Foreign Intelligence Surveillance Act 

Litigation

Federal Judicial Center

2023
This report was produced at U.S. taxpayer expense.

This Federal Judicial Center publication was undertaken in furtherance of 

the Center’s statutory mission to conduct and stimulate research and development for the improvement of judicial administration. While the Center 

regards the content as responsible and valuable, this publication does not reflect policy or recommendations of the Board of the Federal Judicial Center.
Federal Judicial Center 1/31/2023 1

Foreign Intelligence Surveillance 

Act Litigation

Robert Timothy Reagan

Federal Judicial Center

The Foreign Intelligence Surveillance Act created procedures for judicial 

oversight of domestic foreign intelligence surveillance. Over time, the purview of the act expanded from electronic surveillance incidents to surveillance programs encompassing electronic communications and tangible 

things. Judicial supervision became both more litigated and more public.

Contents

The Foreign Intelligence Surveillance Act 2

Physical Searches 3

FISA Expansion 3

Minimization and the Wall 4

The Intelligence Community 6

Stellar Wind 6

Statutory Enhancement of Surveillance Authority 13

The FISA Court of Review’s Second Published 

Opinion 13

Challenges to the FISA Amendments Act 15

Concerns by Senators Wyden and Udall 15

Judge Bates’s Concerns 17

Litigation Following Edward Snowden’s Revelations 19

Judicial Approval of Surveillance Programs 21

Disclosing Surveillance Cooperation 24

Smith and Jones 28

Conflicting Rulings on Surveillance Constitutionality 30

Data Retention 33

The Privacy and Civil Liberties Oversight Board 35

New Notices to Criminal Defendants 36

Jamshid Muhtorov 39

Mohamed Osman Mohamud 40

Agron Hasbajrami 42

Reaz Qadir Khan 44

Adel Daoud 44

The Qazi Brothers 49

Najibullah Zazi 50

Mohammads and Salims 52
Foreign Intelligence Surveillance Act Litigation

2 Federal Judicial Center 1/31/2023

Aws Mohammed Younis al-Jayab 53

Moalin, Mohamud, Doreh, and Nasir 54

Summary of Section 702 Notice Cases 55

President Obama’s Reforms 55

The Freedom Act 56

Additional Rulings 62

Carter Page’s Surveillance 65

The Public’s Right of Access to Statutory Interpretation 70

Section 702 Certifications 72

Transition 74

The Foreign Intelligence Surveillance Act

The Foreign Intelligence Surveillance Act (FISA) was signed by President 

Carter on October 25, 1978.1 The eleven sections of FISA’s title I became 

chapter 36, sections 1801 through 1811, of the U.S. Code’s title 50 on war and 

national defense. FISA’s title II included conforming amendments, and title 

III concerned the effective date.

FISA provides for court orders authorizing “electronic surveillance of a 

foreign power or an agent of a foreign power for the purpose of obtaining 

foreign intelligence information [involving] the acquisition of communications of [a] United States person.”2 Foreign powers include foreign governments, foreign factions, and international terrorists.3 Use of FISA-derived 

evidence in court requires notice to the person against whom the evidence is 

used.4

FISA orders are issued by a FISA court, referred to as the Foreign Intelligence Surveillance Court or FISC, that originally consisted of seven district 

judges from seven circuits appointed by the Chief Justice for nonrenewable 

seven-year terms.5 The court’s chief judge is known as the court’s presiding 

judge.

1. Pub. L. No. 95-511, 92 Stat. 1783 (1978). See generally 2 James G. Carr, Patricia L. Bellia & Evan A. Creutz, The Law of Electronic Surveillance 437–511 (May 2020); David S. Kris 

& J. Douglas Wilson, National Security Investigations and Prosecutions (2d ed. 2012); Laura 

K. Donohue, Bulk Metadata Collection: Statutory and Constitutional Considerations, 37 

Harv. J. L. & Pub. Pol’y 757 (2014); Walter F. Mondale, Robert A. Stein & Caitlinrose Fisher, 

No Longer a Neutral Magistrate: The Foreign Intelligence Surveillance Court in the Wake of 

the War on Terror, 100 Minn. L. Rev. 2251 (2016); International Surveillance, The 2014 Cato 

Institute Surveillance Conference (Dec. 12, 2014) [hereinafter Cato Conference], www.cato.

org/events/2014-cato-institute-surveillance-conference.

2. FISA § 102(b), 50 U.S.C. § 1802(b) (2020).

3. Id. § 101(a), 50 U.S.C. § 1801(a).

4. Id. § 106(a), 50 U.S.C. § 1806(c).

5. Pub. L. No. 95-511, §§ 103(a), (d), 92 Stat. at 1788. See generally Elizabeth Goitein & 

Faiza Patel, What Went Wrong with the FISA Court (Brennan Ctr. for Justice 2015), www. 

brennancenter.org/sites/default/files/analysis/What_Went_%20Wrong_With_The_FISA_ 

Court.pdf; Bruce Moyer, The Most Powerful Court You Have Never Heard Of, Fed. Law., 

Mar. 2015, at 6.
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 3

Physical Searches

In 1980, President Carter’s second attorney general, Benjamin Civiletti, 

adopted a policy of seeking FISA-court permission for some physical searches in service of foreign intelligence, searches that are sometimes called black 

bag jobs.6 William French Smith, President Reagan’s first attorney general,

submitted a black bag petition to the FISA court on June 3, 1981, asking the 

court to deny the petition and rule that the court did not have jurisdiction 

over such petitions.7 Presiding Judge George L. Hart, Jr., a district judge in 

the district court for the District of Columbia,

8 acceded to the government’s 

request in the court’s first public opinion.

9 Expressing a judgment in which 

all judges on the court concurred, Judge Hart observed that the text of FISA 

applied only to electronic surveillance.10

In 1994, FISA was amended to extend the FISA court’s jurisdiction to include physical searches for foreign intelligence purposes.11 The new provisions became FISA’s title III,12 and provisions on effective dates became title 

IV.

FISA Expansion

In 1998, the FISA court’s jurisdiction was expanded further to include pen 

registers, trap-and-trace devices, and business records, creating new titles 

IV13 and V14 and moving effective date provisions to title VI.15

The USA PATRIOT Act was signed by President George W. Bush on October 26, 2001.16 It relaxed the standard for issuing a FISA order from “the 

6. See William C. Banks & M.E. Bowman, Executive Authority for National Security Surveillance, 50 Am. U. L. Rev. 1, 78 (2000); Charlie Savage, Takeover 40 (2007); Benjamin Wittes, Law and the Long War 224 (2008).

7. Brief, In re Physical Search, No. 81-___ (FISA Ct. June 3, 1981), reprinted in S. Rep. 

No. 97-280.

8. Judge Hart died on May 21, 1984. Federal Judicial Center Biographical Directory of 

Article III Federal Judges [hereinafter FJC Biographical Directory], www.fjc.gov/history/

judges.

9. Opinion, Physical Search, No. 81-___ (FISA Ct. June 11, 1981), reprinted in S. Rep. No. 

97-280.

10. Id.

11. Intelligence Authorization Act for Fiscal Year 1995, Pub. L. No. 103-359, § 807, 108 

Stat. 3423, 3443 (1994); see Wittes, supra note 6, at 59–61 (reporting that the Clinton administration sought expansion of FISA-court authority over black bag jobs because of uncertainty about whether surveillance of the spy Aldrich Ames, whose prosecution ended in a plea 

bargain benefitting Ames’s wife, would have withstood judicial scrutiny); Laura K. Donohue, 

The Future of Foreign Intelligence 13 (2016) (“It was not clear . . . that the search of [Aldrich 

Ames’s] home had been legal.”).

12. 50 U.S.C. §§ 1821–1829 (2020) (subchapter II).

13. Id. §§ 1841–1846 (subchapter III, on pen registers and trap-and-trace devices).

14. Id. §§ 1861–1862 (subchapter IV, on business records).

15. Intelligence Authorization Act for Fiscal Year 1999, Pub. L. No. 105-272, §§ 601–603, 

112 Stat. 2396, 2404–12 (1998); see Donohue, supra note 1, at 797 (reporting that the 1998 

amendments were triggered by the 1995 Oklahoma City bombing).
Foreign Intelligence Surveillance Act Litigation

4 Federal Judicial Center 1/31/2023

purpose of the surveillance is to obtain foreign intelligence information” to 

require that only “a significant purpose” be foreign intelligence.17 The act also expanded the FISA court from seven to eleven district judges, at least 

three of whom must reside within twenty miles of D.C.18 (The FISA 

Amendments Act of 2008 clarified that the eleven judges must come from “at 

least” seven circuits.19)

Section 215 of the Patriot Act expanded FISA’s title V for business records to include “any tangible things.”20 Before the Patriot Act, FISA provided 

for FISA-court orders issued to the FBI “authorizing a common carrier, public accommodation facility, physical storage facility, or vehicle rental facility 

to release records in its possession for an investigation to gather foreign intelligence information or an investigation concerning international terrorism.”21 The Patriot Act authorized the FISA court to assist the FBI by issuing 

“an order requiring the production of any tangible things (including books, 

records, papers, documents, and other items) for an investigation to obtain 

foreign intelligence information not concerning a United States person or to 

protect against international terrorism or clandestine intelligence activities.”22

Minimization and the Wall

FISA imposes on the government a requirement for “minimization procedures” to protect persons from unnecessary violations of privacy.23 Over the 

years, the FISA court exercised oversight over minimization procedures:

In order to preserve both the appearance and the fact that FISA surveillances and searches were not being used sub rosa for criminal investigations, the Court routinely approved the use of information screening 

“walls” proposed by the government in its applications. Under the normal 

“wall” procedures, where there were separate intelligence and criminal investigations, or a single counter-espionage investigation with overlapping 

16. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, Pub. L. No. 107-56, 115 Stat. 272 (2001); see Charlie 

Savage, Power Wars 182 (2015) (“The bill contained a grab bag of new and expanded law

enforcement and surveillance powers the Justice Department had long coveted, and it made 

several changes to FISA.”).

17. Pub. L. No. 107-56, § 218, 115 Stat. at 291, 50 U.S.C. §§ 1804(a)(6)(B), 1823(a)(6)(B).

18. Id. § 208, 115 Stat. at 283, 50 U.S.C. § 1803(a)(1).

19. Pub. L. No. 110-261, § 109, 122 Stat. 2436, 2464 (2008), 50 U.S.C. § 1803(a)(1).

20. Pub. L. No. 107-56, § 215, 115 Stat. at 287, 50 U.S.C. §§ 1861–1862; see Laura K. 

Donohue, The Fourth Amendment in a Digital World, 71 N.Y.U. Ann. Surv. Am. L. 553, 671 

(2017) (“[FISA] was to be the only way the Executive branch could engage in domestic electronic surveillance for foreign intelligence purposes. [Footnote omitted.] It later expanded 

FISA to govern physical searches, pen register and trap and trace devices, and tangible 

goods.”); see also Donohue, supra note 11, at 25–26.

21. 50 U.S.C. § 1861(a) (2000) (emphasis added).

22. Id. § 1861(a)(1) (2001) (emphasis added). See generally U.S. Dep’t of Just. Inspector 

Gen., A Review of the Federal Bureau of Investigation’s Use of Section 215 Orders for Business Records (Mar. 2007) (redacted), oig.justice.gov/sites/default/files/legacy/special/s0703a/final.

pdf.

23. See 50 U.S.C. §§ 1801(h), 1821(4) (2020) (definitions).
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 5

intelligence and criminal interests, FBI criminal investigators and Department prosecutors were not allowed to review all of the raw FISA intercepts 

or seized materials lest they become defacto partners in the FISA surveillances and searches. Instead, a screening mechanism, or person, usually the 

chief legal counsel in an FBI field office, or an assistant U.S. attorney not involved in the overlapping criminal investigation, would review all of the raw 

intercepts and seized materials and pass on only that information which 

might be relevant evidence. In unusual cases such as where attorney–client 

intercepts occurred, Justice Department lawyers in [the Office of Intelligence Policy and Review] acted as the “wall.” In significant cases, involving 

major complex investigations such as the bombings of the U.S. Embassies in 

Africa, and the millennium investigations, where criminal investigations of 

FISA targets were being conducted concurrently, and prosecution was likely, this Court became the “wall” so that FISA information could not be disseminated to criminal prosecutors without the Court’s approval. In some 

cases where this Court was the “wall,” the procedures seemed to have functioned as provided in the Court’s orders; however, in an alarming number 

of instances, there have been troubling results.

. . .

In November of 2000, the Court held a special meeting to consider the 

troubling number of inaccurate FBI affidavits in so many FISA applications. 

. . .

. . .

In virtually every instance, the government’s misstatements and omissions in FISA applications and violations of the Court’s orders involved information sharing and unauthorized disseminations to criminal investigators and prosecutors.24

Following the attacks of September 11, 2001, the government proposed 

relaxed minimization procedures, but all seven members of the court agreed 

that some of the changes were “designed to enhance the acquisition, retention and dissemination of evidence for law enforcement purposes, instead of 

being consistent with the need of the United States to obtain, produce, and 

disseminate foreign intelligence information.”25 One of the court’s concerns 

was that the government would be able to circumvent probable-cause requirements for criminal investigations by characterizing the investigations as 

for foreign intelligence.26 So the court modified the submitted minimization 

procedures.27

FISA requires the Chief Justice to appoint three district or circuit judges 

to a FISA court of review to hear government appeals from FISA-court rulings.28 Hearing its very first appeal, the court of review overruled the FISA 

24. In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F. 

Supp. 2d 611, 620–21 (FISA Ct. 2002).

25. Id. at 623.

26. Id. at 624 (quotation marks omitted).

27. Id. at 625–27.

28. 50 U.S.C. § 1803(b).
Foreign Intelligence Surveillance Act Litigation

6 Federal Judicial Center 1/31/2023

court’s modifications to the government’s minimization procedures.29 “The 

FISA court’s decision and order not only misinterpreted and misapplied 

minimization procedures it was entitled to impose, but as the government 

argues persuasively, the FISA court may well have exceeded the constitutional bounds that restrict an Article III court.”30

The Intelligence Community

The Central Intelligence Agency (CIA) and the National Security Agency 

(NSA) are well-known members of the U.S. intelligence community (IC).

31

The FBI is also a member. There are seventeen members,32 and a Director of 

National Intelligence provides some coordination:

33

• Central Intelligence Agency

• National Security Agency

• Federal Bureau of Investigation

• Defense Intelligence Agency

• Army Intelligence and Security Command

• Office of Naval Intelligence

• Marine Corps Intelligence

• Air Force Intelligence

• U.S. Coast Guard Intelligence

• U.S. Space Force

• Department of State Bureau of Intelligence and Research

• Department of Homeland Security Office of Intelligence and Analysis

• Department of Treasury Office of Intelligence and Analysis

• Department of Energy Office of Intelligence and Counterintelligence

• National Reconnaissance Office

• National Geospatial-Intelligence Agency

• Drug Enforcement Administration Intelligence Program

Stellar Wind

On December 16, 2005, the New York Times reported that President Bush 

had secretly authorized in 2002 a program of surveillance that excluded the 

FISA court from approval of the surveillance, although the surveillance in29. In re Sealed Case, 310 F.3d 717 (FISA Ct. Rev. 2002); see Laura Donohue, Section 702 

and the Collection of International Telephone and Internet Content, 38 Harv. J.L. & Pub. 

Pol’y 117, 219 (2014). See generally Donohue, supra note 11, at 26–31 (“National Security 

and Criminal Law Converge”); Karen J. Greenberg, Rogue Justice 55–62 (2016) (“Tearing 

Down the Wall”).

“Since the government is the only party to FISA proceedings, we have accepted briefs 

filed by the American Civil Liberties Union (ACLU) and the National Association of Criminal Defense Lawyers (NACDL) as amici curiae.” Sealed Case, 310 F.3d at 719 (footnote omitted).

30. Sealed Case, 310 F.3d at 731.

31. We Are the Intelligence Community, www.intelligence.gov/.

32. Our Organizations, www.intelligence.gov/how-the-ic-works.

33. Office of the Director of National Intelligence, www.odni.gov.
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 7

cluded international communications with people in the United States.34

USA Today reported on May 11, 2006, that telephone companies were cooperating with government surveillance in possible violation of FISA.35 Civil 

suits against the government and against telephone companies followed 

these revelations, and most of the suits were consolidated by the Judicial 

Panel on Multidistrict Litigation before District Judge Vaughn R. Walker in 

the Northern District of California.36 On June 28, 2013, the Washington Post

reported that a surveillance program authorized on October 4, 2001, was 

called Stellar Wind.37

Judges in these cases were divided on whether the plaintiffs had standing 

to challenge the government programs.

In an action against the government filed in the Eastern District of Michigan, District Judge Anna Diggs Taylor ruled before the cases were consolidated that the program was unconstitutional and a violation of FISA.38 On 

appeal, Circuit Judge Ronald Lee Gilman agreed both that the plaintiffs had 

34. James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. 

Times, Dec. 16, 2005, at A1.

35. Leslie Cauley, NSA Has Massive Database of Americans’ Phone Calls, USA Today, 

May 11, 2006, at 1A.

“President Bush authorized the NSA to (1) collect the contents of certain international 

communications, a program that was later referred to as the [terrorist surveillance program], 

and (2) collect in bulk non-content information, or ‘metadata,’ about telephone and Internet 

communications.” Privacy and Civil Liberties Oversight Board, Report on the Surveillance 

Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act 16 

(July 2, 2014) [hereinafter Second Privacy Board Report], documents.pclob.gov/prod/ 

Documents/OversightReport/823399ae-92ea-447a-ab60-0da28b555437/702-Report-2.pdf.

Following the New York Times report, the label “terrorist surveillance program” was 

coined to refer to aspects of a broader program that were revealed by the news report. A Review of the Department of Justice’s Involvement with the President’s Surveillance Program, 

in Annex to the Report on the President’s Surveillance Program 347, 365 (July 10, 209), 

www.dni.gov/files/documents/424/2009%20Joint%20IG%20Report%20on%20the%20PSP_

Annex%20Vol.%20III-F.pdf; see Michael V. Hayden, Playing to the Edge 106 (2016). “After 

the New York Times reported leaked information about the Terrorist Surveillance Program, 

the administration had to retroactively justify its actions.” Mondale et al., supra note 1, at 

2279.

36. In re NSA Telecomm. Records Litig., 474 F. Supp. 2d 1355 (J.P.M.L. 2007); In re NSA 

Telecomm. Records Litig., 444 F. Supp. 2d 1332 (J.P.M.L. 2006); Docket Sheet, In re NSA

Telecomm. Records Litig., No. 4:06-md-1791 (N.D. Cal. Aug. 14, 2006) [hereinafter Warrantless Wiretaps Docket Sheet]. See generally Robert Timothy Reagan, National Security 

Case Studies: Special Case-Management Challenges 505–59 (Federal Judicial Center, 6th ed. 

2015).

Judge Walker retired on February 28, 2011. FJC Biographical Directory, supra note 8.

37. Robert O’Harrow, Jr. & Ellen Nakashima, NSA Collected Data with Private Sector After 9/11, Wash. Post, June 28, 2013, at A6.

“[Vice President Dick Cheney] and his chief counsel conceived it, enlisted the NSA director, Michael V. Hayden, to build it, found a Justice Department lawyer to bless it, and 

packaged the program for sign-off by President Bush.” Barton Gellman, Dark Mirror 26 

(2020).

