

18

IN RE NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS

) MDL Docket No. 06-1791 )

19

LITIGATION ____________________________________

) FIRST AMENDED COMPLAINT )

20 This Document Relates Solely To:

) (Violations of Foreign Intelligence ) Surveillance Act, Separation of Powers,

21 Al-Haramain Islamic Foundation, Inc., et al.

) Fourth Amendment, First Amendment, Sixth ) Amendment, and International Covenant on

22 v. Bush, et al. (C07-CV-0109-VRW)

) Civil and Political Rights) )

23

AL-HARAMAIN ISLAMIC FOUNDATION, INC., an Oregon

) )

24

Nonprofit Corporation; WENDELL BELEW, a U.S. Citizen and Attorney at

) )

25

Law; ASIM GHAFOOR, a U.S. Citizen and Attorney at Law,

) )

)

26

Plaintiffs,

)

27

vs.

) )

28

GEORGE W. BUSH, President of the United States; NATIONAL SECURITY

) )

___________________________________________________________________________________ MDL DOCKET NO. 06-1791 VRW • FIRST AMENDED COMPLAINT

Case3:07-cv-00109-VRW Document35 Filed07/29/08 Page2 of 17

1 AGENCY and KEITH B. ALEXANDER, )

2

its Director; OFFICE OF FOREIGN ASSETS CONTROL, an office of the

) )

3

United States Treasury, and ADAM J. SZUBIN, its Director; FEDERAL

) )

4

BUREAU OF INVESTIGATION and ROBERT S. MUELLER III, its Director,

) )

5 in his official and personal capacities.

) )

6

Defendants.

)

7

8

INTRODUCTION

9

1. This is an action for damages and injunctive relief concerning an illegal and

10 unconstitutional program of electronic surveillance of United States citizens and entities. This action

11 also seeks to enjoin the use of evidence obtained through this surveillance in proceedings in which

12 defendant Office of Foreign Assets Control (OFAC) has designated plaintiff Al-Haramain Islamic

13 Foundation, Inc. (“Al-Haramain Oregon”) as a terrorist organization.

14

2. Defendants have engaged in electronic surveillance of plaintiffs without court orders,

15 in violation of clear statutory mandates provided in the Foreign Intelligence Surveillance Act (“FISA”),

16 50 U.S.C. §§ 1801-62, and provisions of the United States Constitution.

17

3. Defendants have used illegal surveillance to harm plaintiffs as set forth more

18 specifically in the body of this Complaint.

19

PARTIES

20

4. Plaintiff Al-Haramain Oregon is an Oregon nonprofit corporation whose headquarters

21 were established in Ashland, Oregon. Plaintiff Al-Haramain Oregon currently owns real property in

22 Springfield, Missouri. Plaintiff Al-Haramain Oregon formerly owned real property in Ashland,

23 Oregon. Defendant OFAC has sold the Ashland property at auction and has frozen the proceeds of

24 the sale.

25

5. Plaintiff Wendell Belew is a citizen of the United States and an attorney at law who has

26 had business and other relationships with plaintiff Al-Haramain Oregon.

27

6. Plaintiff Asim Ghafoor is a citizen of the United States and an attorney at law who has

28 had business and other relationships with plaintiff Al-Haramain Oregon.

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1

7. Defendant George W. Bush is President of the United States.

2

8. Defendant National Security Agency (NSA) is an agency of the United States.

3

9. Defendant Keith B. Alexander is Director of defendant NSA.

4

10. Defendant OFAC is an office of the Department of the Treasury of the United States.

5

11. Defendant Adam J. Szubin is Director of OFAC.

6

12. Defendant Federal Bureau of Investigation (FBI) is a federal police and intelligence

7 agency.

8

13. Defendant Robert S. Mueller III is Director of the FBI and was Director at all times

9 relevant to this Amended Complaint. Defendant Mueller is being sued in his official and personal

10 capacities.

11

JURISDICTION AND VENUE

12

14. This court has jurisdiction under 28 U.S.C. § 1331.

13

15. Plaintiffs filed this action in the United States District Court for the District of Oregon,

14 a proper venue because (a) one of the plaintiffs is an Oregon corporation that owned real property in

15 Oregon and (b) defendants’ actions caused harm in Oregon. The Judicial Panel on Multidistrict

16 Litigation transferred this action to the United States District Court for the Northern District of

17 California on December 15, 2006, as part of In re National Security Agency Telecommunications

18 Records Litigation, MDL Docket No. 06-1791-VRW.

19

STATEMENT OF FACTS

20

16. Shortly after the terrorist attacks of September 11, 2001, defendants commenced a

21 program of warrantless electronic surveillance of international telecommunications, intercepting them

22 domestically from routing stations located within the United States.

23

17. The warrantless surveillance program did not comply with the requirements of FISA.

24

18. Current and former employees and representatives of the United States government

25 have made the following public statements about the nature of the warrantless surveillance program:

26

a. In a radio address on December 17, 2005, defendant Bush stated that the

27 warrantless surveillance program intercepted “international communications of people with known

28 links to Al Qaida [sic] and related terrorist organizations.”

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1

b. During a press conference on December 19, 2005, defendant Bush stated that

2 the warrantless surveillance program encompasses “those that are known al Qaeda ties and/or affiliates

3 [sic].”

4

c. During the press conference of December 19, 2005, defendant Bush further

5 stated that “we must be able to act fast and to detect these conversations” and the warrantless

6 surveillance program “enables us to move faster and quicker” than under FISA and provides “the

7 ability to move quickly to detect.”

8

d. In a press briefing on December 19, 2005, Attorney General Alberto Gonzales

9 publicly stated that, under the warrantless surveillance program, the executive branch conducted

10 warrantless electronic surveillance outside the structure of FISA where “one party to the

11 communication is outside the United States” and “we have a reasonable basis to conclude that one

12 party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an

13 organization affiliated with al Qaeda, or working in support of al Qaeda.”

14

e. On December 19, 2005, in written answers to questions from the Senate

15 Judiciary Committee, defendant Alexander publicly stated that, under the warrantless surveillance

16 program, the executive branch conducted warrantless electronic surveillance outside the structure of

17 FISA “where one party is outside the United States and there are reasonable grounds to believe that

18 at least one party is a member or agent of al Qaeda or an affiliated terrorist organization.”

19

f. A “White Paper” issued by the Department of Justice on January 19, 2006,

20 stated that under the warrantless surveillance program the President authorized the NSA “to intercept

21 international communications into and out of the United States of persons linked to al Qaeda or related

22 terrorist organizations.”

23

g. On January 10, 2007 former Deputy Assistant Attorney General John Yoo stated

24 on National Public Radio that under the warrantless surveillance program “the National Security

25 Agency intercepts communications from abroad coming into the United States where someone on the

26 calls is a suspected member of Al Qaeda,” and that the surveillance occurred without “individualized

27 suspicion.”

28

19. On May 15, 2007, in testimony before the Senate Judiciary Committee, and on May 22,

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1 2007, in written answers to follow-up questions by Senator Patrick Leahy, former Deputy Attorney

2 General James B. Comey stated as follows:

3

a. As of early March of 2004, Comey and Attorney General John Ashcroft had

4 determined that the warrantless surveillance program was unlawful.

5

b. During a meeting at the White House on March 9, 2004, two days before the

6 Department of Justice’s next 45-day written re-certification of the program was due, Comey told Vice-

7 President Dick Cheney and members of his and defendant Bush’s staffs that the Department of Justice

8 had concluded that the warrantless surveillance program was unlawful and that the Department of

9 Justice would not re-certify the program.

10

c. On March 10, 2004, while Ashcroft was hospitalized, two White House officials

11 went to Ashcroft’s bedside and attempted to obtain the written certification from Ashcroft, but he

12 refused.

13

d. Despite the advice that the warrantless surveillance program as then constituted

14 was unlawful, defendant Bush did not direct Comey or the FBI to discontinue or suspend any portion

15 of the program.

16

e.. On March 11, 2004, the Department of Justice’s certification of the warrantless

17 surveillance program lapsed without re-certification.

18

f. The warrantless surveillance program continued to operate without the

19 Department of Justice’s re-certification for a period of several weeks following March 11, 2004.

20

g. On or about March 10, 2004, several high government officials, among them

21 defendant Mueller, threatened to resign because of concerns about the legality of the warrantless

22 surveillance program.

23

20. On July 26, 2007, defendant Mueller testified before the House Judiciary Committee

24 as follows:

25

a. Prior to the incident at Ashcroft’s bedside described in paragraph 19(c) above,

26 Mueller had “serious reservations about the warrantless wiretapping program.”

27

b. At or near the time of the incident at Ashcroft’s bedside described in paragraph

28 19(c) above, during conversations between Comey and defendant Mueller, Comey “expressed

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1 concerns about the legality of the program.”

2

21. On January 17, 2007, Attorney General Gonzales announced in a letter to Senators

3 Patrick Leahy and Arlen Specter that the President “has determined not to authorize the Terrorist

4 Surveillance Program when the current authorization expires.” The letter further stated, however, that

5 despite the program’s suspension it “fully complies with the law.”

6

22. On May 1, 2007, in testimony before the Senate Intelligence Committee, Director of

7 National Intelligence Michael McConnell refused to assure Senator Russ Feingold that defendants

8 would not in the future conduct warrantless electronic surveillance outside the structure of FISA,

9 saying “that would be the President’s call.”

10

23. As a result of, among other things, the public statements by Attorney General Gonzales

11 and Director of National Intelligence McConnell described in paragraphs 21 and 22 above, it is not

12 clear that defendants’ unlawful behavior could not reasonably be expected to recur.

13

24. On August 1, 2002, Treasury Department Deputy Secretary Kenneth W. Dam testified

14 before the Senate Committee on Banking, Housing and Urban Affairs, Subcommittee on International

15 Trade and Finance, as follows:

16

a. In October of 2001, the Treasury Department created “Operation Green Quest”

17 to track financing of terrorist activities, especially by charitable organizations.

18

b. Among the targets of Operation Green Quest were foreign branches of Al-

19 Haramain Islamic Foundation, which was headquartered in Saudi Arabia.

20

25. On March 4, 2004, FBI Counterterrorism Division Acting Assistant Director Gary M.

21 Bald testified before the Senate Caucus on International Narcotics Control as follows:

22

a. In April of 2002, the FBI created its Terrorist Financing Operations Section

23 (TFOS) in order to combine the FBI’s expertise in conducting complex criminal financial

24 investigations with advanced technologies and to develop cooperation and coordination among law

25 enforcement and intelligence agencies.

26

b. On May 13, 2003, through a Memorandum of Understanding between the

27 Department of Justice and the Department of Homeland Security, the FBI was designated as the lead

28 agency to investigate terrorist financing, and the TFOS replaced Operation Green Quest.

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1

c. The TFOS subsequently participated in joint operations with the Treasury

2 Department to investigate potential terrorist-related financial transactions. With the cooperation of

3 domestic and foreign intelligence agencies, the TFOS acquired, analyzed and disseminated classified

4 electronic intelligence data produced by advanced foreign intelligence technologies, including

5 telecommunications data from sources in government and private industry.

6

d. The TFOS took over the investigation of Al-Haramain Islamic Foundation

7 “pertaining to terrorist financing.”

8

e. On February 18, 2004, the FBI executed a search warrant on plaintiff Al-

9 Haramain Oregon’s office in Ashland, Oregon.

10

f. The TFOS provided operational support, including document and data analysis,

11 in the investigation of plaintiff Al-Haramain Oregon.

12

26. In his Senate testimony of March 4, 2004, Bald made no mention of purported links

13 between plaintiff Al-Haramain Oregon and Osama bin-Laden.

14

27. On September 25, 2003, FBI Deputy Director (at that time Counterterrorism Division

15 Assistant Director) John S. Pistole testified before the Senate Committee on Banking, Housing and

16 Urban Affairs that the TFOS “has access to data and information” from “the Intelligence Community”

17 and has “[t]he ability to access and obtain this type of information in a time sensitive and urgent

18 manner.”

19

28. On June 16, 2004, OFAC Director R. Richard Newcomb testified before the House

20 Financial Services Subcommittee on Oversight and Investigations that in conducting investigations

21 of terrorist financing, OFAC officers use “classified . . . information sources.”

22

29. On July 26, 2007, defendant Mueller testified before the House Judiciary Committee

23 that in 2004 the FBI, under his direction, undertook activity using information produced by the NSA

24 through the warrantless surveillance program.

25

30. In a press release issued on February 19, 2004, the Treasury Department announced that

26 OFAC had blocked plaintiff Al-Haramain Oregon’s assets pending an investigation of possible crimes

27 relating to currency reporting and tax laws.

28

31. The Treasury Department’s press release of February 19, 2004, made no mention of

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1 purported links between plaintiff Al-Haramain Oregon and Osama bin-Laden.

2

32. During the period of time immediately following the blocking of plaintiff Al-Haramain

3 Oregon’s assets on February 19, 2004, plaintiff Belew spoke over the telephone with one of Al-

4 Haramain Oregon’s directors, Soliman al-Buthi, on the following dates: March 10, 11 and 25, April

5 16, May 13, 22 and 26, and June 1, 2 and 10, 2004. Belew was located in Washington D.C.; al-Buthi

6 was located in Riyadh, Saudi Arabia. The telephone number that Belew used was 202-255-3808. The

7 telephone numbers that al-Buthi used were 96655457679, 96656414004 and 966505457679.

8

33. During the period of time immediately following the blocking of plaintiff Al-Haramain

9 Oregon’s assets on February 19, 2004, plaintiff Ghafoor spoke over the telephone with al-Buthi

10 approximately daily from February 19 through February 29, 2004 and approximately weekly thereafter.

11 Ghafoor was located in Washington D.C.; al-Buthi was located in Riyadh, Saudi Arabia. The

12 telephone numbers that Ghafoor used were 202-390-5390 and 202-497-2219. The telephone numbers

13 that al-Buthi used were 966505457679 and 96656414004.

14

34. Plaintiff Al-Haramain Oregon and al-Buthi had been named among multiple defendants

15 in Burnett, et al. v. Al Baraka Investment and Development Corporation, et al., a lawsuit filed against

16 Saudi Arabian entities and citizens on behalf of victims of the terrorist attacks of September 11, 2001.

17 Al-Buthi was attempting to coordinate the defense of individuals named in the Burnett lawsuit and the

18 payment of their legal fees. Al-Buthi contacted some of those individuals and urged them to obtain

19 legal representation to prevent entry of default judgments against them. Ghafoor undertook to

20 represent several of the individuals whom al-Buthi contacted. Belew undertook to provide legal

21 services in connection with the formation and operation of a lobbying organization for Islamic

22 charities, the Friends of Charities Association (FOCA).

23

35. Wholly independent of any classified written documentation, including the sealed

24 document that was filed simultaneously with the initial complaint in this action, plaintiffs Belew and

25 Ghafoor recall the substance of the telephone conversations described in paragraphs 32 and 33 above

26 that took place during the several weeks following March 11, 2004, when the warrantless surveillance

27 program continued to operate without the Department of Justice’s re-certification as described in

28 paragraph 19 above, as follows:

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1

a. In the telephone conversations between Belew and al-Buthi, the parties

2 discussed issues relating to the operation of FOCA, including the form and content of bills for payment

3 of FOCA’s attorney fees to Belew and others. On one occasion, they discussed the fact that a check

4 to Belew from FOCA could not be negotiated because it lacked part of its routing code.

5

b. In the telephone conversations between Ghafoor and al-Buthi, al-Buthi

6 mentioned by name numerous defendants whom Ghafoor had undertaken to represent in the Burnett

7 lawsuit filed on behalf of the September 11 victims.

8

c. One of the names al-Buthi mentioned in the telephone conversations with

9 Ghafoor was Mohammad Jamal Khalifa, who was married to one of Osama bin-Laden’s sisters.

10

d. Two other names al-Buthi mentioned in the telephone conversations with

11 Ghafoor were Safar al-Hawali and Salman al-Auda, clerics whom Osama bin-Laden claimed had

12 inspired him.

13

e. In the telephone conversations between Ghafoor and al-Buthi, the parties also

14 discussed issues relating to payment of Ghafoor’s legal fees as defense counsel in the Burnett lawsuit,

15 including the following: who would pay the fees; replenishment of Ghafoor’s retainer; the possibility

16 of using a credit card to pay the legal fees; and a system for payment of the fees by check, whereby

17 clients would make payments to al-Buthi, who would deposit those payments in his personal bank

18 account and then send cashier’s checks to Ghafoor.

19

36. In a letter to plaintiff Al-Haramain Oregon’s lawyer Lynne Bernabei dated April 23,

20 2004, OFAC Director Newcomb stated that OFAC was considering designating plaintiff Al-Haramain

21 Oregon as a Specially Designated Global Terrorist (SDGT) organization based on unclassified

22 information “and on classified documents that are not authorized for public disclosure.”

23

37. In a follow-up letter to Bernabei dated July 23, 2004, Newcomb reiterated that OFAC

24 was considering “classified information not being provided to you” in determining whether to

25 designate plaintiff Al-Haramain Oregon as an SDGT organization.

26

38. On September 9, 2004, OFAC declared plaintiff Al-Haramain Oregon to be an SDGT

27 organization.

28

39. In a press release issued on September 9, 2004, the Treasury Department stated that the

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1 investigation of plaintiff Al-Haramain Oregon showed “direct links between the U.S. branch [of Al-

2 Haramain] and Usama bin Laden.”

3

40. The Treasury Department’s press release of September 9, 2004, was the first instance

4 of a public claim of purported links between plaintiff Al-Haramain Oregon and Osama bin-Laden.

5

41. In a public declaration filed in this litigation, dated May 10, 2006, FBI Special Agent

6 Frances R. Hourihan stated that a classified document “was related to the terrorist designation” of

7 plaintiff Al-Haramain Oregon.

8

42. On October 22, 2007, in a speech at a conference of the American Bankers Association

9 and American Bar Association on money laundering, the text of which appears on the FBI’s official

10 Internet website, FBI Deputy Director Pistole stated that the FBI “used . . . surveillance” in connection

11 with defendant OFAC’s 2004 investigation of plaintiff Al-Haramain Oregon.

12

43. In FBI Deputy Director Pistole’s speech of October 22, 2007, he further stated that,

13 although the FBI used surveillance in connection with defendant OFAC’s 2004 investigation of

14 plaintiff Al-Haramain Oregon, “it was the financial evidence” provided by financial institutions “that

15 provided justification for the initial designation” of plaintiff Al-Haramain Oregon.

16

44. In a document filed in United States v. Sedaghaty, No. CR 05-600008-1 on August 21,

17 2007, the United States Attorney for the District of Oregon referred to the February 19, 2004 order

18 blocking plaintiff Al-Haramain Oregon’s assets as a “preliminary designation of AHIF-US” and

19 referred to the September 9, 2004 order declaring plaintiff Al-Haramain Oregon to be an SDGT as “a

20 formal designation of AHIF-US.”

21

45. The October 22, 2007 speech referenced in paragraphs 42 and 43 above and the

22 document referenced in paragraph 44 above together demonstrate that defendant OFAC relied

23 primarily on evidence provided by financial institutions and not on surveillance evidence to issue the

24 February 19, 2004 assets-blocking order against plaintiff Al-Haramain Oregon, which FBI Deputy

25 Director Pistole called “an initial designation” and the United States Attorney called “a preliminary

26 designation,” and then relied on surveillance evidence to issue the September 9, 2004 SDGT

27 designation, which the United States Attorney called “a formal designation.”

28

46. The October 22, 2007 speech referenced in paragraphs 42 and 43 above, in which FBI

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1 Deputy Direcctor Pistole stated that the FBI “used . . . surveillance” in connection with defendant

2 OFAC’s 2004 investigation of plaintiff Al-Haramain Oregon, contradicts and supersedes (1)

3 defendants’ prior assertion in their Brief for Appellants filed in the Ninth Circuit Court of Appeals in

4 this litigation on June 6, 2007 that the government “could neither confirm nor deny whether plaintiffs

5 had been surveilled under the TSP or any other intelligence-gathering program,” and (2) defendants’

6 prior assertion in their Reply Brief for Appellants filed in the Ninth Circuit on July 20, 2007 that

7 “plaintiffs do not know whether they have been surveilled, much less whether they have been

8 surveilled under the TSP” (original italics). Through this speech and its posting on defendant FBI’s

9 official Internet website, defendant FBI has now confirmed to plaintiffs and the public at large that

10 plaintiffs were surveilled.

11

47. In a letter to plaintiff Al-Haramain Oregon’s attorneys Lynne Bernabei and Thomas

12 Nelson dated February 6, 2008, OFAC confirmed its “use of classified information” in the Al-

13 Haramain Oregon investigation.

14

48. The following public statements by government officials demonstrate that the

15 telecommunications between al-Buthi and plaintiffs Belew and Ghafoor described in paragraphs 32

16 and 33 above were wire communications and were intercepted by defendants within the United States:

17

a. On July 26, 2006, defendant Alexander and CIA Director Michael Hayden

18 testified before the Senate Judiciary Committee that telecommunications between the United States

19 and abroad pass through routing stations located within the United States from which the NSA

20 intercepts such telecommunications.

21

b. On May 1, 2007, Director of National Intelligence McConnell testified before

22 the Senate Select Intelligence Committee that interception of surveilled electronic communications

23 between the United States and abroad occurs within the United States and thus requires a warrant

24 under FISA.

25

c. On September 20, 2007, McConnell testified before the House Select

26 Intelligence Committee that “[t]oday . . . [m]ost international communications are on a wire, fiber

27 optical cable,” and “on a wire, in the United States, equals a warrant requirement [under FISA] even

28 if it was against a foreign person located overseas.”

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1

d. On September 20, 2007, Assistant Attorney General Kenneth Wainstein testified

2 before the House Select Intelligence Committee that “[a]s a result of the revolutions in

3 telecommunications technology over the last 29 years, much of the international communications

4 traffic is now conducted over fiber optic cables which qualify as wire communications under the

5 [FISA] statute.”

6

e. On August 2, 2007, House Minority Leader John Boehner acknowledged on a

7 Fox News broadcast that the NSA would be required to obtain a FISA warrant to conduct electronic

8 surveillance of international telecommunications which are intercepted from routing stations located

9 in New York and California.

10

49. On June 12, 2006, during a district court hearing in American Civil Liberties Union v.

11 National Security Agency, 493 F.3d 644 (6th Cir. 2007), Department of Justice Special Litigation

12 Counsel Anthony Coppolino told the district judge that “attorneys who would represent terrorist clients

13 . . . come closer to being in the ballpark with the terrorist surveillance program.”

14

50. In a brief defendants filed in the Ninth Circuit Court of Appeals in this case on June 6,

15 2007, defendants described plaintiffs Al-Haramain Oregon, Belew and Ghafoor as “a terrorist

16 organization and two lawyers affiliated with it.”

17

51. Prior to 2004, defendants had conducted electronic surveillance of al-Buthi as revealed

18 by a memorandum dated February 6, 2008, to defendant Szubin from Treasury Department Office of

19 Intelligence and Analysis Deputy Assistant Secretary Howard Mendelsohn, which states the following:

20

a. On February 1, 2003, the United States government conducted electronic

21 surveillance of four telephone conversations between al-Buthi and Ali al-Timimi.

22

b. These four incidents of surveillance were publicly disclosed during al-Timimi’s

23 2005 trial for allegedly soliciting persons to levy war against the United States.

24

52. With regard to the telephone conversations described in paragraph 35 above, in which

25 plaintiff Ghafoor and al-Buthi discussed Ghafoor’s legal representation, in the Burnett lawsuit, of a

26 brother-in-law of Osama bin-Laden and clerics who had inspired Osama bin-Laden, as well as payment

27 of Ghafoor’s legal fees, and plaintiff Belew and al-Buthi discussed bills for and payment of FOCA’s

28 attorney fees:

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1

a. Defendants conducted electronic surveillance of those telephone conversations

2 within the meaning of FISA, 50 U.S.C. § 1801(f)(2), which defines “electronic surveillance” in

3 pertinent part as “the acquisition by an electronic, mechanical, or other surveillance device of the

4 contents of any wire communication to or from a person in the United States, without the consent of

5 any party thereto, if such acquisition occurs in the United States.”

6

b. Defendants did not obtain a court order (i.e., a warrant) pursuant to FISA

7 authorizing such electronic surveillance and did not otherwise follow the procedures prescribed by

8 FISA.

9

c. Defendants did not give plaintiffs notice of or obtain their consent to the

10 surveillance.

11

d. Defendant OFAC relied on its purported understanding of what the surveillance

12 disclosed to declare that plaintiff Al-Haramain Oregon had links to Osama bin-Laden and the financing

13 of terrorism.

14

e. Defendant OFAC relied on its purported understanding of what the surveillance

15 disclosed to formally declare plaintiff Al-Haramain Oregon an SDGT organization.

16

f. Plaintiffs Al-Haramain Oregon, Belew and Ghafoor are aggrieved persons

17 within the meaning of FISA, 50 U.S.C. § 1801(k), which defines “aggrieved person” in pertinent part

18 as a “person whose communications or activities were subject to electronic surveillance.”

19

53. Plaintiff Al-Haramain Oregon’s SDGT designation has resulted in severe financial

20 hardship and other harm to plaintiff Al-Haramain Oregon.

21

54. As a result of defendants’ actions, plaintiff Al-Haramain Oregon has been irreparably

22 damaged insofar as its assets have been frozen, preventing it from engaging in the charitable and

23 humanitarian efforts for which it was organized.

24

55. As a result of defendants’ actions, plaintiffs Belew and Ghafoor have been irreparably

25 damaged insofar as their abilities to represent their clients have been hindered and interfered with, and

26 have been chilled, by defendants’ illegal and unconstitutional actions.

27

56. All of the factual allegations in paragraphs 16 through 55 above are based on non-

28 classified evidence.

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1

FIRST CLAIM FOR RELIEF

2

(Foreign Intelligence Surveillance Act)

3

57. Plaintiffs incorporate by reference each and every allegation in the preceding paragraphs

4 as if set forth fully herein.

5

58. Defendants’ engagement in electronic surveillance to monitor conversations between

6 and among plaintiffs without obtaining prior court authorization, and defendants’ subsequent use of

7 the information obtained against plaintiffs, is in violation of the civil and criminal provisions of FISA.

8 As a result, all evidence obtained by this illegal surveillance must be suppressed pursuant to 50 USC

9 § 1806(g). Further, plaintiffs are entitled to liquidated and punitive damages pursuant to 50 USC §

10 1810.

11

SECOND CLAIM FOR RELIEF

12

(Separation of Powers)

13

59. Plaintiffs incorporate by reference each and every allegation in the preceding paragraphs

14 as if set forth fully herein.

15

60. By carrying out their program of unlawful warrantless surveillance, defendants have

16 acted in excess of the President’s Article II authority (i) by failing to take care to execute the laws, and

17 instead have violated those laws, (ii) by acting in contravention of clear statutory dictates in an area

18 in which Congress has Article I authority to regulate, and (iii) by engaging in the conduct described

19 above where Congress has specifically prohibited the President and other defendants from engaging

20 in such conduct.

21

THIRD CLAIM FOR RELIEF

22

(Fourth Amendment Violations)

23

61. Plaintiffs incorporate by reference each and every allegation in the preceding paragraphs

24 as if set forth fully herein.

25

62. Defendants have carried out unreasonable surveillance of plaintiffs’ private telephone,

26 email, and other electronic communications without probable cause or warrants in violation of the

27 Fourth Amendment to the United States Constitution. Defendant Mueller is liable for this

28 constitutional violation in both his official and personal capacities under Bivens v. Six Unknown

MDL DOCKET NO. 06-1791 VRW • FIRST AMENDED COMPLAINT

13

Case3:07-cv-00109-VRW Document35 Filed07/29/08 Page15 of 17

1 Named Agents, 403 U.S. 488 (1971).

2

FOURTH CLAIM FOR RELIEF

3

(First Amendment Violations)

4

63. Plaintiffs incorporate by reference each and every allegation in the preceding paragraphs

5 as if set forth fully herein.

6

64. Defendants, by carrying out and/or asserting the right to carry out their program of

7 unlawful warrantless surveillance, have impaired plaintiff Al-Haramain Oregon’s ability to obtain legal

8 advice, to join together for the purpose of legal and religious activity, to freely form attorney-client

9 relationships, and to petition the government of the United States for redress of grievances, all of

10 which are modes of expression and association protected under the First Amendment of the United

11 States Constitution. Defendant Mueller is liable for this constitutional violation in both his official

12 and personal capacities under Bivens v. Six Unknown Named Agents, 403 U.S. 488 (1971).

13

FIFTH CLAIM FOR RELIEF

14

(Sixth Amendment Violations)

15

65. Plaintiffs incorporate by reference each and every allegation in the preceding paragraphs

16 as if set forth fully herein.

17

66. Defendants have carried out unreasonable surveillance of plaintiffs’ private telephone,

18 email, and other electronic communications without probable cause or warrants in violation of the

19 Sixth Amendment to the United States Constitution. Defendant Mueller is liable for this constitutional

20 violation in both his official and personal capacities under Bivens v. Six Unknown Named Agents, 403

21 U.S. 488 (1971).

22

SIXTH CLAIM FOR RELIEF

23

(Violation of International Covenant on Civil and Political Rights)

24

67. Plaintiffs incorporate by reference each and every allegation in the preceding paragraphs

25 as if set forth fully herein.

26

68. On June 25, 2002, the United States Congress ratified the International Convention for

27 the Suppression of the Financing of Terrorism (“Convention”). Article 17 of the Convention requires

28 the United States to comply with international human rights law in “any measures” taken pursuant to

MDL DOCKET NO. 06-1791 VRW • FIRST AMENDED COMPLAINT

14

Case3:07-cv-00109-VRW Document35 Filed07/29/08 Page16 of 17

1 the Convention. One of the measures pursuant to the Convention is the International Covenant on

2 Civil and Political Rights (“International Covenant”) which guarantees the right to privacy. Article 17

3 of the International Covenant provides:

4

a. No one shall be subjected to arbitrary or unlawful interference with his privacy,

5 family, home or correspondence, nor to unlawful attacks on his honour and reputation.

6

b. Everyone has the right to the protection of the law against such interference or

7 attacks.

8

PRAYER FOR RELIEF

9

Plaintiffs respectfully request that the Court:

10

1. Declare that defendants’ warrantless surveillance of plaintiffs is unlawful and

11 unconstitutional, and enjoin any such warrantless surveillance;

12

2. Order defendants to disclose to plaintiffs all unlawful surveillance of plaintiffs’

13 communications carried out pursuant to the illegal program;

14

3. Order defendants to turn over to plaintiffs all information and records in their

15 possession relating to plaintiffs that were acquired through the warrantless surveillance program or

16 were the fruit of surveillance under the program, and subsequently destroy and make no further use

17 of any such information and records in defendants’ possession;

18

4. Order defendant OFAC to purge all information acquired from such program from its

19 files as well as all fruits of such information and make no further use of any such information;

20

5. Award plaintiffs individually liquidated damages of $1,000 or $100 per day for each

21 violation as specified in FISA;

22

6. Award plaintiffs individually punitive damages of $1,000,000;

23

7. Award costs, including an award of attorneys’ fees under FISA;

24

8. Award costs, including an award of attorneys’ fees under the Equal Access to Justice

25 Act, 28 U.S.C. § 2412(d)(1)(A);

26

9. Award such other relief as the Court may deem just and proper.

27

28

MDL DOCKET NO. 06-1791 VRW • FIRST AMENDED COMPLAINT

15

Case3:07-cv-00109-VRW Document35 Filed07/29/08 Page17 of 17

1 DATED this 29th day of July, 2008.
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

/s/ Jon B. Eisenberg_______________ Jon B. Eisenberg, Calif. Bar No. 88278 William N. Hancock, Calif. Bar No. 104501 Steven Goldberg, Ore. Bar No. 75134 Thomas H. Nelson, Oregon Bar No. 78315 Zaha S. Hassan, Calif. Bar No. 184696 J. Ashlee Albies, Ore. Bar No. 05184 Lisa Jaskol, Calif. Bar No. 138769
Attorneys for Plaintiffs Al-Haramain Islamic Foundation, Inc., Wendell Belew, and Asim Ghafoor

MDL DOCKET NO. 06-1791 VRW • FIRST AMENDED COMPLAINT

16

 
 Case3:07-cv-00109-VRW Document43 Filed08/12/08 Page1 of 1
FILED

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

AUG 06 2008
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

AL-HARAMAIN ISLAMIC FOUNDATION, INC., an Oregon Nonprofit Corporation; WENDELL BELEW, a U.S. Citizen and Attorney at Law; ASIM GHAFOOR, a U.S. Citizen and Attorney at Law,
Plaintiffs - Appellees,
v.
GEORGE W. BUSH, President of the Unites States, et al,
Defendant - Appellant.

No. 06-36083
D.C. Nos. MDL-CV-06-1791VRW
CV-07-00109-VRW Northern District of California, San Francisco
ORDER

Before: PREGERSON, HAWKINS, and McKEOWN, Circuit Judges. John Hummasti’s motion to intervene is denied.

 
 Case3:07-cv-00109-VRW Document71 Filed02/13/09 Page1 of 3

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

8 IN RE:

MDL Docket No 06-1791 VRW

9 NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS
10 LITIGATION

ORDER

11
This order pertains to: 12
Al-Haramain Islamic Foundation et 13 al v Bush et al (C-07-0109 VRW),

14

/

15

16

The United States has sought to appeal as of right,

17 pursuant to 29 USC § 1291 and also seeks an order certifying the

18 court’s January 5, 2009 order for an interlocutory appeal pursuant

19 to 28 USC § 1292(b) and staying proceedings in this court pending

20 the outcome of such an appeal. Doc # 545/60. The stated purpose

21 of such a stay is “to ensure that no disclosures [of classified

22 material] occur in the meantime.” Doc #560/70 at 6.

23

The United States noticed these motions for April 9,

24 2009, but at a January 23, 2009 case management conference herein,

25 the court established a shortened briefing schedule and vacated the

26 April 9 hearing date pending further orders of the court. Under

27 the schedule established by the court, the United States’ reply

28 brief was due on February 13. Instead, the United States filed its

Case3:07-cv-00109-VRW Document71 Filed02/13/09 Page2 of 3

United States District Court For the Northern District of California

1 reply brief on February 11 and included therein the following:

2

The Government respectfully requests that the

Court indicate how it will proceed by 3 pm on

3

February 13, 2009. In order to protect its

interests, the Government plans to seek relief

4

from the Ninth Circuit before the close of

business that day in the absence of relief from

5

this Court.

6 Doc #560/70 at 6-7.

7

First, the January 5 order is not a “final decision” and,

8 therefore, not appealable pursuant to 28 USC § 1291. Second, the

9 court is fully aware of its obligations with regard to classified

10 information. The court’s January 5 order stated that it would

11 prioritize two interests: “protecting classified evidence from

12 disclosure and enabling plaintiffs to prosecute their action.” Doc

13 #537/57 at 23. The court then entered orders designed to make it

14 possible for the court to determine whether plaintiffs had been

15 subject to unlawful electronic surveillance and, crucially, to

16 enter an order under seal regarding the outcome of that

17 determination. To that end, the January 5 order provided for

18 plaintiffs’ counsel to obtain top secret/sensitive compartmented

19 information security clearances.

20

The court understands that the background investigation

21 of two of plaintiffs’ counsel have been completed and “favorably

22 adjudicated” although clearances for these individuals have not

23 been issued. At the January 23 hearing herein, the court stated:

24

I have no intention of reviewing the sealed

document [containing classified information] until

25

we get all of these pieces in place so that we can

proceed in a judicial fashion; and by that I mean a

26

fashion in which both parties have access to the

material upon which the court makes a decision.

27

28 RT (Doc #532) at 34.

2

Case3:07-cv-00109-VRW Document71 Filed02/13/09 Page3 of 3

United States District Court For the Northern District of California

1

The court seeks from the government implementation of the

2 steps necessary to afford that “both parties have access to the

3 material upon which the court makes a decision.” That is the

4 procedure the January 5 order seeks to put in place. That order

5 is, therefore, entirely interlocutory and an “immediate appeal will

6 not materially advance ultimate termination of the litigation.” An

7 appeal under 28 USC § 1292(b) and stay are not appropriate and are,

8 therefore, DENIED.

9

The government is DIRECTED not later than February 27,

10 2009 to inform the court how it intends to comply with the January

11 5 order.

12

13

IT IS SO ORDERED.

14

15

VAUGHN R WALKER

16

United States District Chief Judge

17

18

19

20

21

22

23

24

25

26

27

28

3

 
 Case3: :0097--1c5v2-06061090-V2/R2W7/20D0o9cumPeangt8e3: 1 Fofile1d03/D0k3t/E09ntryP: a6g8e2157o4f 1
FILED

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FEB 27 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

AL-HARAMAIN ISLAMIC FOUNDATION, INC., an Oregon Nonprofit Corporation; et al.,
Plaintiffs - Appellees,
v.
BARACK H. OBAMA, President of the United States; et al.,
Defendants - Appellants.

No. 09-15266 D.C. No. 3:07-cv-00109-VRW Northern District of California, San Francisco
ORDER

Before: PREGERSON, HAWKINS and McKEOWN, Circuit Judges. We agree with the district court that the January 5, 2009 order is not
appropriate for interlocutory appeal. The government’s appeal is DISMISSED for lack of jurisdiction. The government’s motion for a stay is DENIED as moot.

 
 Case3:07-cv-00109-VRW Document96 Filed06/05/09 Page1 of 2

United States District Court For the Northern District of California

1

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7

8

9 IN RE:

MDL Docket No 06-1791 VRW

10 NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS
11 LITIGATION

ORDER

12
This order pertains to: 13
Al-Haramain Islamic Foundation et 14 al v Bush et al (C-07-0109 VRW),

15

/

16

17

On June 3, 2009, the court held a hearing on the order

18 dated May 22, 2009 that directed defendants to show cause why:

19

(1) defendants should not be prohibited, under FRCP

20

37(b)(2)(ii), from opposing the liability component of plaintiffs’ claim under 50 USC § 1810 —— that is, from

21

denying that plaintiffs are “aggrieved persons” who were subjected to electronic surveillance; and

22

(2) the court should not deem liability under 50 USC §

23

1810 established and proceed to determine the amount of damages to be awarded to plaintiffs.

24

The order to show cause is hereby ordered continued

25 pending the briefing and hearing of plaintiffs’ motion for summary

26 judgment, which shall proceed as follows:

27

Plaintiffs shall notice their motion for summary judgment

28 for September 1, 2009 at 10:00 am. Plaintiffs shall base their

Case3:07-cv-00109-VRW Document96 Filed06/05/09 Page2 of 2

United States District Court For the Northern District of California

1 motion on non-classified evidence. If defendants rely upon the

2 Sealed Document or other classified evidence in response, the court

3 will enter a protective order and produce such classified evidence

4 to those of plaintiffs’ counsel who have obtained top

5 secret/sensitive compartmented information clearances (Messrs

6 Eisenberg and Goldberg) for their review. Otherwise, the court

7 will consider the motion on non-classified evidence.

8

9

IT IS SO ORDERED.

10

11

12

VAUGHN R WALKER

13

United States District Chief Judge

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 2

 
 CCaassee3::076-c3v6-00803109-1V1R/2W3/20D0o9cumPeangt1e1:31 oFfil1ed12D/1k1tE/0n9tryP: 7a1g3e912o7f71
FILED

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

NOV 23 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

AL-HARAMAIN ISLAMIC FOUNDATION, INC., an Oregon Nonprofit Corporation; WENDELL BELEW, a U.S. Citizen and Attorney at Law; ASIM GHAFOOR, a U.S. Citizen and Attorney at Law,
Plaintiffs - Appellees,
v.
GEORGE W. BUSH, President of the Unites States, et al,
Defendant - Appellant.

No. 06-36083
D.C. Nos. MDL-CV-06-1791-VRW CV-07-00109-VRW
Northern District of California, San Francisco
ORDER

Before: PREGERSON, HAWKINS and McKEOWN, Circuit Judges.

Appellees Al-Haramain Islamic Foundation, Inc., Wendell Belew, and Asim Ghafoor’s Motion to Strike appellants’ lodging of an In Camera, Ex Parte declaration of the Director of National Intelligence is GRANTED. This court does not have jurisdiction over the case as the mandate was issued on January 16, 2008.

 
 Case3:07-cv-00109-VRW Document135 Filed12/22/10 Page1 of 3

United States District Court For the Northern District of California

1

2

3

4

5

6

7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9

10

11 IN RE:

MDL Docket No 06-1791 VRW

12 NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS
13 LITIGATION

Case No C 07-0109 VRW JUDGMENT

14

This order pertains to:

15 AL-HARAMAIN ISLAMIC FOUNDATION,

16

INC, an Oregon Nonprofit Corporation; WENDELL BELEW, a

17

United States Citizen and Attorney at Law; ASIM GHAFOOR, a

United States Citizen and 18 Attorney at Law,

19

Plaintiffs,

20 v

21

BARACK H OBAMA, President of the United States; NATIONAL SECURITY

22

AGENCY and KEITH B ALEXANDER, its Director; OFFICE OF FOREIGN

ASSETS CONTROL, an office of the

23 United States Treasury, and ADAM

J SZUBIN, its Director; FEDERAL

24 BUREAU OF INVESTIGATION and ROBERT S MUELLER III, its

25 Director,

26

Defendants.

/ 27

28

Case3:07-cv-00109-VRW Document135 Filed12/22/10 Page2 of 3

United States District Court For the Northern District of California

1

On March 31, 2010, the court granted plaintiffs’ motion

2 for summary judgment of liability on their claim that defendants,

3 in their official capacities, violated the Foreign Intelligence

4 Surveillance Act (“FISA”), 50 USC §§ 1801 et seq, but dismissed

5 plaintiffs’ claims against FBI Director Mueller in his personal

6 capacity. Doc #721/115. On December 21, 2010, the court granted

7 the motion of plaintiffs Wendell Belew and Asim Ghafoor for

8 liquidated damages against defendants in their official capacities,

9 denied liquidated damages or any other recovery to plaintiff Al

10 Haramain Islamic Foundation, Inc, granted the motion of plaintiffs

11 Belew and Ghafoor for attorney fees and expenses, denied all other

12 relief requested by plaintiffs, granted plaintiffs’ request to

13 dismiss without prejudice plaintiffs’ Second, Third, Fourth, Fifth,

14 and Sixth claims for relief and directed the clerk to enter

15 judgment.

16

Now, therefore, IT IS HEREBY ORDERED, ADJUDGED AND

17 DECREED AS FOLLOWS:

18

1. Plaintiffs Ghafoor and Belew shall each recover a

19

total sum of $20,400 in liquidated damages from

20

defendants in their official capacities Barack H

21

Obama, President of the United States; Keith B

22

Alexander, the Director of the National Security

23

Agency; Adam J Szubin, the Director of the Office of

24

Foreign Assets Control; and Robert S Mueller III,

25

the Director of the Federal Bureau of Investigation;

26

and

27

2. Plaintiffs Ghafoor and Belew and their counsel shall

28

recover a total sum of $2,515,387.09 in attorney

2

Case3:07-cv-00109-VRW Document135 Filed12/22/10 Page3 of 3

United States District Court For the Northern District of California

1

fees and $22,012.36 in expenses from defendants in

2

their official capacities Barack H Obama, President

3

of the United States; Keith B Alexander, the

4

Director of the National Security Agency; Adam J

5

Szubin, the Director of the Office of Foreign Assets

6

Control; and Robert S Mueller III, the Director of

7

the Federal Bureau of Investigation.

8

9

Dated: December 22, 2010

10

11

12

Cora Klein, Deputy Clerk

Chief Judge Vaughn R Walker

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

 
 CCaasese: 30:90-71-6c6v7-06010039/-1V8R/2W011DoPcaugmee:n1t1o4f416FilIeDd:0746/0866/21613 PDakgteE1ntorfy:1867
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,

CCaasese: 30:90-71-6c6v7-06010039/-1V8R/2W011DoPcaugmee:n2t1o4f416FilIeDd:0746/0866/21613 PDakgteE2ntorfy:1867

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

CCaasese: 30:90-71-6c6v7-06010039/-1V8R/2W011DoPcaugmee:n3t1o4f416FilIeDd:0746/0866/21613 PDakgteE3ntorfy:1867

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

CCaasese: 30:90-71-6c6v7-06010039/-1V8R/2W011DoPcaugmee:n4t1o4f416FilIeDd:0746/0866/21613 PDakgteE4ntorfy:1867

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

CCaasese: 30:90-71-6c6v7-06010039/-1V8R/2W011DoPcaugmee:n5t1o4f416FilIeDd:0746/0866/21613 PDakgteE5ntorfy:1867

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

CCaasese: 30:90-71-6c6v7-06010039/-1V8R/2W011DoPcaugmee:n6t1o4f416FilIeDd:0746/0866/21613 PDakgteE6ntorfy:1867

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

CCaasese: 30:90-71-6c6v7-06010039/-1V8R/2W011DoPcaugmee:n7t1o4f416FilIeDd:0746/0866/21613 PDakgteE7ntorfy:1867

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

CCaasese: 30:90-71-6c6v7-06010039/-1V8R/2W011DoPcaugmee:n8t1o4f416FilIeDd:0746/0866/21613 PDakgteE8ntorfy:1867

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

CCaasese: 30:90-71-6c6v7-06010039/-1V8R/2W011DoPcaugmee:n9t1o4f416FilIeDd:0746/0866/21613 PDakgteE9ntorfy:1867

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

CCaasese: 30:90-71-6c6v7-06010039/-1V8R/2W011DoPcaugmee:n1t014o4f 16FileIdD0:47/0668/612163PaDgket1E0ntorfy:1867

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

CCaasese: 30:90-71-6c6v7-06010039/-1V8R/2W011DoPcaugmee:n1t14o4f 16FileIdD0:47/0668/612163PaDgket1E1ntorfy:1867

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

CCaasese: 30:90-71-6c6v7-06010039/-1V8R/2W011DoPcaugmee:n1t214o4f 16FileIdD0:47/0668/612163PaDgket1E2ntorfy:1867

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

CCaasese: 30:90-71-6c6v7-06010039/-1V8R/2W011DoPcaugmee:n1t314o4f 16FileIdD0:47/0668/612163PaDgket1E3ntorfy:1867

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

CCaasese: 30:90-71-6c6v7-06010039/-1V8R/2W011DoPcaugmee:n1t414o4f 16FileIdD0:47/0668/612163PaDgket1E4ntorfy:1867

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

CCaasese: 30:90-71-6c6v7-06010039/-1V8R/2W011DoPcaugmee:n1t514o4f 16FileIdD0:47/0668/612163PaDgket1E5ntorfy:1867

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

CCaasese: 30:90-71-6c6v7-06010039/-1V8R/2W011DoPcaugmee:n1t614o4f 16FileIdD0:47/0668/612163PaDgket1E6ntorfy:1867

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

 
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FILED

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JUN 16 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

AL-HARAMAIN ISLAMIC FOUNDATION, INC., an Oregon Nonprofit Corporation; WENDELL BELEW, a U.S. Citizen and Attorney at Law; ASIM GHAFOOR, a U.S. Citizen and Attorney at Law,

No. 11-15468
D.C. No. 3:07-cv-00109-VRW Northern District of California, San Francisco

Plaintiffs - Appellees,

ORDER

v.

BARACK H. OBAMA, President of the United States, in his official capacity; NATIONAL SECURITY AGENCY; KEITH B. ALEXANDER, Director of NSA, in his official capacity; OFFICE OF FOREIGN ASSETS CONTROL, of the US Department of the Treasury; ADAM J. SZUBIN, Director of OFAC, in his official capacity; FEDERAL BUREAU OF INVESTIGATION; ROBERT S. MUELLER, III, Director of FBI, in his official capacity,

Defendants - Appellants.

AL-HARAMAIN ISLAMIC FOUNDATION, INC., an Oregon Nonprofit Corporation; WENDELL BELEW, a U.S. Citizen and Attorney at Law; ASIM GHAFOOR, a U.S. Citizen and Attorney at Law,

No. 11-15535
D.C. No. 3:07-cv-00109-VRW Northern District of California, San Francisco

CCaasese: 31:10-71-5c4v6-08010069/-1V6R/2W011DoPcaugmee:n2t1o4f52 FIiDle:d70778/0887/1101 DPkatgEen2troy:f 127
Plaintiffs - Appellants, v. BARACK H. OBAMA, President of the United States, in his official capacity; NATIONAL SECURITY AGENCY; KEITH B. ALEXANDER, Director of NSA, in his official capacity; OFFICE OF FOREIGN ASSETS CONTROL, of the US Department of the Treasury; ADAM J. SZUBIN, Director of OFAC, in his official capacity; FEDERAL BUREAU OF INVESTIGATION; ROBERT S. MUELLER, III, Director of FBI, in his official capacity,
Defendants - Appellees.
Before: PREGERSON, HAWKINS, and McKEOWN, Circuit Judges. The Government’s motion for a 15-day extension of time to file its opening
brief is granted. The time schedule is amended as follows: First brief on cross appeal due Friday, July 15, 2011; second brief on cross-appeal due Tuesday, August 16, 2011; third brief on cross-appeal due Thursday, September 15, 2011. The optional cross-appeal reply brief shall be filed and served within fourteen days of service of the third brief on cross appeal.
2

 
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FILED

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

AUG 01 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

AL-HARAMAIN ISLAMIC FOUNDATION, INC., an Oregon Nonprofit Corporation; WENDELL BELEW, a U.S. Citizen and Attorney at Law; ASIM GHAFOOR, a U.S. Citizen and Attorney at Law,

No. 11-15468
D.C. No. 3:07-cv-00109-VRW Northern District of California, San Francisco

Plaintiffs - Appellees,

ORDER

v.

BARACK H. OBAMA, President of the United States, in his official capacity; NATIONAL SECURITY AGENCY; KEITH B. ALEXANDER, Director of NSA, in his official capacity; OFFICE OF FOREIGN ASSETS CONTROL, of the US Department of the Treasury; ADAM J. SZUBIN, Director of OFAC, in his official capacity; FEDERAL BUREAU OF INVESTIGATION; ROBERT S. MUELLER, III, Director of FBI, in his official capacity,

Defendants - Appellants.

AL-HARAMAIN ISLAMIC FOUNDATION, INC., an Oregon Nonprofit Corporation; WENDELL BELEW, a U.S. Citizen and Attorney at Law; ASIM GHAFOOR, a U.S. Citizen and Attorney at Law,

No. 11-15535
D.C. No. 3:07-cv-00109-VRW Northern District of California, San Francisco

CCaasese: 31:10-71-5c4v6-08010089/-0V1R/2W011DoPcaugmee:n2t1o4f62 FIiDle:d70883/1990/9151 DPkatgEen2troy:f 322
Plaintiffs - Appellants,
v.
BARACK H. OBAMA, President of the United States, in his official capacity; NATIONAL SECURITY AGENCY; KEITH B. ALEXANDER, Director of NSA, in his official capacity; OFFICE OF FOREIGN ASSETS CONTROL, of the US Department of the Treasury; ADAM J. SZUBIN, Director of OFAC, in his official capacity; FEDERAL BUREAU OF INVESTIGATION; ROBERT S. MUELLER, III, Director of FBI, in his official capacity,
Defendants - Appellees.
Before: PREGERSON, HAWKINS, and McKEOWN, Circuit Judges.
Appellees’ unopposed motion for a 30-day extension of time to file its
second brief on cross-appeal is granted. The time schedule is amended as follows:
Second brief on cross-appeal due Wednesday, September 14, 2011; third brief on
cross-appeal due Monday, October 17, 2011. The optional cross-appeal reply brief
shall be filed and served within fourteen days of service of the third brief on cross
appeal.
Appellees’ motion for enlargement, by 1,400 words, of the word-count limit
for its second brief on cross-appeal is granted.
2

 
 CasCea: s1e13-1:0574-6c8v-0010/91-1V/R20W11 DoIcDu:m7e9n2t2114579 FilDedk1tE0n/2tr8y/:1412 PaPgaeg1eo: f12of 2
FILED

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

OCT 11 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

AL-HARAMAIN ISLAMIC FOUNDATION, INC., an Oregon Nonprofit Corporation; WENDELL BELEW, a U.S. Citizen and Attorney at Law; ASIM GHAFOOR, a U.S. Citizen and Attorney at Law,

No. 11-15468
D.C. No. 3:07-cv-00109-VRW Northern District of California, San Francisco

Plaintiffs - Appellees,

ORDER

v.