38. ACLU v. NSA, 438 F. Supp. 2d 754, 775–76, 778–80, 782 (E.D. Mich. 2006).

Judge Taylor died on November 4, 2017. FJC Biographical Directory, supra note 8.
Foreign Intelligence Surveillance Act Litigation

8 Federal Judicial Center 1/31/2023

standing and that their suit had merit,39 but he was outvoted by Circuit Judges Alice M. Batchelder and Julia Smith Gibbons, who determined that the 

plaintiffs’ claims were too speculative to afford them standing.40

Judge Walker dismissed most of the consolidated suits against the government as generalized grievances insufficient to afford the plaintiffs standing.41 Circuit Judges M. Margaret McKeown, Harry Pregerson, and Michael 

Daly Hawkins, however, all agreed that the plaintiffs did have standing.42

One case against the government had exceptional facts. The government 

froze the assets of the Al-Haramain Islamic Foundation, a charity headquartered in Ashland, Oregon, on February 19, 2004.43 On September 9, the 

Treasury Department designated the charity a global terrorist organization.44

The Ashland charity was affiliated with the Al-Haramain Islamic Foundation 

in Saudi Arabia, which was the charitable arm of the Muslim World League, 

an organization founded in 1962.45 In legal actions against designating the 

charity a terrorist organization freezing its assets, the government mistakenly 

produced to the charity’s attorneys a top-secret document that apparently 

was evidence of surveillance pursuant to President Bush’s secret surveillance 

program.46 Relying on the top-secret document, the attorneys filed a civil action in the District of Oregon on February 28, 2006.47

District Judge Garr M. King ruled that the document was protected by 

the state-secrets privilege, so it could not be entered into evidence to support 

the attorneys’ case, but the attorneys’ memories of the document’s contents 

could not be expunged, so the attorneys could rely on those.48 On interlocutory appeal, certified by Judge King and accepted by the court of appeals,

39. ACLU v. NSA, 467 F.3d 590, 683, 720 (6th Cir. 2006) (Circuit Judge Gilman, dissenting).

40. Id. at 653 (opinion for the court); id. at 692 (Circuit Judge Gibbons, concurring in the 

judgment).

41. Order, Ctr. for Constitutional Rights v. Obama, No. 3:07-cv-1115 (N.D. Cal. Jan. 31, 

2011), D.E. 51; Dismissal Order, Jewel v. NSA, No. 4:08-cv-4373 (N.D. Cal. Jan. 21, 2010), 

D.E. 57, 2010 WL 235075.

42. Jewel v. NSA, 673 F.3d 902 (9th Cir. 2011).

43. Al Haramain Islamic Found. v. U.S. Dep’t of Treasury, 686 F.3d 965, 970–71, 973 

(9th Cir. 2012); Al Haramain Islamic Found. v. U.S. Dep’t of Treasury, 585 F. Supp. 2d 1233, 

1245 (D. Or. 2008).

44. Al Haramain Islamic Found., 686 F.3d at 970, 973–74, 977; Al Haramain Islamic 

Found., 585 F. Supp. 2d at 1243, 1245–46; see Reagan, supra note 36, at 165.

45. United States v. Sedaghaty, 728 F.3d 885, 893 (9th Cir. 2013); see Chris Heffelfinger, 

Radical Islam in America 57–59 (2011).

46. Opinion at 4, Al-Haramain Islamic Found. v. U.S. Dep’t of Treasury, No. 3:07-cv1155 (D. Or. June 5, 2008), D.E. 69, 2008 WL 2381640; see Reagan, supra note 36, at 173, 

516.

47. Complaint, Al-Haramain Islamic Found. v. Bush, No. 3:06-cv-274 (D. Or. Feb. 28, 

2006), D.E. 1 (describing the document as “United States Treasury Office of Foreign Assets 

Control logs of . . . conversations”).

48. Al-Haramain Islamic Found. v. Bush, 451 F. Supp. 2d 1215, 1217, 1223–24, 1228–29 

(D. Or. 2006).

Judge King died on February 5, 2019. FJC Biographical Directory, supra note 8.
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 9

Judges McKeown, Pregerson, and Hawkins reversed Judge King’s “commendable effort to thread the needle,” holding that the plaintiffs’ memories 

of the top-secret document were also covered by the state-secrets privilege.

49

The court of appeals remanded the case for a determination of whether 

FISA’s remedies for improper surveillance preempted the privilege.50 By the 

time of remand, the case had been consolidated with the cases before Judge 

Walker,51 who determined that FISA did preempt the state-secrets privilege, 

“but only in cases within the reach of its provisions.”52

FISA’s section 110 provides civil remedies for violations of FISA.

53 Judge 

Walker determined, however, that the court of appeals unequivocally ruled 

that the plaintiffs could not rely on the top-secret document to establish

standing to seek those remedies.54 In 2010, Judge Walker awarded the plaintiffs summary judgment, because they presented as unrebutted evidence numerous public government statements implying that the charity had been 

surveilled and the government did not show that the surveillance was authorized by FISA.55 On appeal, Judges McKeown, Pregerson, and Hawkins 

concluded that section 110 had not waived the government’s sovereign immunity.56

Congress amended FISA to provide the telephone companies with retroactive immunity in the consolidated cases before Judge Walker.57 The Intelligence Reform and Terrorism Prevention Act of 2004 moved FISA’s title VI 

on effective dates to title VII and added a new title VI on requirements for 

reporting FISA-court statistics to Congress.58 The FISA Amendments Act of 

2008 (FAA) substituted a new title VII providing “additional procedures regarding certain persons outside the United States.”59 Subject to FISA-court 

49. Al-Haramain Islamic Found. v. Bush, 507 F.3d 1190, 1204–05 (9th Cir. 2007).

Judge Pregerson died on November 25, 2017. FJC Biographical Directory, supra note 8.

50. Al-Haramain Islamic Found., 507 F.3d at 1205–06.

51. Docket Sheet, Al-Haramain Islamic Found. v. Bush, No. 4:07-cv-109 (N.D. Cal. Jan. 

9, 2007).

52. In re NSA Telecomm. Records Litig., 564 F. Supp. 2d 1109, 1115–25 (N.D. Cal. 2008).

53. 50 U.S.C. § 1810 (2020).

54. NSA, 564 F. Supp. 2d at 1134.

55. In re NSA Telecomm. Records Litig., 700 F. Supp. 2d 1182 (N.D. Cal. 2010).

56. Al-Haramain Islamic Found. v. Obama, 705 F.3d 845 (9th Cir. 2012).

57. See In re NSA Telecomm. Records Litig., 671 F.3d 881 (9th Cir. 2011), aff’g In re NSA 

Telecomm. Records Litig., 633 F. Supp. 2d 949 (N.D. Cal. 2009), cert. denied, 568 U.S. 958

(2012); see also Donohue, supra note 29, at 117, 137.

58. Pub. L. No. 108-458, § 6002, 118 Stat. 3638, 3743 (2004), 50 U.S.C. § 1871 (2020) 

(subchapter V); see Donohue, supra note 29, at 138–39.

59. Pub. L. No. 110-261, § 101(a), 122 Stat. 2436, 2437 (2008), 50 U.S.C. §§ 1881–1881g 

(subchapter VI); see Donohue, supra note 20, at 672 (reporting that the act brought within 

FISA, for the first time, purely overseas communications, but only those involving U.S. persons); see also United States v. Hasbajrami, 945 F.3d 641, 649–58 (2d Cir. 2019); Donohue, 

supra note 11, at 33–38. See generally The FISA Amendments Act: Q&A (Apr. 18, 2017), 

www.dni.gov/files/icotr/FISA%20Amendments%20Act%20QA%20for%20Publication.pdf (the 

intelligence community’s summary of the act’s benefits in advance of the act’s 2017 reauthorization).
Foreign Intelligence Surveillance Act Litigation

10 Federal Judicial Center 1/31/2023

approval or exigent circumstances, “the Attorney General and the Director 

of National Intelligence may authorize jointly, for a period of up to 1 year 

from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.”60 A new title VIII granted the telephone companies retroactive civil immunity.61

On January 10, 2007, while the warrantless wiretap litigation was pending, the FISA court issued two negotiated classified orders that resulted in the 

government’s no longer circumventing the FISA court in the surveillance 

program at issue.62

The new FISA Court orders are innovative and complex and it took considerable time and work for the Government to develop the approach that was 

proposed to and ultimately accepted by the Court. As a result of the new 

orders, any electronic surveillance that was conducted as part of the [terrorist surveillance program] is now being conducted subject to the approval of 

the FISA Court.63

The Electronic Frontier Foundation filed an action under the Freedom of 

Information Act (FOIA) on February 27 in the district court for the District 

60. Pub. L. No. 110-261, § 101(a), 122 Stat. 2438, 50 U.S.C. § 1881a; see Second Privacy 

Board Report, supra note 35, at 19–24; see also Wittes, supra note 6, at 246 (reporting that 

this provision, first adopted as part of the Protect America Act, eliminated the difference 

between wire and radio communications).

“Whereas FISA originally limited intelligence agencies to collecting information from 

‘foreign powers’ and ‘agents of foreign powers’ . . . the FAA extended FISC jurisdiction to 

‘any non-U.S. person overseas’ so long as collecting that intelligence furthered the goals of 

collecting ‘foreign intelligence.’” Mondale et al., supra note 1, at 2267.

61. Pub. L. No. 110-261, §§ 201–202, 122 Stat. at 2467–71, 50 U.S.C. §§ 1885–1885c (subchapter VII).

62. Ex. A, Government Motion for Summary Judgment, Elec. Frontier Found. v. Dep’t of 

Just., No. 1:07-cv-403 (D.D.C. May 11, 2007), D.E. 7; see Offices of Inspectors General, Redacted Classified Report on the President’s Surveillance Program 57–58 (July 10, 2009) 

[hereinafter Redacted PSP Report], oig.justice.gov/reports/2015/PSP-09-18-15-full.pdf; see also 

Government Brief, In re ___, No. ___ (FISA Ct. Dec. 13, 2006), www.dni.gov/files/documents/

1212/Memo%20of%20Law%20as%20filed%2012%2013%202006%20-%2012-11%20Redacted.pdf

(redacted brief making a case for the orders).

63. Redacted Declaration of NSA Director at 3, In re NSA Telecomm. Records Litig., No. 

4:06-md-1791 (N.D. Cal. Feb. 22, 2007), D.E. 175.

In January 2007, the FISC issued orders authorizing the government to conduct 

certain electronic surveillance of telephone and Internet communications carried over 

listed communication facilities where, among other things, the government made a 

probable cause determination regarding one of the communicants, and the email addresses and telephone numbers to be tasked were reasonably believed to be used by 

persons located outside the United States.

Second Privacy Board Report, supra note 35, at 17.

[A] speechwriter for Bush came up with the name “Terrorist Surveillance Program,” a marketing slogan that deliberately misdirected public scrutiny. The domestic 

surveillance did not spy on known terrorists. It aspired to cover substantially all Americans, collecting hundreds of billions of telephone and internet records, in the hope of 

discovering unknown conspirators.

Gellman, supra note 37, at 123.
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 11

of Columbia seeking disclosure of the orders.64 Judge Thomas F. Hogan 

ruled on August 14 that the orders satisfied the national defense, statutory, 

and law enforcement FOIA exemptions.65

On August 9, the ACLU filed a motion directly with the FISA court for 

public release of the orders.66 On August 16, the court’s Presiding Judge Colleen Kollar-Kotelly, a district judge in District of Columbia, ordered the government to respond to the motion.67 FISA Court Judge John D. Bates, also a 

District of Columbia district judge, determined on December 11 that the 

FISA court had supervisory power over its records, so it had jurisdiction to 

hear the ACLU’s motion, contrary to the government’s position on that issue.68 Judge Bates denied the ACLU its requested relief.69 “Other courts operate primarily in public, with secrecy the exception; the FISC operates primarily in secret, with public access the exception.”70

The Director of National Intelligence released redacted versions of the 

two helpful orders on December 12, 2014.71 On January 10, 2007, FISA Court 

Judge Malcolm J. Howard, of the Eastern District of North Carolina, issued 

one order covering surveillance of Americans72 and another order covering 

foreign surveillance.73

Partially declassified declarations released on December 21, 2013, provided some details about the two helpful FISA-court orders:

On January 10, 2007, the FISA Court issued two orders authorizing the 

Government to conduct certain electronic surveillance that had been occurring under the [surveillance program]. . . . [T]he orders consisted of a [redacted] and a Foreign Telephone and Email Order, which authorized, inter 

alia, electronic surveillance of telephone and Internet communications car64. Complaint, Elec. Frontier Found., No. 1:07-cv-403 (D.D.C. Feb. 27, 2007), D.E. 1.

65. Opinion, id. (Aug. 14, 2007), D.E. 17; see Elec. Frontier Found. v. Dep’t of Just., 532 

F. Supp. 2d 22 (D.D.C. 2008) (denying a motion for reconsideration based on new revelations by news media).

66. Motion, In re Certain Orders, No. Misc. 07-1 (FISA Ct. Aug. 9, 2007), www.aclu.org/ 

files/images/asset_upload_file968_31228.pdf; In re Motion for Release of Court Records, 526 

F. Supp. 2d 484, 485 (FISA Ct. 2007).

67. Scheduling Order, In re Motion for Release of Court Records, No. Misc. 07-1 (FISA 

Ct. Aug. 16, 2007), www.aclu.org/files/pdfs/safefree/fisc_order_08162007.pdf.

68. Court Records, 526 F. Supp. 2d at 486–87.

69. Id. at 497.

70. Id. at 488.

71. Press Release, Office of the Dir. of Nat’l Intelligence, Dec. 12, 2014, www.dni.gov/ 

index.php/newsroom/press-releases/press-releases-2014/item/1152-the-doj-releases-additionaldocuments-concerning-collection-activities-authorized-by-president-george-w-bush-shortlyafter-the-attacks-of-september-11-2001; see also Order, In re Tangible Things, No. BR 06-5 

(FISA Ct. May 24, 2006), www.dni.gov/files/documents/section/pub_May%2024%202006%20

Order%20from%20FISC.pdf, 2006 WL 7137486.

72. Order, In re Various Known and Unknown Agents, No. ___ (FISA Ct. Jan. 10, 2007), 

www.dni.gov/files/documents/1212/FISC%20Order%2001%2010%2007%20-%2012-11%20-

%20Redacted.pdf.

73. Order, In re ___, No. ___ (FISA Ct. Jan. 10, 2007), as redacted, www.dni.gov/files/ 

documents/1212/FISC%20Order%2001%2010%2007%2012-11%20-%20Redacted.pdf.
Foreign Intelligence Surveillance Act Litigation

12 Federal Judicial Center 1/31/2023

ried over particularly listed facilities when the Government determines that 

there is probable cause to believe that (1) one of the communicants is a 

member or agent of al Qaeda or an associated terrorist organization, and 

(2) the communication is to or from a foreign country (i.e., a one-end foreign communication to or from the United States). The telephone numbers 

and email addresses to be targeted under the Foreign Telephone and Email 

Order were further limited to those that the NSA reasonably believes are being used by persons outside the United States.74

On April 3, 2007, Northern District of Florida Judge Roger Vinson was 

on FISA-court duty, and he narrowed the government’s ability to make 

probable-cause determinations without FISA-court approval.75

In 2015, New York Times journalist Charlie Savage reported that the January 10, 2007, orders resulted from an application presented to the FISA 

court at a time when a judge that the government viewed to be favorably disposed to the government’s position was on duty, and the court thereafter adjusted its procedures so that the government would have less awareness of

the court’s duty schedule.76

Upon Judge Walker’s February 28, 2011, retirement, the court assigned 

the warrantless wiretap cases to Judge Jeffrey S. White.77 On July 8, 2013, 

Judge White ruled that FISA displaced the state-secrets privilege in two remaining cases—a case originally filed in Brooklyn on May 17, 2006,78 and a 

case filed in San Francisco on September 18, 200879—and that potentially valid constitutional claims remained.80 An action originally filed in Manhattan 

74. Classified Alexander Declaration at 15, In re NSA Telecomm. Records Litig., No. 

4:06-md-1791 (N.D. Cal. May 25, 2007) (lodged D.E. 298), as redacted, www.dni.gov/files/

documents/1220/NSA%20Alexander%202007%20Shubert%20Declaration.pdf.

75. Opinion, In re ___, No. ___ (FISA Ct. Apr. 3, 2007), as redacted, www.dni.gov/files/ 

documents/1212/CERTIFIED%20COPY%20-%20Order%20and%20Memorandum%20Opinion 

%2004%2003%2007%2012-11%20Redacted.pdf; see Redacted PSP Report, supra note 62, at 57, 

59; see also Greenberg, supra note 29, at 147–48; Charlie Savage, Documents Shed New Light 

on Legal Wrangling Over Spying in U.S., N.Y. Times, Dec. 13, 2014, at A12; Savage, supra

note 16, at 204.

Two subsequent FISA-court opinions by Judge Vinson were redacted and released on 

January 26, 2015, in response to a FOIA action by the New York Times. Opinion, No. ___ 

(FISA Ct. Aug. 27, 2007) (redacted); Opinion, No. ___ (FISA Ct. May 31, 2007) (redacted); 

Letter from U.S. Dep’t of Just. to N.Y. Times, s3.amazonaws.com/s3.documentcloud.org/

documents/1509488/nyt-savage-foia-fisc-may-august-2007-orders.pdf (both opinions, redacted); Docket Sheet, N.Y. Times Co. v. U.S. Dep’t of Just., No. 1:14-cv-3948 (S.D.N.Y. June 

3, 2014); see Charlie Savage, Collection of Foreigners’ Data Began Before Congress Backed It, 

Papers Show, N.Y. Times, Jan. 28, 2015, at 13.

76. Savage, supra note 16, at 199–202; see Greenberg, supra note 29, at 146 (“Late in 2006 

the [Justice Department’s national security division] settled upon a case to take before FISC 

Judge Malcolm Howard.”).

77. Warrantless Wiretaps Docket Sheet, supra note 36; see FJC Biographical Directory, 

supra note 8.

78. Complaint, Shubert v. Bush, No. 1:06-cv-2282 (E.D.N.Y. May 17, 2006), D.E. 1; see

Docket Sheet, Shubert v. Bush, No. 4:07-cv-693 (N.D. Cal. Feb. 2, 2007).

79. Complaint, Jewel v. NSA, No. 4:08-cv-4373 (N.D. Cal. Sept. 18, 2008), D.E. 1.

80. Jewel v. NSA, 965 F. Supp. 2d 1090 (N.D. Cal. 2013).
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 13

on January 17, 2006,81 was dismissed by the Ninth Circuit’s court of appeals 

on June 10, 2013,82 in light of a February 26 standing ruling by the Supreme 

Court in Clapper v. Amnesty International USA.

83 An action originally filed 

in Atlanta on January 20, 2006,84 was voluntarily dismissed on March 5, 

2010.

85

Statutory Enhancement of Surveillance Authority

President Bush signed the Protect America Act on August 5, 2007.