BARACK H. OBAMA, President of the United States, in his official capacity; NATIONAL SECURITY AGENCY; KEITH B. ALEXANDER, Director of NSA, in his official capacity; OFFICE OF FOREIGN ASSETS CONTROL, of the US Department of the Treasury; ADAM J. SZUBIN, Director of OFAC, in his official capacity; FEDERAL BUREAU OF INVESTIGATION; ROBERT S. MUELLER, III, Director of FBI, in his official capacity,

Defendants - Appellants.

AL-HARAMAIN ISLAMIC FOUNDATION, INC., an Oregon Nonprofit Corporation; WENDELL BELEW, a U.S. Citizen and Attorney at Law; ASIM GHAFOOR, a U.S. Citizen and Attorney at Law,

No. 11-15535
D.C. No. 3:07-cv-00109-VRW Northern District of California, San Francisco

CasCea: s1e13-1:0574-6c8v-0010/91-1V/R20W11 DoIcDu:m7e9n2t2114579 FilDedk1tE0n/2tr8y/:1412 PaPgaeg2eo: f22of 2
Plaintiffs - Appellants, v. BARACK H. OBAMA, President of the United States, in his official capacity; NATIONAL SECURITY AGENCY; KEITH B. ALEXANDER, Director of NSA, in his official capacity; OFFICE OF FOREIGN ASSETS CONTROL, of the US Department of the Treasury; ADAM J. SZUBIN, Director of OFAC, in his official capacity; FEDERAL BUREAU OF INVESTIGATION; ROBERT S. MUELLER, III, Director of FBI, in his official capacity,
Defendants - Appellees.
Before: PREGERSON, HAWKINS, and McKEOWN, Circuit Judges. Respondent’s Unopposed Motion for Extension of Time Within Which to
file its Reply/Cross-Appellee Brief to and including November 16, 2011 is granted. The optional cross-appeal reply brief shall be filed and served within fourteen days of service of the Reply/Cross-Appellee Brief on cross-appeal.
2

 
 CasCea: s1e13-1:0574-6c8v-00110/90-2V/R20W11 DoIcDu:m7e9n5t1104584 FilDedk1tE1n/0tr3y/:1416 PaPgaeg1eo: f12of 2
FILED

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

NOV 02 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

AL-HARAMAIN ISLAMIC FOUNDATION, INC., an Oregon Nonprofit Corporation; WENDELL BELEW, a U.S. Citizen and Attorney at Law; ASIM GHAFOOR, a U.S. Citizen and Attorney at Law,

No. 11-15468
D.C. No. 3:07-cv-00109-VRW Northern District of California, San Francisco

Plaintiffs - Appellees,

ORDER

v.

BARACK H. OBAMA, President of the United States, in his official capacity; NATIONAL SECURITY AGENCY; KEITH B. ALEXANDER, Director of NSA, in his official capacity; OFFICE OF FOREIGN ASSETS CONTROL, of the US Department of the Treasury; ADAM J. SZUBIN, Director of OFAC, in his official capacity; FEDERAL BUREAU OF INVESTIGATION; ROBERT S. MUELLER, III, Director of FBI, in his official capacity,

Defendants - Appellants.

AL-HARAMAIN ISLAMIC FOUNDATION, INC., an Oregon Nonprofit Corporation; WENDELL BELEW, a U.S. Citizen and Attorney at Law; ASIM GHAFOOR, a U.S. Citizen and Attorney at Law,

No. 11-15535
D.C. No. 3:07-cv-00109-VRW Northern District of California, San Francisco

CasCea: s1e13-1:0574-6c8v-00110/90-2V/R20W11 DoIcDu:m7e9n5t1104584 FilDedk1tE1n/0tr3y/:1416 PaPgaeg2eo: f22of 2
Plaintiffs - Appellants, v. BARACK H. OBAMA, President of the United States, in his official capacity; NATIONAL SECURITY AGENCY; KEITH B. ALEXANDER, Director of NSA, in his official capacity; OFFICE OF FOREIGN ASSETS CONTROL, of the US Department of the Treasury; ADAM J. SZUBIN, Director of OFAC, in his official capacity; FEDERAL BUREAU OF INVESTIGATION; ROBERT S. MUELLER, III, Director of FBI, in his official capacity,
Defendants - Appellees.
Before: PREGERSON, HAWKINS, and McKEOWN, Circuit Judges. Respondent’s Unopposed Motion for Extension of Time Within Which to
file its Reply/Cross-Appellee Brief to and including November 30, 2011 is granted. The optional cross-appeal reply brief shall be filed and served within fourteen days of service of the Reply/Cross-Appellee Brief on cross-appeal.
2

 
 CasCea: s1e13-1:0574-6c8v-000130/92-8V/R20W12 DoIcDu:m8e1n1t9194697 FilDedk0tE3n/2tr9y/:1622 PaPgaeg1eo: f13of 3
FILED

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MAR 28 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

AL-HARAMAIN ISLAMIC FOUNDATION, INC., an Oregon Nonprofit Corporation; WENDELL BELEW, a U.S. Citizen and Attorney at Law; ASIM GHAFOOR, a U.S. Citizen and Attorney at Law,

No. 11-15468
D.C. No. 3:07-cv-00109-VRW Northern District of California, San Francisco

Plaintiffs - Appellees,

ORDER

v.

BARACK H. OBAMA, President of the United States, in his official capacity; NATIONAL SECURITY AGENCY; KEITH B. ALEXANDER, Director of NSA, in his official capacity; OFFICE OF FOREIGN ASSETS CONTROL, of the US Department of the Treasury; ADAM J. SZUBIN, Director of OFAC, in his official capacity; FEDERAL BUREAU OF INVESTIGATION; ROBERT S. MUELLER, III, Director of FBI, in his official capacity,

Defendants - Appellants.

AL-HARAMAIN ISLAMIC FOUNDATION, INC., an Oregon Nonprofit Corporation,
Plaintiff,

No. 11-15535
D.C. No. 3:07-cv-00109-VRW Northern District of California, San Francisco

CasCea: s1e13-1:0574-6c8v-000130/92-8V/R20W12 DoIcDu:m8e1n1t9194697 FilDedk0tE3n/2tr9y/:1622 PaPgaeg2eo: f23of 3

and
WENDELL BELEW, a U.S. Citizen and Attorney at Law; ASIM GHAFOOR, a U.S. Citizen and Attorney at Law,
Plaintiffs - Appellants,
v.
BARACK H. OBAMA, President of the United States, in his official capacity; NATIONAL SECURITY AGENCY; KEITH B. ALEXANDER, Director of NSA, in his official capacity; OFFICE OF FOREIGN ASSETS CONTROL, of the US Department of the Treasury; ADAM J. SZUBIN, Director of OFAC, in his official capacity; FEDERAL BUREAU OF INVESTIGATION; ROBERT S. MUELLER, III, Director of FBI, in his official capacity,
Defendants - Appellees.

In re: NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS LITIGATION,
CENTER FOR CONSTITUTIONAL RIGHTS; TINA M. FOSTER; GITANJALI S. GUTIERREZ; SEEMA AHMAD; MARIA LAHOOD; RACHEL MEEROPOL,

No. 11-15956 D.C. No. 3:06-md-01791-VRW Northern District of California, San Francisco
ORDER

Plaintiffs - Appellants,

CasCea: s1e13-1:0574-6c8v-000130/92-8V/R20W12 DoIcDu:m8e1n1t9194697 FilDedk0tE3n/2tr9y/:1622 PaPgaeg3eo: f33of 3
v.
BARACK OBAMA, President of the United States; NATIONAL SECURITY AGENCY, Ltg. Keith B. Alexander, Director; DEFENSE INTELLIGENCE AGENCY, Ltg. Ronald L. Burgess, Jr., Director; CENTRAL INTELLIGENCE AGENCY, Leon Panetta, Director; DEPARTMENT OF HOMELAND SECURITY, Janet Napolitano, Secretary; FEDERAL BUREAU OF INVESTIGATION, Robert S. Mueller III, Director; JAMES R. CLAPPER, Director of National Intelligence,
Defendants - Appellees.
Before: PREGERSON, HAWKINS, and McKEOWN, Circuit Judges.
The motion to hold separate oral arguments for these two appeals is granted.
For each of the appeals, each side will have 20 minutes.

 
 CasCea: s1e13-1:0574-6c8v-000150/92-2V/R20W12 DoIcDu:m8e1n8t6175904 FilDedk0tE6n/0tr4y/:1721 PaPgaeg1eo: f12of 2
FILED

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MAY 22 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

AL-HARAMAIN ISLAMIC FOUNDATION, INC., an Oregon Nonprofit Corporation; WENDELL BELEW, a U.S. Citizen and Attorney at Law; ASIM GHAFOOR, a U.S. Citizen and Attorney at Law,

No. 11-15468
D.C. No. 3:07-cv-00109-VRW Northern District of California, San Francisco

Plaintiffs - Appellees,

ORDER

v.

BARACK H. OBAMA, President of the United States, in his official capacity; NATIONAL SECURITY AGENCY; KEITH B. ALEXANDER, Director of NSA, in his official capacity; OFFICE OF FOREIGN ASSETS CONTROL, of the US Department of the Treasury; ADAM J. SZUBIN, Director of OFAC, in his official capacity; FEDERAL BUREAU OF INVESTIGATION; ROBERT S. MUELLER, III, Director of FBI, in his official capacity,

Defendants - Appellants.

AL-HARAMAIN ISLAMIC FOUNDATION, INC., an Oregon Nonprofit Corporation,
Plaintiff,

No. 11-15535
D.C. No. 3:07-cv-00109-VRW Northern District of California, San Francisco

CasCea: s1e13-1:0574-6c8v-000150/92-2V/R20W12 DoIcDu:m8e1n8t6175904 FilDedk0tE6n/0tr4y/:1721 PaPgaeg2eo: f22of 2
and
WENDELL BELEW, a U.S. Citizen and Attorney at Law; ASIM GHAFOOR, a U.S. Citizen and Attorney at Law,
Plaintiffs - Appellants,
v.
BARACK H. OBAMA, President of the United States, in his official capacity; NATIONAL SECURITY AGENCY; KEITH B. ALEXANDER, Director of NSA, in his official capacity; OFFICE OF FOREIGN ASSETS CONTROL, of the US Department of the Treasury; ADAM J. SZUBIN, Director of OFAC, in his official capacity; FEDERAL BUREAU OF INVESTIGATION; ROBERT S. MUELLER, III, Director of FBI, in his official capacity,
Defendants - Appellees.
Before: PREGERSON, HAWKINS, and McKEOWN, Circuit Judges.
Argument in this case scheduled for June 1, 2012 in Pasadena, California, is
vacated pending the Supreme Court’s decision in Clapper v. Amnesty Int’l, No. 11-
1025. The court may order supplemental briefing following the Supreme Court’s
decision. Oral argument will be rescheduled.
-2-

 
 CasCea: s1e13-1:0574-6c8v-000150/92-3V/R20W12 DoIcDu:m8e1n8t8195310 FilDedk0tE6n/0tr4y/:1723 PaPgaeg1eo: f12of 2
FILED

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MAY 23 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

AL-HARAMAIN ISLAMIC FOUNDATION, INC., an Oregon Nonprofit Corporation; WENDELL BELEW, a U.S. Citizen and Attorney at Law; ASIM GHAFOOR, a U.S. Citizen and Attorney at Law,

No. 11-15468
D.C. No. 3:07-cv-00109-VRW Northern District of California, San Francisco

Plaintiffs - Appellees,

ORDER

v.

BARACK H. OBAMA, President of the United States, in his official capacity; NATIONAL SECURITY AGENCY; KEITH B. ALEXANDER, Director of NSA, in his official capacity; OFFICE OF FOREIGN ASSETS CONTROL, of the US Department of the Treasury; ADAM J. SZUBIN, Director of OFAC, in his official capacity; FEDERAL BUREAU OF INVESTIGATION; ROBERT S. MUELLER, III, Director of FBI, in his official capacity,

Defendants - Appellants.

AL-HARAMAIN ISLAMIC FOUNDATION, INC., an Oregon Nonprofit Corporation,
Plaintiff,

No. 11-15535
D.C. No. 3:07-cv-00109-VRW Northern District of California, San Francisco

CasCea: s1e13-1:0574-6c8v-000150/92-3V/R20W12 DoIcDu:m8e1n8t8195310 FilDedk0tE6n/0tr4y/:1723 PaPgaeg2eo: f22of 2
and
WENDELL BELEW, a U.S. Citizen and Attorney at Law; ASIM GHAFOOR, a U.S. Citizen and Attorney at Law,
Plaintiffs - Appellants,
v.
BARACK H. OBAMA, President of the United States, in his official capacity; NATIONAL SECURITY AGENCY; KEITH B. ALEXANDER, Director of NSA, in his official capacity; OFFICE OF FOREIGN ASSETS CONTROL, of the US Department of the Treasury; ADAM J. SZUBIN, Director of OFAC, in his official capacity; FEDERAL BUREAU OF INVESTIGATION; ROBERT S. MUELLER, III, Director of FBI, in his official capacity,
Defendants - Appellees.
Before: PREGERSON, HAWKINS, and McKEOWN, Circuit Judges.
Al-Haramain’s motion for reconsideration of the court’s order vacating oral
argument is granted. Oral argument in this appeal will be heard in Pasadena,
California, on June 1, 2012, at 10 a.m.

 
 CaseC: 1a1se-135:0476-8cv-01021/095-/V20R1W2 DocuIDm:e8n4t2159231FiledD1k2tE/1n3tr/1y:288PagPea1goef:31 of 3
FILED

NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DEC 05 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

AL-HARAMAIN ISLAMIC FOUNDATION, INC., an Oregon Nonprofit Corporation; WENDELL BELEW, a U.S. Citizen and Attorney at Law; ASIM GHAFOOR, a U.S. Citizen and Attorney at Law,

No. 11-15468
D.C. No. 3:07-cv-00109-VRW Northern District of California, San Francisco

Plaintiffs - Appellees,

ORDER

v.

BARACK H. OBAMA, President of the United States, in his official capacity; NATIONAL SECURITY AGENCY; KEITH B. ALEXANDER, Director of NSA, in his official capacity; OFFICE OF FOREIGN ASSETS CONTROL, of the US Department of the Treasury; ADAM J. SZUBIN, Director of OFAC, in his official capacity; FEDERAL BUREAU OF INVESTIGATION; ROBERT S. MUELLER, III, Director of FBI, in his official capacity,

Defendants - Appellants.

AL-HARAMAIN ISLAMIC FOUNDATION, INC., an Oregon Nonprofit Corporation,
Plaintiff,

No. 11-15535
D.C. No. 3:07-cv-00109-VRW Northern District of California, San Francisco

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and
WENDELL BELEW, a U.S. Citizen and Attorney at Law; ASIM GHAFOOR, a U.S. Citizen and Attorney at Law,
Plaintiffs - Appellants,
v.
BARACK H. OBAMA, President of the United States, in his official capacity; NATIONAL SECURITY AGENCY; KEITH B. ALEXANDER, Director of NSA, in his official capacity; OFFICE OF FOREIGN ASSETS CONTROL, of the US Department of the Treasury; ADAM J. SZUBIN, Director of OFAC, in his official capacity; FEDERAL BUREAU OF INVESTIGATION; ROBERT S. MUELLER, III, Director of FBI, in his official capacity,
Defendants - Appellees.
Before: PREGERSON, HAWKINS, and McKEOWN, Circuit Judges.
The opinion filed on August 7, 2012, and appearing at 690 F.3d 1089, is
hereby amended. An amended opinion is filed concurrently with this order.
With these amendments, the panel has voted to deny the petition for panel
rehearing and the petition for rehearing en banc.

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The full court has been advised of the petition for rehearing and rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.
The petition for panel rehearing and petition for rehearing en banc are DENIED. No further petitions for en banc or panel rehearing shall be permitted.

 
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

AL-HARAMAIN ISLAMIC FOUNDATION, INC., an Oregon Nonprofit Corporation; WENDELL BELEW, a U.S. Citizen and Attorney at Law; ASIM GHAFOOR, a U.S. Citizen and Attorney at Law,
Plaintiffs-Appellees,

No. 11-15468
D.C. No. 3:07-cv-00109-
VRW

v.

BARACK H. OBAMA, President of the United States, in his official capacity; NATIONAL SECURITY AGENCY; KEITH B. ALEXANDER, Director of NSA, in his official capacity; OFFICE OF FOREIGN ASSETS CONTROL, of the U.S. Department of the Treasury; ADAM J. SZUBIN, Director of OFAC, in his official capacity; FEDERAL BUREAU OF INVESTIGATION; ROBERT S. MUELLER, III, Director of FBI, in his official capacity,
Defendants-Appellants.

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AL-HARAMAIN ISLAMIC FOUND. V. OBAMA

AL-HARAMAIN ISLAMIC FOUNDATION, INC., an Oregon Nonprofit Corporation,
Plaintiff,
and

No. 11-15535
D.C. No. 3:07-cv-00109-
VRW

WENDELL BELEW, a U.S. Citizen and Attorney at Law; ASIM GHAFOOR, a U.S. Citizen and Attorney at Law,
Plaintiffs-Appellants,

AMENDED OPINION

v.

BARACK H. OBAMA, President of the United States, in his official capacity; NATIONAL SECURITY AGENCY; KEITH B. ALEXANDER, Director of NSA, in his official capacity; OFFICE OF FOREIGN ASSETS CONTROL, of the U.S. Department of the Treasury; ADAM J. SZUBIN, Director of OFAC, in his official capacity; FEDERAL BUREAU OF INVESTIGATION; ROBERT S. MUELLER, III, Director of FBI, in his official capacity,
Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California
Vaughn R. Walker, District Judge, Presiding

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AL-HARAMAIN ISLAMIC FOUND. V. OBAMA

3

Argued and Submitted June 1, 2012—Pasadena, California

Filed August 7, 2012 Amended December 5, 2012

Before: Harry Pregerson, Michael Daly Hawkins, and M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown

SUMMARY*

Sovereign Immunity / Foreign Intelligence Surveillance Act
The panel affirmed in part and reversed in part the district court’s judgment in favor of Al-Haramain Islamic Foundation, Inc. and individual plaintiffs in cases related to the United States government’s Terrorist Surveillance Program. On remand from this court, the district court held that the Foreign Intelligence Surveillance Act (“FISA”) preempted or displaced the state secrets privilege, that the government implicitly waived sovereign immunity for damages under FISA’s civil liability provision, 50 U.S.C. § 1810, and that two of the Al-Haramain plaintiffs were entitled to statutory damages and attorneys’ fees.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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The panel held that there was no explicit waiver of the United States’ sovereign immunity, and reversed the district court’s determination that § 1810 of FISA waived sovereign immunity. As a consequence, the panel vacated the judgment in favor of Al-Haramain, including the judgment for liquidated damages, attorneys’ fees, and costs. The panel affirmed the district court’s dismissal of claims against FBI Director Mueller in his individual capacity.

COUNSEL
Douglas N. Letter, United States Department of Justice, Civil Division, Washington, D.C., for Defendants-Appellants/CrossAppellees.
Jon B. Eisenberg, Eisenberg and Hancock, Oakland, California, for Plaintiffs-Appellees, Cross-Appellants.
Richard A. Samp, Washington Legal Foundation, Washington, D.C., for Amici Curiae James J. Carey, Norman T. Saunders, Thomas L. Hemingway, Washington Legal Foundation, Allied Educational Foundation, and The National Defense Committee.
Cindy A. Cohn, Electronic Frontier Foundation, San Francisco, California, for Amici Curiae The Electronic Frontier Foundation, The Government Accountability Project, James Bamford, and Former Intelligence, National Security and Military Professionals.

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OPINION

McKEOWN, Circuit Judge:

This case, which comes before us a second time, is one of many related to the United States government’s Terrorist Surveillance Program, a program that “intercepted international communications into and out of the United States of persons alleged to have ties to Al Qaeda and other terrorist networks.” Al-Haramain Islamic Found. v. Bush (“AlHaramain I”), 507 F.3d 1190, 1192 (9th Cir. 2007). In the previous appeal, we determined that “the state secrets privilege d[id] not bar the very subject matter of th[e] action” and remanded to the district court to consider, among other issues, whether the Foreign Intelligence Surveillance Act (FISA) preempts the state secrets privilege. Id. at 1193. On remand, the district court held that FISA preempts or displaces the state secrets privilege, that the government implicitly waived sovereign immunity for damages under FISA’s civil liability provision, 50 U.S.C. § 1810, and that two of the Al-Haramain plaintiffs were entitled to statutory damages and attorney’s fees.

The threshold issue in this appeal is whether the district court erred in predicating the United States’ liability for money damages on an implied waiver of sovereign immunity under § 1810. It is well understood that any waiver of sovereign immunity must be unequivocally expressed. Section 1810 does not include an explicit waiver of immunity, nor is it appropriate to imply such a waiver. Consequently, we reverse the district court’s judgment awarding damages and attorney’s fees to Al-Haramain under § 1810. We also affirm

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the dismissal of Robert Mueller, Director of the FBI, in his personal capacity.

This case effectively brings to an end the plaintiffs’ ongoing attempts to hold the Executive Branch responsible for intercepting telephone conversations without judicial authorization. However, we cannot let that occur without comment on the government’s recent, unfortunate argument that the plaintiffs have somehow engaged in “game-playing.”

In early 2004, the Treasury Department announced an investigation of Al-Haramain Islamic Foundation, Inc. Then in late 2004, for the first time publicly alleged links to terrorism involving Al-Haramain. Also in 2004, the plaintiffs received a copy of a document from the Office of Foreign Assets Control (the “Sealed Document”), which may or may not have suggested certain of the plaintiffs or their lawyers had been electronically surveilled. In 2005, a New York Times article revealed that the National Security Agency “had obtained the cooperation of telecommunications companies to tap into a significant portion of the companies’ telephone and e-mail traffic, both domestic and international.”1 Based on some or all of the above, the plaintiffs thought that they had been unlawfully surveilled, and in 2006 they filed suit.

Over the last six years, the plaintiffs have faced a moving and shrinking target. In 2008, Congress narrowed the list of potential defendants by granting telecommunications providers retroactive immunity. See In re Nat’l Sec. Agency Telecomms. Records Litig., 671 F.3d 881, 891–93 (9th Cir.

1 James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. Times, Dec. 16, 2005, at A1.

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2011) (describing 2008 amendments to FISA). Meanwhile, the evidentiary arsenal at the plaintiffs’ disposal has been constantly in flux. On one hand, the Sealed Document was excluded, pending a determination whether the FISA preempted the State Secrets privilege in the telecommunications field. See Al-Haramin I, 507 F.3d 1190. On the other, the public evidence favorable to the plaintiffs grew to include the FBI admitting to having used surveillance in connection with its investigation of Al-Haramain, the Treasury Department acknowledging it intercepted 2003 telephone conversations involving an Al-Haramain member, and top Executive Branch officials testifying before Congress that most modern international communications are wired.

In light of the complex, ever-evolving nature of this litigation, and considering the significant infringement on individual liberties that would occur if the Executive Branch were to disregard congressionally-mandated procedures for obtaining judicial authorization of international wiretaps, the charge of “game-playing” lobbed by the government is as careless as it is inaccurate. Throughout, the plaintiffs have proposed ways of advancing their lawsuit without jeopardizing national security, ultimately going so far as to disclaim any reliance whatsoever on the Sealed Document. That their suit has ultimately failed does not in any way call into question the integrity with which they pursued it.

BACKGROUND

I. AL-HARAMAIN I

In Al-Haramain I, Al-Haramain Islamic Foundation and two of its lawyers (collectively “Al-Haramain”) “claimed that

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they were subject to warrantless electronic surveillance in 2004 in violation of the Foreign Intelligence Surveillance Act.” 507 F.3d at 1193. At the core of the allegations stood “a classified ‘Top Secret’ document (the ‘Sealed Document’) that the government inadvertently gave to [the Al-Haramain organization] in 2004 during a proceeding to freeze the organization’s assets.” Id.

We held that the suit itself was not precluded by the state secrets privilege, although the privilege protected the Sealed Document. Id. Without the Sealed Document, the AlHaramain organization could not establish that it suffered injury-in-fact and therefore did not have standing to bring suit. Id. at 1205. As to the attorney plaintiffs, we remanded to the district court to consider whether “FISA preempts the common law state secrets privilege.” Id. at 1193.

II. DISTRICT COURT PROCEEDINGS ON REMAND

On remand, the district court held extensive proceedings and issued multiple orders on the various remaining legal issues, including three published decisions. At the outset, the district court held that “FISA preempts or displaces the state secrets privilege . . . in cases within the reach of its provisions.” In re Nat’l Sec. Agency Telecomms. Records Litig., 564 F. Supp. 2d 1109, 1124 (N.D. Cal. 2008). “This,” the district court wrote, “is such a case.” Id.

Concluding that § 1810 waives the United States’ sovereign immunity, the district court denied the government’s motion to dismiss for lack of jurisdiction. Id. at 1125. The court acknowledged that “[i]t is, of course true that section 1810 does not contain a waiver of sovereign immunity

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analogous to that in 18 U.S.C. section 2712(a) which expressly provides that the aggrieved persons may sue the United States for unlawful surveillance . . . .” Id. However, because “it is only such [federal] officers and employees acting in their official capacities that would engage in surveillance of the type contemplated by FISA,” the court feared that FISA would offer “scant, if any, relief” in the absence of a waiver. Id. Thus, it held that a waiver was “[i]mplicit in the remedy” under § 1810. Id.

In light of the Sealed Document, the court ruled it was necessary for the Al-Haramain plaintiffs to establish they were “aggrieved parties” under FISA using non-classified information. The district court dismissed the complaint with leave to amend the FISA claims, and Al-Haramain filed an amended complaint. The district court then concluded that “[w]ithout a doubt” the amended complaint “alleged enough to plead ‘aggrieved person’ status so as to proceed to the next step in proceedings under FISA’s sections 1806(f) and 1810.” In re Nat’l Sec. Agency Telecomms. Records Litig., 595 F. Supp. 2d 1077, 1086 (N.D. Cal. 2009). Moving to the merits, in its next ruling, “the court directed plaintiffs to move for summary judgment on their FISA claim relying only on nonclassified evidence.” In re Nat’l Sec. Agency Telecomms. Records Litig., 700 F. Supp. 2d 1182, 1192 (N.D. Cal. 2010). Al-Haramain did so and the government filed a cross-motion to dismiss and for summary judgment. The court denied the government’s motion to dismiss for lack of jurisdiction, rejecting the argument that Al-Haramain lacked standing because the program under which it was surveilled had been terminated, and once again holding that § 1810 waived the United States’ sovereign immunity. Id. at 1192–93.

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On the merits, the district court granted summary judgment in favor of Al-Haramain with respect to governmental liability under FISA. Id. at 1202. Al-Haramain then accepted the court’s invitation to voluntarily dismiss the remaining claims “in order to take the steps necessary for the entry of judgment on the FISA claim.” Id. at 1203. The district court also dismissed claims against FBI Director Robert Mueller in his individual capacity. Id.

In a follow-up order on remedies, the court first denied damages to the Al-Haramain organization because it was a “foreign power or an agent of a foreign power” under FISA’s broad definition of that term, and therefore ineligible to recover damages under the statute. 50 U.S.C. § 1810. The two individual plaintiffs did not seek actual damages but were awarded liquidated damages of $20,400 each. The district court denied punitive damages and equitable relief. Finally, the court awarded the requested $2,515,387.09 in attorney’s fees and $22,012.36 in costs. See 50 U.S.C. § 1810.

ANALYSIS

I. SOVEREIGN IMMUNITY

The key and dispositive issue on appeal is whether the government waived sovereign immunity under FISA’s civil liability provision,2 50 U.S.C. § 1810. Contrary to the district

2 “[S]overeign immunity is a limitation on the district court’s subject matter jurisdiction.” Adam v. Norton, 636 F.3d 1190, 1192 n.2 (9th Cir. 2011). In light of our decision on sovereign immunity, we need not address the constitutional and prudential standing issues, nor the question of statutory standing, namely whether Al-Haramain meets the

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court’s reliance on implied waiver, “[a] waiver of sovereign immunity cannot be implied but must be unequivocally expressed.” United States v. Mitchell, 445 U.S. 535, 538 (1980) (internal quotation marks omitted).

We have the benefit of the Supreme Court’s most recent pronouncement in this area. Earlier this year, the Court interpreted the waiver provision of the Privacy Act of 1974, which, like FISA, protects individuals against the government’s collection, use, and disclosure of information. FAA v. Cooper, 132 S. Ct. 1441, 1448 (2012). According to the Privacy Act, “the United States shall be liable to [an] individual in an amount equal to the sum of . . . actual damages.” 5 U.S.C. § 552a(g)(4)(A). In determining that the scope of the immunity waiver “[did] not unequivocally authorize an award of damages for mental or emotional distress,” Cooper, 132 S. Ct. at 1456, the Court reiterated the standard for sovereign immunity: “What we thus require is that the scope of Congress’ waiver be clearly discernable from the statutory text in light of traditional interpretive tools. If it is not, then we take the interpretation most favorable to the Government.” Id. at 1448.

In light of these principles we now consider § 1810, which was the basis on which the district court ordered relief and the section relied on by Al-Haramain. At oral argument, AlHaramain confirmed that it was not proceeding under other sections of FISA. Al-Haramain argues that, as a result of

“aggrieved person” requirement of 50 U.S.C. § 1810. See Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 431 (2007) (A “federal court has leeway to choose among threshold grounds for denying audience to a case on the merits.” (internal quotation marks omitted)).

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purported illegal surveillance, it may bring a claim against the United States under § 1810, which states:

An 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 . . . .

A “person” who may have committed the violation is defined as “any individual, including any officer or employee of the Federal Government, or any group, entity, association, corporation, or foreign power.” 50 U.S.C. § 1801(m). Glaringly missing from the definition is the “United States.” An offense under § 1810 is predicated on a violation of § 1809, a criminal provision, which provides that:

(a) A person is guilty of an offense if he intentionally

(1) engages in electronic surveillance . . . except as authorized by . . . any express statutory authorization . . .

(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by . . . express statutory authorization . . . .

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. . .

(d) There is Federal jurisdiction . . . if the person committing the offense was an officer or employee of the United States at the time the offense was committed.

In considering whether § 1810 encompasses a waiver of sovereign immunity, it is useful to benchmark the statutory language against other explicit waivers of sovereign immunity. The Federal Tort Claims Act provides the most prominent example: “The United States [is] liable . . . in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674(b). However, Congress has used similarly explicit waiver provisions in other contexts. See, e.g., 42 U.S.C. § 2000e-5(k) (“In any action or proceeding under this subchapter . . . the United States shall be liable for costs the same as a private person.”) (unlawful employment practices); 46 U.S.C. § 30903(a) (“[A] civil action in admiralty in personam may be brought against the United States.”); 26 U.S.C. § 7433(a) (“If . . . any officer or employee of the Internal Revenue Service . . . disregards any provision of this title . . . [a] taxpayer may bring a civil action for damages against the United States.”).

We need not comb the United States Code for disparate examples of sovereign immunity waivers; such examples are available closer to home within FISA. Congress included explicit waivers with respect to certain sections of FISA as part of the USA PATRIOT Act, 18 U.S.C. § 2712(a), which states in relevant part:

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Any person who is aggrieved by any willful violation of . . . sections 106(a), 305(a), or 405(a) 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.3

This section underscores the importance of considering the statutory scheme as a whole. See Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (“It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” (internal quotation marks omitted)). Congress well understood how to express a sovereign immunity waiver in the context of FISA. Admittedly, magic words, such as “an action against the United States,” are not required to deduce a waiver of sovereign immunity. In certain circumstances, the Supreme Court has determined the existence of a waiver, by using “the other traditional tools of statutory construction.” Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 589 (2008). Nonetheless, contrasted against other provisions deemed sufficient to invoke waiver, the lack of an explicit waiver in § 1810 is stark, permitting suit only against a “person,” without listing the “United States.” Just as the term

3 These sections of FISA correspond to 50 U.S.C. § 1806(a) (“Information acquired from an electronic surveillance . . . may be used and disclosed by Federal officers and employees . . . only in accordance with the minimization procedures required by this subchapter.”); § 1825(a) (information acquired as a result of a physical search); § 1845(a) (information collected through “the use of a pen register or trap and trace device”).

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“damages” was deemed ambiguous and thus limited sovereign immunity under the Privacy Act, Cooper, 132 S. Ct at 1456, so too is the term “person” ambiguous vis-a-vis governmental liability. Because there “is a plausible interpretation of the statute that would not allow money damages against the government,” any ambiguity is construed “in favor of the sovereign.” Id. at 1444, 1448.

Although our decision is grounded solely in the text of the statute itself, the legislative history surrounding 18 U.S.C. § 2712(a) further “confirms what we have concluded from the text alone.” Mohamad v. Palestinian Auth., 132 S. Ct. 1702, 1710 (2012); see Levin v. United States, 663 F.3d 1059, 1063 (9th Cir. 2011) (considering legislative history to confirm that the Gonzales Act does not waive sovereign immunity). Because FISA did not, on its own terms, waive sovereign immunity, an initial version of the PATRIOT Act proposed a sovereign immunity waiver for violations of § 1810. See H.R. Rep. No. 107-236, at 12–13, 42 (2001) (proposing to amend § 1810 to provide a remedy for its violation under the Federal Tort Claims Act). This proposed amendment to § 1810 was deleted the very next day; instead, a waiver of sovereign immunity was incorporated into 18 U.S.C. § 2712. While § 2712 creates United States liability for certain FISA violations such as those of 50 U.S.C. § 1806, it does not include claims under § 1810.4 Thus, our conclusion is consistent with congressional consideration and later rejection of an immunity waiver for violations of § 1810.

4 Al-Haramain argues that since 50 U.S.C. § 1810, unlike 18 U.S.C. § 2520, does not specifically state that the United States is exempt from suit, immunity is waived. This improperly turns the presumption against waiver on its head.

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Contrasting § 1810 liability, for which sovereign immunity is not explicitly waived, with § 1806 liability, for which it is, also illuminates congressional purpose. Liability under the two sections, while similar in its reach, is not identical. Section 1806, combined with 18 U.S.C. § 2712, renders the United States liable only for the “use[] and disclos[ure]” of information “by Federal officers and employees” in an unlawful manner. Section 1810, by contrast, also creates liability for the actual collection of the information in the first place, targeting “electronic surveillance or . . . disclos[ure] or use[]” of that information. (emphasis added). Under this scheme, Al-Haramain can bring a suit for damages against the United States for use of the collected information, but cannot bring suit against the government for collection of the information itself. Cf. ACLU v. NSA, 493 F.3d 644, 671 (6th Cir. 2007) (Lead Opinion of Batchelder, J.) (noting that FISA potentially allows limitless information collection upon issuance of warrant, but limits use and dissemination of information under, inter alia, § 1806(a)). Although such a structure may seem anomalous and even unfair, the policy judgment is one for Congress, not the courts. Also, because governmental liability remains under § 1806, the district court’s concern that FISA relief would become a dead letter is not valid. See In re Nat’l Sec. Agency Telecomms. Records Litig., 564 F. Supp. 2d at 1125.

Consistent with the congressional scheme, unlike 50 U.S.C. §§ 1806, 1825 and 1845, § 1810 has not been incorporated into the waiver of sovereign immunity in 18 U.S.C. § 2712, or elsewhere. It would be anomalous to the point of absurdity for Congress, on one hand, to carefully and explicitly waive sovereign immunity with respect to certain FISA sections and then, on the other, cavalierly imply

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a sovereign immunity waiver with respect to § 1810 by rendering liable any “person.”

Al-Haramain reads volumes into the definition of a “person.” Section 1801(m) defines “person” to mean “any individual, including any officer or employee of the Federal Government.” That section is then incorporated into § 1810, which renders “any person” subject to suit for unlawful surveillance. Although the government urges that “person” applies to federal employees in only their personal capacities, Al-Haramain argues that if § 1801 stripped federal employees of immunity in only their personal capacities, it would be redundant: the term “individual” already covers employees in their personal capacities. Therefore, according to AlHaramain, § 1801’s reference to federal employees must target employees in their official capacities for money damages, which is tantamount to a waiver of sovereign immunity.

Al-Haramain’s interpretation of the term “person” is problematic both in the context of § 1810 and the statute as a whole. Subsection 1801(m) is a definitional provision, in which “person” is defined to include both “individuals” and, more specifically, “employees and officers of the Federal Government.” The provision does not impose liability on its own terms, and is therefore not concerned with personal versus official liability. That this definitional phrase is not directed to the individual’s capacity becomes clear when looking at the statute as a whole. The term “person” is used in multiple locations within FISA to refer to a multitude of entities: potential plaintiffs, defendants, and even third parties. Inserting that definition in various appropriate subsections demonstrates that the definitional section is not targeted to the

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issue of personal versus official capacity, nor can such capacity be inferred. For example, § 1802(a)(1)(B), which speaks to surveillance without a warrant, excludes “communications to which a United States person is a party.” Applications for court orders reference “the persons, facilities, or places specified on the application.” 50 U.S.C. § 1804(a)(4). In certain situations the Attorney General must consider the “threat of death or serious bodily harm to any person.” Id. § 1806(i). Similarly, the term is used throughout in reference to “aggrieved person.” See, e.g., § 1806(d); § 1810.

Thus, Al-Haramain’s redundancy argument cannot seriously be that, as to sovereign immunity, the government’s interpretation would render the text of § 1801(m) redundant in its own right; rather, the claim is that the text of § 1801(m) becomes redundant when incorporated into § 1810. AlHaramain would therefore require Congress to foresee and prevent redundancy upon incorporation of § 1801, a general definitional section, into § 1810. In light of the multitudinous contexts in which the term “person” is used, this turducken approach takes the presumption against redundancy too far.

If Congress shared Al-Haramain’s aversion to the potential redundancy of the term “employees and officers of the federal government,” its behavior with respect to other sections of the statute is inexplicable. Section 1806 directly addresses the actions of “Federal officers or employees” without the intercession of § 1801(m). Nonetheless, 18 U.S.C. § 2712 is not content with providing only a cause of action under § 1806; rather, it also and explicitly waives sovereign immunity. This structure strongly points to the conclusion that the reference to “Federal officers or employees” in

CaseC: 1a1se-135:0476-8cv-01021/095-/V20R1W2 DocuIDm:e8n4t21652300FiledD1k2tE/2n6tr/1y:289PagPea1g9eo:f1292of 22

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19

§ 1806—and certainly in § 1810 via § 1801(m)—does not, by itself, waive sovereign immunity.5

Apart from the absence of an explicit grant of sovereign immunity and the stark contrast between § 1810 and other FISA provisions, the relationship between § 1809 and § 1810 further supports our conclusion. Section 1810 liability is premised upon a “violation of section 1809.” In turn, a violation of § 1809 is a criminal offense, and occurs when “[a] person intentionally . . . engages in electronic surveillance under color of law” in a manner that violates certain statutory provisions.

In other words, to be liable under § 1809 and § 1810, a “person” must be subject to criminal prosecution. Accordingly, to accept Al-Haramain’s argument that § 1810 allows proceeding against a government employee in his official capacity, we must also suppose that a criminal prosecution may be maintained against an office, rather than an individual, under § 1809. This is unprecedented. We do not deny, as Al-Haramain argues, that there is precedent for prosecuting employees as individuals for actions taken in their

5 Al-Haramain also notes that courts have inferred a sovereign immunity waiver in Title VII because the statute renders department heads liable; it contends that the reference to federal employees in FISA is analogous to Title VII’s reference to heads of departments. Brown v. General Services Administration, upon which Al-Haramain relies, concerns administrative exhaustion requirements and does not address sovereign immunity. 425 U.S. 820, 831-33 (1976). Later Supreme Court precedent directly undermines Al-Haramain’s argument. See Lane v. Peña, 518 U.S. 187, 193–95 (1996) (declining to read a liability provision pertaining to “Federal provider[s] of . . . assistance” as broadly waiving governmental immunity).

CaseC: 1a1se-135:0476-8cv-01021/095-/V20R1W2 DocuIDm:e8n4t21652300FiledD1k2tE/2n6tr/1y:289PagPea2g0eo:f2202of 22

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official capacities. See generally Maryland v. Soper, 270 U.S. 9 (1926); Tennessee v. Davis, 100 U.S. 257 (1879); Seth P. Waxman & Trevor W. Morrison, What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause, 112 Yale L.J. 2195 (2003). However, imposing criminal penalties against an office for actions of the officeholder is a different ball game: just as an officeholder is nominally replaced by his successor in a civil “official capacity suit” as a defendant, under Al-Haramain’s interpretation, a successor in office could be criminally prosecuted for actions of his predecessor. Such an approach is “patently absurd.” United States v. Singleton, 165 F.3d 1297, 1299–1300 (10th Cir. 1999) (statute criminalizing the offer of a reward in exchange for testimony could not extend to the United States or an employee in her official capacity). Therefore, we do not interpret the reference to “person” in § 1810 to mean that a government employee is liable in his official capacity. See also United States v. Cooper Corp., 312 U.S. 600, 604 (1941) (noting in a criminal antitrust action that “in common usage, the term ‘person’ does not include the sovereign”).

Congress can and did waive sovereign immunity with respect to violations for which it wished to render the United States liable. It deliberately did not waive immunity with respect to § 1810, and the district court erred by imputing an implied waiver. Al Haramain’s suit for damages against the United States may not proceed under § 1810.

II. PERSONAL LIABILITY OF FBI DIRECTOR MUELLER

During the many years this case was litigated in the district court, Al-Haramain’s suit against FBI Director Mueller in his individual capacity was nothing more than a sideshow,

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overshadowed by the core claims against the government. AlHaramain never vigorously pursued its claims against Mueller. Rather, in a hearing at the district court, Al-Haramain emphasized that “we believe Mr. Mueller is a corollary we needn’t get to.” In re Nat’l Sec. Agency Telecomms. Records Litig., 700 F. Supp. 2d at 1203. When the district court finally reached the issue of Mueller’s individual liability, it noted that Mueller was “the only defendant against whom plaintiffs seek to proceed in an individual capacity.” Id. The district court then dismissed, without leave to amend, all claims against Mueller in his individual capacity because “the nature of the wrongdoing by governmental actors alleged and established herein is official rather than individual or personal.” Id.

Al-Haramain’s bare-bones allegations against Mueller are insufficient to survive summary judgment. The allegations, in their entirety, consist of two simple statements: Mueller “threatened to resign because of concerns about the legality of the warrantless surveillance program;” and “Mueller testified before the House Judiciary Committee that in 2004 the FBI, under his direction, undertook activity using information produced by the NSA through the warrantless surveillance program.” These allegations do not appropriately allege a claim under FISA. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” (internal quotations and citations omitted)). AlHaramain’s allegations against Mueller are significantly less concrete than those found insufficient in Iqbal. See id. at 680-81. The district court recognized that Al-Haramain could not bring forth additional allegations that might breathe life into the otherwise deficient claim against Mueller. On appeal,

CaseC: 1a1se-135:0476-8cv-01021/095-/V20R1W2 DocuIDm:e8n4t21652300FiledD1k2tE/2n6tr/1y:289PagPea2g2eo:f2222of 22

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Al-Haramain does nothing to dispel that conclusion. The district court did not abuse its discretion in dismissing the claims against Mueller without leave to amend.

CONCLUSION

Because there is no explicit waiver of sovereign immunity, we reverse the district court’s determination that § 1810 waives sovereign immunity. As a consequence, we vacate the judgment in favor of Al-Haramain, including the judgment for liquidated damages, attorney’s fees, and costs. We affirm the dismissal of claims against Mueller in his individual capacity.

AFFIRMED IN PART, REVERSED IN PART, AND JUDGMENT VACATED. The parties shall bear their own costs on appeal.

 
 Case 3:06-cv-274 As of 06/25/2014 08:42 AM PDT Page 1 of 13 Page ID#: <pageID>
APPEAL,MDL,TERMINATED
U.S. District Court District of Oregon (Portland (3)) CIVIL DOCKET FOR CASE # 3:06−cv−00274−KI

Al−Haramain Islamic Foundation, Inc. et al v. Bush et al Assigned to: Judge Garr M. King Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 02/28/2006 Date Terminated: 12/20/2006 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Al−Haramain Islamic Foundation, Inc. an Oregon Nonprofit Corporation

represented by Jon B. Eisenberg Eisenberg and Hancock, LLP 1970 Broadway Suite 1200 Oakland, CA 94612 (510) 452−2581 Fax: (510) 452−3277 Email: jon@eandhlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa R. Jaskol Attorney at Law 15760 Ventura Boulevard 18th Floor Encino, CA 91436 (818) 995−5820 Fax: (818) 995−3157 Email: ljaskol@horvitzlevy.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven Goldberg 205 S.E. Spokane St. Suite 300 Portland, OR 97202 (503) 445−4622 Fax: (503) 238−7501 Email: steven@stevengoldberglaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas H. Nelson Thomas H. Nelson &Associates P.O. Box 1211 Welches, OR 97067−1211 503−622−3262 Fax: 503−622−3562 Email: nelson@thnelson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Zaha S. Hassan Thomas H. Nelson &Associates 825 NE Multnomah Street Suite 925 Portland, OR 97232−2150 (503) 230−8311 Fax: (503) 230−8313 Email: zahahassan@comcast.net LEAD ATTORNEY

Case 3:06-cv-274 As of 06/25/2014 08:42 AM PDT Page 2 of 13 Page ID#: <pageID>

ATTORNEY TO BE NOTICED

Jessica Ashlee Albies Creighton & Rose, PC 815 SW Second Ave Suite 500 Portland, OR 97204 (503) .221−1792 Fax: (503) 223−1516 Email: ashlee@civilrightspdx.com ATTORNEY TO BE NOTICED

Plaintiff
Wendell Belew a U.S. Citizen and Attorney at Law

represented by Jon B. Eisenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa R. Jaskol (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Thomas H. Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Zaha S. Hassan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica Ashlee Albies (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Asim Ghafoor a U.S. Citizen and Attorney at Law

represented by Jon B. Eisenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa R. Jaskol (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Thomas H. Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Zaha S. Hassan

Case 3:06-cv-274 As of 06/25/2014 08:42 AM PDT Page 3 of 13 Page ID#: <pageID>
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica Ashlee Albies (See above for address) ATTORNEY TO BE NOTICED

V. Defendant George W Bush President of the United States
Defendant National Security Agency
Defendant

represented by Andrea Marie Gacki US Department of Justice Civil Division/Federal Programs Branch 20 Massachusetts Avenue, NW Room 7334 Washington, DC 20001 (202) 514−4336 Fax: (202) 616−8202 Email: Andrea.Gacki@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew H. Tannenbaum US Department of Justice 20 Massachusetts Ave. N.W. PO Box 883 Washington, DC 20044 (202) 514−4263 Fax: (202) 616−8202 Email: andrew.tannenbaum@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony J. Coppolino US Department of Justice 20 Massachusetts Avenue, NW Room 6102 Washington, DC 20530 (202) 514−4782 Fax: (202) 616−8460 Email: tony.coppolino@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrea Marie Gacki (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew H. Tannenbaum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony J. Coppolino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case 3:06-cv-274 As of 06/25/2014 08:42 AM PDT Page 4 of 13 Page ID#: <pageID>

Keith B. Alexander its Director

represented by Andrea Marie Gacki (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew H. Tannenbaum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Defendant
Office of Foreign Assets Control an office of the United States Treasury

represented by Andrea Marie Gacki (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew H. Tannenbaum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Defendant
Robert W. Werner its Director

represented by Andrea Marie Gacki (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew H. Tannenbaum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Defendant Federal Bureau of Investigation

represented by Andrea Marie Gacki (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew H. Tannenbaum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Case 3:06-cv-274 As of 06/25/2014 08:42 AM PDT Page 5 of 13 Page ID#: <pageID>

Defendant Robert S. Mueller, III its Director
Interested Party Oregon Publishing Company

represented by Andrea Marie Gacki (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew H. Tannenbaum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony J. Coppolino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Charles F. Hinkle Stoel Rives LLP 900 SW 5th Avenue Suite 2600 Portland, OR 97204 (503)294−9403 Fax: (503) 220−2480 Email: cfhinkle@stoel.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emilie K. Edling Houser &Allison, APC 9600 SW Oak St, Ste. 570 Portland, OR 97223 503−914−1382 Fax: 503−914−1383 Email: eedling@houser−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/28/2006
02/28/2006 02/28/2006
03/01/2006 03/07/2006 03/17/2006

# Docket Text
1 Complaint.Filed by Asim Ghafoor, Al−Haramain Islamic Foundation, Inc., Wendell Belew against George W Bush, National Security Agency, Keith B. Alexander, Federal Bureau of Investigation, Robert S. Mueller, III.(cib, ) (Entered: 02/28/2006)
2 Motion and Memorandum In Support To File Material Under Seal and Request For In−Camera Inspection. Filed by all plaintiffs. (cib, ) Additional attachment(s) added on 3/2/2006 (cib, ). (Entered: 02/28/2006)
3 Discovery and Pretrial Scheduling Order and Notice of Case Assignment to the Honorable Michael W. Mosman. Discovery is to be completed by 6/28/2006. Joint Alternate Dispute Resolution Report is due by 7/28/2006. Pretrial Order is due by 7/28/2006. (cib, ) (Entered: 02/28/2006)
4 Corporate Disclosure Statement. Filed by all plaintiffs. (cib, ) (Entered: 03/02/2006)
5 Notice of Case Reassignment: This case has been reassigned from Judge Michael W. Mosman to Judge Garr M. King. (cib, ) (Entered: 03/09/2006)
6 Record of ORDER setting a telephone status hearing for Monday, March 20,2006 at 11:00AM (PST) before Judge Garr M. King. The court will place the telephone call. (A Copy of this minute order was faxed to Anthony Coppolino on 3/17/06 at 5:05pm) Ordered by Judge Garr M. King. (md, ) (Entered: 03/17/2006)

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03/17/2006 03/17/2006 03/20/2006
03/21/2006 03/21/2006
03/21/2006 03/21/2006 03/22/2006 03/22/2006 03/22/2006 03/29/2006 04/04/2006 04/05/2006
04/06/2006 04/06/2006