86 The act 

was a six-month modification of FISA that excluded from FISA’s coverage 

electronic “surveillance directed at a person reasonably believed to be located 

outside of the United States.”87 The act specified a procedure for the FISA 

court to enforce a directive by the Director of National Intelligence or the 

attorney general to a communication service provider for compensated assistance in “the acquisition of foreign intelligence information” concerning 

“persons reasonably believed to be located outside the United States.”88

The FISA Court of Review’s Second Published Opinion

On August 22, 2008, following closed oral argument held in Providence, 

Rhode Island, in June, the FISA court of review, in its second published opinion, affirmed an order of compliance issued by the FISA court.89 Reviewing 

the constitutionality of the directives, the court held “that a foreign intelligence exception to the Fourth Amendment’s warrant requirement exists 

when surveillance is conducted to obtain foreign intelligence for national security purposes and is directed against foreign powers or agents of foreign 

powers reasonably believed to be located outside the United States.”90 The 

court determined that the directives satisfied the Fourth Amendment’s reasonableness requirement.91

81. Complaint, Ctr. for Constitutional Rights v. Bush, No. 1:06-cv-313 (S.D.N.Y. Jan. 17, 

2006), D.E. 1; see Docket Sheet, Ctr. for Constitutional Rights v. Bush, No. 3:07-cv-1115 

(N.D. Cal. Feb. 23, 2007).

82. Ctr. for Constitutional Rights v. Obama, 522 F. App’x 383 (9th Cir. 2013), aff’g Order, 

No. 3:07-cv-1115 (N.D. Cal. Jan. 31, 2011), D.E. 51, cert. denied, 571 U.S. 1238 (2014).

83. 568 U.S. 398 (2013).

84. Complaint, Guzzi v. Bush, No. 1:06-cv-136 (N.D. Ga. Jan. 20, 2006), D.E. 1; see Docket Sheet, Guzzi v. Bush, No. 4:06-cv-6225 (N.D. Cal. Oct. 3, 2006).

85. Order, Guzzi, No. 4:06-cv-6225 (N.D. Cal. Mar. 5, 2010), 27.

86. Pub. L. No. 110-55, 121 Stat. 552 (2007); see Jacob Sommer, FISA Authority and 

Blanket Surveillance, Litigation, Spring 2014, at 40, 44.

87. Pub. L. No. 110-55, § 2, FISA § 105A, 50 U.S.C. § 1805a (2007); see Second Privacy 

Board Report, supra note 35, at 19; Donohue, supra note 29, at 135–37; Greenberg, supra 

note 29, at 148–50.

88. Pub. L. No. 110-55, §§ 2–3, FISA §§ 105B–105C, 50 U.S.C. §§ 1805b–1805c (2007).

89. In re Directives, 551 F.3d 1004 (FISA Ct. Rev. 2008); see Laura K. Donohue, The 

Shadow of State Secrets, 159 U. Pa. L. Rev. 77, 158–59 (2010); Greenberg, supra note 29, at 

161–66; Sommer, supra note 86, at 40–41. See generally Donohue, supra note 29, at 234–36.

90. Directives, 551 F.3d at 1012; see Second Privacy Board Report, supra note 35, at 90.

91. Directives, 551 F.3d at 1012–15; see Donohue, supra note 11, at 146; Donohue, supra

note 29, at 137. See generally Sommer, supra note 86.
Foreign Intelligence Surveillance Act Litigation

14 Federal Judicial Center 1/31/2023

Yahoo! complied with the directives.92 On June 14, 2013, it filed a motion 

with the FISA court to make public the lower court’s opinion and to make 

public Yahoo!’s identity.93 Presiding FISA Court Judge Reggie B. Walton, of 

the District of Columbia—after consultation with the other FISA-court judges—issued an order on July 15 that the government review the opinion for 

redaction of classified information.94 In response to the motion, the government stated that Yahoo!’s identity could be declassified and that the government had no objection to publication of unclassified portions of the opinion

and the case file.

95

On September 11, 2014, the Director of National Intelligence posted on 

the internet forty-eight documents comprising 1,283 pages:96 the FISA-court 

opinion,97 a less redacted version of the FISA court of review’s opinion,98 and 

many documents from the two case files. A redacted transcript of argument 

before the FISA court of review was released on November 17.99 Additional 

documents were released in March 2015100 and April 2016.101

92. Directives, 551 F.3d at 1008; see Craig Timberg & Christopher Ingraham, Fines in 

NSA Dispute Might Have Bankrupted Yahoo, Wash. Post, Sept. 16, 2014, at A13.

93. Motion, In re Directives to ___, No. 105B(g) 07-1 (FISA Ct. June 14, 2013), www.fisc.

uscourts.gov/sites/default/files/105B%28g%29%2007-01%20Motion-1.pdf.

94. Order, id. (July 15, 2013), www.fisc.uscourts.gov/sites/default/files/105B%28g%29%20

07-01%20Order-3.pdf.

95. Government Response, id. (June 14, 2013), www.fisc.uscourts.gov/sites/default/files/ 

105B%28g%29%2007-01%20Motion-2.pdf; see Order, id. (Oct. 22, 2013), www.fisc.uscourts.

gov/sites/default/files/105B%28g%29%2007-01%20Order-4.pdf (noting the status of the classification review).

96. Press Release, Office of the Dir. of Nat’l Intelligence, Sept. 11, 2014 [hereinafter Sept. 

11, 2014, DNI Press Release], www.dni.gov/index.php/newsroom/press-releases/pressreleases-2014/item/1109-statement-by-the-odni-and-the-u-s-doj-on-the-declassification-ofdocuments-related-to-the-protect-america-act-litigation; see Government Supplemental Response, In re Directives to Yahoo!, Inc., No. 105B(g) 07-1 (FISA Ct. Dec. 12, 2014), www.

fisc.uscourts.gov/sites/default/files/105B%28g%29%2007-01%20Response-5.pdf; see also Vindu 

Goel & Charlie Savage, Threat of Daily Fine Shows Government’s Aggressive Push for Data, 

N.Y. Times, Sept. 12, 2014, at B1; Craig Timberg, U.S. Threat Led Yahoo to Relent, Wash. 

Post, Sept. 12, 2014, at A1; Danny Yadron, Yahoo Faced Big U.S. Fines, Wall St. J., Sept. 12, 

2014, at B1.

97. Opinion, Directives, No. 105B(g) 07-1 (FISA Ct. Apr. 25, 2008), as redacted, www.dni.

gov/files/documents/0909/Memorandum%20Opinion%2020080425.pdf; see Order, In re Directives to Yahoo!, Inc., No. 08-1 (FISA Ct. Rev. Sept. 11, 2014), lawfare.s3-us-west-2.

amazonaws.com/staging/s3fs-public/uploads/2014/09/FISCR-08-01WCB-Order-140911.pdf 

(archived at web.archive.org/web/20170519023954/lawfare.s3-us-west-2.amazonaws.com/staging/

s3fs-public/uploads/2014/09/FISCR-08-01WCB-Order-140911.pdf) (ordering the unsealing of 

declassified portions of the opinion).

A more redacted version of this opinion was also included in the release: www.dni.gov/ 

files/documents/0909/Redacted%20Memo%20Opinion%20and%20Order%2020080425.pdf.

98. Opinion, Directives, No. 08-1 (FISA Ct. Rev. Aug. 22, 2008), as redacted, www.dni.

gov/files/documents/0909/FISC%20Merits%20Opinion%2020080822.pdf, 2008 WL 10632524.

99. Transcript, Directives, No. 08-1 (FISA Ct. Rev. June 19, 2008), www.dni.gov/files/

documents/1118/19%20June%202008%20FISCR%20PAA%20Hearing%20Transcript%20-%20

Declassified%20FINAL.pdf; see Release of Oral Argument Transcript from the Protect Amer-
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 15

Challenges to the FISA Amendments Act

The ACLU initiated litigation on the FISA Amendments Act on the day that 

the act was signed.102

The ACLU filed a motion with the FISA court for access to the court’s 

rulings on the constitutionality of the act’s provisions.

103 On August 27, 2008, 

FISA Court Judge Mary A. McLaughlin, of the Eastern District of Pennsylvania, denied the motion.104

The ACLU also filed an action in the Southern District of New York 

challenging the act’s constitutionality.105 Judge John G. Koeltl ruled that the 

plaintiffs lacked standing because they could only claim that their communications might be monitored as a result of the amendments.106 A panel of the 

U.S. Court of Appeals for the Second Circuit determined that the plaintiffs 

did have standing and remanded the action for a determination of constitutionality.107 En banc rehearing was denied by a vote of six to six.108 In Clapper, however, the Supreme Court ruled that Judge Koeltl was correct that the 

plaintiffs lacked standing because their grievance was too speculative.109

Concerns by Senators Wyden and Udall

On May 26, 2011, Senators Ron Wyden and Mark Udall warned that the Justice Department’s secret interpretation of surveillance authorized by the Paica Act Litigation by the Office of the Director of National Intelligence and the U.S. Department of Justice, IC on the Record (Nov. 17, 2014), tmblr.co/ZZQjsq1VwCSPx.

100. Notice, Directives, No. 105B(g) 07-1 (FISA Ct. Mar. 4, 2015), www.fisc.uscourts.gov/

sites/default/files/105B%28g%29%2007-01%20Notice-1.pdf; IC on the Record (Mar. 3, 2015), 

tmblr.co/ZZQjsq1eu8iiE; see Motion for Enlargement of Time, Electronic Frontier Found. v. 

Dep’t of Just., No. 1:14-cv-760 (D.D.C. Mar. 4, 2015), D.E. 13 (noting the release of eight out 

of eleven FOIA documents); see also Electronic Frontier Found. v. Dep’t of Just., 141 F. 

Supp. 3d 51 (D.D.C. 2015) (granting the government summary judgment with respect to a 

FISA-court opinion), appeal dismissed, Order, No. 15-5346 (D.C. Cir. Apr. 27, 2016), 2016 

WL 3041648.

101. Government Response, Directives, No. 105B(g) 07-1 (FISA Ct. Apr. 11, 2016), www.

fisc.uscourts.gov/sites/default/files/105B%28g%29%2007-01%20Response-8_0.pdf; see Order, id.

(Apr. 27, 2016), www.fisc.uscourts.gov/sites/default/files/105B%28g%29%2007-01.pdf, 2016 WL 

8233915 (later order in the case); Order, id. (Feb. 5, 2016), www.fisc.uscourts.gov/sites/default/

files/105B%28g%29%2007-01%20Order-9_0.pdf, 2016 WL 6212316 (earlier order in the case).

102. See Lawfare Podcast: Jameel Jaffer, Bob Litt, and William Banks Debate FISA (episode 101, Nov. 22, 2014), www.lawfareblog.com/2014/11/lawfare-podcast-episode-101-jameeljaffer-bob-litt-and-william-banks-debate-fisa/ (noting that the ACLU filed an action forty-five 

minutes after the statute was signed into law); Greenberg, supra note 29, at 226.

103. Motion, In re Proceedings Required by § 702(i), No. Misc. 08-1 (FISA Ct. July 10, 

2008), www.aclu.org/files/pdfs/safefree/fisc_motion_20080710.pdf.

104. Opinion, id. (Aug. 27, 2008), 2008 WL 9487946.

Judge McLaughlin retired on July 1, 2020. FJC Biographical Directory, supra note 8.

105. Complaint, Amnesty Int’l USA v. McConnell, No. 1:08-cv-6259 (S.D.N.Y. July 17, 

2008), D.E. 1.

106. Amnesty Int’l USA v. McConnell, 646 F. Supp. 2d 633 (S.D.N.Y. 2009).

107. Amnesty Int’l USA v. Clapper, 638 F.3d 118 (2d Cir. 2011).

108. Amnesty Int’l USA v. Clapper, 667 F.3d 163 (2d Cir. 2011).

109. 568 U.S. 398 (2013).
Foreign Intelligence Surveillance Act Litigation

16 Federal Judicial Center 1/31/2023

triot Act did not comport with the act’s text and would trouble citizens.110 On 

June 22, New York Times reporter Charlie Savage submitted a FOIA request 

to the Department for a report referenced by Senators Wyden and Udall.111

Savage and the Times filed a complaint to enforce the request in the Southern 

District of New York on October 5.112

On October 26, the ACLU filed an action in the same district to enforce a 

May 31 FOIA “Request for the release of any and all records concerning the 

government’s interpretation or use of Section 215” of the Patriot Act, which 

amended FISA’s title V on business records and other tangible things.

113 The 

case was immediately referred to Judge William H. Pauley III as related to 

the Times case, over which Judge Pauley was presiding.114

After an in camera review of the report, Judge Pauley ruled on May 17, 

2012, that it was properly withheld.115 In 2013116 and 2014,117 the government 

released to the ACLU additional documents concerning section 215. Judge 

Pauley decided to review in camera other documents—FISA-court orders 

and opinions—to resolve the government’s FOIA obligations as to them,118

and he determined that they were properly withheld.119

On July 20, 2012, Wired posted a story online that the FISA court had 

ruled on at least one occasion that the government had applied the FISA 

Amendments Act unconstitutionally.120 The report arose from a July 20 letter 

to Senator Wyden from the Office of the Director of National Intelligence 

granting the senator permission to make three statements, including that “on 

at least one occasion the Foreign Intelligence Surveillance Court held that 

110. N.Y. Times Co. v. U.S. Dep’t of Just., 872 F. Supp. 2d 309, 312–13 (S.D.N.Y. 2012); 

see Savage, supra note 16, at 436; Charlie Savage, Senators Say Patriot Act Is Being Misinterpreted, N.Y. Times, May 27, 2011, at A17.

111. N.Y. Times Co., 872 F. Supp. 2d at 313; Complaint at 6, N.Y. Times Co. v. U.S. Dep’t 

of Just., No. 1:11-cv-6990 (S.D.N.Y. Oct. 5, 2011), D.E. 1 [hereinafter N.Y. Times Complaint]; see Savage, supra note 16, at 436.

112. N.Y. Times Complaint, supra note 111, at 8; see Savage, supra note 16, at 436.

113. Complaint, ACLU v. FBI, No. 1:11-cv-7562 (S.D.N.Y. Oct. 26, 2011), D.E. 1; N.Y. 

Times Co., 872 F. Supp. 2d at 313; see Savage, supra note 16, at 436.

114. Docket Sheet, ACLU, No. 1:11-cv-7562 (S.D.N.Y. Oct. 26, 2011); see Savage, supra

note 16, at 436.

Judge Pauley died on July 6, 2021. FJC Biographical Directory, supra note 8; see Sam 

Roberts, William H. Pauley III, 68, Judge Who Oversaw Trump Hush Money Case, N.Y. 

Times, July 18, 2021, at 24.

115. N.Y. Times Co., 872 F. Supp. 2d at 315, 318; see Savage, supra note 16, at 436–37.

116. ACLU v. FBI—FOI Case for Records Relating to Patriot Act Section 215, www.aclu. 

org/national-security/section-215-patriot-act-foia; Letters, ACLU, No. 1:11-cv-7562 (S.D.N.Y. 

Oct. 26, 2011), D.E. 74, 78.

117. Letter, ACLU, No. 1:11-cv-7562 (S.D.N.Y. July 9, 2014), D.E. 101.

118. ACLU v. FBI, 59 F. Supp. 3d 584 (S.D.N.Y. 2014).

119. Opinion, ACLU, No. 1:11-cv-7562 (S.D.N.Y. Mar. 31, 2015), D.E. 117, 2015 WL 

1566775.

120. Spencer Ackerman, U.S. Admits Surveillance Violated Constitution At Least Once, 

Wired, July 20, 2012, Danger Room, www.wired.com/dangerroom/2012/07/surveillancespirit-law/.
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 17

some collection carried out pursuant to the [FISA] Section 702 minimization 

procedures used by the government was unreasonable under the Fourth 

Amendment.”121 According to the letter,

The text that you have asked us to review concerns classified opinions 

of the Foreign Intelligence Surveillance Court (FISC). . . . However, . . . the 

Director of National Intelligence (DNI), has determined, as an exercise of 

his discretion, “that the public interest in disclosure outweighs the damage 

to the national security that might reasonably be expected from disclosure.” 

Accordingly, the DNI has taken the exceptional step of declassifying your 

proposed text and the other information contained in this letter.122

The Director’s office asked the senator to report also, “The government has 

remedied these concerns and the FISC has continued to approve the collection as consistent with the statute and reasonable under the Fourth Amendment.”123

On August 30, the Electronic Frontier Foundation filed a FOIA complaint in the district court for the District of Columbia to enforce a July 26 

FOIA request for any FISA-court opinion supporting Senator Wyden’s 

statement.124 In an April 1, 2013, motion for summary judgment, the government argued that it was properly withholding from the plaintiff a FISAcourt order otherwise responsive to the FOIA request, and only the FISA 

court could authorize its publication anyway.125

On May 20, the plaintiff sought from the FISA court permission for the 

government to release the order.126 On June 12, Presiding Judge Walton determined that FISA-court rules did not prohibit disclosure of the order.127

Judge Bates’s Concerns

The FISA-court order at issue in the Electronic Frontier Foundation’s FOIA 

action was an October 3, 2011, opinion by Presiding FISA Court Judge 

121. Letter from Director of Legislative Affairs Kathleen Turner, Office of the Director of 

National Intelligence, to Senator Ron Wyden, July 20, 2012 [hereinafter Turner Letter], 

www.wired.com/images_blogs/dangerroom/2012/07/2012-07-20-OLA-Ltr-to-Senator-Wyden-refDeclassification-Request.pdf; see Ryan Lizza, State of Deception, New Yorker, Dec. 16, 2013, at 

48, 60.

122. Turner Letter, supra note 121, at 1–2.

123. Id. at 2.

124. Complaint, Electronic Frontier Found. v. Dep’t of Just., No. 1:12-cv-1441 (D.D.C. 

Aug. 30, 2012), D.E. 1; Electronic Frontier Found. v. Dep’t of Just., 57 F. Supp. 3d 54, 55–57 

(D.D.C. 2014); see Ellen Nakashima, Group Wants Release of Surveillance Ruling, Wash. 

Post, May 23, 2013, at A3.

125. Government Summary-Judgment Brief at 26, Electronic Frontier Found., No. 1:12-

cv-1441 (D.D.C. Apr. 1, 2013), D.E. 11.

126. Motion, In re Motion for Consent to Disclosure of Court Records, No. Misc. 13-1 

(FISA Ct. May 20, 2013), www.fisc.uscourts.gov/sites/default/files/Misc%2013-01%20Motion-1.

pdf.

127. Order, id. (June 12, 2013), www.fisc.uscourts.gov/sites/default/files/Misc%2013-01%20

Opinion-1.pdf, 2013 WL 5460051.
Foreign Intelligence Surveillance Act Litigation

18 Federal Judicial Center 1/31/2023

Bates.128 The government publicly released a redacted version of the opinion 

on August 21, 2013.129 FISA’s section 702, enacted as part of the FAA, provides for FISA-court approval of surveillance programs “targeting . . . persons reasonably believed to be located outside the United States to acquire 

foreign intelligence information.”130

Judge Bates held that aspects of some NSA surveillance violated the 

Fourth Amendment’s reasonableness requirement.131

The Court’s review of the targeting and minimization procedures submitted with the April 2011 Submissions is complicated by the government’s 

recent revelation that NSA’s acquisition of Internet communications 

through its upstream collection under Section 702 is accomplished by acquiring Internet “transactions,” which may contain a single, discrete communication, or multiple discrete communications [multi-communication 

transactions or MCTs], including communications that are neither to, from, 

nor about targeted facilities. . . .

. . .

In sum, NSA’s collection of MCTs results in the acquisition of a very 

large number of Fourth Amendment-protected communications that have 

128. Summary-Judgment Motion at 1, Electronic Frontier Found., No. 1:12-cv-1441 

(D.D.C. Oct. 2, 2013), D.E. 19 [hereinafter Oct. 2, 2013, EFF Summary-Judgment Motion]; 

see Second Privacy Board Report, supra note 35, at 30–31. See generally Donohue, supra note 

29, at 190–94, 259–63.

129. Opinion, ___, No. ___ (FISA Ct. Oct. 3, 2011) (redacted) [hereinafter Oct. 3, 2011, 

Bates Opinion], www.eff.org/document/october-3-2011-fisc-opinion-holding-nsa-surveillanceunconstitutional, 2011 WL 10945618, attached as ex. A, Oct. 2, 2013, EFF Summary-Judgment Motion, supra note 128; Electronic Frontier Found., 57 F. Supp. 3d at 57; see Anita 

Kumar & Lesley Clark, Surveillance Program Nets Americans’ Emails, Miami Herald, Aug. 

22, 2013, at 3A; Charlie Savage & Scott Shane, Top-Secret Court Castigated N.S.A. on Surveillance, N.Y. Times, Aug. 22, 2013, at A1.

On November 19, 2013, the government posted on the website for the Director of National Intelligence pages of the opinion with a substantially less redacted footnote 14: www.

dni.gov/files/documents/October%202011%20Bates%20Opinion%20and%20Order%20Part%202.

pdf.

130. FISA § 702(a), 50 U.S.C. § 1881a(a) (2020); see Second Privacy Board Report, supra

note 35, at 1 (“Under the . . . program implemented under Section 702 of the Foreign Intelligence Surveillance Act (‘FISA’), the government collects the contents of electronic communications, including telephone calls and emails, where the target is reasonably believed to be 

a non-U.S. person [footnote omitted] located outside the United States.”); see also In re

DNA/AG 702(h) Certifications 2018, 941 F.3d 547, 550–51 (FISA Ct. Rev. 2019). See generally Donohue, supra note 29, at 139–42.

“Rather than adjudicating individual cases or controversies, the [FISA] court [now] approves systems and procedures developed by the executive branch.” Mondale et al., supra

note 1, at 2291; see id. at 1198–301 (likening approving programmatic surveillance to issuing 

advisory opinions).

131. Oct. 3, 2011, Bates Opinion, supra note 129, at 78–80. See generally U.S. Dep’t of 

Just. Inspector Gen., A Review of the Federal Bureau of Investigation’s Activities Under Section 702 of the Foreign Intelligence Surveillance Act Amendments Act of 2008 (Sept. 2012) 

(redacted), oig.justice.gov/reports/2015/o1501.pdf; Donohue, supra note 29, at 190–94; Mondale et al., supra note 1, at 2278 (“It is . . . very questionable whether Section 702 comports 

with Article III of the Constitution.”).
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 19

no direct connection to any targeted facility and thus do not serve the national security needs underlying the Section 702 collection as a whole. Rather than attempting to identify and segregate the non-target, FourthAmendment protected information promptly following acquisition, NSA’s 

proposed handling of MCTs tends to maximize the retention of such information and hence to enhance the risk that it will be used and disseminated.

132

Judge Bates expressed concern that the government’s clarifying revelation 

while the application for Judge Bates’s approval was pending was “the third 

instance in less than three years in which the government has disclosed a 

substantial misrepresentation regarding the scope of a major collection program.”133

On November 30, 2011, Judge Bates ruled that “the government has adequately corrected the deficiencies identified in the October 3 Opinion.”134

Presiding over the Electronic Frontier Foundation’s FOIA action, Judge 

Amy Berman Jackson reviewed Judge Bates’s unredacted opinion and ordered the government to provide additional justifications for some redactions.135 The government responded by removing some redactions; Judge 

Jackson determined that the less redacted opinion complied with FOIA.136

Litigation Following Edward Snowden’s Revelations

In January 2013, Edward Snowden, who worked in Hawaii for an NSA contractor, contacted documentarian Laura Poitras, who lived in Berlin, because 

he was interested in disclosing what he believed to be improper surveillance 

practices.137 Poitras brought into the loop journalists Glenn Greenwald, a reporter for the London Guardian living in Rio de Janeiro, and Barton 

Gellman, formerly a reporter for the Washington Post, living in New York.

138

132. Oct. 3, 2011, Bates Opinion, supra note 129, at 15.

133. Id. at 16 n.14; see Klayman v. Obama, 957 F. Supp. 2d 1, 19 (D.D.C. 2013).

134. Opinion at 2, ___, No. ___ (FISA Ct. Nov. 30, 2011), www2.gwu.edu/~nsarchiv/

NSAEBB/NSAEBB436/docs/EBB-040.pdf, 2011 WL 10947772.

135. Docket Sheet, Electronic Frontier Found. v. Dep’t of Just., No. 1:12-cv-1441 (D.D.C. 

Aug. 30, 2012) (June 11, 2014, minute order); Electronic Frontier Found. v. Dep’t of Just., 57 

F. Supp. 3d 54, 58–59 (D.D.C. 2014).

136. Electronic Frontier Found., 57 F. Supp. 3d 54; see Opinion, Electronic Frontier 

Found., No. 1:12-cv-1441 (D.D.C. Sept. 30, 2015), D.E. 47 (magistrate judge recommendation that the plaintiffs be awarded $49,474.50 in attorney fees and costs); Notice, id. (Nov. 

16, 2015), D.E. 50 (notice that the government would not contest the fee award).

137. See Ken Auletta, Freedom of Information, New Yorker, Oct. 7, 2013, at 46, 52; Suzanna Andrews, Bryan Burrough & Sarah Ellison, The Snowden Saga, Vanity Fair, May 2014, 

at 152, 154; Michael Gurnow, The Edward Snowden Affair 31–33 (2014); George Packer, 

The Holder of Secrets, New Yorker, Oct. 20, 2014, at 50, 55–56.

138. See Glenn Greenwald, No Place to Hide 10–16 (2014); Andrews et al., supra note 

137, at 154, 164, 196–97; Auletta, supra note 137, at 52; Gurnow, supra note 137, at 33–40.

See generally Gellman, supra note 37.
Foreign Intelligence Surveillance Act Litigation

20 Federal Judicial Center 1/31/2023

Snowden turned to Poitras after Greenwald’s cool response to Snowden’s 

December 2012 efforts to interest him.139

On June 1, Poitras and Greenwald flew to Hong Kong to meet Snowden.

140 The Guardian insisted that one of its veteran journalists, Ewen 

MacAskill, accompany the other two.141 Snowden transferred to the journalists files containing classified information about NSA surveillance programs.142 The impact of Snowden’s revelations resulted in his being the first 

runner-up as Time magazine’s person of the year for 2013.

143 The Guardian

and the Washington Post won public-service Pulitzer Prizes.144

In June 2013, the FISA court created a public docket website for selected 

matters brought by private parties; the website was later expanded to include 

other declassified filings.

145

139. See Greenwald, supra, note 138, at 7–14, 81–82; Andrews et al., supra note 137, at 

154, 163; Gurnow, supra note 137, at 22, 34, 37–38; Luke Harding, The Snowden Files 66–69 

(2014); see also Mark Hertsgaard, Bravehearts 31–32 (2016) (reporting that Snowden was 

interested in contacting Poitras because of her short film, The Program).

Snowden “had explicitly avoided The New York Times, due to the paper’s decision to delay publication for nearly a year of its 2005 story detailing the N.S.A.’s Bush-era warrantless 

wiretapping.” Andrews et al., supra note 137, at 202.

140. See Greenwald, supra, note 138, at 24–33 (noting that they arrived Sunday night, 

June 2); Savage, supra note 16, at 401 (reporting that Snowden selected Hong Kong “because 

its foreign affairs were controlled by China, which would be less likely to swiftly turn him 

over to the United States”); see also Auletta, supra note 137, at 52; Gurnow, supra note 137, 

at 40–41; Harding, supra note 139, at 6–13, 78–83. See generally James Bamford, The Most 

Wanted Man in the World, Wired, Sept. 2014, at 87.

141. See Greenwald, supra, note 138, at 24–27, 61–62; Andrews et al., supra note 137, at 

154–55; Gurnow, supra note 137, at 40; Harding, supra note 139, at 81–82.

142. See Citizenfour (Praxis Films 2014); Barton Gellman, Man Who Leaked NSA Secrets 

Steps Forward, Wash. Post, June 10, 2013, at A1; Glenn Greenwald, US Orders Phone Firm to 

Hand Over Data on Millions of Calls, Guardian (London), June 6, 2013, at 1; Glenn Greenwald & Ewen MacAskill, The Whistleblower, Guardian (London), June 10, 2013, at 1; Mark 

Mazzetti & Michael S. Schmidt, Ex-Worker at C.I.A. Says He Leaked Data on Surveillance, 

N.Y. Times, June 10, 2013, at A1; Ellen Nakashima, Report: Verizon Giving Call Data to 

NSA, Wash. Post, June 6, 2013, at A1; Charlie Savage & Mark Mazzetti, Cryptic Overtures 

and a Clandestine Meeting Gave Birth to a Blockbuster Story, N.Y. Times, June 11, 2013, at 

A13; Charlie Savage, Edward Wyatt & Peter Baker, U.S. Says It Gathers Online Data Abroad, 

N.Y. Times, June 7, 2013, at A1; see also ACLU v. Clapper, 785 F.3d 787, 795–96 (2d Cir. 

2015). See generally David S. Kris, On the Bulk Collection of Tangible Things, 7 J. Nat’l Sec. L. 

& Pol’y 209 (2014).

143. Michael Scherer, Edward Snowden: The Dark Prophet, Time, Dec. 23, 2013, at 78.

144. See Paul Farhi, Washington Post Wins Pulitzer Prize for NSA Spying Revelations, 

Wash. Post, Apr. 15, 2014, at A1; Ravi Somaiya, Pulitzer Prizes Awarded for Coverage of 

N.S.A. Secrets and Boston Bombing, N.Y. Times, Apr. 15, 2014, at A18.

145. Public Filings—U.S. Foreign Intelligence Surveillance Court, www.fisc.uscourts.gov/

public-filings (remodeled approximately May 1, 2014); see U.S. Foreign Intelligence Surveillance Court Public Filings, www.uscourts.gov/uscourts/courts/fisc/index.html (former website address, archived at web.archive.org/web/20140430090344/http://www.uscourts.gov/ 

uscourts/courts/fisc/index.html; see also Peter Wallsten, Carol D. Leonnig & Alice Crites, 

Rare Scrutiny for a Court Used to Secrecy, Wash. Post, June 23, 2012, at A1.
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 21

Judicial Approval of Surveillance Programs

On June 12, the ACLU filed a motion with the FISA court for release of orders approving the newly disclosed surveillance programs,

146 and the ACLU 

filed a civil action in the Southern District of New York on the previous day 

challenging the constitutionality of the programs.

147 The New York court assigned the case there to Judge Pauley as related to the 2011 FOIA actions by 

the New York Times and the ACLU.148 On November 20, 2013, FISA Court 

Judge F. Dennis Saylor IV, of the District of Massachusetts, ordered the government to explain why no part of a February 19 opinion by the FISA court 

could be released.149

On December 20, the government submitted to Judge Saylor a proposed 

redacted opinion for public release.150 After discussions with court staff on 

January 23, 2014, the government agreed on February 6 to release a less redacted opinion.151 On August 7, Judge Saylor approved the government’s redactions as achieving “the basic objective sought by the movants: disclosure 

of the Court’s legal reasoning, to the extent that it can reasonably be segregated from properly classified facts.”152

The Director of National Intelligence posted on the internet additional FISA-court filings. E.g., Primary Order, In re Tangible Things, No. BR 14-67 (FISA Ct. Mar. 28, 2014) 

(Judge Rosemary M. Collyer), www.dni.gov/files/documents/0627/BR_14-67_Primary_Order.

pdf; Press Release, Office of the Dir. of Nat’l Intelligence, June 27, 2014, www.dni.gov/index.

php/newsroom/press-releases/press-releases-2014/item/1085-joint-statement-from-the-odniand-the-doj-on-the-declassification-of-renewal-of-collection-under-section-501-of-fisa; Sept. 

11, 2014, DNI Press Release, supra note 96; Primary Order, In re Tangible Things, No. BR 

09-19 (FISA Ct. Dec. 16, 2009) (Judge Walton), www.dni.gov/files/documents/0708/BR%2009-

19%20Primary%20Order.pdf; Primary Order, In re Tangible Things, No. BR 09-15 (FISA Ct. 

Oct. 30, 2009) (Judge Walton), www.dni.gov/files/documents/0708/BR%2009-15%20Primary

%20Order.pdf; Primary Order, In re Tangible Things, No. BR 09-09 (FISA Ct. July 9, 2009) 

(Judge Walton), www.dni.gov/files/documents/0708/BR%2009-09%20Primary%20Order.pdf.

146. Motion, In re Orders Issued by This Court Interpreting Section 215 of the Patriot 

Act, No. Misc. 13-2 (FISA Ct. dated June 10, 2013, filed June 12, 2013), www.fisc.uscourts. 

gov/sites/default/files/Misc%2013-02%20Motion-1.pdf, www.aclu.org/files/assets/fisc_unsealing_

motion.pdf.

147. Complaint, ACLU v. Clapper, No. 1:13-cv-3994 (S.D.N.Y. June 11, 2013), D.E. 1; 

ACLU v. Clapper, 804 F.3d 617, 619–20 (2d Cir. 2015); see Greenberg, supra note 29, at 233–

34.

148. Assignment Notice, ACLU, No. 1:13-cv-3994 (S.D.N.Y. June 14, 2013), D.E. 2; see

N.Y. Times Co. v. U.S. Dep’t of Just., 872 F. Supp. 2d 309 (S.D.N.Y. 2012).

149. Order, Section 215 Orders, No. Misc. 13-2 (FISA Ct. Nov. 20, 2013), www.fisc. 

uscourts.gov/sites/default/files/Misc%2013-02%20Order-5.pdf, 2013 WL 5460064.

150. Submission, id. (Dec. 20, 2013), www.fisc.uscourts.gov/sites/default/files/Misc%2013-02

%20Response-6.pdf.

151. Submission, id. (Feb. 6, 2014), www.fisc.uscourts.gov/sites/default/files/Misc%2013-02

%20Response-3.pdf.

152. Order, id. (Aug. 7, 2014), www.fisc.uscourts.gov/sites/default/files/Misc%2013-02%20

Order-7.pdf, 2014 WL 5442058.
Foreign Intelligence Surveillance Act Litigation

22 Federal Judicial Center 1/31/2023

The government submitted the redacted opinion to Judge Saylor on August 27.153 In the six-page opinion, Judge Bates addressed the “difficult question [of] whether the [surveillance] application shows reasonable grounds to 

believe that the investigation of [the target] is not being conducted solely upon the basis of activities protected by the first amendment.”154 Judge Bates 

was satisfied: “According to the application, the government is investigating 

[the target] not only on the basis of his own personal words and conduct 

(which, as noted, suggest sympathy toward, if not support of, international 

terrorism), but also on the basis of the admitted or suspected [redacted].”155

Because of FOIA actions by the ACLU and the Electronic Frontier Foundation, the Director of National Intelligence released 1,040 pages of documents, including several FISA-court documents, on November 18, 2013.

156

Two long and redacted opinions granted “authority for the [NSA] to collect 

information regarding e-mail and certain other forms of Internet communications under the pen register and trap and trace provisions of [FISA].”157 In 

later litigation over the public’s right to statutory interpretation, Presiding 

FISA Court Judge Rosemary M. Collyer, of the district court for the District 

of Columbia, would note the release of these opinions on bulk collection.

158

The director’s press release stated that the surveillance program granted authority by these opinions had been discontinued for lack of effectiveness pursuant to an evaluation begun in 2011.159 Additional documents were released 

in August 2014.160

153. Submission, id. (Aug. 27, 2014), www.fisc.uscourts.gov/sites/default/files/Misc%2013-02

%20Opinion-1.pdf.

154. Opinion at 4, In re Tangible Things, No. BR 13-25 (FISA Ct. Feb. 19, 2013, filed 

Aug. 27, 2014), www.fisc.uscourts.gov/sites/default/files/BR%2013-25%20Opinion-1.pdf, 2013 

WL 9838183.

155. Id. at 5.

156. Press Release, Office of the Dir. of Nat’l Intelligence, Nov. 18, 2013 [hereinafter Nov. 

18, 2013, DNI Press Release], www.dni.gov/index.php/newsroom/press-releases/press-releases2013/item/964-dni-clapper-declassifies-additional-intelligence-community-documents-regardingcollection-under-section-501-of-the-foreign-intelligence-surveillance-act; ACLU, NSA Documents Released to the Public Since June 2013, www.aclu.org/nsa-documents-released-publicjune-2013; see Ellen Nakashima & Greg Miller, Intelligence Director Releases About 1,000 

Pages of Documents, Wash. Post, Nov. 19, 2013, at A5.

157. Opinion at 1, No. PR/TT ___ (FISA Ct. ___) [hereinafter Kotelly PR/TT Opinion], 

www.dni.gov/files/documents/1118/CLEANEDPRTT%201.pdf; see Opinion, No. PR/TT 

___ (FISA Ct. ___) [hereinafter Bates PR/TT Opinion], www.dni.gov/files/documents/1118/

CLEANEDPRTT%202.pdf.

158. Opinion, In re Bulk Collection Orders and Opinions, No. Misc. 13-8 (FISA Ct. Jan. 

25, 2017) [hereinafter Collyer Right-of-Access Opinion], www.fisc.uscourts.gov/sites/default/

files/Misc%2013-08%20Opinion%20and%20Order_0.pdf, 2017 WL 427591.

159. Nov. 18, 2013, DNI Press Release, supra note 156; see also Laura K. Donohue, FISA 

Reform, 10 I/S: J. of L. & Pol’y 599, 604 (2014) (“The program appears to have operated until 

December 2011, when it was discontinued for failure to deliver sufficient operational value 

to the NSA.”); Donohue, supra note 29, at 127–28. 

In 2015, the New York Times reported that the email collection program became less valuable when the NSA developed a program of collecting foreign internet data, which is not 

subject to oversight by the FISA court. Charlie Savage, File Says N.S.A. Found Way to Re-
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 23

The first opinion is eighty-seven pages by Judge Kotelly, with a redacted 

date of issue.161 The Washington Post, however, concluded, “Although the 

date was blacked out, the opinion appeared to be the order that placed the 

NSA’s Internet metadata program under court supervision in July 2004, according to an NSA inspector-general report leaked this year by former NSA 

contractor Edward Snowden.”162 According to Judge Kotelly, “This application seeks authority for a much broader type of collection than other pen 

register/trap and trace applications and therefore presents issues of first impression. For that reason it is appropriate to explain why the Court concludes that the application should be granted as modified herein.”163

“[B]ased on the plain meaning of the applicable definitions, the proposed 

collection involves a form of both pen register and trap and trace surveillance.”164 Additionally, Judge Kotelly found that “such an interpretation 

would promote the purpose of Congress in enacting and amending FISA regarding the acquisition of non-content addressing information.”165 The surveillance program comports with the Fourth Amendment because “there is 

no reasonable expectation of privacy under the Fourth Amendment in the 

meta data to be collected.”166 Additionally, “The weight of authority supports 

the conclusion that Government information-gathering that does not constitute a Fourth Amendment search or seizure will also comply with the First 

Amendment when conducted as part of a good-faith criminal investigation.”167

On the expiration of Judge Kotelly’s authorization of the email metadata 

surveillance program, Judge Bates considered an “application to re-initiate in 

expanded form” such surveillance.168 In his 117-page opinion, Judge Bates 

discussed many violations of surveillance restrictions that the government 

place Email Program, N.Y. Times, Nov. 20, 2015, at A4; see also Savage, supra note 16, at 

565–66.