7 Motion to Intervene; Motion to Unseal Records. Filed by Oregon Publishing Company. (pvh, ) (Entered: 03/20/2006)
8 Memorandum in Support. Filed by Oregon Publishing Company. (Related document(s): Motion to intervene, Motion to Unseal Records 7 .)(pvh, ) (Entered: 03/20/2006)
9 MINUTES of Telephone Conference: Order − Granting Plaintiffs' Motion and Memorandum In Support To File Material Under Seal and Request For In−Camera Inspection 2 . Steven Goldberg, J. Ashlee Albise, Zaha Hassan and Thomas Nelson present as counsel for plaintiff(s). Barry Sheldahl, Jim Sutherlin, Andrew Tannenbaum and Anthony Coppolino present as counsel for defendant(s). Court Reporter: Dennis Grube. Garr M. King presiding(mja, ) (Entered: 03/20/2006)
10 Scheduling Order by Garr M. King. Order − Setting a Telephone Conference for 3/21/2006 at 11:15AM. The court will initiate the call to the parties. (A Copy of this minute order was faxed to Anthony Coppolino and Andrew Tannenbaum on 3/21/06)Ordered by Judge Garr M. King.) (Entered: 03/21/2006)
11 MINUTES of Telephone Conference: Order − Sealed document discussed with counsel as stated on the record. Steve Goldberg and J. Ashlee Albise present as counsel for plaintiff(s). Anthony Coppolino, Andrew Tannenbaum, Barry Schendahl, James Sutherlin and Steve Borgen present as counsel for defendant(s). Court Reporter: Bonita Alexander. Garr M. King presiding. (mja, ) (Entered: 03/21/2006)
12 Notice of Appearance by attorney Jessica Ashlee Albies. Filed by Jessica Ashlee Albies appearing on behalf of all plaintiffs.(Albies, Jessica) (Entered: 03/21/2006)
16 Return of Service executed upon United States Attorney General on 03/08/06 by certified mail. (pvh, ) (Entered: 03/22/2006)
13 Notice of Appearance by attorney Anthony J. Coppolino , United States Department of Justice. Filed by Anthony J. Coppolino appearing on behalf of all defendants.(Coppolino, Anthony) (Entered: 03/22/2006)
14 Notice of Appearance by attorney Andrew H. Tannenbaum , United States Department of Justice. Filed by Andrew H. Tannenbaum appearing on behalf of all defendants.(Tannenbaum, Andrew) (Entered: 03/22/2006)
15 Notice of Appearance by attorney Andrea Marie Gacki , United States Department of Justice. Filed by Andrea Marie Gacki appearing on behalf of all defendants.(Gacki, Andrea) (Entered: 03/22/2006)
17 Unopposed Motion for Extension of Time to File a Response/Reply to Motion to Unseal Records and to Motion to intervene, 7 . Filed by all defendants. (Gacki, Andrea) (Entered: 03/29/2006)
18 ORDER − Granting Defendants' Unopposed Motion for Extension of Time to File a Response to Motion to Unseal Records and to Motion to intervene 17 up to and including 4/14/2006. Ordered by Judge Garr M. King. (mja, ) (Entered: 04/04/2006)
19 Scheduling Order by Garr M. King. Order − At the parties' request, the court is setting a Telephone Conference for 4/7/2006 at 02:00PM. The court will initiate the call to the following parties: Jessica Ashlee Albies(503) 367−8590, Steven Goldberg (503) 224−2372, Zaha S Hassan 503−230−8311, Thomas H. Nelson (503) 230−8311, Anthony J. Coppolino (202) 514−4782, Andrea Marie Gacki (202) 514−4336, and Andrew H. Tannenbaum (202) 514−4263.Ordered by Judge Garr M. King. (mja, ) (Entered: 04/05/2006)
20 Order Granting Application for Special Admission Pro Hac Vice of Jon B. Eisenberg for Asim Ghafoor, Al−Haramain Islamic Foundation, Inc., and Wendell Belew. Application Fee in amount of $100 collected. Receipt No. 8761 issued. Signed on 04/05/06 by Judge Garr M. King. (pvh, ) (Entered: 04/06/2006)
21 Order Granting Application for Special Admission Pro Hac Vice of Lisa R. Jaskol for Asim Ghafoor, Al−Haramain Islamic Foundation, Inc. and Wendell Belew. Application Fee in amount of $100 collected. Receipt No. 8762 issued. Signed on

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04/07/2006
04/10/2006 04/14/2006 04/14/2006 04/19/2006
04/20/2006 04/20/2006 04/21/2006
04/24/2006 04/25/2006

04/05/06 by Judge Garr M. King. (pvh, ) (Entered: 04/06/2006)
22 MINUTES of Telephone Conference: Order − At the parties' request the court is setting a briefing schedule as follows: Defendants shall file an answer to the complaint or dispositive motion by 6/9/2006. Defendants' memorandum regarding plaintiff's continued access to the sealed document is due by 5/26/2006.Plaintiff's response is due by 6/20/2006. Defendants' reply is due 10 days after plaintiff's response. Jessica Ashlee Albies and Steven Goldberg present as counsel for plaintiff(s). Anthony Coppolino, Andrea Gacki, Andrew Tennenbaum and Jim Sutherlin present as counsel for defendant(s). Court Reporter: Nancy Walker. Garr M. King presiding. (mja, ) (Entered: 04/07/2006)
23 Order − The Regional Security Specialist is directed to move the sealed document from the SCIF in Seattle to the SCIF in Portland as discussed during the telephone conference of April 7, 2006. Ordered by Judge Garr M. King. (mja, ) (Entered: 04/10/2006)
24 Response in Opposition to Motion to Unseal Records and to Motion to intervene, 7 . Filed by all defendants. (Attachments: # 1 Attachment A − OFAC Declaration# 2 Attachment B − FBI Declaration# 3 Attachment C − Court Transcript)(Gacki, Andrea) (Entered: 04/14/2006)
25 Notice re Motion to intervene, 7 of Lodging of Ex Parte, In Camera Classified Material. Filed by Andrea Marie Gacki appearing on behalf of all defendants. (Related document(s): Motion to intervene, 7 .)(Gacki, Andrea) (Entered: 04/14/2006)
26 Scheduling Order by Garr M. King. Order − Setting a Telephone Conference for 4/25/2006 at 01:30PM, to discuss Plaintiffs' letter of 4/14/2006 and any more formal objections filed by Plaintiffs before the Telephone Conference. The court will initiate the call to the following parties: Jessica Ashlee Albies(503) 367−8590, Steven Goldberg (503) 224−2372, Zaha S Hassan 503−230−8311, Thomas H. Nelson (503) 230−8311, Anthony J. Coppolino (202) 514−4782, Andrea Marie Gacki (202) 514−4336, and Andrew H. Tannenbaum (202) 514−4263. Ordered by Judge Garr M. King. (Entered: 04/19/2006)
27 Motion for Leave to participate in Oral Argument and, Motion for permission for Reporter to Observe Hearing on April 25, 2006. Expedited Hearing Requested. Filed by Oregon Publishing Company. (pvh, ) (Entered: 04/21/2006)
28 Memorandum in Support. Filed by Oregon Publishing Company. (Related document(s): Motion for Leave to participate in Oral Argument and, Motion for permission for Reporter to Observe Hearing 27 .)(pvh, ) (Entered: 04/21/2006)
29 ORDER − Oregonian Publishing Company's Motion for Leave to Participate in Oral Argument and for Permission for Reporter to Observe Hearing on April 25, 2006 27 is granted in part and denied in part. Oregonian Publishing Company's attorney may participate in the telephone conference. A reporter from the Oregonian may not listen to the proceedings. Pursuant to the usual practice, a transcript of the telephone conference will be available to the public. Ordered by Judge Garr M. King. (mja, ) (Entered: 04/21/2006)
30 Memorandum in Opposition to Defendants' Lodging of Material Ex Parte and In Camera. Filed by all plaintiffs.(Nelson, Thomas) (Entered: 04/24/2006)
31 MINUTES of Telephone Conference: Order − The Oregonian's Motion to Intervene 7 is GRANTED. The Oregonian's Motion to Unseal Records 7 is DEFERRED. Oregonian shall have until 5/22/2006 to reply to the government's response to the Oregonian's Motion to Unseal. Defendants may file a response to Plaintiffs' Opposition to Defendants' Lodging of Material Ex Parte and In Camera by 5/12/2006. Plaintiffs and the Oregonian can reply to the defendants' response by 5/22. Defendants may file a sur−reply by 5/25/2006, if necessary. Jessica Albies, Steven Goldberg, Lisa Jaskol, Thomas Nelson and Zaha Hassan present as counsel for plaintiff(s). Andrea Gacki, Anthony Coppolino and Jim Sutherlin present as counsel for defendant(s). Charles Hinkle present as counsel for intervenor. Court Reporter: Dennis Grube. Garr M. King presiding.(mja, ) Modified on 4/25/2006 (mja, ). (Entered: 04/25/2006)

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05/12/2006 05/12/2006 05/22/2006 05/22/2006 05/22/2006 05/22/2006 05/25/2006 05/26/2006 05/26/2006
06/01/2006 06/02/2006 06/07/2006
06/07/2006 06/09/2006 06/09/2006

32 Memorandum in Opposition to Plaintiffs' Opposition to Defendants' Lodging of Material Ex Parte and In Camera. Filed by all defendants. (Attachments: # 1 Attachment 1 − Transcript# 2 Attachment 2 − Supp. Hourihan Declaration# 3 Attachment 3 − Hackett Declaration)(Gacki, Andrea) (Entered: 05/12/2006)
33 Notice re Response in Opposition to Motion, 24 of Lodging of Superseding Ex Parte, In Camera Classified Material. Filed by Andrea Marie Gacki appearing on behalf of all defendants. (Related document(s): Response in Opposition to Motion, 24 .)(Gacki, Andrea) (Entered: 05/12/2006)
34 Sur−Response to Defendants' Response to Filing of Material Ex Parte and In Camera. ORAL ARGUMENT requested. Filed by all plaintiffs.(Nelson, Thomas) (Entered: 05/22/2006)
35 Motion to Compel Discovery. Oral Argument requested Filed by all plaintiffs. (Goldberg, Steven) (Entered: 05/22/2006)
36 Memorandum in Support of Motion to Compel. Filed by all plaintiffs. (Related document(s): Motion to compel 35 .) (Attachments: # 1 Exhibit)(Goldberg, Steven) (Entered: 05/22/2006)
37 Reply Memorandum in Support of Motion to Unseal Document. Filed by Oregon Publishing Company.(Hinkle, Charles) (Entered: 05/22/2006)
38 Sur−Reply to the Oregonian's Reply in Support of the Motion to Unseal and to Plaintiffs' Reply Regarding Ex Parte and In Camera Material. Filed by all defendants.(Gacki, Andrea) (Entered: 05/25/2006)
39 Motion to Prevent Plaintiffs' Access to the Sealed Classified Document. ORAL ARGUMENT requested Filed by all defendants. (Gacki, Andrea) (Entered: 05/26/2006)
40 Memorandum in Support of Defendants' Motion to Prevent Plaintiffs' Access to the Sealed Classified Document. Filed by all defendants. (Related document(s): Motion 39 .) (Attachments: # 1 Attachment 1 − Transcript# 2 Attachment 2 − Letter# 3 Attachment 3 − Haddad opinion# 4 Attachment 4 − Al−Aqeel Am. Compl.)(Gacki, Andrea) (Entered: 05/26/2006)
41 Motion for Extension of Time to Respond Both to the Complaint and to Plaintiffs' Motion to Compel. Filed by all defendants. (Gacki, Andrea) (Entered: 06/01/2006)
42 Response to Motion for Extension of Time 41 . Filed by all plaintiffs.(Goldberg, Steven) (Entered: 06/02/2006)
43 ORDER − Defendants' Motion for Extension of Time to Respond Both to the Complaint and to Plaintiffs' Motion to Compel 41 is GRANTED in PART and DENIED in PART. The time to respond to the Complaint is extended to 6/16/06, and time to respond to the Motion to Compel is extended until 6/16/06. Defendants' request to file a consolidated response is DENIED. Plaintiffs' request to file a reply to Defendants' response to the Motion to Compel is GRANTED, with the reply due by 6/30/06. Plaintiffs' request for extension of time to respond to any dispositive motion is noted and will be considered if such motion is filed. The discovery deadline is extended at Plaintiffs' request and will be reset in a future telephone conference with the parties. Ordered by Judge Garr M. King. (mja, ) (Entered: 06/07/2006)
44 Transcript of Telephone Conference Proceedings held on April 7, 2006 before Judge Garr M. King. Court Reporter: Nancy M. Walker. (pvh, ) (Entered: 06/09/2006)
45 Motion for Protective Order Barring the Deposition of Barbara C. Hammerle. Oral Argument requested Filed by all defendants. (Gacki, Andrea) (Entered: 06/09/2006)
46 Memorandum in Support of Defendants' Motion for a Protective Order Barring the Deposition of Barbara C. Hammerle. Filed by all defendants. (Related document(s): Motion for Protective Order 45 .) (Attachments: # 1 Attachment 1 − Notice of Deposition# 2 Attachment 2 − Declaration of Barbara Hammerle)(Gacki, Andrea) (Entered: 06/09/2006)

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06/15/2006 06/16/2006
06/16/2006
06/19/2006
06/19/2006
06/19/2006
06/19/2006 06/21/2006 06/21/2006 06/21/2006 06/21/2006 06/21/2006 06/21/2006

47 Unopposed Motion for Extension of Time to Respond to Complaint and Motion to Compel. Filed by all defendants. (Coppolino, Anthony) (Entered: 06/15/2006)
48 ORDER − Granting Defendants' Unopposed Motion for Second Extension of Time to Respond to Complaint and to Plaintiffs' Motion to Compel 47 . The time to respond to the Complaint is extended to 6/21/2006. The time to respond to the Motion to Compel is extended to 6/21/2006. Plaintiffs' time to reply to Defendants' response to the Motion to Compel is extended to 7/6/2006. Ordered by Judge Garr M. King. (mja, ) (Entered: 06/16/2006)
49 Response in Opposition to Defendants' Motion to Deny Access to Sealed Document to Motion 39 Oral Argument requested. Filed by all plaintiffs. (Attachments: # 1 Exhibit 1 − Declaration of Lynne Bernabei# 2 Exhibit 2 − Declaration of Wendell Belew# 3 Exhibit 3 − Declaration of Asim Ghafoor# 4 Exhibit 4 − Declaration of Thomas H. Nelson (redacted, original filed under seal)# 5 Exhibit 5 − Plaintiffs' Proposed Protective Order and Agreement)(Nelson, Thomas) (Entered: 06/16/2006)
50 AMENDED Order − Granting Defendants' Unopposed Motion for Second Extension of Time to Respond to Complaint and to Plaintiffs' Motion to Compel 47 . The time to respond to the Complaint is extended to 6/21/2006. The time to respond to the Motion to Compel is extended to 6/21/2006. Plaintiffs requested a corresponding extension of time to file their response, to which defendants did not object. Plaintiffs' time to reply to Defendants' response to the Motion to Compel is extended to 7/11/2006. Ordered by Judge Garr M. King. (mja, ) (Entered: 06/19/2006)
51 Scheduling Order by Garr M. King. Order − Setting a Telephone Conference to discuss Plainitffs' recent filing for 6/19/2006 at 01:00PM. The Court will initiate the call to the following parties: Steven Goldberg (503) 224−2372, Zaha S. Hassan (503) 230−8311, Lisa R. Jaskol (818) 995−5820, Thomas H. Nelson (503) 230−8311, Andrea Marie Gacki (202) 514−4336, Andrew H. Tannenbaum (202) 514−4263 and Anthony J. Coppolino (202) 514−4782.Ordered by Judge Garr M. King. (mja, ) (Entered: 06/19/2006)
52 MINUTES of Telephone Conference: Order − Plaintiffs' recent filing discussed as stated on the record. Jessica Ashlee Albies, John Eisenberg, Steven Goldberg, Zaha Hassan, and Lisa Jaskol present as counsel for plaintiff(s). Andrew Tennenbaum, Jim Sutherland, Carl Nichols, and Andrea Gacki present as counsel for defendant(s). Court Reporter: Nancy Walker. Garr M. King presiding. (mja, ) (Entered: 06/19/2006)
53 Motion to Continue and Abey Proceedings on Defendants' Motion for Protective Order. Filed by all plaintiffs. (Attachments: # 1 Exhibit 1 − Proposed Order Abeying Proceedings Pending Resolution of Motion to Dismiss) (Nelson, Thomas) (Entered: 06/19/2006)
54 Motion to File Excess Pages in Response to the Complaint and the Motion to Compel re Motion to compel 35 . Filed by all defendants. (Gacki, Andrea) (Entered: 06/21/2006)
55 Response in Opposition to Motion to compel 35 . Filed by all defendants. (Attachments: # 1 Attachment 1 − Declaration of DNI# 2 Attachment 2 − Declaration of NSA Director)(Gacki, Andrea) (Entered: 06/21/2006)
56 Notice of Lodging of In Camera, Ex Parte Materials. Filed by Andrea Marie Gacki appearing on behalf of all defendants.(Gacki, Andrea) (Entered: 06/21/2006)
57 Amended Motion to File Excess Pages in Response to the Complaint and Motion to Compel re Motion to compel 35 . Filed by all defendants. (Gacki, Andrea) (Entered: 06/21/2006)
58 Motion to Dismiss or, in the Alternative, for Summary Judgment. Filed by all defendants. (Tannenbaum, Andrew) (Entered: 06/21/2006)
59 Memorandum in Support of the United States' Assertion of the Military and State Secrets Privilege and Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment. Filed by all defendants. (Related document(s): Motion to

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06/22/2006 06/23/2006 06/26/2006 06/27/2006
06/30/2006 07/10/2006 07/10/2006

Dismiss 58 .) (Attachments: # 1 Exhibit Declaration of John D. Negroponte, Director of National Intelligence# 2 Exhibit Declaration of Lt. Gen. Keith B. Alexander, Director, National Security Agency)(Tannenbaum, Andrew) (Entered: 06/21/2006)
60 ORDER: It is ordered that the proceedings relating to defendants' motion for protective order be held in abeyance pending resolution of defendants' anticipated motion to dismiss. Plaintiffs will not pursue the deposition of Barbara Hammerle while defendants' motion for protective order is in abeyance. 53 Signed on 6/22/06 by Judge Garr M. King. (md, ) (Entered: 06/23/2006)
61 Scheduling Order by Garr M. King. Order − Setting a Telephone Conference to discuss Plaintiffs' letter of June 23, 2006, for 6/27/2006 at 01:15PM. The court will initiate the call to the following parties: Steven Goldberg (503) 224−2372, Zaha S. Hassan (503) 230−8311, Lisa R. Jaskol (818) 995−5820, Thomas H. Nelson (503) 230−8311, Andrea Marie Gacki (202) 514−4336, Andrew H. Tannenbaum (202) 514−4263 and Anthony J. Coppolino (202) 514−4782. Ordered by Judge Garr M. King. (mja, ) (Entered: 06/23/2006)
62 Notice of Motion to Transfer to the Joint Panel on Multidistrict Litigation. Filed by Andrew H. Tannenbaum appearing on behalf of all defendants. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Tannenbaum, Andrew) (Entered: 06/26/2006)
63 MINUTES of Telephone Conference: Order − Plaintiffs have advised the court that they intend to rely on the sealed document and the sealed Declaration of Thomas Nelson filed in this case in their responses to defendants' Motion to Transfer to the Joint Panel on Multidistrict Litigation ("JPML"). In the Motion to Transfer, defendants seek to have this case transferred to the U.S. District Court for the District of Columbia for consolidation with other cases in which defendants are asserting the state secrets privilege. Plaintiffs have requested that the sealed document and sealed Declaration be made available to the JPML. Defendants are hereby ordered to make copies, using secure means, of both the sealed document and sealed Declaration which are currently held in the SCIF in Portland, to retain the originals in the Portland SCIF, and to transfer the copies by secure means to the appropriate security officer in the U.S. District Court for the District of Columbia for placement in a SCIF to which that court has access. Defendants have represented that the copies can thereafter be transferred securely to a SCIF accessible by the JPML within 24 hours of the JPML's request for the documents in advance of the scheduled argument in Chicago. Pending before the court are several motions. Defendants' Amended Motion to File Excess Pages in Response to the Complaint and Motion to Compel 57 is granted, and the Motion to File Excess Pages in Response to the Complaint and Motion to Compel 54 is dismissed as moot. Defendants' reply to the plaintiffs' Opposition to Defendants' Motion to Deny Access to Sealed Document is due June 30, 2006. Plaintiffs' response to the Motion to Dismiss is due July 11, 2006. Defendants' reply to the plaintiffs' response to the Motion to Dismiss is due July 25, 2006. As previously ordered, plaintiffs' reply to the defendants' Response in Opposition to Motion to Compel Discovery is due July 11, 2006. Setting Oral Argument on Defendants' Motion to Dismiss, the Plaintiffs' Motion to Compel Discovery, the Defendants' Motion to Deny Plaintiffs Access to Sealed Document, and the Oregon Publishing Company's Motion to Unseal Records for Tuesday, August 29, 2006 at 9:30AM, in Portland, Courtroom 9A, before Judge Garr M. King. Jessica Albies, Jon Eisenberg, Steven Goldberg, Zaha Hassan, Thomas Nelson, and Lisa Jaskol present as counsel for plaintiff(s). Tony Coppolini, Andrew Tannenbaum, Jim Sutherlin present as counsel for defendant(s). Court Reporter: Nancy Walker. Garr M. King presiding. (Entered: 06/27/2006)
64 Reply to Motion to Prevent Plaintiffs' Access to the Sealed Classified Document 39 Oral Argument requested. Filed by all defendants.(Gacki, Andrea) (Entered: 06/30/2006)
65 Reply to Defendants' Opposition to Plaintiffs' Motion for Order Compelling Discovery ORAL ARGUMENT requested. Filed by all plaintiffs.(Goldberg, Steven) (Entered: 07/10/2006)
66 Response in Opposition to Motion to Dismiss 58 Oral Argument requested. Filed by all plaintiffs.(Nelson, Thomas) (Entered: 07/10/2006)

Case 3:06-cv-274 As of 06/25/2014 08:42 AM PDT Page 11 of 13 Page ID#: <pageID>

07/25/2006 07/25/2006 07/25/2006 08/01/2006
08/03/2006 08/04/2006 08/14/2006 08/15/2006 08/16/2006 08/17/2006

67 Reply Defendants' Reply in Support of to Motion to Dismiss or, in the Alternative, for Summary Judgment(58 in 3:06−cv−00274−KI). Filed by all defendants.Associated Cases: 3:06−cv−00274−KI, 3:06−cv−00553−AA(Coppolino, Anthony) Additional attachment(s) added on 8/1/2006 (jlr, ). (Entered: 07/25/2006)
68 Unopposed Motion to File Excess Pages for Defendants' Reply in Support of Motion to Dismiss or for Summary Judgment. Filed by George W Bush, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Robert W. Werner, Federal Bureau of Investigation, Robert S. Mueller, III.Associated Cases: 3:06−cv−00274−KI, 3:06−cv−00553−AA (Coppolino, Anthony) Additional attachment(s) added on 8/1/2006 (jlr, ). (Entered: 07/25/2006)
69 Notice of Lodging in Camera Reply in Support of Defendants' Motion to Dismiss or for Summary Judgment. Filed by Anthony J. Coppolino appearing on behalf of George W Bush, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Robert W. Werner, Federal Bureau of Investigation, Robert S. Mueller, III.Associated Cases: 3:06−cv−00274−KI, 3:06−cv−00553−AA(Coppolino, Anthony) Additional attachment(s) added on 8/1/2006 (jlr, ). (Entered: 07/25/2006)
70 Order regarding Unopposed Motion to File Excess Pages for Defendants' Reply in Support of Motion to Dismiss or for Summary Judgment 68 filed by Robert S. Mueller, III, Office of Foreign Assets Control, George W Bush, Keith B. Alexander, Robert W. Werner, National Security Agency, Federal Bureau of Investigation, Notice, 69 filed by Robert S. Mueller, III, Office of Foreign Assets Control, George W Bush, Keith B. Alexander, Robert W. Werner, National Security Agency, Federal Bureau of Investigation, Reply to Motion, 67 filed by Robert S. Mueller, III, Office of Foreign Assets Control, George W Bush, Keith B. Alexander, Robert W. Werner, National Security Agency, Federal Bureau of Investigation for Administrative Correction of the Record. A Clerical error has been discovered in the case record. In accordance with Fed. R. Civ. P. 60(a), the Clerk is directed to make the following administrative corrections to the record and to notify all parties accordingly. The PDF documents are now attached to documents 67,68, and 69 and are also attached to this entry. (Attachments: # 1 Reply in Support of Motion To Dismiss; # 2 Unopposed Motion To File Excess Pages; # 3 Notice of Lodging In Camera Reply) (jlr, ) (Entered: 08/01/2006)
71 Order − With briefing now complete, the court has requested that the Department of Justice Litigation Security Group deliver the classified filings lodged in this case to the SCIF in Portland so that they are readily accessible to the court. The court has not yet made a decision whether in camera, ex parte review of these filings is appropriate. Ordered by Judge Garr M. King. (mja, ). (Entered: 08/03/2006)
72 ORDER − Granting Defendants' Unopposed Motion to File Excess Pages for Defendants' Reply in Support of Motion to Dismiss or for Summary Judgment 68 . The Court has not yet made a decision whether in camera, ex parte review of this filing is appropriate. Ordered by Judge Garr M. King. (mja, ) (Entered: 08/04/2006)
73 Notice of Decision by the Judicial Panel on Multidistrict Litigation. Filed by Andrea Marie Gacki appearing on behalf of all defendants. (Attachments: # 1 Exhibit 1 − MDL Transfer Order) (Gacki, Andrea) (Entered: 08/14/2006)
74 Response to Defendants' Notice of Decision by The Judicial Panel on Multidistrict Litigation. Filed by all plaintiffs. (Related document(s): Notice 73 .) (Attachments: # 1 Attachment Interested Parties Response to the United States' Motion for Transfer and Coordination) (Goldberg, Steven) (Entered: 08/15/2006)
75 Reply to Plaintiffs' Response to Notice of Decision by the Judicial Panel on Multidistrict Litigation. Filed by all defendants. (Related document(s): Notice 73 .) (Tannenbaum, Andrew) (Entered: 08/16/2006)
76 Scheduling Order by Garr M. King. Order − Setting a Telephone Conference to discuss the Defendants' Notice of Decision by the Judicial Panel on Multidistrict Litigation 73 for 8/18/2006 at 10:00AM. The court will initiate the call to the following parties: Steven Goldberg (503) 224−2372, Zaha S. Hassan (503) 230−8311, Lisa R. Jaskol (818) 995−5820, Thomas H. Nelson (503) 230−8311,

Case 3:06-cv-274 As of 06/25/2014 08:42 AM PDT Page 12 of 13 Page ID#: <pageID>

08/18/2006
08/29/2006
09/07/2006
09/11/2006 10/04/2006 10/24/2006 10/24/2006 10/26/2006 10/30/2006 10/30/2006 10/30/2006 10/30/2006

Andrea Marie Gacki (202) 514−4336, Jim Sutherlin (503) 727−1194, Andrew H. Tannenbaum (202) 514−4263 and Anthony J. Coppolino (202) 514−4782. Ordered by Judge Garr M. King. (mja) (Entered: 08/17/2006)
77 MINUTES of Telephone Conference: Order − defendants' request to delay or stay proceedings is denied. Judge King will review ex parte in camera filings made by defendants in June and July. Jon B. Eisenberg, Zaha Hassan, Lisa Jaskol and Jessica Albies present as counsel for plaintiff(s). Jim Sutherland, Andrew Tannenbaum and Andrea Gacki present as counsel for defendant(s). Court Reporter: Dennis Grube. Garr M. King presiding. (mja) (Entered: 08/18/2006)
78 MINUTES of Oral Argument Hearing: Order − The Oregon Publishing Company's Motion to Unseal Records 7 , Plaintiffs' Motion to Compel Discovery 35 , the Defendants' Motion to Deny Plaintiffs Access to Sealed Document 39 and Defendants' Motion to Dismiss 58 , are taken under advisement as of 8/29/2006. Steven Goldberg, Jessica Albies, Saha Hassan, Lisa Jaskol, Thomas Nelson and Jon Eisenberg present as counsel for plaintiffs. Andrea Gacki, Andrew Tannenbaum and Anthony Coppolino Present as Counsel for defendants. Charles Hinkle present as counsel for interested party. Court Reporter: Nancy Walker. Garr M. King presiding. (mja) (Entered: 08/29/2006)
79 OPINION AND ORDER. The government's Motion to Dismiss, or, in the Alternative, for Summary Judgment (#58) is denied, but the government has leave to renew its Motion for Summary Judgment. The government's Motion to Prevent Plaintiffs' Access to the Sealed Classified Document (#39) is granted. Plaintiffs' Motion for Order Compelling Discovery (#35) is denied with leave to renew. Oregonian Publishing Company's Motion to Intervene was previously granted, but its Motion to Unseal Records (#7) is denied. IT IS SO ORDERED. Signed on 09/07/06 by Judge Garr M. King. (pvh) (Entered: 09/07/2006)
80 Transcript of Motion Hearing Proceedings held on 08/29/06 before Judge Garr M. King. Court Reporter: Nancy M. Walker. (pvh) (Entered: 09/12/2006)
81 Order − The court grants the government's letter request that it be permitted to file a motion to stay proceedings while its petition for interlocutory review is pending. Ordered by Judge Garr M. King. (mja) (Entered: 10/04/2006)
82 Motion for Stay Defendants' Motion for a Stay of Proceedings Pending Interlocutory Appeal. Filed by all defendants. (Coppolino, Anthony) (Entered: 10/24/2006)
83 Memorandum in Support of Motion to Stay Proceedings Pending Interlocutory Appeal. Filed by all defendants. (Coppolino, Anthony) (Entered: 10/24/2006)
84 Transcript of Telephone Conference Proceedings held on 06/19/06 before Judge Garr M. King. Court Reporter: Nancy M. Walker. (pvh) (Entered: 10/26/2006)
85 Motion for Partial Summary Judgment Of Liability Or, Alternatively, For Partial Summary Adjudication of Specific Issues Within Claims. Oral Argument requested Filed by all plaintiffs. (Goldberg, Steven) (Entered: 10/30/2006)
86 Concise Statement of Material Fact. Filed by all plaintiffs. (Related document(s): Motion for Partial Summary Judgment 85 .) (Goldberg, Steven) (Entered: 10/30/2006)
87 Memorandum in Support of Plaintiffs' Motion for Partial Summary Judgment of Liability or, Alternatively, for Partial Summary Adjudication of Specific Issues Within Claims. Filed by all plaintiffs. (Related document(s): Motion for Partial Summary Judgment 85 .) (Goldberg, Steven) (Entered: 10/30/2006)
88 Declaration of Steven Goldberg in Support of Plaintiffs' Motion for Partial Summary Judgment or Adjudication. Filed by all plaintiffs. (Related document(s): Motion for Partial Summary Judgment 85 .) (Attachments: # 1 Exhibit A to Declaration of Steven Goldberg# 2 Exhibit B to Declaration of Steven Goldberg# 3 Exhibit C to Declaration of Steven Goldberg# 4 Exhibit D to Declaration of Steven Goldberg# 5 Exhibit E to Declaration of Steven Goldberg# 6 Exhibit F to Declaration of Steven Goldberg# 7 Exhibit G to Declaration of Steven Goldberg# 8 Exhibit H to Declaration of Steven Goldberg# 9 Exhibit I to Declaration of Steven

Case 3:06-cv-274 As of 06/25/2014 08:42 AM PDT Page 13 of 13 Page ID#: <pageID>

10/31/2006
11/01/2006 11/01/2006
11/02/2006 11/15/2006 12/20/2006 12/20/2006
12/26/2006
01/05/2007 01/05/2007 01/05/2007 01/18/2007

Goldberg) (Goldberg, Steven) (Entered: 10/30/2006)
89 Scheduling Order by Garr M. King. Order − Setting a Telephone Conference to discuss the parties' recent submission to the court for 11/1/2006 at 01:30PM. The court will initiate the call to the following parties: Steven Goldberg (503) 224−2372, Zaha S. Hassan (503) 230−8311, Lisa R. Jaskol (818) 995−5820, Thomas H. Nelson (503) 230−8311, Andrea Marie Gacki (202) 514−4336, Jim Sutherlin (503) 727−1194, Andrew H. Tannenbaum (202) 514−4263 and Anthony J. Coppolino (202) 514−4782. Ordered by Judge Garr M. King. (mja) (Entered: 10/31/2006)
90 Response in Opposition to Motion for Stay Defendants' Motion for a Stay of Proceedings Pending Interlocutory Appeal 82 Oral Argument requested. Filed by all plaintiffs. (Goldberg, Steven) (Entered: 11/01/2006)
91 MINUTES of Telephone Conference: Order − Handling of documents discussed as stated on the record. Steven Goldberg, Jon Eisenberg, Jessica Albies, Zaha Hassan and Lisa Jaskol present as counsel for plaintiff(s). Andrew Tannenbaum, Anthony Coppolino, Andrea Gacki and James Sutherland present as counsel for defendant(s). Court Reporter: Karen Eichhorn. Phone (503) 936−4805. Garr M. King presiding. (mja) (Entered: 11/01/2006)
92 Transcript of Proceedings held on 11/01/06 before Judge Garr M. King. Court Reporter: Karen N. Eichhorn. (pvh) (Entered: 11/02/2006)
93 Reply in Support of Defendants' Motion to Motion for Stay Defendants' Motion for a Stay of Proceedings Pending Interlocutory Appeal 82 . Filed by George W Bush, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Robert W. Werner, Federal Bureau of Investigation, Robert S. Mueller, III. (Coppolino, Anthony) (Entered: 11/15/2006)
94 Conditional Transfer Order dated 12/15/06 transferring this case to the USDC for the Northern District of California pursuant to Docket No. 1791. Signed &sealed on 12/15/06 by Willial Terrell Hodges, Chairman of the MDL Panel. (mkk) (Entered: 12/20/2006)
95 Order − For purposes of clarifying the docket prior to transferring the case, the Court did not issue a decision on defendants' Motion to Stay Pending Appeal (#82), and halted the briefing schedule on plaintiffs' Motion for Summary Judgment (#85), pending the decision of the Judicial Panel on Multidistrict Litigation. In addition, the defendants' Motion for Protective Order Barring Deposition of Barbara C. Hammerle (#45) was held in abeyance on June 22, 2006, pending the outcome of defendants' Motion to Dismiss. That motion for protective order is now denied with leave to renew given this court's Opinion and Order on defendants' Motion to Dismiss. Ordered by Judge Garr M. King. (mja) (Entered: 12/20/2006)
96 Certified Copy of Order from USCA for the 9th Circuit. The petition for permission to appeal pursuant to 28 U.S.C. §1292(b) is GRANTED. Within 10 days of this order, petitioners shall perfect the appeal pursuant to Federal Rule of Appellate Procedure 5(d). See also 9th Cir. R. 3.1(c). The Clerk is directed to open a new docket number for this appeal. (Case #06−80134 assigned.). Petitioners' alternate motion to hold this appeal in abeyance pending resolution by this court of Hepting v. ATTCorp., appeal No. 06−17132, and Hepting v. United States, appeal No. 06−17137, shall be addressed by separate order. Filing Fee must be paid by 1/10/2007.(eo) (Entered: 12/27/2006)
97 Transcript of Telephonic Conference Proceedings held on 03/20/06 before Judge Garr M. King. Court Reporter: Dennis R. Grube. (pvh) (Entered: 01/08/2007)
98 Transcript of Telephone Conference Proceedings held on 03/21/06 before Judge Garr M. King. Court Reporter: Bonita J. Alexander.. (pvh) (Entered: 01/08/2007)
99 Transcript of Telephonic Conference Proceedings held on 04/25/06 before Judge Garr M. King. Court Reporter: Dennis R. Grube. (pvh) (Entered: 01/08/2007)
100 Transcript of Proceedings held on June 27, 2006 before Judge Garr M. King. Court Reporter: Nancy Walker. (eo) (Entered: 01/22/2007)

 
 Case: 3:07-cv-109 As of: 06/25/2014 08:49 AM PDT 1 of 21
CLOSED,E−Filing
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:07−cv−00109−VRW

Al−Haramain Islamic Foundation, Inc. et al v. Bush et al Assigned to: Hon. Vaughn R. Walker Demand: $2,560,000 Lead case: 3:06−md−01791−VRW Member case: (View Member Case)
Case in other court: 9th Circuit, 11−15468
USDC − District of Oregon, Portland, 3:06−00274 KI
Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 01/09/2007 Date Terminated: 01/31/2013 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Al−Haramain Islamic Foundation, Inc. an Oregon Nonprofit Corporation

represented by Jon B. Eisenberg Horvitz &Levy LLP 1970 Broadway Suite 1200 Oakland, CA 94612 510−452−2581 Fax: 510−452−3277 Email: jeisenberg@horvitzlevy.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Robin Jaskol 8577 Wonderland Avenue Los Angeles, CA 90046 213−385−2977 x151 Fax: 213−385−9089 Email: ljaskol@publiccounsel.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Howard Nelson PO Box 1211 24525 E. Welches Road Welches, OR 97067−1211 503−622−3123 Fax: 503−622−1438 Email: nelson@thnelson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Zaha S Hassan Law offices of Zaha Hassan PO Box 1168 Lake Oswego, OR 97035 360−213−9737 Email: zahahassan@comcast.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica Ashlee Albies Steenson Schumann Tewksbury Creighton &Rose PC 815 S.W. 2nd, Ste 500 Portland, OR 97204 503−221−1792 Fax: 503−223−1516 Email: ashlee@sstcr.com

Case: 3:07-cv-109 As of: 06/25/2014 08:49 AM PDT 2 of 21

ATTORNEY TO BE NOTICED

Steven Goldberg 205 S.E. Spokane St. Ste 300 Portland, OR 97202 503−445−4622 Fax: 503−238−7501 Email: steven@stevengoldberglaw.com ATTORNEY TO BE NOTICED

Plaintiff
Wendell Belew a U.S. Citizen and Attorney at Law

represented by Jon B. Eisenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Robin Jaskol (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Howard Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Zaha S Hassan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica Ashlee Albies (See above for address) ATTORNEY TO BE NOTICED

Steven Goldberg (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Asim Ghafoor a U.S. Citizen and Attorney at Law

represented by Jon B. Eisenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Robin Jaskol (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Howard Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Zaha S Hassan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica Ashlee Albies (See above for address) ATTORNEY TO BE NOTICED

Case: 3:07-cv-109 As of: 06/25/2014 08:49 AM PDT 3 of 21
Steven Goldberg (See above for address) ATTORNEY TO BE NOTICED

V. Defendant George W. Bush President of the United States
Defendant National Security Agency
Defendant Keith B. Alexander its Director

represented by 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
Alexander Kenneth Haas United States Department of Justice Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 (202) 307−3937 Email: Alexander.Haas@usdoj.gov ATTORNEY TO BE NOTICED
Andrea Marie Gacki US Department of Justice 20 Massachusetts Ave NW, Room 7334 Washington, DC 20001 202−514−4336 Fax: 202−616−8202 ATTORNEY TO BE NOTICED
represented by Anthony Joseph Coppolino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander Kenneth Haas (See above for address) ATTORNEY TO BE NOTICED
Andrea Marie Gacki (See above for address) ATTORNEY TO BE NOTICED
Marcia Berman U.S. Dept. of Justice, Civil Division Federal Programs Branch 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
represented by Anthony Joseph Coppolino (See above for address)

Case: 3:07-cv-109 As of: 06/25/2014 08:49 AM PDT 4 of 21

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander Kenneth Haas (See above for address) ATTORNEY TO BE NOTICED

Andrea Marie Gacki (See above for address) ATTORNEY TO BE NOTICED

Marcia Berman (See above for address) ATTORNEY TO BE NOTICED

Defendant
Office of Foreign Assets Control an office of the United States Treasury

represented by Anthony Joseph Coppolino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander Kenneth Haas (See above for address) ATTORNEY TO BE NOTICED

Andrea Marie Gacki (See above for address) ATTORNEY TO BE NOTICED

Marcia Berman (See above for address) ATTORNEY TO BE NOTICED

Defendant
Robert W. Werner its Director TERMINATED: 07/29/2008

represented by Anthony Joseph Coppolino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander Kenneth Haas (See above for address) ATTORNEY TO BE NOTICED

Andrea Marie Gacki (See above for address) ATTORNEY TO BE NOTICED

Defendant Federal Bureau of Investigation

represented by Anthony Joseph Coppolino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander Kenneth Haas (See above for address) ATTORNEY TO BE NOTICED

Andrea Marie Gacki (See above for address) ATTORNEY TO BE NOTICED

Marcia Berman (See above for address)

Case: 3:07-cv-109 As of: 06/25/2014 08:49 AM PDT 5 of 21

ATTORNEY TO BE NOTICED

Defendant
Robert S. Mueller, III its Director

represented by Anthony Joseph Coppolino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Marcus Meeks United States Department of Justice P.O. Box 7146 Ben Franklin Sta. Washington, DC 20044 (202) 616−4176 Email: marcus.meeks@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander Kenneth Haas (See above for address) ATTORNEY TO BE NOTICED

Andrea Marie Gacki (See above for address) ATTORNEY TO BE NOTICED

Marcia Berman (See above for address) ATTORNEY TO BE NOTICED

Defendant Adam J Szubin

represented by Anthony Joseph Coppolino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander Kenneth Haas (See above for address) ATTORNEY TO BE NOTICED

Marcia Berman (See above for address) ATTORNEY TO BE NOTICED

Defendant President Barack Obama

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

Marcia Berman (See above for address) ATTORNEY TO BE NOTICED

Interested Party Oregon Publishing Company

represented by Charles F. Hinkle Stoel Rives, LLP

Case: 3:07-cv-109 As of: 06/25/2014 08:49 AM PDT 6 of 21

900 SW Fifth Avenue Suite 2600 Portland, OR 97204 503−294−9403 Fax: 503−220−2480 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emilie K. Edling Stoel Rives, LLP 900 SW Fifth Avenue Suite 2600 Portland, OR 97204 503−294−9567 Fax: 503−220−2480 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Amici Curiae MDL Plaintiffs

represented by 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

Jennifer Lloyd Kelly Fenwick &West LLP 555 California Street, 12th Floor San Francisco, CA 94104 415−875−2426 Fax: 415−281−1350 Email: jkelly@fenwick.com ATTORNEY TO BE NOTICED

Amicus ATTCorp

Amicus Verizon Communications Inc.

represented by John Andrew Rogovin Wilmer Cutler Pickering Hale &Dorr LLP 1875 Pennsylvania Ave NW Washington, DC 20006 202−663−6270 Email: john.rogovin@wilmerhale.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Verizon Florida, Inc.

represented by John Andrew Rogovin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Verizon Northwest, Inc.

represented by John Andrew Rogovin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:07-cv-109 As of: 06/25/2014 08:49 AM PDT 7 of 21

Amicus Verizon Maryland, Inc.
Amicus Verizon Global Networks, Inc.
Amicus MCI Communications Services, Inc.

represented by John Andrew Rogovin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John Andrew Rogovin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John Andrew Rogovin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 01/09/2007
01/09/2007 01/22/2007 03/13/2007 03/14/2007 03/26/2007

# Docket Text
1 Case transferred in from District of Oregon, Portland; Case Number 3:06−cv−00274−KI. Original file certified copy of transfer order and docket sheet received.. Filed byWendell Belew, Asim Ghafoor, Al−Haramain Islamic Foundation, Inc.. (Attachments: # 1 Doc#02 Motion to File Under Seal# 2 Doc#03 Assignment Order# 3 Doc#04 Notice of Manual Filing# 4 Doc#05 Notice of Reassignment# 5 Doc#07 Notice of Manual Filing# 6 Doc#08 Notice of Manual Filing# 7 Doc#12 Notice of Appearance# 8 Doc#13 Notice of Appearance# 9 Doc#14 Notice of Appearance# 10 Doc#15 Notice of Appearance# 11 Doc#16 Notice of Manual Filing# 12 Doc#17 Motion for Extension of Time# 13 Doc#20 Order Granting PHV App# 14 Doc#21 Order Granting PHV App# 15 Doc#24 Notice of Lodging# 16 Doc#24−2 Attachment A# 17 Doc#24−3 Attachment B# 18 Doc#24−4 Attachment C# 19 Doc#27 Notice of Manual Filing# 20 Doc#28 Notice of Manual Filing)(gsa, COURT STAFF) (Filed on 1/9/2007) Additional attachment(s) added on 1/11/2007 (gsa, COURT STAFF). Additional attachment(s) added on 1/11/2007 (gsa, COURT STAFF). Additional attachment(s) added on 1/11/2007 (gsa, COURT STAFF). Additional attachment(s) added on 1/11/2007 (gsa, COURT STAFF). (Entered: 01/11/2007)
CASE DESIGNATED for Electronic Filing. (gsa, COURT STAFF) (Filed on 1/9/2007) (Entered: 01/11/2007)
2 NOTICE by George W. Bush, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Robert W. Werner, Federal Bureau of Investigation, Robert S. Mueller, III Regarding Transcript Orders (Tannenbaum, Andrew) (Filed on 1/22/2007) (Entered: 01/22/2007)
3 ORDER setting briefing schedule for plaintiffs' motion for partial summary judgment. Signed by Chief Judge Walker on 3/13/07. (vrwlc2, COURT STAFF) (Filed on 3/13/2007) (Entered: 03/13/2007)
Set/Reset Hearings: Motion Hearing set for 5/3/2007 02:00 PM in Courtroom 6, 17th Floor, San Francisco; opposition due 4/12/2007; reply due 4/19/2007. (cgk, COURT STAFF) (Filed on 3/14/2007) (Entered: 03/14/2007)
4 MOTION Administrative Motion for an Interim Stay of Briefing Pending the Court of Appeals' Consideration of Defendants' Stay Motion filed by George W. Bush, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Robert W. Werner, Federal Bureau of Investigation, Robert S. Mueller, III. (Attachments: # 1 Exhibit 1 (Government's Motion to the Ninth Circuit for a Stay Pending Appeal)# 2 Declaration of Andrew H. Tannenbaum in Support of Defendants' Administrative Motion for an Interim Stay# 3 Proposed Order)(Tannenbaum, Andrew) (Filed on 3/26/2007) (Entered: 03/26/2007)

Case: 3:07-cv-109 As of: 06/25/2014 08:49 AM PDT 8 of 21

04/04/2007 04/30/2007
06/22/2007 06/22/2007 06/23/2007 06/23/2007 12/14/2007 01/25/2008 02/05/2008 02/06/2008 02/07/2008

5 NOTICE by George W. Bush, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Robert W. Werner, Federal Bureau of Investigation, Robert S. Mueller, III of Order by Court of Appeals Granting the Government's Motion for a Stay Pending Appeal (Attachments: # 1 April 4, 2007 Order of the United States Court of Appeals for the Ninth Circuit)(Tannenbaum, Andrew) (Filed on 4/4/2007) (Entered: 04/04/2007)
6 ORDER of USCA − The court has reviewed the motion for reconsideration and responses thereto, includng the opposition to consolidation filed by the non−party plaintiff's appellees in Hepting v. ATappeals No, 06−17132. 06−17137. The motion for reconsideration seeking to lift the stay of appellate proceedings is granted. Appellants' April 20, 2007 motion for leave to file an opposition to appellees' proposed briefing scheduled in appeal No. 06−36083 is granted. Appellants' opposition has been filed. The Clerk shall consolidate and calendar this appeal with the appeals Hepting v. ATTCorp. appeal No. 06−17132, and Hepting v. United States appeal No. 06−17137. The briefing schedule in appeal Nos. 06−17132 and 06−17137 remains as previously established. The following briefing schedule shall be set for appeal No. 06−36083; the opening brief and excerpts or record are due June 6, 2007, the answering brief is due July 6, 2007; and the optional reply brief is due within 14 days after service of the answering brief. The provisions of Ninth Circuit Rule 31−2.2(a) shall not be applicable to appeal No. 06−36083; any Rule 31−2.2(b) request is strongly disfavored. The Clerk shall calendar these consolidated appeals during the week of August 13−17. 2007, in San Francisco, California. No motions for reconsideration, modification or clarification of this order shall be filed or entertained. (gsa, COURT STAFF) (Filed on 4/30/2007) (Entered: 05/01/2007)
7 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)
8 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)
9 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)
10 Appendix re Opposition, Verizon's Motion to Dismiss Master Complaint. (Entered: 06/23/2007)
11 NOTICE by George W. Bush, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Robert W. Werner, Federal Bureau of Investigation, Robert S. Mueller, III of Manual Filing (Haas, Alexander) (Filed on 12/14/2007) (Entered: 12/14/2007)
12 CLERK'S NOTICE : Case Management Conference set for 2/7/2008 10:00 AM. (cgk, COURT STAFF) (Filed on 1/25/2008) (Entered: 01/25/2008)
13 NOTICE by George W. Bush, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Robert W. Werner, Federal Bureau of Investigation, Robert S. Mueller, III of Withdrawal of Counsel (Tannenbaum, Andrew) (Filed on 2/5/2008) (Entered: 02/05/2008)
14 CASE MANAGEMENT STATEMENT Defendants' Case Management Statement filed by George W. Bush, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Robert W. Werner, Federal Bureau of Investigation, Robert S. Mueller, III. (Coppolino, Anthony) (Filed on 2/6/2008) (Entered: 02/06/2008)
15 Minute Entry: Case Management and Status Conference held on 2/7/2008 before Chief Judge Vaughn R Walker. RESULTS:Further briefing re 1806(f) in Al−Haramain case only.Amici were permitted to file their briefs.Schedule: File

Case: 3:07-cv-109 As of: 06/25/2014 08:49 AM PDT 9 of 21

02/07/2008 02/11/2008 03/14/2008
03/14/2008
03/25/2008 03/28/2008 03/28/2008
03/28/2008 04/07/2008 04/07/2008

brief : 3/14/08. Opposition: 3/28/08. Reply: 4/14/08. Hearing: 4/23/2008 at 10:00 AM.Filing of the briefs limited to the master MDL case and the individual case only.Page limitation has been set by the court to up to 40page limit. (Court Reporter Connie Kuhl.) (cgk, COURT STAFF) (Date Filed: 2/7/2008) (Entered: 02/11/2008)
Set/Reset Hearings: Motion Hearing set for 4/23/2008 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (cgk, COURT STAFF) (Filed on 2/7/2008) (Entered: 02/11/2008)
16 NOTICE of Change of Address by Jessica Ashlee Albies (Albies, Jessica) (Filed on 2/11/2008) (Entered: 02/11/2008)
17 Second MOTION to Dismiss Defendants' Notice of Motion and Second Motion to Dismiss or, in the Alternative, for Summary Judgment and Memorandum in Support thereof filed by George W. Bush, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Robert W. Werner, Federal Bureau of Investigation, Robert S. Mueller, III. Motion Hearing set for 4/23/2008 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Coppolino, Anthony) (Filed on 3/14/2008) (Entered: 03/14/2008)
18 NOTICE by George W. Bush, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Robert W. Werner, Federal Bureau of Investigation, Robert S. Mueller, III re 17 Second MOTION to Dismiss Defendants' Notice of Motion and Second Motion to Dismiss or, in the Alternative, for Summary Judgment and Memorandum in Support thereof Notice of Loding of In Camera, Ex Parte Submission (Coppolino, Anthony) (Filed on 3/14/2008) (Entered: 03/14/2008)
19 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)
20 Memorandum in Opposition to 17 Defendants' Second Motion to Dismiss or, in the alternative, for Summary Judgment filed byWendell Belew, Asim Ghafoor, Al−Haramain Islamic Foundation, Inc.. (Eisenberg, Jon) (Filed on 3/28/2008) Modified on 3/31/2008 (gsa, COURT STAFF). (Entered: 03/28/2008)
21 DECLARATION of Jon B. Eisenberg in Support of 20 Plaintiffs' Opposition to Defendants' Second Motion to Dismiss or, in the alternative, for Summary Judgment filed byWendell Belew, Asim Ghafoor, Al−Haramain Islamic Foundation, Inc.. (Attachments: # 1 Exhibit A−H, # 2 Exhibit I−J, # 3 Exhibit K)(Eisenberg, Jon) (Filed on 3/28/2008) Modified on 3/31/2008 (gsa, COURT STAFF). (Entered: 03/28/2008)
22 CERTIFICATE OF SERVICE by Wendell Belew, Asim Ghafoor, Al−Haramain Islamic Foundation, Inc. Opposition to Defendants' Second Motion to Dismiss or, in the alternative, for Summary Judgment (Eisenberg, Jon) (Filed on 3/28/2008) (Entered: 03/28/2008)
23 Brief Amici Curiae Memorandum of MDL Plaintiffs' Addressing the Application of the Protocol of Section 1806(f), Title 50 U.S.C., To Civil Actions for Unlawful Electronic Surveillance filed byAmici Curiae MDL Plaintiffs. (Cohn, Cindy) (Filed on 4/7/2008) (Entered: 04/07/2008)
24 Declaration of JENNIFER L. KELLY in Support of 23 Brief, Amici Curiae, of MDL Plaintiffs Addressing the Application of the Protocol of Section 1806(f), Title 50 U.S.C., to Civil Actions for Unlawful Electronic Surveillance filed byAmici Curiae MDL Plaintiffs. (Attachments: # 1 Exhibit 1. 116 CR 2227−31 (91st, 1970), # 2 Exhibit 2. 116 Cong. Rec. 26329 (1970), # 3 Exhibit 3. 01.03.1975 James A. Wilderotter Memo, # 4 Exhibit 4. Hersh NYT Article, # 5 Exhibit 5. Book II S. Rep. No. 94−755 (1976), # 6 Exhibit 6. Book III, S. Rep. 94−755 (1976), # 7 Exhibit 7. S. Rep. No. 95−604, # 8 Exhibit 8. PFAW Amicus Brief, # 9 Exhibit 9. S. Rep. No. 94−1035, # 10 Exhibit 10. P. Swire, 72 Geo. Wash. L. Rev. 1306, # 11 Exhibit 11. 1974 S. Judiciary Hearings, # 12 Exhibit 12. H. Rep. 95−1283, # 13 Exhibit 13. FISA of 1977 Hearings, # 14 Exhibit 14. H. Conference Rep. 95−1720,