160. Press Release, Office of the Dir. of Nat’l Intelligence, Aug. 11, 2014, www.dni.gov/ 

index.php/newsroom/press-releases/press-releases-2014/item/1099-newly-declassified-documentsregarding-the-now-discontinued-nsa-bulk-electronic-communications-metadata-pursuant-tosection-402-of-the-foreign-intelligence-surveillance-act (including links to forty-three documents totaling 990 pages on the NSA’s discontinued pen-register and trap-and-trace program, including three documents previously released on November 18, 2013, one of which—

orders in FISA Ct. No. BR 09-05—was rereleased with slightly fewer redactions); see Status 

Report, Electronic Privacy Info. Ctr. v. Dep’t of Just., No. 1:13-cv-1961 (D.D.C. Aug. 8, 

2014), D.E. 20 (noting the August 7, 2014, production of documents to the plaintiff); Electronic Privacy Info. Ctr. v. Dep’t of Just., 296 F. Supp. 3d 109 (D.D.C. 2017) (approving the 

withholding of some documents following an in camera review); Electronic Privacy Info. 

Ctr. v. Dep’t of Just., 15 F. Supp. 3d 32 (D.D.C. 2014) (denying a preliminary injunction).

161. Kotelly PR/TT Opinion, supra note 157.

162. Nakashima & Miller, supra note 156.

163. Kotelly PR/TT Opinion, supra note 157, at 1–2.

164. Id. at 16–17.

165. Id. at 18.

166. Id. at 59.

167. Id. at 66.

168. Bates PR/TT Opinion, supra note 157, at 1.
Foreign Intelligence Surveillance Act Litigation

24 Federal Judicial Center 1/31/2023

had disclosed.169 “The history of material misstatements in prior applications 

and non-compliance with prior orders gives the Court pause before approving such an expanded collection.”170 So Judge Bates’s approval of the surveillance came with some modifications.171

Disclosing Surveillance Cooperation

On June 18 and 19, 2013, respectively, Google and Microsoft sought permission from the FISA court to disclose aggregate statistics on FISA orders that 

they had received.172 Yahoo!, Facebook, and LinkedIn filed similar motions 

in September.173 Apple joined the litigation as an amicus curiae in November.174 On January 27, 2014, the government settled the motions by granting 

permission to the carriers to report the number of FISA orders received in 

bands of 250, or in bands of 1,000 if broken down into category of FISA order.175

169. Id. at 9–22; see Devlin Barrett, Surveillance Court Judge Criticized NSA “Overcollection” of Data, Wall St. J., Aug. 12, 2014, at A4.

170. Bates PR/TT Opinion, supra note 157, at 72; see Savage, supra note 16, at 564–65 

(reporting that the opinion was issued in July 2010).

171. Bates PR/TT Opinion, supra note 157, at 117.

172. Motion, In re Motion to Disclose Aggregate Data Regarding FISA Orders, No. Misc. 

13-4 (FISA Ct. June 19, 2013), www.fisc.uscourts.gov/sites/default/files/Misc%2013-04%20 

Motion-10.pdf; Motion, In re Motion for Declaratory Judgment of Google Inc.’s First 

Amendment Right to Publish Aggregate Information About FISA Orders, No. Misc. 13-3 

(FISA Ct. June 18, 2013), www.fisc.uscourts.gov/sites/default/files/Misc%2013-03%20Motion10.pdf.

173. Motion, In re Motion for Declaratory Judgment That LinkedIn Corp. May Report 

Aggregate Data Regarding FISA Orders, No. Misc. 13-7 (FISA Ct. Sept. 17, 2013), www.fisc. 

uscourts.gov/sites/default/files/Misc%2013-07%20Motion-3.pdf; Motion, In re Motion for 

Declaratory Judgments to Disclose Aggregate Data Regarding FISA Orders and Directives, 

No. Misc. 13-6 (FISA Ct. Sept. 9, 2013), www.fisc.uscourts.gov/sites/default/files/Misc%2013-06

%20Motion-3.pdf (Facebook); Motion, In re Motion for Declaratory Judgment to Disclose 

Aggregate Data Regarding FISA Orders and Directives, No. Misc. 13-5 (FISA Ct. Sept. 9, 

2013), www.fisc.uscourts.gov/sites/default/files/Misc%2013-05%20Motion-12.pdf (Yahoo!).

174. Amicus Curiae Brief, Nos. Misc. 13-3 to 13-7 (FISA Ct. Nov. 5, 2013), www.fisc. 

uscourts.gov/sites/default/files/Misc%2013-03%20Brief-1.pdf; Order, id. (Nov. 13, 2013), www.

fisc.uscourts.gov/sites/default/files/Misc%2013-03%20Order-15.pdf (granting leave to file the 

brief).

175. Notice, Nos. Misc. 13-3 to 13-7 (FISA Ct. Jan. 27, 2014), www.fisc.uscourts.gov/sites/

default/files/Misc%2013-03%20Notice.pdf; Dismissal Stipulation, id. (Jan. 27, 2014), www.fisc.

uscourts.gov/sites/default/files/Misc%2013-03%20Action.pdf; see Facebook Releases New Data 

About National Security Requests (Feb. 3, 2014), about.fb.com/news/2014/02/facebookreleases-new-data-about-national-security-requests/ (public report by Facebook); LinkedIn’s 

Transparency Report for Second Half of 2013 (Mar. 31, 2014), blog.linkedin.com/2014/03/31/

linkedins-transparency-report-for-second-half-of-2013 (LinkedIn); More Transparency For 

U.S. National Security Requests, yahoo.tumblr.com/post/75496314481/more-transparency-foru-s-national-security-requests (Yahoo!); Providing Additional Transparency on US Government Requests for Customer data (Feb. 3, 2014), blogs.microsoft.com/on-the-issues/2014/

02/03/providing-additional-transparency-on-us-government-requests-for-customer-data/ 

(Microsoft); Shedding Some Light on Foreign Intelligence Surveillance Act (FISA) Requests

(Feb. 3, 2014), googleblog.blogspot.ca/2014/02/shedding-some-light-on-foreign.html (Google);
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 25

The Electronic Privacy Information Center filed a petition for a writ of 

mandamus with the Supreme Court on July 8, 2013, seeking review of a 

leaked FISA-court order requiring Verizon to provide the NSA with telephony metadata for all communications in which at least one party is within the 

United States.176 On July 19, the day that the leaked order expired, the Director of National Intelligence reported that the FISA court had renewed authorization for NSA’s “telephony metadata collection program.”177 The Supreme Court denied mandamus review on November 18.178

The Electronic Frontier Foundation had filed a FOIA complaint in the 

Northern District of California on October 26, 2011, to enforce a June 2 

FOIA request for records concerning the government’s interpretation of the 

Patriot Act’s section 215, which amended FISA’s tangible-things title.179 In 

response to that suit and the ACLU’s 2011 FOIA suit in the Southern District 

of New York, and in light of Snowden’s revelations, the government released

on September 10, 2013, fourteen previously classified documents, with redactions.

180 Eight of the documents were FISA-court orders—a 2006 order by 

Judge Howard, a 2008 opinion by Judge Walton, and six 2009 orders and 

opinions by Judge Walton—and two of the documents were government 

submissions to the FISA court.

The released documents illustrated the FISA court’s supervision, through 

its business records or BR docket, of telecommunication metadata surveillance. They also included concerns by Judge Walton that government surveillance was departing from approved procedures:181

see also Timothy B. Lee, Tech Firms Publicize Data on NSA Requests, Wash. Post, Feb. 4, 

2014, at A9; Zoe Tillman, Tech Companies Reach Deal in Data Fight, Nat’l L.J., Feb. 3, 2014, 

at 21; U.S., Web Firms Reach Deal, Miami Herald, Jan. 28, 2014, at 3A.

176. Petition, In re Electronic Privacy Info. Ctr., No. 13-58 (U.S. July 8, 2013); see Primary Order, In re Tangible Things, No. BR 13-80 (FISA Ct. Apr. 25, 2013), www.dni.gov/files/

documents/PrimaryOrder_Collection_215.pdf, 2013 WL 5460137.

177. Press Release, Office of the Dir. of Nat’l Intelligence, July 19, 2013, www.dni.gov/ 

index.php/newsroom/press-releases/press-releases-2013/item/898-foreign-intelligencesurveillance-court-renews-authority-to-collect-telephony-metadata; see Joby Warrick,

NSA Cellphone Surveillance Program Renewed, Officials Say, Wash. Post, July 20, 2013, at 

A2.

178. In re Electronic Privacy Info. Ctr., 571 U.S. 1023 (2013).

179. Complaint, Electronic Frontier Found. v. Dep’t of Just., No. 4:11-cv-5221 (N.D. Cal. 

Oct. 26, 2011), D.E. 1; see Amended Complaint, id. (Nov. 3, 2011), D.E. 9.

180. Press Release, Office of the Dir. of Nat’l Intelligence, Sept. 10, 2013, www.dni.gov/ 

index.php/newsroom/press-releases/press-releases-2013/item/927-dni-clapper-declassifiesintelligence-community-documents-regarding-collection-under-section-501-of-the-foreignintelligence-surveillance-act-fisa (providing links to the documents); see Paul Elias, Records: 

Officials Abused Spying Program, Miami Herald, Sept. 11, 2013, at 1A; Siobhan Gorman & 

Devlin Barrett, NSA Admits It Violated Privacy Rules, Wall St. J., Sept. 11, 2013, at A3; Carol 

D. Leonnig, Judge Questioned NSA Program, Wash. Post, Sept. 12, 2013, at A3; Ellen 

Nakashima, Julie Tate & Carol Leonnig, NSA Broke Privacy Rules for 3 Years, Documents 

Say, Wash. Post, Sept. 11, 2013, at A1; Scott Shane, N.S.A. Violated Rules on Use of Phone 

Logs, Intelligence Court Found in 2009, N.Y. Times, Sept. 11, 2003, at A14.

181. See generally Donohue, supra note 11, at 142–44.
Foreign Intelligence Surveillance Act Litigation

26 Federal Judicial Center 1/31/2023

In summary, since January 15, 2009, it has finally come to light that the 

FISC’s authorizations of this vast collection program have been premised 

on a flawed depiction of how the NSA uses BR metadata. This misperception by the FISC existed from the inception of its authorized collection in 

May 2006, buttressed by repeated inaccurate statements made in the government’s submissions, and despite a government-devised and Courtmandated oversight regime. The minimization procedures proposed by the 

government in each successive application and approved and adopted as 

binding by the orders of the FISC have been so frequently and systematically violated that it can fairly be said that this critical element of the overall BR 

regime has never functioned effectively.182

_______________________________

The Court is deeply troubled by the incidents [disclosed by the government], which have occurred only a few weeks following the completion 

of an “end to end review” by the government of NSA’s procedures and processes for handling the BR metadata, and its submission of a report intended to assure the Court that NSA had addressed and corrected the issues giving rise to the history of serious and widespread compliance problems in 

this matter and had taken the necessary steps to ensure compliance with the 

Court’s orders going forward.183

_______________________________

[T]he Court . . . continues to be concerned about the likelihood that 

these queries could reveal communications of United States person users of 

the telephone identifier who are not the subject of FBI investigations.184

A version of one document released on March 28, 2014, with considerably fewer redactions than in the September 2013 release, revealed Judge Wal182. Order at 10–11, In re Tangible Things, No. BR 08-13 (FISA Ct. Mar. 2, 2009), www.

dni.gov/files/documents/section/pub_March%202%202009%20Order%20from%20FISC.pdf, 2009 

WL 9150913; see Klayman v. Obama, 957 F. Supp. 2d 1, 18–19 & n.23 (D.D.C. 2013).

On January 15, 2009, the Department of Justice notified the Court in writing that 

the government has been querying the business records acquired pursuant to Docket 

BR 08-13 in a manner that appears to the Court to be directly contrary to the [court’s] 

Order and directly contrary to the sworn attestations of several Executive Branch officials.

Order at 2, Tangible Things, No. BR 08-13 (FISA Ct. Jan. 28, 2009), www.dni.gov/files/

documents/section/pub_Jan%2028%202009%20Order%20Regarding%20Prelim%20Notice%20of

%20Compliance.pdf, 2009 WL 9157881; see Lizza, supra note 121, at 56; see also Opinion, 

Tangible Things, No. BR 08-13 (FISA Ct. Dec. 12, 2008), www.dni.gov/files/documents/

section/pub_Dec%2012%202008%20Supplemental%20Opinions%20from%20the%20FISC.

pdf (earlier opinion in the case).

183. Order at 4, In re Tangible Things, No. BR 09-13 (FISA Ct. Sept. 25, 2009), www.dni.

gov/files/documents/section/pub_Sept%2025%202009%20Order%20Regarding%20Further

%20Compliance%20Incidents.pdf, 2009 WL 9150896; see also Order, id. (Sept. 3, 2009), 

www.dni.gov/files/documents/section/pub_Sep%203%202009%20Primary%20Order%20from

%20FISC.pdf, 2009 WL 9150914 (earlier order in the case).

184. Order at 6, In re Tangible Things, No. BR 09-15 (FISA Ct. Nov. 5, 2009), www.dni.

gov/files/documents/section/pub_Nov%205%202009%20Supplemental%20Opinion%20and

%20Order.pdf, 2009 WL 9150915.
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 27

ton’s specific concerns about the NSA’s general counsel’s oversight of penregister and trap-and-trace surveillance:

The court is gravely concerned . . . that NSA analysts, cleared and otherwise, 

have generally not adhered to the dissemination restrictions proposed by 

the government, repeatedly relied upon by the Court in authorizing the collection of the PR/TT metadata, and incorporated into the Court’s orders in 

this matter [redacted] as binding on NSA. Given the apparent widespread 

disregard of these restrictions, it seems clear that NSA’s Office of General 

Counsel has failed to satisfy its obligation to ensure that all analysts with access to information derived from the PR/TT metadata “receive appropriate 

training and guidance regarding the querying standard set out in paragraph 

c. above, as well as other procedures and restrictions regarding the retrieval, 

storage, and dissemination of such information.” Docket No. PR/TT [redacted] Order at 11 (emphasis added).185

On January 17, 2014, the Director of National Intelligence released twenty-four redacted orders in twenty BR cases before the FISA court in 2006 

through 2011.186 The orders were periodic approvals of a program to collect 

“all call detail records or ‘telephony metadata’” for periods typically a few 

days short of ninety days, ranging from eighty-four days to eighty-nine days, 

but sometimes for shorter periods—forty-two, fifty-seven, or sixty-four

days—and once for a longer period—115 days. The orders did not cover the 

period from July 10, 2009, to February 26, 2010. In addition to Judges Kotelly, Bates, Howard, Vinson, and Walton, orders were signed by Judges Frederick J. Scullin, Jr., Northern District of New York; Robert C. Broomfield, District of Arizona; Nathaniel M. Gorton, District of Massachusetts; and James 

B. Zagel, Northern District of Illinois.

187

In the Northern District of California FOIA action, Judge Yvonne Gonzalez Rogers decided on June 13, 2014, that she would review in camera and 

ex parte five FISA-court orders and opinions “to assure that the agency is 

complying with its obligations to disclose non-exempt material.”188 “The evidence in the record shows that some documents, previously withheld in the 

course of this litigation and now declassified, had been withheld in their entirety when a disclosure of reasonably segregable portions of those documents would have been required.”189

On August 11, Judge Gonzalez Rogers determined that the government 

“has established a proper basis for withholding, in full, the FISC orders and 

185. Order at 6, In re Tangible Things, No. BR 09-06 (FISA Ct. June 22, 2009), www.dni.

gov/files/documents/0328/101.%20Order%20and%20Supplemental%20Order.Redacted%20

20140327.pdf.

186. Press Release, Office of the Dir. of Nat’l Intelligence, Jan. 17, 2014, www.dni.gov/

index.php/newsroom/press-releases/press-releases-2014/item/1001-dni-clapper-declassifiesadditional-documents-regarding-collection-under-section-501-of-the-foreign-intelligencesurveillance-act (including links to the twenty-four orders).

187. Judge Broomfield died on July 10, 2014. FJC Biographical Directory, supra note 8.

188. Order at 3, Electronic Frontier Found. v. Dep’t of Just., No. 4:11-cv-5221 (N.D. June 

13, 2014), D.E. 85.

189. Id. at 2.
Foreign Intelligence Surveillance Act Litigation

28 Federal Judicial Center 1/31/2023

opinions at issue.”190 The judge found, however, that the plaintiffs were entitled to a memorandum from the Office of Legal Counsel to the Department 

of Commerce, which was “prepared to aid the Department of Commerce in 

determining its legal obligations with respect to disclosure of census information to federal law enforcement [or] national security officers,” concluding that “it can no longer be withheld because it has become a controlling 

statement of the executive branch’s legal position and, specifically, has been 

adopted as the opinion of the executive branch in proceedings before the 

FISC.”191 The government voluntarily dismissed an appeal.

192

Smith and Jones

On September 17, 2013, the FISA court released a public redacted version of 

an August 22 opinion by FISA Court Judge Claire V. Eagan, of the Northern 

District of Oklahoma, holding in an ex parte application for surveillance authorization that the FBI’s obtaining a large volume of telephony metadata 

was consistent with the Fourth Amendment as interpreted by the Supreme 

Court in 1979 in Smith v. Maryland.

193

In Smith, the Supreme Court held by a vote of five to three that installation and use of a pen register to record the numbers dialed on a specific telephone was not a search, because it did not violate reasonable expectations of 

privacy.194 In 1975, a robbery victim reported “threatening and obscene 

phone calls from a man identifying himself as the robber.”195 Michael Lee 

Smith was identified as a suspect, so “the telephone company, at police request, installed a pen register at its central offices to record the numbers dialed from the telephone at [his] home.”196 Justice Blackmun, writing on behalf of himself, Chief Justice Burger, and Justices White, Rehnquist, and Stevens, reasoned, “All subscribers realize . . . that the phone company has facilities for making permanent records of the numbers they dial, for they see a 

190. Opinion at 3, id. (Aug. 11, 2014), D.E. 90, 2014 WL 3945646; id. at 7 (“The FISC orders are properly withheld to protect intelligence sources and methods used by the government to gather intelligence data. . . . [B]ased upon the Court’s review, the documents must 

be withheld in full and contain no reasonably segregable information.”).

191. Id. at 10–13.

192. Voluntary Dismissal, Electronic Frontier Found. v. U.S. Dep’t of Just., No. 14-17098 

(9th Cir. Jan. 29, 2015), D.E. 9; Order, id. (Feb. 4, 2015), D.E. 10.

193. Opinion, In re Tangible Things, No. BR 13-109 (FISA Ct. Aug. 29, 2013), www.fisc.

uscourts.gov/sites/default/files/BR%2013-109%20Order-1.pdf, 2013 WL 5741573 (amending an 

August 22, 2013, opinion to correct numbering errors among the footnotes); see Order, id.

(Aug. 29, 2013), www.fisc.uscourts.gov/sites/default/files/BR%2013-109%20Order-3.pdf (Judge 

Eagan’s order amending her opinion to renumber footnotes); Order, id. (Aug. 23, 2013), 

www.fisc.uscourts.gov/sites/default/files/BR%2013-109%20Order-2.pdf (presiding judge’s order 

for a classification review upon Judge Eagan’s sua sponte request for publication of her opinion); see also Smith v. Maryland, 442 U.S. 735 (1979); Donohue, supra note 11, at 121–22.