Case: 3:07-cv-109 As of: 06/25/2014 08:49 AM PDT 10 of 21

04/07/2008 04/09/2008 04/10/2008 04/14/2008 04/14/2008
04/17/2008 04/22/2008
04/23/2008
07/02/2008

# 15 Exhibit 15. S. Rep. No. 95−701, # 16 Exhibit 16. S. 1566 3.14.78, # 17 Exhibit 17. House Bill from 124 Cong Rec. (1978), # 18 Exhibit 18. 10.26.2007 Senate Intel Report 110−209, # 19 Exhibit 19. 3.10.2008 NSA's Domestic Spying Grows)(Related document(s) 23 ) (Kelly, Jennifer) (Filed on 4/7/2008) (Entered: 04/07/2008)
25 Brief Amicus Curiae of Telecommunications Carrier Defendants Regarding Whether The Foreign Intelligence Surveillance Act Preempts The State Secrets Privilege filed byATTCorp, Verizon Communications Inc., Verizon Florida, Inc., Verizon Northwest, Inc., Verizon Maryland, Inc., Verizon Global Networks, Inc., MCI Communications Services, Inc.. (Rogovin, John) (Filed on 4/7/2008) (Entered: 04/07/2008)
26 STIPULATION to extend page limits for Defendants' Reply by George W. Bush, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Robert W. Werner, Federal Bureau of Investigation, Robert S. Mueller, III. (Haas, Alexander) (Filed on 4/9/2008) (Entered: 04/09/2008)
27 STIPULATION AND ORDER re 26 . Pursuant to the parties stipulation, the page limitation for Defendants' reply in support of second motion to dismiss or for summary judgment is hereby extended to 25 pages. Signed by Chief Judge Vaughn R Walker on 4/10/2008. (cgk, COURT STAFF) (Filed on 4/10/2008) (Entered: 04/10/2008)
28 Answer to Amicus Curiae Brief of Telecommunications Carriers filed byWendell Belew, Asim Ghafoor, Al−Haramain Islamic Foundation, Inc.. (Eisenberg, Jon) (Filed on 4/14/2008) Modified on 4/15/2008 (gsa, COURT STAFF). (Entered: 04/14/2008)
29 Reply Memorandum re 17 Second MOTION to Dismiss Defendants' Notice of Motion and Second Motion to Dismiss or, in the Alternative, for Summary Judgment and Memorandum in Support thereof filed byGeorge W. Bush, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Robert W. Werner, Federal Bureau of Investigation, Robert S. Mueller, III. (Attachments: # 1 Exhibit Exhibit 1−−Excerpts from House Rep No 95−1283, # 2 Errata Exhibit 2−−Excerpts from House Conf. Rep 95−1720, # 3 Exhibit Exhibit 3−−Excerpts from Senate Rep 95−701, # 4 Exhibit Exhibit 4−−Excerpts from Senate Rep 95−604)(Haas, Alexander) (Filed on 4/14/2008) (Entered: 04/14/2008)
30 MOTION Extend Time for Service Pursuant to F.R.Civ.P. 4(m) filed by Wendell Belew, Asim Ghafoor, Al−Haramain Islamic Foundation, Inc.. (Attachments: # 1 Proposed Order Proposed Order, # 2 Signature Page (Declarations/Stipulations) Declaration of Steven Goldberg, # 3 Certificate of Service)(Eisenberg, Jon) (Filed on 4/17/2008) (Entered: 04/17/2008)
31 Memorandum in Opposition re 30 MOTION Extend Time for Service Pursuant to F.R.Civ.P. 4(m) MOTION Extend Time for Service Pursuant to F.R.Civ.P. 4(m) filed byGeorge W. Bush, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Robert W. Werner, Federal Bureau of Investigation, Robert S. Mueller, III. (Attachments: # 1 Exhibit Exh A −− Gov't Stay Motion, # 2 Exhibit Exh B −− AHF Opp to Stay, # 3 Exhibit Exh C −− Pages from AHF CA9 Brief, # 4 Exhibit Exh D −− Pages from Gov't Reply CA9)(Haas, Alexander) (Filed on 4/22/2008) (Entered: 04/22/2008)
32 Minute Entry: Motion Hearing held on 4/23/2008 before Chief Judge Vaughn R Walker, the court submitted the matter, court to issue order re 30 MOTION Extend Time for Service Pursuant to F.R.Civ.P. 4(m); 17 Second MOTION to Dismiss or, in the Alternative, for Summary Judgment filed by Office of Foreign Assets Control, Robert S. Mueller, III, Keith B. Alexander, Robert W. Werner, Federal Bureau of Investigation, National Security Agency, George W. Bush. (Court Reporter Kathy Powell.) (cgk, COURT STAFF) (Date Filed: 4/23/2008) (Entered: 04/23/2008)
33 SEE #34 FOR ADDITIONAL INFORMATION ORDER by Judge Vaughn R Walker granting in part and denying in part 17 motion to dismiss; granting 30 motion for an extension of time to serve defendants individually (vrwlc3, COURT STAFF) (Filed on 7/2/2008) Modified on 7/8/2008

Case: 3:07-cv-109 As of: 06/25/2014 08:49 AM PDT 11 of 21

07/08/2008 07/29/2008 07/29/2008 07/29/2008 07/30/2008 07/31/2008 07/31/2008 07/31/2008 08/12/2008 08/18/2008 08/19/2008 09/12/2008
09/12/2008

(gsa, COURT STAFF). (Entered: 07/02/2008)
34 ORDER correcting error in 33 Order on Motion to Dismiss, Order on Motion for Miscellaneous Relief. Signed by Judge Vaughn R Walker on 7/8/2008. See document # 33. (vrwlc3, COURT STAFF) (Filed on 7/8/2008) (Entered: 07/08/2008)
35 AMENDED COMPLAINT against Adam J Szubin, George W. Bush, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Federal Bureau of Investigation, Robert S. Mueller, III. Filed byWendell Belew, Asim Ghafoor, Al−Haramain Islamic Foundation, Inc.. (Eisenberg, Jon) (Filed on 7/29/2008) (Entered: 07/29/2008)
36 CERTIFICATE OF SERVICE by Wendell Belew, Asim Ghafoor, Al−Haramain Islamic Foundation, Inc. re 35 Amended Complaint, (Eisenberg, Jon) (Filed on 7/29/2008) (Entered: 07/29/2008)
38 Summons Issued as to Robert S. Mueller, III (slh, COURT STAFF) (Filed on 7/29/2008) (Entered: 07/30/2008)
37 NOTICE of Appearance by J. Marcus Meeks and Mary H. Mason on behalf of Defendant Robert S. Mueller, III in his individual capacity (Meeks, J.) (Filed on 7/30/2008) (Entered: 07/30/2008)
39 STIPULATION Regarding Acceptance of Service and Response Deadline for Defendant Robert S. Mueller, III in his Individual Capacity by Wendell Belew, Asim Ghafoor, Robert S. Mueller, III, Al−Haramain Islamic Foundation, Inc.. (Meeks, J.) (Filed on 7/31/2008) (Entered: 07/31/2008)
40 STIPULATION to Extend Time for Government Defendants to Respond to Amended Complaint by Adam J Szubin, George W. Bush, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Federal Bureau of Investigation, Robert S. Mueller, III. (Coppolino, Anthony) (Filed on 7/31/2008) (Entered: 07/31/2008)
41 ACKNOWLEDGEMENT OF SERVICE Executed −Acceptance of Service of Summons and First Amended Complaint to defendant Robert S. Mueller, III Acknowledgement filed by Wendell Belew, Asim Ghafoor, Al−Haramain Islamic Foundation, Inc.. (Attachments: # 1 Exhibit Summons)(Eisenberg, Jon) (Filed on 7/31/2008) (Entered: 07/31/2008)
43 Order of USCA − John Hummastis motion to intervene is denied. (gsa, COURT STAFF) (Filed on 8/12/2008) (Entered: 08/20/2008)
42 CASE MANAGEMENT STATEMENT Joint Case Management Statement in Al−Haramain v. Bush filed by Adam J Szubin, George W. Bush, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Federal Bureau of Investigation, Robert S. Mueller, III. (Coppolino, Anthony) (Filed on 8/18/2008) (Entered: 08/18/2008)
Set/Reset Hearings: Case Management Conference set for 9/12/2008 11:00 AM., courtroom no. 6, 17th floor, San Francisco, California. (cgk, COURT STAFF) (Filed on 8/19/2008) (Entered: 08/19/2008)
44 Minute Entry: Further Case Management Conference held on 9/12/2008 before Chief Judge Vaughn R Walker. SCHEDULE:Al−Haramain and Telecomm Cases:Defs file motion to dismiss or for summary judgment − 9/30/08. Plas file motion for discovery under 1806 (f) − 9/30/08. Plas file opposition to defs motion to dismiss/sj − 10/23/08. Defs file opposition to plas motion for discovery (1806(f)) − 10/23/08. File reply memorandum − 11/14/08. Hearing: 12/2/2008 at 10:00 A.M. Page limits:Government − 25,30,30 = total 85 pages.Plaintiffs − 40, 45 = total 85 pages. (Court Reporter Debra Pas.) (cgk, COURT STAFF) (Date Filed: 9/12/2008) (Entered: 09/16/2008)
Set/Reset Hearings: Motion Hearing set for 12/2/2008 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (cgk, COURT STAFF) (Filed on 9/12/2008) (Entered: 09/16/2008)

Case: 3:07-cv-109 As of: 06/25/2014 08:49 AM PDT 12 of 21

09/18/2008 09/30/2008
09/30/2008 09/30/2008
09/30/2008 10/23/2008 10/23/2008
11/06/2008

45 Appeal Record Returned: (gsa, COURT STAFF) (Filed on 9/18/2008) (Entered: 09/19/2008)
46 MOTION Pursuant to 50 USC §1806(f) to Discover or Obtain Material Relating to Electronic Surveillance filed by Wendell Belew, Asim Ghafoor, Al−Haramain Islamic Foundation, Inc.. Motion Hearing set for 12/2/2008 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Affidavit Declaration of Jon B. Eisenberg, # 2 Exhibit Eisenberg Exhibits A−H, # 3 Exhibit Eisenberg Exhibits I−P, # 4 Exhibit Eisenberg Exhibits Q−V, # 5 Exhibit Eisenberg Exhibits W−CC, # 6 Affidavit Declaration of Wendell Belew, # 7 Affidavit Declaration of Asim Ghafoor, # 8 Affidavit Declaration of Shayana Kadidal, # 9 Affidavit Certificate of Service)(Eisenberg, Jon) (Filed on 9/30/2008) (Entered: 09/30/2008)
47 STIPULATION AND ORDER RE BRIEF LENGTH re (471 in M:06−cv−01791−VRW) filed by All Plaintiffs. Based upon the stipulation, the following shall be the page limits for the remaining briefs: Plaintiffs' Opposition: 50 pages. Government Reply: 35 pages. Carrier Brief: 30 pages. Plaintiffs' response to Carrier brief: 35 pages. Signed by Chief Judge Vaughn R Walker on 9/30/2008. (cgk, COURT STAFF) (Filed on 9/30/2008) (Entered: 09/30/2008)
48 AMENDED MINUTE ORDER re (468 in M:06−cv−01791−VRW): SCHEDULE: Al−Haramain v Bush (07−0109 VRW): 9/30/08 − Govt Defendants' Motion to Dismiss or for Summary Judgment (30 pages)9/30/08 − Plaintiffs' Motion for Discovery under FISA Section 1806(f) (30 pages)10/23/08 − Govt Defendants' Opposition (30 pages)10/23/08 − Plaintiffs' Opposition (30 pages)11/14/08 − Govt Defendants' and Plaintiffs' Reply Briefs (15 pages)12/2/08 − Hearing at 10:00 A.M. SCHEDULE: MDL Telecom Carrier Cases (MDL06−1791 ) (including Hepting v ATT (06−0672 VRW): 9/19/08 − Govt's Motion to Dismiss or for Summary Judgment(filed 9/9/08) (25 pages)10/16/08 − Plaintiffs' Opposition (50 pages per stipulation)11/5/08 − Govt's Reply (35 pages per stipulation)11/5/08 − Brief of Telecom Carrier Defendants (30 pages)11/20/08 − Plaintiffs' Reply to Telecom Carriers (35 pages per stipulation)12/2/08 − Hearing at 10:00 A.M. (cgk, COURT STAFF) (Filed on 9/30/2008) (Entered: 09/30/2008)
49 Third MOTION to Dismiss or, in the alternative, for Summary Judgment filed by Adam J Szubin, George W. Bush, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Federal Bureau of Investigation, Robert S. Mueller, III. Motion Hearing set for 12/2/2008 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Appendix Index of Exhibits, # 2 Exhibit Exhibits 1−12, # 3 Exhibit Exhibits 13−19)(Haas, Alexander) (Filed on 9/30/2008) (Entered: 09/30/2008)
50 Memorandum in Opposition to Defendants' Third Motion to Dismiss, or, in the Alternative, for Summary Judgment filed byAl−Haramain Islamic Foundation, Inc.. (Eisenberg, Jon) (Filed on 10/23/2008) (Entered: 10/23/2008)
51 Memorandum in Opposition re 46 MOTION Pursuant to 50 USC §1806(f) to Discover or Obtain Material Relating to Electronic Surveillance MOTION Pursuant to 50 USC §1806(f) to Discover or Obtain Material Relating to Electronic Surveillance MOTION Pursuant to 50 USC §1806(f) to Discover or Obtain Material Relating to Electronic Surveillance Government Defendants' Opposition to Plaintiffs Motion Pursuant to 50 U.S.C. 1806(f) to Discover or Obtain Material Relating to Electronic Surveillance filed byAdam J Szubin, George W. Bush, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Federal Bureau of Investigation, Robert S. Mueller, III. (Coppolino, Anthony) (Filed on 10/23/2008) (Entered: 10/23/2008)
52 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)

Case: 3:07-cv-109 As of: 06/25/2014 08:49 AM PDT 13 of 21

11/14/2008 11/14/2008
11/24/2008
12/02/2008
01/05/2009 01/06/2009 01/06/2009 01/16/2009 01/19/2009 01/19/2009 01/20/2009 01/20/2009

53 Reply to Opposition Plaintiffs Reply to Defendants Opposition to 46 Motion Pursuant to 50 U.S.C. § 1806(f) to Discover or Obtain Material Relating to Electronic Surveillance filed by Al−Haramain Islamic Foundation, Inc.. (Eisenberg, Jon) (Filed on 11/14/2008) Modified on 11/20/2008 (slh, COURT STAFF). (Entered: 11/14/2008)
54 Reply to Opposition re 49 Third MOTION to Dismiss or, in the alternative, for Summary Judgment Government Defendants' Reply to Plaintiffs' Opposition to Government Defendants' Third Motion to Dismiss or For Summary Judgment filed byAdam J Szubin, George W. Bush, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Federal Bureau of Investigation, Robert S. Mueller, III. (Coppolino, Anthony) (Filed on 11/14/2008) (Entered: 11/14/2008)
55 CLERKS NOTICE : TO ALL PARTIES AND COUNSEL OF RECORD;YOU ARE NOTIFIED THAT the Court has set the following schedule:December 2, 2008 − Hearing at 10:00 A.M. MDL Telecom Carrier Cases (including Hepting v ATT(06−0672 VRW) − Govt's motion to dismiss or for Summary Judgment. December 2, 2008 − Hearing at 2:00 P.M. Al−Haramain et al v George Bush (07−0109 VRW) − Govt's motion to dismiss or for Summary Judgment. Plaintiffs' Motion for Discovery under FISA Section 1806(f). Please report to Courtroom No.6, on the 17th floor at 450 Golden Gate Avenue, San Francisco, California. (cgk, COURT STAFF) (Filed on 11/24/2008) (Entered: 11/24/2008)
56 Minute Entry: Hearing Pertaining to Govt's Motion to Dismiss and/or Motion for Summary Judgment and Plaintiffs' Motion to Discover or Obtain Materials Relating to Electronic Surveillance under FISA Section 1806(f) in the Al−Haramain case held on 12/2/2008 before Chief Judge Vaughn R Walker. The court heard argument from counsel.The matter has been submitted.The court to issue written order. (Court Reporter Sahar McVickar.) (cgk, COURT STAFF) (Date Filed: 12/2/2008) (Entered: 12/03/2008)
57 ORDER by Judge Vaughn R Walker granting 46 Motion discover or obtain material relating to electronic surveillance −− 50 USC § 1806(f); denying 49 Motion to Dismiss (vrwlc3, COURT STAFF) (Filed on 1/5/2009) (Entered: 01/05/2009)
58 CLERKS NOTICE setting Case Management Conference. (cgk, COURT STAFF) (Filed on 1/6/2009) (Entered: 01/06/2009)
Set/Reset Hearings: Case Management Conference set for 1/23/2009 10:30 AM. (cgk, COURT STAFF) (Filed on 1/6/2009) (Entered: 01/06/2009)
59 NOTICE by Adam J Szubin, George W. Bush, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Federal Bureau of Investigation, Robert S. Mueller, III Notice of Appeal by Government Defendants (Coppolino, Anthony) (Filed on 1/16/2009) (Entered: 01/16/2009)
60 MOTION to Stay re 59 Notice (Other), Notice (Other) Notice of Motion and Motion for a Stay Pending Appeal and for Certification of Interlocutory Appeal filed by Adam J Szubin, George W. Bush, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Federal Bureau of Investigation, Robert S. Mueller, III. (Attachments: # 1 Affidavit Declaration in Support of Stay Pending Appeal)(Coppolino, Anthony) (Filed on 1/19/2009) (Entered: 01/19/2009)
61 NOTICE by Adam J Szubin, George W. Bush, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Federal Bureau of Investigation, Robert S. Mueller, III re 57 Order on Motion for Miscellaneous Relief, Order on Motion to Dismiss Government Defendants' Notice of Filing Correspondence (Coppolino, Anthony) (Filed on 1/19/2009) (Entered: 01/19/2009)
**** ERRONEOUS DOCKET ENTRY ****Copy of Notice of Appeal and Docket sheet mailed to all counsel (gsa, COURT STAFF) (Filed on 1/20/2009) Modified on 1/20/2009 (gsa, COURT STAFF). (Entered: 01/20/2009)
62 **** ERRONEOUS DOCKET ENTRY **** Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 59 (gsa, COURT STAFF) (Filed on 1/20/2009) (gsa, COURT STAFF). Modified on 1/20/2009 (gsa, COURT STAFF).

Case: 3:07-cv-109 As of: 06/25/2014 08:49 AM PDT 14 of 21

01/20/2009 01/20/2009 01/22/2009 01/22/2009 01/23/2009 01/25/2009
02/06/2009 02/11/2009
02/13/2009 02/13/2009 02/18/2009 02/19/2009

(Entered: 01/20/2009)
63 *** FILED IN ERROR. PLEASE SEE DOCKET # 64 . *** CASE MANAGEMENT STATEMENT filed by Al−Haramain Islamic Foundation, Inc.. (Eisenberg, Jon) (Filed on 1/20/2009) Modified on 1/21/2009 (ewn, COURT STAFF). (Entered: 01/20/2009)
64 CASE MANAGEMENT STATEMENT filed by Al−Haramain Islamic Foundation, Inc.. (Eisenberg, Jon) (Filed on 1/20/2009) (Entered: 01/20/2009)
65 CASE MANAGEMENT STATEMENT filed by Adam J Szubin, George W. Bush, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Federal Bureau of Investigation, Robert S. Mueller, III. (Haas, Alexander) (Filed on 1/22/2009) (Entered: 01/22/2009)
66 CASE MANAGEMENT STATEMENT (Corrected) filed by Barack Obama, Adam J Szubin, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Federal Bureau of Investigation, Robert S. Mueller, III. (Haas, Alexander) (Filed on 1/22/2009) (Entered: 01/22/2009)
68 Minute Entry: Further Case Management Conference and setting of briefing on govts request for certification re Section 1292(b) interlocutory appeal held on 1/23/2009 before Chief Judge Vaughn R Walker (Date Filed: 1/23/2009). (Court Reporter Lydia Zinn.) (cgk, COURT STAFF) (Date Filed: 1/23/2009) (Entered: 01/26/2009)
67 Transcript of Proceedings held on 01/23/2009, before Judge Vaughn R, Walker. Court Reporter/Transcriber Lydia R. Zinn, Telephone number 415 531 6587. 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 4/22/2009. (Zinn, Lydia) (Filed on 1/25/2009) (Entered: 01/25/2009)
69 MEMORANDUM in Opposition Plaintiffs' Opposition to 60 Defendants' Motion for Stay Pending Appeal and for Certification of an Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) filed byAl−Haramain Islamic Foundation, Inc.. (Eisenberg, Jon) (Filed on 2/6/2009) Modified on 2/9/2009 (gsa, COURT STAFF). (Entered: 02/06/2009)
70 Reply to Opposition re 60 MOTION to Stay re 59 Notice (Other), Notice (Other) Notice of Motion and Motion for a Stay Pending Appeal and for Certification of Interlocutory Appeal MOTION to Stay re 59 Notice (Other), Notice (Other) Notice of Motion and Motion for a Stay Pending Appeal and for Certification of Interlocutory Appeal Government Defendants' Reply in Support of Motion to Stay Proceedings Pending Appeal and for Certification of Interlocutory Appeal under 28 U.S.C. 1292(b) filed byAdam J Szubin, Barack Obama, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Federal Bureau of Investigation, Robert S. Mueller, III. (Attachments: # 1 Proposed Order)(Coppolino, Anthony) (Filed on 2/11/2009) (Entered: 02/11/2009)
71 ORDER by Judge Vaughn R Walker denying 60 motion to certify interlocutory appeal pursuant to 29 USC § 1292(b) and motion to stay proceedings. (vrwlc3, COURT STAFF) (Filed on 2/13/2009) (Entered: 02/13/2009)
73 USCA Case Number 09−15266 (gsa, COURT STAFF) (Filed on 2/13/2009) (Entered: 02/18/2009)
72 CASE MANAGEMENT STATEMENT Plaintiffs' Supplemental Case Management Statement filed by Al−Haramain Islamic Foundation, Inc.. (Eisenberg, Jon) (Filed on 2/18/2009) (Entered: 02/18/2009)
74 Consent MOTION for Extension of Time to File Government Defendants' Unopposed Administrative Motion to Extend Time to Submit Report on Declassification Review filed by Adam J Szubin, Barack Obama, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Federal Bureau of

Case: 3:07-cv-109 As of: 06/25/2014 08:49 AM PDT 15 of 21

02/19/2009 02/20/2009 02/27/2009 02/27/2009
02/27/2009 02/27/2009 02/27/2009 02/27/2009 03/03/2009 04/20/2009 04/23/2009