194. Smith, 442 U.S. at 736 & n.1, 745–46.

195. Id. at 737.

196. Id.
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 29

list of their long-distance (toll) calls on their monthly bills.”197 In dissent, Justice Stewart responded, “The telephone conversation itself must be electronically transmitted by telephone company equipment, and may be recorded or 

overheard by the use of other company equipment.”198 He concluded, “I 

think that the numbers dialed from a private telephone—like the conversations that occur during a call—are within the constitutional protection recognized in [Katz v. United States].”199 Justice Marshall, also in dissent, and 

joined by Justice Brennan, observed, “Privacy is not a discrete commodity, 

possessed absolutely or not at all. Those who disclose certain facts to a bank 

or phone company for a limited business purpose need not assume that this 

information will be released to other persons for other purposes.”200

On October 18, 2013, the FISA court released a public redacted October 

11 opinion by FISA Court Judge McLaughlin that adopted Judge Eagan’s 

analysis.201 Judge McLaughlin also addressed the Supreme Court’s 2012 case, 

United States v. Jones.

202

In Jones, Justice Scalia concluded for the court, in an opinion joined by 

Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor, that 

installation of a GPS tracking device on a vehicle to monitor the vehicle’s 

movements is a Fourth Amendment search because it is a trespass onto 

property.203

Concurring, Justice Sotomayor observed, “Of course, the Fourth 

Amendment is not concerned only with trespassory intrusions on property.”204 Respecting Smith, she observed further,

[I]t may be necessary to reconsider the premise that an individual has no 

reasonable expectation of privacy in information voluntarily disclosed to 

third parties. This approach is ill suited to the digital age, in which people 

reveal a great deal of information about themselves to third parties in the 

course of carrying out mundane tasks.205

Concurring in the judgment, Justice Alito wrote for himself and Justices 

Ginsburg, Breyer, and Kagan that they “would analyze the question present197. Id. at 742.

198. Id. at 746 (Justice Stewart, dissenting).

199. Id. at 747; see Katz v. United States, 389 U.S. 347 (1967).

200. Smith, 442 U.S. at 749 (Justice Marshall, dissenting).

201. Opinion at 3, In re Tangible Things, No. BR 13-158 (FISA Ct. Oct. 11, 2013) [hereinafter McLaughlin Opinion], www.fisc.uscourts.gov/sites/default/files/BR%2013-158%20

Memorandum-1.pdf; see Order, id. (Oct. 15, 2013), www.fisc.uscourts.gov/sites/default/files/BR

%2013-158%20Order-1.pdf (presiding judge’s order for a classification review upon Judge 

McLaughlin’s sua sponte request for publication of her opinion).

Releases of these redacted opinions by Judges Eagan and McLaughlin would be noted in 

Judge Collyer’s 2017 opinion finding no constitutional right of access to them. Collyer 

Right-of-Access Opinion, supra note 158, at 4–5.

202. McLaughlin Opinion, supra note 201, at 4–6; see United States v. Jones, 565 U.S. 400 

(2012).

203. Jones, 565 U.S. at 404–06. 

204. Id. at 414 (Justice Sotomayor, concurring).

205. Id. at 417 (citations omitted).
Foreign Intelligence Surveillance Act Litigation

30 Federal Judicial Center 1/31/2023

ed in this case by asking whether respondent’s reasonable expectations of 

privacy were violated by the long-term monitoring of the movements of the 

vehicle he drove.”206 Respecting older precedents, Justice Alito observed, “In 

the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical.”207

Judge McLaughlin decided that the concerns expressed by the concurring 

justices in Jones did not suggest a conclusion in the telephony surveillance 

applications, because non-content metadata are not the same as location information.208

On December 18, 2013, Judge McLaughlin granted a motion by the Center for National Security Studies to submit an amicus curiae brief on whether 

FISA authorizes the collection of telephony metadata in bulk, but she denied 

the Center’s request for en banc rehearing.

209

Judge Zagel endorsed the analyses of Judges Eagan and McLaughlin in a 

June 19, 2014, FISA-court opinion.210

Conflicting Rulings on Surveillance Constitutionality

In 2013, Larry Klayman and two other persons filed a class action in the U.S. 

District Court for the District of Columbia against the government and Verizon challenging the newly disclosed surveillance methods.

211 Five days later, 

an overlapping collection of four individuals filed a similar action against the 

government and ten other telecommunication companies.212 On December 

206. Id. at 419 (Justice Alito, concurring in the judgment).

207. Id. at 429.

208. McLaughlin Opinion, supra note 201, at 5.

209. Order, In re Tangible Things, No. BR 13-158 (FISA Ct. Dec. 18, 2013), www.fisc.

uscourts.gov/sites/default/files/BR%2013-158%20Memorandum-2.pdf, 2013 WL 1235411.

210. Opinion, In re Tangible Things, No. BR 14-96 (FISA Ct. June 19, 2014), www.fisc.

uscourts.gov/sites/default/files/BR%2014-96%20Opinion-1.pdf, 2014 WL 5463290.

211. Complaint, Klayman v. Obama, No. 1:13-cv-851 (D.D.C. June 6, 2013), D.E. 1; 

Klayman v. NSA, 280 F. Supp. 3d 39, 42, 45 (D.D.C. 2017); Klayman v. Obama, 957 F. Supp. 

2d 1, 7, 11 (D.D.C. 2013); see Second Amended Complaint, Klayman, No. 1:13-cv-851 

(D.D.C. Nov. 23, 2013), D.E. 37; Amended Complaint, id. (June 9, 2013), D.E. 4; see also

Jerry Markon, Classified Programs Challenged in Court, Wash. Post, July 16, 2013, at A1; 

James Risen, Privacy Group to Ask Supreme Court to Stop N.S.A.’s Phone Spying Program, 

N.Y. Times, July 8, 2013, at A9.

The plaintiffs voluntarily dismissed Verizon as a defendant on January 31, 2014. Stipulation, Klayman, No. 1:13-cv-851 (D.D.C. Jan. 31, 2014), D.E. 75; see Third Amended Complaint, id. (Feb. 10, 2014), D.E. 77; see also Klayman, 280 F. Supp. 3d at 42 n.1.

212. Complaint, Klayman v. Obama, No. 1:13-cv-881 (D.D.C. June 11, 2013), D.E. 1; 

Klayman, 280 F. Supp. 3d at 42, 45 & n.7; see Third Amended Complaint, Klayman, No. 

1:13-cv-881 (D.D.C. Feb. 11, 2016), D.E. 112; Second Amended Complaint, id. (Jan. 30, 

2014), D.E. 55; Amended Complaint, id. (Nov. 23, 2013), D.E. 30; see also Markon, supra

note 211; Klayman, 957 F. Supp. 2d at 7 n.1, 11.
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 31

16, Judge Richard J. Leon granted the plaintiffs a preliminary injunction 

against bulk metadata collection.213

Judge Leon found that the plaintiffs had standing, because “[t]he Government . . . describes the advantages of bulk collection in such a way as to 

convince me that plaintiffs’ metadata—indeed everyone’s metadata—is analyzed, manually or automatically.”214 Judge Leon found the metadata collection constituted an unreasonable search, despite the Supreme Court’s 1979 

decision in Smith:

In Smith, the Supreme Court was actually considering whether local police 

could collect one person’s phone records for calls made after the pen register was installed and for the limited purpose of a small-scale investigation of 

harassing phone calls. The notion that the Government could collect similar 

data on hundreds of millions of people and retain that data for a five-year 

period, updating it with new data every day in perpetuity, was at best, in 

1979, the stuff of science fiction.

. . .

. . . I cannot imagine a more “indiscriminate” and “arbitrary invasion”

than this systematic and high-tech collection and retention of personal data 

on virtually every single citizen for purposes of querying and analyzing it 

without prior judicial approval. Surely, such a program infringes on “that 

degree of privacy” that the Founders enshrined in the Fourth Amendment. 

Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware “the abridgment of freedom of the people 

by gradual and silent encroachments by those in power,” would be aghast.215

Moreover, “the Government does not cite a single instance in which analysis 

of the NSA’s bulk metadata collection actually stopped an imminent attack, 

or otherwise aided the Government in achieving any objective that was timesensitive in nature.”216

Judge Leon stayed his injunction pending appeal.217 While the district 

court cases otherwise moved forward,218 the prevailing plaintiffs unsuccessfully sought a writ of certiorari from the Supreme Court so that the high 

court could quickly consider the plaintiffs’ concerns.219 The plaintiffs filed a 

third class action in the district court on January 23, 2014.220

213. Klayman, 957 F. Supp. 2d 1; Klayman, 280 F. Supp. 3d at 47 (“To say the least, that 

opinion unleashed a firestorm of press and public discussion.”); see ACLU v. Clapper, 785 

F.3d 787, 799 (2d Cir. 2015).

214. Klayman, 957 F. Supp. 2d at 26–29.

215. Id. at 33, 42 (citation omitted).

216. Id. at 40.

217. Id. at 10, 43; Klayman, 280 F. Supp. 3d at 47.

218. Docket Sheet, Klayman v. Obama, No. 1:13-cv-881 (D.D.C. June 11, 2013); Docket 

Sheet, Klayman v. Obama, No. 1:13-cv-851 (D.D.C. June 6, 2013).

219. Klayman v. Obama, 572 U.S. 1053 (2014) (denying certiorari).

220. Complaint, Klayman v. Obama, No. 1:14-cv-92 (D.D.C. Jan. 23, 2014), D.E. 1; 

Klayman, 280 F. Supp. 3d at 42; see Notice of Related Case, Klayman, No. 1:14-cv-92 

(D.D.C. Jan. 24, 2014), D.E. 2.
Foreign Intelligence Surveillance Act Litigation

32 Federal Judicial Center 1/31/2023

Southern District of New York Judge Pauley issued an opinion on December 27, 2013, finding bulk collection authorized by FISA.

221 Judge 

Pauley’s opinion included two important observations: (1) “[T]he Government acknowledged that it has collected metadata for substantially every telephone call in the United States since May 2006.”222 (2) “This blunt tool only 

works because it collects everything. Such a program, if unchecked, imperils 

the civil liberties of every citizen.”223 Judge Pauley determined that Smith

compelled a decision in favor of the government.224 In 2015, the court of appeals declined to consider a constitutional challenge to the surveillance program, because the court determined that the program exceeded congressional authorization.225 Vast bulk collection cannot be “relevant to an authorized 

investigation.”226

On June 3, 2014, Judge B. Lynn Winmill dismissed a complaint filed in 

the District of Idaho alleging that comprehensive metadata collection violated the Fourth Amendment.227 Judge Winmill relied on Smith, circuit law, 

and Judge Pauley’s decision.228 Judge Winmill urged, however, that “Judge 

Leon’s decision should serve as a template for a Supreme Court opinion.”229

Appeals from Judge Leon and Judge Winmill’s cases were resolved after 

the 2015 passing of the Freedom Act. Other district court cases did not result 

in constitutionality rulings.

221. ACLU v. Clapper, 959 F. Supp. 2d 724 (S.D.N.Y. 2013), rev’d, 785 F.3d 787 (2d Cir. 

2015); see Greenberg, supra note 29, at 242; Adam Liptak & Michael S. Schmidt, Judge Upholds N.S.A.’s Bulk Collection of Data on Calls, N.Y. Times, Dec. 30, 2013, at A1; Andrew 

Ramonas, Todd Ruger & Tony Mauro, Courts Join NSA Fight, Nat’l L.J., Jan. 6, 2014, at 1; 

Jennifer Smith & Jacob Gershman, Judge Backs the NSA’s Surveillance, Wall St. J., Dec. 28, 

2013, at A1; Sari Horwitz, Judge: NSA’s Action Lawful, Wash. Post, Dec. 28, 2013, at A1.

222. ACLU, 959 F. Supp. 2d at 735.

223. Id. at 730.

224. Id. at 749–52.

225. ACLU, 785 F.3d at 792; ACLU v. Clapper, 804 F.3d 617, 618–20 (2d Cir. 2015); see 

Devlin Barrett & Damian Paletta, Judges Say NSA Program Is Illegal, Wall St. J., May 8, 2015, 

at A1; Michael Doyle, NSA Phone Surveillance Is Illegal, Court Rules, Miami Herald, May 8, 

2015, at 1A; Greenberg, supra note 29, at 259–61; Ellen Nakashima, Bulk Records Collection 

Nearing Endgame, Wash. Post, May 9, 2015, at A3; Ellen Nakashima, NSA Collection of 

Phone Data Ruled Unlawful, Wash. Post, May 8, 2015, at A1; Charlie Savage & Jonathan 

Weisman, N.S.A. Collection of Bulk Call Data Is Ruled Illegal, N.Y. Times, May 8, 2015, at 

A1; Jonathan Weisman & Jennifer Steinhauer, Court Ruling on N.S.A.’s Data Collection Jolts 

Both Defenders and Reformers, N.Y. Times, May 9, 2015, at A13.

226. ACLU, 785 F.3d at 810–21; see 50 U.S.C. § 1861(b)(2)(A) (2020). See generally

Donohue, supra note 11, at 51–53.

227. Smith v. Obama, 24 F. Supp. 3d 1005 (D. Idaho 2014); see Complaint, Smith v. 

Obama, No. 2:13-cv-257 (D. Idaho June 12, 2013), D.E. 1; see also ACLU, 785 F.3d at 799; 

David Cole, Cd’A Attorneys Sue Obama Over NSA Surveillance, Coeur d’Alene Press, June 

13, 2013, at 4A; Markon, supra note 211; Betsy Z. Russell, CdA Woman's Lawsuit Over NSA 

Data Tossed, Spokane Spokesman-Review, June 4, 2014, at 6A.

228. Smith, 24 F. Supp. 3d at 1007–08.

229. Id. at 1009.
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 33

Data Retention

In a January 3, 2014, FISA-court order, Judge Hogan specified that the 

metadata authorized for collection by his order must be destroyed within five 

years of collection.230 On March 7, Judge Walton denied231 a February 25 motion by the government to extend the five-year limit to permit the government to comply with evidence-preservation obligations in the civil suits challenging the legality of broad metadata surveillance pursuant to section 215.

232

“Extending the period of retention for these voluminous records increases 

the risk that information about United States persons may be improperly 

used or disseminated.”233 “Further, there is no indication that any of the 

plaintiffs have sought discovery of this information or made any effort to 

have it preserved . . . .”234

Plaintiffs in the San Francisco post-Snowden challenge before Judge 

White responded to Judge Walton’s Friday decision with a Monday motion 

for a temporary restraining order enjoining the government “from destroying any evidence relevant to the claims at issue in this action, including but 

not limited to prohibiting the destruction of any telephone metadata or ‘call 

detail’ records.”235 Judge White ordered a response from the government by 

2:00 that afternoon236 and then ordered the data retained, pending further 

hearing on the issue set for March 19.237

On Wednesday, March 12, Judge Walton issued an order permitting the 

government to comply with Judge White’s order.238 Judge White issued a 

permanent preservation order on March 21.

239

230. Order at 14, In re Tangible Things, No. BR 14-1 (FISA Ct. Jan. 3, 2014), www.fisc.

uscourts.gov/sites/default/files/BR%2014-02%20Order-2.pdf.

231. Opinion, id. (Mar. 7, 2014) [hereinafter Mar. 7, 2014, FISA Ct. Opinion], www.fisc. 

uscourts.gov/sites/default/files/BR%2014-01%20Opinion-1.pdf; see Corrected Notice, Smith 

v. Obama, No. 2:13-cv-257 (D. Idaho. Mar. 8, 2014), D.E. 20; Notice, ACLU v. Clapper, No. 

1:13-cv-3994 (S.D.N.Y. Mar. 8, 2014), D.E. 79; Notice, First Unitarian Church of L.A. v. 

NSA, No. 4:13-cv-3287 (N.D. Cal. Mar. 7, 2014), D.E. 85; Notice, Paul v. Obama, No. 1:14-

cv-262 (D.D.C. Mar. 7, 2014), D.E. 14.

232. Motion, Tangible Things, No. BR 14-1 (FISA Ct. Feb. 25, 2014), www.fisc.uscourts.

gov/sites/default/files/BR%2014-01%20Motion-2.pdf.

233. Mar. 7, 2014, FISA Ct. Opinion, supra note 231, at 6.

234. Id. at 8–9.

235. Evidence Preservation Motion, First Unitarian Church of L.A., No. 4:13-cv-3287 

(N.D. Cal. Mar. 10, 2014), D.E. 86.

At a subsequent hearing, a plaintiffs’ attorney acknowledged the irony: “It’s a very 

strange position to be in, to be arguing for the preservation for the very records we think 

they shouldn’t have gotten in the first place.” Transcript at 14, id. (Mar. 19, 2014, filed Mar. 

20, 2014), D.E. 101.

236. Order, id. (Mar. 10, 2014), D.E. 87; see Government Response, id. (Mar. 10, 2014), 

D.E. 88.

237. Order, id. (Mar. 10, 2014), D.E. 89.

238. Opinion, In re Tangible Things, No. BR 14-1 (FISA Ct. Mar. 12, 2014), www.fisc.

uscourts.gov/sites/default/files/BR%2014-01%20Opinion-2.pdf.

239. Preservation Order, First Unitarian Church of L.A., No. 4:13-cv-3287 (N.D. Cal. 

Mar. 21, 2014), D.E. 103, also filed as Ex., Notice, Tangible Things, No. BR 14-1 (FISA Ct. 
Foreign Intelligence Surveillance Act Litigation

34 Federal Judicial Center 1/31/2023

Judge Walton scolded the government for failing to inform him of 

preservation orders remaining in effect from the multidistrict warrantless 

wiretap litigation that had been transferred to Judge White; the existence of 

these orders was brought to Judge Walton’s attention by the plaintiffs in 

Judge White’s cases.240 “As the government is well aware, it has a heightened 

duty of candor to the Court in ex parte proceedings.”241 In response to Judge 

Walton’s order that the government explain its behavior,

242 the government 

acknowledged on April 2 that it should have behaved differently, with “the 

benefit of hindsight,” but it “has always understood [the warrantless wiretap 

litigation] to be limited to certain presidentially authorized intelligence collection activities outside FISA.”243 The government advised, “no additional 

corrective action on the part of the Government or this Court is necessary.”244 A deputy assistant attorney general provided additional clarifying 

information one week later.245

Meanwhile, on March 20, Judge Collyer denied Verizon’s challenge to 

the legality of Judge Hogan’s January 3 telephony metadata surveillance order, concluding, “this Court finds Judge Leon’s analysis in Klayman to be 

unpersuasive.”246

Mar. 27, 2014), www.fisc.uscourts.gov/sites/default/files/BR%2014-01%20Notice-4.pdf; see

Bob Egelko, S.F. in Spotlight as Legal Battles Over NSA Widen, S.F. Chron., Mar. 22, 2014, at 

A1.

On June 6, 2014, Judge White denied plaintiffs a preservation order respecting section 

702 claims in the earlier warrantless wiretap actions on a finding that the complaint did not 

encompass a challenge to section 702. Transcript at 50–53, Jewel v. NSA, No. 4:08-cv-4373 

(N.D. Cal. June 6, 2014, filed Aug. 5, 2014), D.E. 275; Minutes, id. (June 6, 2014), D.E. 246.

As it turned out, some data were not preserved. E.g., Stipulation, id. (Jan. 18, 2018), D.E. 

386; see also Charlie Savage, N.S.A. Says It Deleted Phone Data on Millions, N.Y. Times, June 

30, 2018, at A10.

240. Opinion, Tangible Things, No. BR 14-1 (FISA Ct. Mar. 21, 2014), www.fisc.uscourts.

gov/sites/default/files/BR%2014-01%20Opinion-3.pdf.

241. Id. at 8.

242. Id. at 9–10.

243. Response at 1–2, id. (Apr. 2, 2014), www.fisc.uscourts.gov/sites/default/files/BR%20 

14-01%20Response-2.pdf.