Investigation, Robert S. Mueller, III. (Attachments: # 1 Proposed Order)(Coppolino, Anthony) (Filed on 2/19/2009) (Entered: 02/19/2009)
75 ORDER. In its submission to the court re 71 Order on Motion to Stay, the United States is directed to address points made in plaintiffs supplemental case management statement filed on February 18, 2009 (Doc #72). Signed by Judge Vaughn R Walker on 2/19/09. (vrwlc3, COURT STAFF) (Filed on 2/19/2009) (Entered: 02/19/2009)
76 ORDER by Chief Judge Vaughn R Walker granting 74 Motion for Extension of Time to File. The Government Defendants' unopposed motion for an extension of time to submit a report on the declassification review previously ordered by the Court, Order dated 1/5/2009, shall be and hereby is GRANTED, and the required report shall be due by no later than 2/27/2009. (cgk, COURT STAFF) (Filed on 2/20/2009) (Entered: 02/20/2009)
77 Brief Government Defendants' Response to Court Orders Concerning Compliance with the January 5 Order (Dkt. 71) and Response to Plaintiffs' Supplemental Case Management Report (Dkt. 75) filed byAdam J Szubin, Barack Obama, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Federal Bureau of Investigation, Robert S. Mueller, III. (Coppolino, Anthony) (Filed on 2/27/2009) (Entered: 02/27/2009)
78 Brief Government Defendants' Report on Declassification Review filed byAdam J Szubin, Barack Obama, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Federal Bureau of Investigation, Robert S. Mueller, III. (Attachments: # 1 Affidavit Declaration of Joseph J. Brand, National Security Agency, # 2 Affidavit Declaration of John F. Hackett, Office of the Director of National Intelligence)(Coppolino, Anthony) (Filed on 2/27/2009) (Entered: 02/27/2009)
79 NOTICE by Adam J Szubin, Barack Obama, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Federal Bureau of Investigation, Robert S. Mueller, III Government Defendants' Notice of Lodging of In Camera, Ex Parte Classified Declaration of Joseph J. Brand, National Security Agency (Coppolino, Anthony) (Filed on 2/27/2009) (Entered: 02/27/2009)
80 NOTICE by Adam J Szubin, Barack Obama, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Federal Bureau of Investigation, Robert S. Mueller, III Government Defendants' Notice of Lodging of In Camera, Ex Parte Classified Declaration of John F. Hackett, Office of the Director of National Intelligence (Coppolino, Anthony) (Filed on 2/27/2009) (Entered: 02/27/2009)
81 NOTICE by Adam J Szubin, Barack Obama, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Federal Bureau of Investigation, Robert S. Mueller, III Government Defendants' Notice of Lodging of In Camera, Ex Parte Classified Declaration of Anthony J. Coppolino, Department of Justice (Coppolino, Anthony) (Filed on 2/27/2009) (Entered: 02/27/2009)
82 NOTICE by Adam J Szubin, Barack Obama, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Federal Bureau of Investigation, Robert S. Mueller, III Government Defendants' Notice of Lodging of In Camera, Ex Parte Classified Declaration of Andrea M. Gacki, Department of the Treasury (Coppolino, Anthony) (Filed on 2/27/2009) (Entered: 02/27/2009)
83 USCA ORDER re 59 Notice of Interlocutory Appeal. The government's appeal is dismissed for lack of jurisdiction. (gsa, COURT STAFF) (Filed on 3/3/2009) (Entered: 03/11/2009)
84 ORDER DIRECTING PARTIES TO SUBMIT A STIPULATED PROTECTIVE ORDER ON OR BEFORE MAY 8, 2009. Signed by Judge Vaughn R Walker on 4/17/2009. (cgk, COURT STAFF) (Filed on 4/20/2009) (Entered: 04/20/2009)
85 USCA Mandate re 59 Notice of Appeal. (gsa, COURT STAFF) (Filed on 4/23/2009) (Entered: 04/24/2009)

Case: 3:07-cv-109 As of: 06/25/2014 08:49 AM PDT 16 of 21

04/24/2009 04/30/2009 05/01/2009
05/15/2009
05/22/2009 05/29/2009 05/29/2009 05/29/2009
06/01/2009 06/03/2009 06/03/2009 06/05/2009 06/16/2009 07/02/2009
07/09/2009

86 CLERKS Letter Spreading Mandate to Counsel (gsa, COURT STAFF) (Filed on 4/24/2009) (Entered: 04/24/2009)
87 STIPULATION to Extend Time in Response to April 17 Order by Adam J Szubin, Barack Obama, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Federal Bureau of Investigation, Robert S. Mueller, III. (Coppolino, Anthony) (Filed on 4/30/2009) (Entered: 04/30/2009)
88 STIPULATION AND ORDER approving 87 Stipulation, filed by Office of Foreign Assets Control, Robert S. Mueller, III, Barack Obama, Keith B. Alexander, Adam J Szubin, Federal Bureau of Investigation, National Security Agency. Signed by Judge Vaughn R Walker on 5/1/2009. (vrwlc3, COURT STAFF) (Filed on 5/1/2009) (Entered: 05/01/2009)
89 RESPONSE to Plaintiffs and Government Defendants Joint Submission in Response to 84 Court's April 17, 2009 Order by Adam J Szubin, Barack Obama, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Federal Bureau of Investigation, Robert S. Mueller, III. (Coppolino, Anthony) (Filed on 5/15/2009) Modified on 5/18/2009 (gsa, COURT STAFF). (Entered: 05/15/2009)
90 ORDER TO SHOW CAUSE Order to Show Cause Hearing set for 6/3/2009 02:00 PM. Show Cause Response due by 5/29/2009. Plaintiffs' memorandum due 5/29/2009. Signed by Judge Vaughn R Walker on 5/22/2009. (vrwlc3, COURT STAFF) (Filed on 5/22/2009) (Entered: 05/22/2009)
91 Brief Plaintiffs Memorandum Addressing Appropriateness and Feasibility of Motion by Plaintiffs for Summary Judgment of Liability Under 50 U.S.C. 1810 filed byAl−Haramain Islamic Foundation, Inc.. (Eisenberg, Jon) (Filed on 5/29/2009) (Entered: 05/29/2009)
92 MOTION to Appear by Telephone filed by Al−Haramain Islamic Foundation, Inc.. Motion Hearing set for 6/3/2009 02:00 PM in Courtroom 6, 17th Floor, San Francisco. (Eisenberg, Jon) (Filed on 5/29/2009) (Entered: 05/29/2009)
93 RESPONSE TO ORDER TO SHOW CAUSE by Adam J Szubin, Barack Obama, National Security Agency, Keith B. Alexander, Office of Foreign Assets Control, Federal Bureau of Investigation, Robert S. Mueller, III Government Defendants' Response to Court's Order to Show Cause of May 22, 2009 (Dkts. 620/90). (Coppolino, Anthony) (Filed on 5/29/2009) (Entered: 05/29/2009)
94 ORDER by Judge Vaughn R Walker granting 92 Motion to Appear by Telephone (vrwlc3, COURT STAFF) (Filed on 6/1/2009) (Entered: 06/01/2009)
95 Minute Entry: Show Cause Hearing. The Court heard argument from counsel. Plaintiff shall file a motion for summary judgment.Hearing is set for 9/1/09 at 10:00 am. (Court Reporter Sahar McVickar.) (cgk, COURT STAFF) (Date Filed: 6/3/2009) (Entered: 06/03/2009)
Set/Reset Hearings: Motion Hearing set for 9/1/2009 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (cgk, COURT STAFF) (Filed on 6/3/2009) (Entered: 06/03/2009)
96 ORDER. Signed by Judge Vaughn R Walker on 6−5−2009. (vrwlc3, COURT STAFF) (Filed on 6/5/2009) (Entered: 06/05/2009)
97 STIPULATION and Request for Briefing Schedule and Extended Page Limits on Plaintiffs' Motion for Partial Summary Judgment by Al−Haramain Islamic Foundation, Inc.. (Eisenberg, Jon) (Filed on 6/16/2009) (Entered: 06/16/2009)
98 STIPULATION AND ORDER re doc 97 in C07−0109 filed by Al−Haramain Islamic Foundation, Inc. as follows: 7/10 − plaintiff file motion. 8/5 − file opposition. 8/19 − file reply. Page limit for the motion and opposition has been enlarged to 35 pages. Signed by Chief Judge Vaughn R Walker on 7/2/2009. (cgk, COURT STAFF) (Filed on 7/2/2009) (Entered: 07/06/2009)
99 MOTION for Summary Judgment Plaintiffs' Motion for Partial Summary Judgment filed by Al−Haramain Islamic Foundation, Inc., Wendell Belew, Asim Ghafoor. Motion Hearing set for 9/1/2009 10:00 AM in Courtroom 6, 17th Floor,

Case: 3:07-cv-109 As of: 06/25/2014 08:49 AM PDT 17 of 21

07/31/2009 07/31/2009 08/03/2009 08/03/2009 08/20/2009
09/08/2009
09/14/2009
09/23/2009 10/06/2009

San Francisco. (Attachments: # 1 Affidavit Eisenberg Declaration, # 2 Exhibit Exhibits A−I, # 3 Exhibit Exhibits J−S, # 4 Exhibit Exhibits T−Z, # 5 Exhibit Exhibits AA−BB, # 6 Affidavit Ghafoor Declaration, # 7 Affidavit Belew Declaration, # 8 Affidavit Proof of Service)(Eisenberg, Jon) (Filed on 7/9/2009) (Entered: 07/09/2009)
100 STIPULATION re 99 MOTION for Summary Judgment Plaintiffs' Motion for Partial Summary Judgment Stipulation and Proposed Order to Modify and Extend the Current Schedule by Keith B. Alexander, Federal Bureau of Investigation, Robert S. Mueller, III, National Security Agency, Barack Obama, Office of Foreign Assets Control, Adam J Szubin. (Coppolino, Anthony) (Filed on 7/31/2009) (Entered: 07/31/2009)
102 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)
101 STIPULATION AND ORDER (as modified) re doc 100 . The Government Defendants response to the partial motion for summary judgment is due on 8/20/2009. Reply due 9/8/2009. The matter will be heard on Wednesday, 9/23/2009 at 10:00 AM.. Signed by Judge Vaughn R Walker on 8/3/2009. (cgk, COURT STAFF) (Filed on 8/3/2009) . (Entered: 08/03/2009)
Set/Reset Hearings: Motion Hearing reset for 9/23/2009 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (cgk, COURT STAFF) (Filed on 8/3/2009) (Entered: 08/03/2009)
103 Fourth MOTION for Summary Judgment Government Defendants Notice of Motion and Fourth Motion to Dismiss and For Summary Judgment; Memorandum in Support Thereof and in Opposition to Plaintiffs' Motion for Partial Summary Judgment filed by Keith B. Alexander, Federal Bureau of Investigation, Robert S. Mueller, III, National Security Agency, Barack Obama, Office of Foreign Assets Control, Adam J Szubin. Motion Hearing set for 9/23/2009 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Exhibit, # 2 Exhibit)(Coppolino, Anthony) (Filed on 8/20/2009) (Entered: 08/20/2009)
104 Reply to Opposition Plaintiffs' Reply to Government Defendants' Opposition to Plaintiffs' Motion for Partial Summary Judgment; Plaintiffs' Opposition to 103 Government Defendants' Fourth Motion to Dismiss and for Summary Judgment filed byAl−Haramain Islamic Foundation, Inc.. (Attachments: # 1 Affidavit Supplemental Declaration, # 2 Exhibit CC, # 3 Exhibit DD, # 4 Affidavit Certificate of Service)(Eisenberg, Jon) (Filed on 9/8/2009) Modified on 9/10/2009 (ys, COURT STAFF). (Entered: 09/08/2009)
105 Reply Memorandum re 103 Fourth MOTION for Summary Judgment Government Defendants Notice of Motion and Fourth Motion to Dismiss and For Summary Judgment; Memorandum in Support Thereof and in Opposition to Plaintiffs' Motion for Partial Summary Judgment filed byKeith B. Alexander, Federal Bureau of Investigation, Robert S. Mueller, III, National Security Agency, Barack Obama, Office of Foreign Assets Control, Adam J Szubin. (Attachments: # 1 Affidavit)(Berman, Marcia) (Filed on 9/14/2009) (Entered: 09/14/2009)
106 Minute Entry: Motion Hearing held on 9/23/2009 before Chief Judge Vaughn R Walker (Date Filed: 9/23/2009) re 103 Fourth MOTION for Summary Judgment by Government Defendants, the court submitted the matter. (Court Reporter Jim Yeomans.) (cgk, COURT STAFF) (Date Filed: 9/23/2009) (Entered: 09/23/2009)
107 Transcript of Proceedings held on 092309, 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 1/4/2010. (jjy, COURT STAFF) (Filed on 10/6/2009) (Entered: 10/06/2009)

Case: 3:07-cv-109 As of: 06/25/2014 08:49 AM PDT 18 of 21

11/10/2009 11/11/2009 11/11/2009 11/23/2009 11/23/2009 12/11/2009 02/22/2010
03/31/2010
04/16/2010 04/16/2010 04/19/2010 04/30/2010
05/07/2010 05/07/2010

108 NOTICE by Keith B. Alexander, Federal Bureau of Investigation, Robert S. Mueller, III, National Security Agency, Barack Obama, Office of Foreign Assets Control, Adam J Szubin Government Defendants' Notice of Submission to Court of Appeals (Coppolino, Anthony) (Filed on 11/10/2009) (Entered: 11/10/2009)
109 NOTICE by Al−Haramain Islamic Foundation, Inc., Wendell Belew, Asim Ghafoor Plaintiffs' Notice of Submission to Court of Appeals (Eisenberg, Jon) (Filed on 11/11/2009) (Entered: 11/11/2009)
110 NOTICE by Al−Haramain Islamic Foundation, Inc., Wendell Belew, Asim Ghafoor Plaintiffs' Notice of Submission to the United States District Court for the District of Columbia (Eisenberg, Jon) (Filed on 11/11/2009) (Entered: 11/11/2009)
111 NOTICE by Al−Haramain Islamic Foundation, Inc., Wendell Belew, Asim Ghafoor Plaintiffs' Notice of Order by Court of Appeals (Eisenberg, Jon) (Filed on 11/23/2009) (Entered: 11/23/2009)
112 NOTICE by Al−Haramain Islamic Foundation, Inc., Wendell Belew, Asim Ghafoor Plaintiffs' Notice of Submission to United States District Court for the District of Columbia (Reply Memorandum) (Eisenberg, Jon) (Filed on 11/23/2009) (Entered: 11/23/2009)
113 ORDER of USCA (far, COURT STAFF) (Filed on 12/11/2009) (Entered: 12/13/2009)
114 Amended Transcript of Proceedings held on 09/23/09, 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 5/24/2010. (jjy, COURT STAFF) (Filed on 2/22/2010) (Entered: 02/22/2010)
115 ORDER by Chief Judge Vaughn R Walker granting (657) Plaintiffs' Motion for Summary Judgment; denying (668) Defendants' Fourth Motion to Dismiss and for Summary Judgment in MDL Docket M:06−cv−01791−VRW; granting (99) Plaintiffs' Motion for Summary Judgment; denying (103) Defendants' Fourth Motion to Dismiss and for Summary Judgment in case 3:07−cv−00109−VRW (hlk, COURT STAFF) (Filed on 3/31/2010) (Entered: 03/31/2010)
116 MOTION to Dismiss Plaintiffs' Request for Dismissal of Second, Third, Fourth, Fifth, and Sixth Claims for Relief filed by Al−Haramain Islamic Foundation, Inc., Wendell Belew, Asim Ghafoor. (Attachments: # 1 Affidavit Proof Of Service)(Eisenberg, Jon) (Filed on 4/16/2010) (Entered: 04/16/2010)
117 Proposed Order Plaintiffs' Proposed Judgment by Al−Haramain Islamic Foundation, Inc., Wendell Belew, Asim Ghafoor. (Eisenberg, Jon) (Filed on 4/16/2010) (Entered: 04/16/2010)
118 ORDER Setting Briefing Schedule. Signed by Judge Vaughn R. Walker on 4/19/2010. (hlk, COURT STAFF) (Filed on 4/19/2010) (Entered: 04/19/2010)
119 Memorandum in Opposition Government Defendants' Response in Opposition to Plaintiffs' Proposed Judgment and Re: Alternative Form of Judgment; Accompanying Alternative Form of Judgment filed byKeith B. Alexander, Federal Bureau of Investigation, Robert S. Mueller, III, National Security Agency, Barack Obama, Office of Foreign Assets Control, Adam J Szubin. (Attachments: # 1 Exhibit)(Coppolino, Anthony) (Filed on 4/30/2010) (Entered: 04/30/2010)
120 Letter from Jon B. Eisenberg, Esq.. (Eisenberg, Jon) (Filed on 5/7/2010) (Entered: 05/07/2010)
121 *** FILED IN ERROR. REFER TO DOCUMENT 122 . *** Brief Plaintiffs' Memorandum of Points Authorities in Support of Claim for Punitive Damages filed byAl−Haramain Islamic Foundation, Inc., Wendell Belew, Asim Ghafoor. (Eisenberg, Jon) (Filed on 5/7/2010) Modified on 5/7/2010 (feriab,

Case: 3:07-cv-109 As of: 06/25/2014 08:49 AM PDT 19 of 21

05/07/2010 05/21/2010 06/04/2010 06/11/2010 06/14/2010 06/15/2010 07/07/2010
07/30/2010 08/02/2010
08/05/2010
08/12/2010 11/23/2010

COURT STAFF). (Entered: 05/07/2010)
122 Brief Correction of Docket # 121 filed byAl−Haramain Islamic Foundation, Inc., Wendell Belew, Asim Ghafoor. (Eisenberg, Jon) (Filed on 5/7/2010) (Entered: 05/07/2010)
123 Memorandum in Opposition Defendants' Opposition to Plaintiffs' Request for Punitive Damages filed byKeith B. Alexander, Federal Bureau of Investigation, Robert S. Mueller, III, National Security Agency, Barack Obama, Office of Foreign Assets Control, Adam J Szubin. (Coppolino, Anthony) (Filed on 5/21/2010) (Entered: 05/21/2010)
124 ORDER setting briefing on plaintiffs' fee application. Signed by Chief Judge Vaughn R Walker on 6/4/2010. (hlk, COURT STAFF) (Filed on 6/4/2010) (Entered: 06/04/2010)
125 CLERKS NOTICE Advising Counsel of Change in MDL Master Case Number Format (rcs, COURT STAFF) (Filed on 6/11/2010) (Entered: 06/11/2010)
126 STIPULATION and REQUEST for Extension of Schedule for Briefing Attorney Fees and Proposed Order re 124 by Keith B. Alexander, Federal Bureau of Investigation, Robert S. Mueller, III, National Security Agency, Barack Obama, Office of Foreign Assets Control, Adam J Szubin. (Berman, Marcia) (Filed on 6/14/2010) Modified on 6/15/2010 (far, COURT STAFF). (Entered: 06/14/2010)
127 ORDER on Stipulation. Signed by Chief Judge Vaughn R Walker on 6/15/2010. (hlk, COURT STAFF) (Filed on 6/15/2010) (Entered: 06/15/2010)
128 MOTION for Attorney Fees filed by Al−Haramain Islamic Foundation, Inc., Wendell Belew, Asim Ghafoor. (Attachments: # 1 Declaration of William N. Hancock, # 2 Declaration of J. Ashlee Albies, # 3 Declaration of Jon B. Eisenberg, # 4 Declaration of Kenneth A. Kreucher, # 5 Declaration of Lisa Jaskol, # 6 Declaration of Steven Goldberg, # 7 Declaration of Thomas H. Nelson, # 8 Declaration of Zaha S. Hassan, # 9 Certificate of Service)(Eisenberg, Jon) (Filed on 7/7/2010) (Entered: 07/07/2010)
129 STIPULATION for One Day Extension of Time for Defendants' Response to Plaintiffs' Motion for Attorney Fees by Keith B. Alexander, Federal Bureau of Investigation, Robert S. Mueller, III, National Security Agency, Barack Obama, Office of Foreign Assets Control, Adam J Szubin. (Coppolino, Anthony) (Filed on 7/30/2010) (Entered: 07/30/2010)
130 STIPULATION AND ORDER re 129 . Pursuant to the foregoing stipulation, it is hereby ORDERED that the due date for Defendants' response to Plaintiffs' Motion for Attorney Fees (Dkts 738/128) shall be extended from August 4, 2010 to August 5, 2010. No further extensions should be sought as none will be granted, filed by Office of Foreign Assets Control, Robert S. Mueller, III, Barack Obama, Keith B. Alexander, Adam J Szubin, Federal Bureau of Investigation, National Security Agency. Signed by Judge Vaughn R Walker on 8/2/2010. (cgk, COURT STAFF) (Filed on 8/2/2010) (Entered: 08/02/2010)
131 Memorandum in Opposition re 128 MOTION for Attorney Fees Defendants' Opposition to Plaintiffs' Motion for Attorney's Fees filed byKeith B. Alexander, Federal Bureau of Investigation, Robert S. Mueller, III, National Security Agency, Barack Obama, Office of Foreign Assets Control, Adam J Szubin. (Attachments: # 1 Appendix, # 2 Appendix, # 3 Appendix, # 4 Appendix, # 5 Appendix, # 6 Appendix, # 7 Appendix)(Coppolino, Anthony) (Filed on 8/5/2010) (Entered: 08/05/2010)
132 Reply to Opposition filed byAl−Haramain Islamic Foundation, Inc., Wendell Belew, Asim Ghafoor. (Attachments: # 1 Affidavit Supplemental Declaration of Thomas H. Nelson in Support of Motion for Attorney's Fees)(Eisenberg, Jon) (Filed on 8/12/2010) (Entered: 08/12/2010)
133 NOTICE by Al−Haramain Islamic Foundation, Inc., Wendell Belew, Asim Ghafoor (Attachments: # 1 Exhibit Exhibit No. 1 to Notice of Submission to U.S. Supreme court)(Eisenberg, Jon) (Filed on 11/23/2010) (Entered: 11/23/2010)

Case: 3:07-cv-109 As of: 06/25/2014 08:49 AM PDT 20 of 21

12/21/2010 12/22/2010
02/18/2011 02/23/2011 02/23/2011 03/03/2011 03/04/2011 03/04/2011
03/09/2011 03/24/2011 04/06/2011 07/08/2011 08/19/2011

134 ORDER granting 116 Motion to Dismiss; granting in part and denying in part 128 Motion for Attorney Fees. The clerk is directed to enter judgment, terminate any remaining motions and close the file. (vrwlc3, COURT STAFF) (Filed on 12/21/2010) (Entered: 12/21/2010)
135 JUDGMENT on Attorney Fees and Costs in favor of Asim Ghafoor, Wendell Belew against Adam J Szubin, Barack Obama, Keith B. Alexander, Robert S. Mueller, III. IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS: 1.Plaintiffs Ghafoor and Belew shall each recover a total sum of $20,400 in liquidated damages from defendants in their official capacities Barack H Obama, President of the United States; Keith B Alexander, the Director of the National Security Agency; Adam J Szubin, the Director of the Office of Foreign Assets Control; and Robert S Mueller III, the Director of the Federal Bureau of Investigation; and, 2.Plaintiffs Ghafoor and Belew and their counsel shall recover a total sum of $2,515,387.09 in attorney fees and $22,012.36 in expenses from defendants in their official capacities Barack H Obama, President of the United States; Keith B Alexander, the Director of the National Security Agency; Adam J Szubin, the Director of the Office of Foreign Assets Control; and Robert S Mueller III, the Director of the Federal Bureau of Investigation. Dated: December 22, 2010. Cora Klein, Deputy ClerkChief Judge Vaughn R Walker. (cgk, COURT STAFF) (Filed on 12/22/2010) (Entered: 12/22/2010)
136 NOTICE OF APPEAL as to (135 in 3:07−cv−00109−VRW) Judgment on Attorney Fees,(754 in 3:06−md−01791−VRW) Judgment on Attorney Fees by Barack Obama. (far, COURT STAFF) (Filed on 2/18/2011) (Entered: 02/23/2011)
137 Copy of Notice of Appeal and Docket sheet mailed to all counsel (Attachments: # 1 06−md−1791 docket sheet, # 2 07−109 docket sheet)(far, COURT STAFF) (Filed on 2/23/2011) (Entered: 02/23/2011)
138 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re (759 in 3:06−md−01791−VRW) Notice of Appeal (Attachments: # 1 06−md−1791 docket sheet, # 2 07−109 docket sheet, # 3 cover letter, # 4 appeal notification form)(far, COURT STAFF) (Filed on 2/23/2011) (Entered: 02/23/2011)
139 NOTICE OF CROSS APPEAL as to (759 in 3:06−md−01791−VRW, 136 in 3:07−cv−00109−VRW) Notice of Appeal by Al−Haramain Islamic Foundation, Inc.(an Oregon Nonprofit Corporation), Wendell Belew, Asim Ghafoor. Filing fee $ 455, Receipt Number 34611057043 (Attachments: # 1 Representation Statement)(far, COURT STAFF) (Filed on 3/3/2011) (Entered: 03/04/2011)
140 Copy of Notice of Appeal and Docket sheet mailed to all counsel (Attachments: # 1 Representation Statement, # 2 06−1791 docket sheet, # 3 07−109 docket sheet)(far, COURT STAFF) (Filed on 3/4/2011) (Entered: 03/04/2011)
141 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals by Al−Haramain Islamic Foundation, Inc.(an Oregon Nonprofit Corporation), Wendell Belew, Asim Ghafoor re (762 in 3:06−md−01791−VRW, 139 in 3:07−cv−00109−VRW) Notice of Cross Appeal, (Attachments: # 1 representation statement, # 2 06−1791 docket sheet, # 3 07−109 docket sheet, # 4 cover letter, # 5 appeal notification form)(far, COURT STAFF) (Filed on 3/4/2011) (Entered: 03/04/2011)
142 USCA Case Number 11−15468 9th Circuit (far, COURT STAFF) (Filed on 3/9/2011) (Entered: 03/09/2011)
143 USCA Case Number 11−15468 &11−15535 9th Circuit. (far, COURT STAFF) (Filed on 3/24/2011) (Entered: 03/24/2011)
144 ORDER of USCA (far, COURT STAFF) (Filed on 4/6/2011) (Entered: 04/06/2011)
145 ORDER of USCA (far, COURT STAFF) (Filed on 7/8/2011) (Entered: 07/08/2011)
146 ORDER of USCA (far, COURT STAFF) (Filed on 8/19/2011) (Entered: 08/19/2011)

Case: 3:07-cv-109 As of: 06/25/2014 08:49 AM PDT 21 of 21

10/28/2011 11/03/2011 03/29/2012 06/04/2012 06/04/2012 12/13/2012 12/26/2012 12/26/2012 12/26/2012

147 ORDER of USCA (far, COURT STAFF) (Filed on 10/28/2011) (Entered: 10/28/2011)
148 ORDER of USCA (far, COURT STAFF) (Filed on 11/3/2011) (Entered: 11/03/2011)
149 ORDER of USCA (far, COURT STAFF) (Filed on 3/29/2012) (Entered: 03/29/2012)
150 ORDER of USCA (far, COURT STAFF) (Filed on 6/4/2012) (Entered: 06/04/2012)
151 ORDER of USCA (far, COURT STAFF) (Filed on 6/4/2012) (Entered: 06/04/2012)
152 ORDER of USCA (farS, COURT STAFF) (Filed on 12/13/2012) (Entered: 12/13/2012)
153 USCA OPINION. (farS, COURT STAFF) (Filed on 12/26/2012) (Entered: 12/26/2012)
154 MANDATE of USCA (farS, COURT STAFF) (Filed on 12/26/2012) (Entered: 12/26/2012)
155 CLERKS Letter Spreading Mandate to Counsel (farS, COURT STAFF) (Filed on 12/26/2012) (Entered: 12/26/2012)