244. Id. at 2.

245. Letter, id. (Apr. 9, 2014), www.fisc.uscourts.gov/sites/default/files/BR%2014-01%20 

Notice-6.pdf.

246. Opinion, id. (Mar. 20, 2014), www.fisc.uscourts.gov/sites/default/files/BR%2014-01 

%20Opinion%20and%20Order-1.pdf, 2014 WL 5463097; see Ellen Nakashima, Court Rejects 

Challenge to NSA Program, Wash. Post, Apr. 26, 2014, at A3; Charlie Savage, Phone Company Bid to Keep Data from N.S.A. Is Rejected, N.Y. Times, Apr. 26, 2014, at A13.

[T]he Court concludes that it has the discretion to unseal a petition and related Court 

records under appropriate circumstances. . . .

. . . Accordingly, the Court is satisfied that it would be appropriate to unseal 

properly redacted versions of the Petition, the Government’s Response, the January 23, 

2014 Scheduling Order, the March 20, 2014 Opinion and Order, and the instant Order, 

once the redactions have been finalized.

Opinion, Tangible Things, No. BR 14-1 (FISA Ct. Apr. 11, 2014), www.fisc.uscourts.gov/

sites/default/files/BR%2014-01%20Order-2.pdf, 2014 WL 5463107; see Order, id. (Apr. 25, 
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 35

The Privacy and Civil Liberties Oversight Board

The Privacy and Civil Liberties Oversight Board, “an independent bipartisan 

agency within the executive branch established by the Implementing Recommendations of the 9/11 Commission Act of 2007,” issued a report on January 23, 2014, concluding that surveillance authorized by the FISA court violated FISA.

247 Although the Privacy Board was established in 2007, the full

five members were not appointed by the President and confirmed by the 

Senate until May 7, 2013, shortly before the Snowden revelations.248 The report analyzed the legality of surveillance conducted pursuant to FISA’s title V 

on business records and other tangible things, as expanded by section 215 of 

the Patriot Act.249

There are four grounds upon which we find that the telephone records 

program fails to comply with Section 215. First, the telephone records acquired under the program have no connection to any specific FBI investigation at the time of their collection. Second, because the records are collected 

in bulk—potentially encompassing all telephone calling records across the 

nation—they cannot be regarded as “relevant” to any FBI investigation as 

required by the statute without redefining the word relevant in a manner 

that is circular, unlimited in scope, and out of step with the case law from 

analogous legal contexts involving the production of records. Third, the 

program operates by putting telephone companies under an obligation to 

furnish new calling records on a daily basis as they are generated (instead of 

2014), www.fisc.uscourts.gov/sites/default/files/BR%2014-01%20Order%20Regarding%20

Unsealing%20and%20Publication.pdf, 2014 WL 5460706 (final unsealing order).

247. Privacy and Civil Liberties Oversight Board, Report on the Telephone Records Program Conducted Under Section 215 of the USA PATRIOT Act and on the Operations of the 

Foreign Intelligence Surveillance Court (Jan. 23, 2014) [hereinafter First Privacy Board Report], documents.pclob.gov/prod/Documents/OversightReport/ec542143-1079-424a-84b3-

acc354698560/215-Report_on_the_Telephone_Records_Program.pdf; see U.S. Privacy and 

Civil Liberties Oversight Board, www.pclob.gov/; Pub. L. No. 110-53, § 801(a), 121 Stat. 266, 

352 (2007), as amended, 42 U.S.C. § 2000ee (2020); see also Donohue, supra note 159, at 

613–14; Siobhan Gorman & Jared A. Favole, Watchdog Urges NSA to End Phone Program, 

Wall St. J., Jan. 24, 2014, at A4; Greenberg, supra note 29, at 242–44; Ellen Nakashima, 

Board: NSA Phone Program Should End, Wash. Post, Jan. 23, 2014, at A4; Todd Ruger, Privacy Board Divided Over NSA Program, Nat’l L.J., Jan. 27, 2014, at 15; Savage, supra note 16, 

at 603–04; Charlie Savage, Watchdog Report Says N.S.A. Program Is Illegal and Should End, 

N.Y. Times, Jan. 23, 2014, at A14.

248. First Privacy Board Report, supra note 247, at 3–4; see Jeremy W. Peters, G.O.P. Delays On Nominees Raise Tension, N.Y. Times, May 12, 2013, at A1; see also 42 U.S.C. 

§ 2000ee(h)(1) (“The Board shall be composed of a full-time chairman and 4 additional 

members, who shall be appointed by the President, by and with the advice and consent of 

the Senate.”).

Members of the Board shall be selected solely on the basis of their professional 

qualifications, achievements, public stature, expertise in civil liberties and privacy, and 

relevant experience, and without regard to political affiliation, but in no event shall 

more than 3 members of the Board be members of the same political party.

§ 2000ee(h)(2); see First Privacy Board Report, supra note 247, at 3.

249. First Privacy Board Report, supra note 247, at 8; see Second Privacy Board Report, 

supra note 35, at 2.
Foreign Intelligence Surveillance Act Litigation

36 Federal Judicial Center 1/31/2023

turning over records already in their possession)—an approach lacking 

foundation in the statute and one that is inconsistent with FISA as a whole. 

Fourth, the statute permits only the FBI to obtain items for use in its investigations; it does not authorize the NSA to collect anything.

In addition, we conclude that the program violates the Electronic 

Communications Privacy Act. That statute prohibits telephone companies 

from sharing customer records with the government except in response to 

specific enumerated circumstances, which do not include Section 215 orders.250

Two board members dissented from the majority’s conclusion that the 

section 215 surveillance program violates FISA.251

The board issued a report on the use of FISA’s section 702 on July 2, 

2014.252 “[T]he Board has found no evidence of intentional abuse.”253 The 

board concluded that section 702 could be used constitutionally:

In the Board’s view, the core of this program—acquiring the communications of specifically targeted foreign persons who are located outside the 

United States, upon a belief that those persons are likely to communicate 

foreign intelligence, using specific communications identifiers, subject to 

FISA court-approved targeting rules that have proven to be accurate in targeting persons outside the United States, and subject to multiple layers of 

rigorous oversight—fits within the totality of the circumstances test for reasonableness as it has been defined by the courts to date.

. . .

[Some features of the program, however,] push the entire program close 

to the line of constitutional reasonableness. At the very least, too much expansion in the collection of U.S. persons’ communications or the uses to 

which those communications are put may push the program over the 

line.254

New Notices to Criminal Defendants

In 2013, the Justice Department revised its policy on notice to criminal defendants of FISA surveillance to bring its behavior in line with representations previously made by the solicitor general to the Supreme Court in Clapper v. Amnesty International USA.

255

250. First Privacy Board Report, supra note 247, at 10; see Electronic Communications 

Privacy Act, Pub. L. No. 99-508, 100 Stat. 1948 (1986), relevant sections as amended, 18 

U.S.C. §§ 2701–2712 (2020); see also ACLU v. Clapper, 785 F.3d 787, 798–99 (2d Cir. 2015).

251. First Privacy Board Report, supra note 247, at 208–18.

252. Second Privacy Board Report, supra note 35; see Ellen Nakashima, Panel: NSA Program That Targets Foreigners Is Lawful, Wash. Post, July 2, 2014, at A13; David E. Sanger, 

U.S. Privacy Panel Backs N.S.A.’s Internet Tapping, N.Y. Times, July 3, 2014, at A11; Ali 

Watkins, Panel: Little Wrong with NSA Surveillance, Miami Herald, July 3, 2014, at 3A.

253. Second Privacy Board Report, supra note 35, at 2.

254. Id. at 96–97.

255. 568 U.S. 398 (2013); see Donohue, supra note 29, at 245–52; Human Rights Watch, 

Illusion of Justice 102–03 (2014); Greenberg, supra note 29, at 226–29, 238, 243–44.
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 37

The issue in Clapper was standing to challenge the constitutionality of 

FISA’s section 702, which is section 1881a of the U.S. Code’s title 50. The 

plaintiffs argued “that they should be held to have standing because otherwise the constitutionality of § 1881a could not be challenged.”256 The Court 

observed that “if the Government intends to use or disclose information obtained or derived from a § 1881a acquisition in judicial or administrative 

proceedings, it must provide advance notice of its intent, and the affected 

person may challenge the lawfulness of the acquisition.”257 Solicitor General 

Donald B. Verrilli, Jr., said in his reply brief, “the government must provide 

advance notice of its intent to use information obtained or derived from Section 1881a-authorized surveillance against a person in judicial or administrative proceedings and that person may challenge the underlying surveillance.”258

On learning, after the Snowden revelations, that Justice Department 

practice did not conform to the government’s representations in Clapper, 

Solicitor General Verrilli persuaded the department that the proper course 

was to provide defendants with section 702 surveillance notice.259 On December 24, 2013, the Justice Department informed senators who had inquired about the issue,

Based on a recent review, the Department has determined that information obtained or derived from Title I FISA collection may, in particular 

cases, also be derived from prior Title VII FISA collection, such that notice 

concerning both Title I and Title VII should be given in appropriate cases 

with respect to the same information. Based on this determination, the gov256. Clapper, 568 U.S. at 420.

257. Id. at 421.

258. Reply Brief at 15, Clapper v. Amnesty Int’l USA, No. 11-1025 (U.S. Oct. 17, 2012), 

www.aclu.org/sites/default/files/field_document/2012.10.17_sct_-_govt_reply_brief.pdf.pdf; 

see Transcript at 4, id. (Oct. 29, 2012), www.supremecourt.gov/oral_arguments/argument_

transcripts/2012/11-1025.pdf (referring to “notice that the government intends to introduce 

information in a proceeding against” an aggrieved person). 

“There was, in hindsight, something very odd about Verrilli’s assertion. By then, the warrantless surveillance program had been operating under FISA for nearly six years. And yet, 

in all that time, federal prosecutors had never given such a notice to any criminal defendant.” 

Savage, supra note 16, at 559.

259. United States v. Hasbajrami, 945 F.3d 641, 648 n.3 (2d Cir. 2019); see Charlie Savage, Door May Open for Challenge to Secret Wiretaps, N.Y. Times, Oct. 17, 2013, at A3; Savage, supra note 16, at 586–93; see also Donohue, supra note 29, at 245–50 (“The government 

is required, prior to legal proceedings, to notify the aggrieved person and the court (or other 

authority), that information is to be disclosed or used.”).

“The national security prosecutors explained that their division had long used a narrower definition of what derived from means for FISA wiretaps than for ordinary criminal-law 

wiretaps.” Savage, supra note 16, at 587; see id. at 588 (noting that Justice Department practice shielded section 702 from judicial review).
Foreign Intelligence Surveillance Act Litigation

38 Federal Judicial Center 1/31/2023

ernment has provided notice concerning Section 702-derived information 

in two criminal cases.260

On October 17, 2013, the ACLU filed a complaint in the Southern District of New York based on a March 29 FOIA request for “records related to 

the government’s use of evidence derived from surveillance authorized by 

the FISA Amendments Act.”261 After examining withheld documents in 

camera and ex parte, Judge Gregory H. Woods ruled on March 3, 2015, that 

five documents were properly withheld pursuant to the deliberative-process 

privilege, but the government’s search had been improperly narrow.262 On 

September 27, 2016, Judge Woods ruled that an expanded search was adequate, but some documents withheld needed further justification.263 Judge 

Woods ruled that they were properly withheld work product on May 2, 

2017.264

James Clapper, the Director of National Intelligence, provided Senator 

Wyden with a letter on March 28, 2014, explaining that “NSA sought and 

obtained the authority to query information collected under Section 702 of 

the Foreign Intelligence and Surveillance Act (FISA), using U.S. person identifiers,” and “[t]hese queries were performed pursuant to minimization procedures approved by the FISA Court as consistent with the statute and the 

Fourth Amendment.”265

Historically, federal courts frequently reviewed FISA evidence concerning criminal defendants to determine whether any of the evidence was discoverable as helpful to the defense266 and whether any FISA evidence should 

be suppressed.267 Courts also found prosecutions based on FISA evidence to 

260. Letter from Principal Deputy Assistant Attorney General Peter J. Kadzik to Senator 

Mark Udall, Dec. 24, 2013, www.documentcloud.org/documents/1159182-122413-doj-response.

html.

261. Complaint, ACLU v. U.S. Dep’t of Just., No. 1:13-cv-7347 (S.D.N.Y. Oct. 17, 2013), 

D.E. 1; see Donohue, supra note 29, at 250.

262. ACLU v. U.S. Dep’t of Just., 90 F. Supp. 3d 201 (S.D.N.Y. 2015); see 5 U.S.C. 

§ 552(b)(5) (2020).

263. ACLU v. U.S. Dep’t of Just., 210 F. Supp. 3d 467 (S.D.N.Y. 2016).

264. ACLU v. U.S. Dep’t of Just., 252 F. Supp. 3d 217 (S.D.N.Y. 2017).

265. Letter from James R. Clapper to Senator Ron Wyden, Mar. 28, 2014, s3.amazonaws. 

com/s3.documentcloud.org/documents/1100298/unclassified-702-response.pdf; see Ellen Nakashima, Clapper Confirms Warrantless Searches by NSA, Wash. Post, Apr. 2, 2014, at A3; 

Charlie Savage, Letter Tells of Searches for Emails and Calls, N.Y. Times, Apr. 2, 2014, at 

A20.

266. United States v. Amawi, 695 F.3d 457, 474–75 (6th Cir. 2012), aff’g 531 F. Supp. 2d 

832 (N.D. Ohio 2008); United States v. El-Mezain, 664 F.3d 467, 563–70 (5th Cir. 2011); 

United States v. Duggan, 743 F.2d 59, 78 (2d Cir. 1984), aff’g United States v. Megahey, 553 

F. Supp. 1180 (E.D.N.Y. 1982); United States v. Belfield, 692 F.2d 141, 146–47 (D.C. Cir. 

1982); United States v. Thomson, 752 F. Supp. 75, 78 (W.D.N.Y. 1990); United States v. 

Spanjol, 720 F. Supp. 55 (E.D. Pa. 1989).

267. United States v. Aldawsari, 740 F.3d 1015, 1017–19 (5th Cir. 2014); United States v. 

Campa, 529 F.3d 980, 988–89, 993–94 (11th Cir. 2009); United States v. Ning Wen, 477 F.3d 

896, 897 (7th Cir. 2006); United States v. Dumeisi, 424 F.3d 566, 578–79 (7th Cir. 2005); 

United States v. Damrah, 412 F.3d 618, 623–25 (6th Cir. 2005); United States v. Hammoud, 
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 39

be constitutional.268 No court reviewing the use of section 702 evidence in a 

criminal case has found a constitutional infirmity.

269

According to the New York Times on February 26, 2014, the government 

had filed section 702 notices in three cases.270

Jamshid Muhtorov

The FBI arrested Jamshid Muhtorov at Chicago’s O’Hare airport on January 

21, 2012, interrupting his trip to Turkey.271 He was indicted in the District of 

Colorado, and the court assigned his case to Judge John L. Kane.

272

The government filed a section 702 notice on October 25, 2013.273 On 

November 19, 2015, Judge Kane denied a motion to suppress evidence de381 F.3d 316, 331–34 (4th Cir. 2004) (en banc), reinstated in relevant part, 405 F.3d 1034 

(4th Cir. 2005); United States v. Squillacote, 221 F.3d 542, 552–54 (4th Cir. 2000); United 

States v. Johnson, 952 F.2d 565, 571–73 (1st Cir. 1991); United States v. Isa, 923 F.2d 1300 

(8th Cir. 1991); United States v. Badia, 827 F.2d 1458, 1462–64 (11th Cir. 1987); United 

States v. Ott, 827 F.2d 473 (9th Cir. 1987); United States v. Cavanagh, 807 F.2d 787 (9th Cir. 

1987); Duggan, 743 F.2d at 76–80; United States v. Mahamud, 838 F. Supp. 2d 881 (D. Minn. 

2012); United States v. Sherifi, 793 F. Supp. 2d 751 (E.D.N.C. 2011), aff’d sub nom. United 

States v. Hassan, 742 F.3d 104, 137 (4th Cir. 2014); United States v. Warsame, 547 F. Supp. 

2d 982 (D. Minn. 2008); United States v. Mubayyid, 521 F. Supp. 2d 125, 131–41 (D. Mass. 

2007); United States v. Rosen, 447 F. Supp. 2d 538, 547–53 (E.D. Va. 2006); United States v. 

Abdel Rachman, 861 F. Supp. 247 (S.D.N.Y. 1994); United States v. Falvey, 540 F. Supp. 1306 

(E.D.N.Y. 1982).

268. Ning Wen, 477 F.3d at 897–99; United States v. Duka, 671 F.3d 329, 342–47 (3d Cir. 

2011); United States v. Abu-Jihaad, 630 F.3d 102 (2d Cir. 2010), aff’g 531 F. Supp. 2d 299 (D. 

Conn. 2008); United States v. Stewart, 590 F.3d 93, 126–29 (2d Cir. 2009); Isa, 923 F.2d 1300; 

United States v. Posey, 864 F.2d 1487, 1490–91 (9th Cir. 1989) (noting, “As an initial matter, 

we think it clear that appellant may not make a facial challenge to the FISA without arguing 

that the particular surveillance against him violated the Fourth Amendment.”); United States 

v. Pelton, 835 F.2d 1067, 1074–75 (4th Cir. 1987); Cavanagh, 807 F.2d 787; Duggan, 743 F.2d 

at 71–76; Belfield, 692 F.2d at 148–49; Mahamud, 838 F. Supp. 2d at 888–89; Warsame, 547 

F. Supp. 2d at 992–97; Mubayyid, 521 F. Supp. 2d at 135–41; United States v. Benkahla, 437 

F. Supp. 2d 541, 554–55 (E.D. Va. 2006); United States v. Nicholson, 955 F. Supp. 588 (E.D. 

Va. 1997); Falvey, 540 F. Supp. 1306; see Damrah, 412 F.3d at 625 (“FISA has uniformly been 

held to be consistent with the Fourth Amendment”); Johnson, 952 F.2d at 573 (noting, “We 

suspect . . . that appellants have waived this claim for purposes of their appeal.”).

269. See Wadie E. Said, Crimes of Terror 78 (2015).

270. Charlie Savage, Justice Dept. Informs Inmate of Pre-Arrest Surveillance, N.Y. Times, 

Feb. 26, 2014, at A3; see Donohue, supra note 29, at 251–52; Greenberg, supra note 29, at 

238.

271. United States v. Muhtorov, 20 F.4th 558, 581, 635 (10th Cir. 2021); United States v. 

Muhtorov, 329 F. Supp. 3d 1289, 1291–92, 1296 (D. Colo. 2018); see Complaint, United 

States v. Muhtorov, No. 1:12-cr-33 (D. Colo. Jan. 19, 2012), D.E. 1; Partially Translated 

Complaint, id. (Feb. 6, 2012), D.E. 22 (Russian translation); see also Bruce Finley & Felisa 

Cardona, “I Knew Him as a Good Guy, Praying,” Denver Post, Jan. 31, 2012, at 1A.

272. Indictment, Muhtorov, No. 1:12-cr-33 (D. Colo. Jan. 23, 2012) D.E. 5; Translated 

Indictment, id. (Feb. 6, 2012), D.E. 21 (Russian translation); see Second Superseding Indictment, id. (Mar. 22, 2012), D.E. 59; Superseding Indictment, id. (Mar. 20, 2012), D.E. 50;

Muhtorov, 20 F.4th at 635.

273. FISA Notice, Muhtorov, No. 1:12-cr-33 (D. Colo. Oct. 25, 2013), D.E. 457; Muhtorov, 20 F.4th at 636; see ACLU v. U.S. Dep’t of Just., 90 F. Supp. 3d 201, 209 (S.D.N.Y. 2015); 
Foreign Intelligence Surveillance Act Litigation

40 Federal Judicial Center 1/31/2023

rived via section 702.274 “While I am convinced the [FISA Amendments Act] 

is susceptible to unconstitutional application as an end-run around the Wiretap Act and the Fourth Amendment’s prohibition against warrantless or unreasonable searches, I am equally convinced that it was not unconstitutionally applied to Mr. Muhtorov.”275 The court of appeals agreed.276

Nearly three years later, Judge Kane sentenced Muhtorov to eleven years 

in prison on a material-support conviction.277 The court of appeals affirmed 

the conviction on December 8, 2021.

278

Mohamed Osman Mohamud

Mohamed Osman Mohamud was convicted on January 31, 2013, of an attempt to use a weapon of mass destruction for attempting to detonate a car 

bomb—a fake provided by the FBI in a sting—at Portland, Oregon’s November 26, 2010, Christmas tree lighting ceremony.

279 Judge Garr M. King presided over the case.280

On November 19, 2013, before Mohamud had been sentenced, the government filed a section 702 notice.

281 On June 24, 2014, Judge King denied 

Mohamud’s motions for a new trial.282

see also Charlie Savage, U.S. Prosecutors Cite Warrantless Wiretaps, N.Y. Times, Oct. 27, 

2013, at 21.

274. United States v. Muhtorov, 187 F. Supp. 3d 1240 (D. Colo. 2015); Muhtorov, 20 

F.4th at 590, 636.

275. Muhtorov, 187 F. Supp. 3d at 1243.

276. Muhtorov, 20 F.4th at 592–618.

277. Judgment, Muhtorov, No. 1:12-cr-33 (D. Colo. Sept. 4, 2018), D.E. 1966; United 

States v. Muhtorov, 329 F. Supp. 3d 1289, 1311 (D. Colo. 2018); see id. at 1304 (noting six 

years, seven months, and nine days of presentence detention); Amended Judgment, Muhtorov, No. 1:12-cr-33 (D. Colo. Oct. 24, 2019), D.E. 2020 (clarifying recommendation for location of imprisonment near family); see also Federal Bureau of Prisons Inmate Locator [hereinafter BOP Locator], www.bop.gov (noting release from prison on June 18, 2021, reg. no. 

42383-424).

278. Muhtorov, 20 F.4th 558, cert. denied, 598 U.S. ___, 143 S. Ct. 246 (2022).

279. United States v. Mohamud, 843 F.3d 420, 428–29 (9th Cir. 2016); Verdict, United 

States v. Mohamud, No. 3:10-cr-475 (D. Or. Jan. 31, 2013), D.E. 428; United States v. Mohamud, 941 F. Supp. 2d 1303, 1307 (D. Or. 2013) (denying motions for acquittal or a new 

trial); Opinion at 3, Mohamud, No. 3:10-cr-475 (D. Or. June 24, 2014), D.E. 517 [hereinafter 

Mohamud Section 702 Opinion], 2014 WL 2866749; see Indictment, id. (Nov. 29, 2010), D.E. 

2; see also Colin Miner, Liz Robbins & Erik Eckholm, F.B.I. Says Oregon Suspect Planned 

“Grand” Attack, N.Y. Times, Nov. 28, 2010, at A1; Said, supra note 269, at 41.

280. Docket Sheet, Mohamud, No. 3:10-cr-475 (D. Or. Nov. 29, 2010).

281. FISA Notice, id. (Nov. 19, 2013), D.E. 486; Mohamud, 843 F.3d at 431; Mohamud

Section 702 Opinion, supra note 279, at 3; see Charlie Savage, Warrantless Surveillance Challenged by Defendant, N.Y. Times, Jan. 30, 2014, at A15.

In briefing, the government acknowledged that the notice was untimely. Government 

Discovery Opposition Brief at 9 n.5, 12, Mohamud, No. 3:10-cr-475 (D. Or. Feb. 13, 2014), 

D.E. 491.

282. Mohamud, 843 F.3d at 431; Mohamud Section 702 Opinion, supra note 279; see

Charlie Savage, Clashing Rulings Weigh Security and Liberties, N.Y. Times, June 25, 2014, at 

A15.
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 41

Clearly a lot of time has passed, but otherwise suppression and a new trial 

would put defendant in the same position he would have been in if the government notified him of the § 702 surveillance at the start of the case. 

Moreover, the government has apparently changed its practice in making 

this type of notification, so dismissal is not needed as a deterrence.283

Judge King rejected various constitutional challenges to FISA’s new title 

VII, section 702 in particular. Respecting separation of powers, “[r]eview of 

§ 702 surveillance applications is as central to the mission of the judiciary as 

the review of search warrants and wiretap applications.”284 With respect to 

the Fourth Amendment, “§ 702 surveillance falls within the foreign intelligence exception to the warrant requirement.”285 Mohamud’s “communications were collected incidentally during intelligence collection targeted at one 

or more non-U.S. persons outside the United States.”286 Acknowledging the 

issue as presenting “a very close question,” Judge King concluded that a warrant was not required for the examination of evidence incidentally collected 

on Mohamud.287 Finally,

I made a careful de novo, ex parte review of the § 702 applications and 

conclude the certification required by 50 U.S.C. § 1881a(g)(2)(A) [FISA 

§ 702(g)(2)(A)] was in place. I also find that the government agents followed appropriate targeting and minimization procedures. Thus I conclude 

the § 702 surveillance at issue here was lawfully conducted.288

On October 1, 2014, Judge King sentenced Mohamud to thirty years in 

prison.289

The court of appeals affirmed the sentence and agreed that no warrant 

was required for surveillance of Mohamud’s email communications with a 

foreign national under authorized section 702 surveillance of the foreign national.290 Moreover, surveillance of Mohamud was reasonable.291

283. Mohamud Section 702 Opinion, supra note 279, at 8; see Mohamud, 843 F.3d at 436 

(“Mohamud cannot demonstrate how the late disclosure prejudiced him.”).

284. Mohamud Section 702 Opinion, supra note 279, at 18; see Savage, supra note 282

(“The constitutionality of the 2008 law had never been tested in court before Judge King’s 

ruling.”).

285. Mohamud Section 702 Opinion, supra note 279, at 27.

286. Id. at 25.

287. Id. at 42–45.

288. Id. at 47.

289. Judgment, United States v. Mohamud, No. 3:10-cr-475 (D. Or. Oct. 3, 2014), D.E. 

524; Transcript at 56, id. (Oct. 1, 2015, filed Dec. 8, 2014), D.E. 529; United States v. Mohamud, 843 F.3d 420, 431–32 (9th Cir. 2016); see Nigel Duara, Ore. Man Caught in BombPlot Sting Gets 30-Year Term, Bos. Globe, Oct. 2, 2014, at A8; see also BOP Locator, supra 

note 277 (noting a release date of July 3, 2036, reg. no. 73079-065).

290. United States v. Mohamud, 666 F. App’x 591 (9th Cir. 2016), cert. denied, 583 U.S. 

___, 138 S. Ct. 636 (2018); Mohamud, 843 F.3d at 439–41; see Maxine Bernstein, Federal 

Appeals Court Upholds Conviction, Oregonian, Dec. 6, 2016, at A1; Charlie Savage, Panel 

Backs Warrantless Collection of Email, N.Y. Times, Dec. 6, 2016, at A15.

291. Mohamud, 843 F.3d at 441–44.
Foreign Intelligence Surveillance Act Litigation

42 Federal Judicial Center 1/31/2023

Judge King died on February 5, 2019.292 Judge Marco A. Hernández denied a motion for Mohamud’s compassionate release on May 29, 2022.293

Agron Hasbajrami

On January 8, 2013, Agron Hasbajrami received a sentence of fifteen years in 

prison from Eastern District of New York Judge John Gleeson, on a plea of 

guilty to providing material support to terrorism.294 Five days after the September 8, 2011, indictment, the government filed a notice that the government had collected FISA evidence against Hasbajrami.295

On February 24, 2014, the government informed Hasbajrami that the 

FISA evidence against him was obtained pursuant to orders based on section 

702 FISA evidence.296 “In the government’s view, this supplemental notification does not afford you a basis to withdraw your plea or to otherwise attack 

your conviction or sentence because you expressly waived those rights, as 

well as the right to any additional disclosures from the government, in your 

plea agreement.”297

Judge Gleeson ruled on October 2 that Hasbajrami could withdraw his 

guilty plea, because, “When the government provided FISA notice without 

FAA notice, Hasbajrami was misled about an important aspect of his case.”298

The section 702 evidence complied with the Fourth Amendment, Judge 

Gleeson ruled.299 The Constitution permits “warrantless surveillance of non292. FJC Biographical Directory, supra note 8.

293. Opinion, Mohamud, No. 3:10-cr-475 (D. Or. May 29, 2022), D.E. 86, 2022 WL 

1782587; see id. At 3 (“Defendant has not demonstrated extraordinary or compelling reasons 

for his release. Defendant does not have an underlying health condition that puts him at 

increased risk of serious illness or death if he contracts COVID-19, he has been vaccinated 

against COVID-19, and he has already contracted COVID-19 and recovered.”).

294. Minutes, United States v. Hasbajrami, No. 1:11-cr-623 (E.D.N.Y. Jan. 8, 2013), D.E. 

44; Judgment, id. (Jan. 16, 2013), D.E. 45; United States v. Hasbajrami, 945 F.3d 641, 645, 

648 (2d Cir. 2019); see Superseding Indictment, Hasbajrami, No. 1:11-cr-623 (E.D.N.Y. Jan. 

26, 2012), D.E. 20; Indictment, id. (Sept. 8, 2011), D.E. 1; see also Mosi Secret, 15-Year Sentence in Terror Case, N.Y. Times, Jan. 9, 2013, at A22.

Judge Gleeson resigned from the bench on March 9, 2016. FJC Biographical Directory, 

supra note 8; see Ben Protess, Prominent U.S. Judge, Known as a Maverick, Is Expected to Join 

a White-Shoe Firm, N.Y. Times, Feb. 25, 2016, at B3.

295. FISA Notice, Hasbajrami, No. 1:11-cr-623 (E.D.N.Y. Sept. 13, 2011), D.E. 9; Hasbajrami, 945 F.3d at 645.

296. Letter, Hasbajrami, No. 1:11-cr-623 (E.D.N.Y. Feb. 24, 2014), D.E. 65 [hereinafter 

Feb. 24, 2014, Hasbajrami Letter]; Hasbajrami, 945 F.3d at 645, 648; see Greenberg, supra 

note 29, at 257–59; Ellen Nakashima, No Warrant, Inmate Is Told, Wash. Post, Feb. 26, 2014, 

at A4; Charlie Savage, Justice Dept. Informs Inmate of Pre-Arrest Surveillance, N.Y. Times, 

Feb. 26, 2014, at A3.

297. Feb. 24, 2014, Hasbajrami Letter, supra note 296, at 2.

298. Opinion, Hasbajrami v. United States, No. 1:13-cv-6852 (E.D.N.Y. Oct. 2, 2014), 

D.E. 30, 2014 WL 4954596 (noting that withdrawal of the plea was against advice of counsel); see Hasbajrami, 945 F.3d at 645, 648; see also Devlin Barrett, NSA Data Collection Gets 

Day in Court, Wall St. J., Nov. 1, 2014, at A5.
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 43

U.S. persons who are abroad,” so “the incidental interception of non-targeted 

U.S. persons’ communications with the targeted persons is also lawful.”300

Hasbajrami pleaded guilty to a superseding information on June 26, 

2015.301 On August 13, Judge Gleeson sentenced Hasbajrami to sixteen years 

in prison302 followed by deportation to Albania.303

Hasbajrami reserved the right to appeal Judge Gleeson’s section 702 ruling.304 The court of appeals affirmed Judge Gleeson’s decision in part, but 

remanded the case for more factfinding on database queries.305

The vast majority of Section 702 surveillance at issue here involves information the government collected about Hasbajrami incidental to its surveillance of other individuals without ties to the United States and located 

abroad. . . .

. . .

[Q]uering databases of stored information derived from Section 702-

acquired surveillance . . . raises novel and difficult questions. Querying, depending on the particulars of a given case (such as what databases are queried, for what purpose, and under what circumstances), could violate the 

Fourth Amendment, and thus require the suppression of evidence; therefore, a district court must ensure that any such querying was reasonable. 

But no information about any queries conducted as to Hasbajrami was provided to the district court, and the information provided to us on this subject is too sparse to reach a conclusion as to the reasonableness of any such 

queries conducted as to Hasbajrami.306

299. Opinion, Hasbajrami, No. 1:11-cr-623 (E.D.N.Y. Mar. 8, 2016), D.E. 165 [hereinafter E.D.N.Y. Hasbajrami Suppression Denial Opinion], 2016 WL 1029500; see Hasbajrami, 

945 F.3d at 645, 647, 659–60.

300. E.D.N.Y. Hasbajrami Suppression Denial Opinion, supra note 299, at 17.

301. Minutes, Hasbajrami, No. 1:11-cr-623 (E.D.N.Y. June 26, 2015), D.E. 142; Superseding Information, id. (June 26, 2015), D.E. 141; see Hasbajrami, 945 F.3d at 645, 660; Waiver 

of Indictment, Hasbajrami, No. 1:11-cr-623 (E.D.N.Y. June 26, 2015), D.E. 140.

Hasbajrami filed a pro se motion to withdraw his plea and fire his attorney a few weeks 

later. Motion, Hasbajrami, No. 1:11-cr-623 (E.D.N.Y. July 20, 2015), D.E. 146. Judge 

Gleeson denied these motions. Docket Sheet, id. (Sept. 8, 2011) [hereinafter Hasbajrami 

Docket Sheet].

302. Minutes, Hasbajrami, No. 1:11-cr-623 (E.D.N.Y. Aug. 13, 2015), D.E. 151; Second 

Amended Judgment, id. (Nov. 3, 2015), D.E. 161; Amended Judgment, id. (Sept. 4, 2015), 

D.E. 158; Judgment, id. (Aug. 17, 2015), D.E. 152; Transcript, id. (Aug. 13, 2015, filed Nov. 

19, 2015), D.E. 163; Hasbajrami, 945 F.3d at 660; see BOP Locator, supra note 277 (noting a 

release date of September 9, 2025, reg. no. 65794-053).

303. Order, Hasbajrami, No. 1:11-cr-623 (E.D.N.Y. Aug. 17, 2015), D.E. 150; see Hasbajrami, 945 F.3d at 660; see also Zachary R. Dowdy, Terror Suspect Gets 16 Years, Newsday, 

Aug. 14, 2015, at A35.

304. Hasbajrami, 945 F.3d at 645, 647, 660.

305. Id., 945 F.3d 641.

After a classification of the court’s opinion, the panel met ex parte with intelligence 

community personnel to discuss how the opinion would be expressed with a minimum of 

redactions; a few portions of the opinion remain redacted. Id., at 646 n.1.

306. Id. at 646; see Hasbajrami Docket Sheet, supra note 301 (noting a status conference 

on October 19, 2021, before Judge LaShann DeArcy Hall).
Foreign Intelligence Surveillance Act Litigation

44 Federal Judicial Center 1/31/2023

Reaz Qadir Khan

A fourth case arose in April 2014.

A grand jury in the District of Oregon returned a sealed indictment 

against Reaz Qadir Khan on December 27, 2012, for providing advice and 

financial assistance to Ali Jaleel and his family; Jaleel perished in a suicide 

attack against Pakistan’s Inter-Services Intelligence headquarters in Lahore 

on May 27, 2009.307 Khan, who worked at Portland’s wastewater treatment 

plant, was arrested on March 5, 2013.308 The court assigned Khan’s case to 

Judge Michael W. Mosman.309

On the day that Khan was arrested, the government filed a notice that it 

would use against the defendant evidence collected pursuant to FISA.310 On 

April 3, 2014, just over one year later, the government filed a notice that evidence against Khan was acquired pursuant to FISA’s section 702.311 Judge 

Mosman scheduled FISA motions for hearing on July 27, 2015.312 On June 

17, 2014, Judge Mosman ruled that his 2013 appointment to the FISA court 

did not require recusal.313

The case was resolved by a plea agreement filed on February 13, 2015.314

On June 19, Judge Mosman sentenced Khan to seven years and three 

months.

315 Kahn was released on September 30, 2021.316

Adel Daoud

Litigation over section 702 arose in a fifth case because it was championed by 

Senator Dianne Feinstein on December 27, 2012, as a success story for the 

FISA Amendments Act.317 The defendant did not demonstrate the use of section 702 in his case.

Tim Reagan remotely attended a status conference on October 19, 2021, at which the 

government’s response to the appellate court’s mandate was briefly discussed.

307. Indictment, United States v. Khan, No. 3:12-cr-659 (D. Or. Dec. 27, 2012), D.E. 1.

308. Arrest Warrant, id. (Mar. 6, 2013), D.E. 11; see Helen Jung, Indictment Ties Portland 

Man to Pakistan Attack, Oregonian, Mar. 6, 2013.

309. Docket Sheet, Khan, No. 3:12-cr-659 (D. Or. Dec. 28, 2012) [hereinafter D. Or. 

Khan Docket Sheet].

310. Notice, id. (Mar. 5, 2013), D.E. 7.

311. Notice, id. (Apr. 3, 2014), D.E. 59.

312. Litigation Schedule, id. (Dec. 22, 2014), D.E. 175.

313. D. Or. Khan Docket Sheet, supra note 309 (D.E. 91); see Motion, Khan, No. 3:12-cr659 (D. Or. May 5, 2014), D.E. 73; Transcript at 26–28, id. (Apr. 25, 2014, filed June 12, 

2014), D.E. 89 (oral order, in an abundance of caution, by Judge Mosman to Khan’s attorneys for briefing on reasons for Judge Mosman’s recusal); see also FJC Biographical Directory, supra note 8.

314. Plea Agreement, Khan, No. 3:12-cr-659 (D. Or. Feb. 13, 2015), D.E. 187; Superseding Information, id. (Feb. 13, 2015), D.E. 182.

315. Judgment, id. (June 19, 2015), D.E. 193.

316. BOP Locator, supra note 277 (reg. no. 74926-065).

317. See Ellen Nakashima, NSA Surveillance Questioned in Plot Case, Wash. Post, June 

22, 2013, at A2.
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 45

Adel Daoud was arrested in Chicago on September 14, 2012, for attempting to bomb a bar with a fake bomb provided by the FBI.318 The court assigned the case to Judge Sharon J. Coleman.319 The government filed a notice 

on September 18 that it would use against Daoud evidence derived pursuant 

to FISA.320 On May 22, 2013, Daoud filed a motion for clarification from the 

government whether the FISA evidence against Daoud derived from traditional pre-FAA FISA surveillance or FAA FISA surveillance, often referred to 

as section 702 FISA surveillance.321 The government responded on June 12 

that “the information the government intends to use was acquired pursuant 

to a traditional FISA order . . . as opposed to a Section 702 Order.”322 In surreply on August 8, the government said that it would “provide notice to the 

defense and this Court if the government intended to use in this case any information obtained or derived from surveillance authorized under Title VII 

of FISA . . . as to which the defendant is an aggrieved person.”323 On the following day, Daoud’s attorneys moved to examine and suppress all FISA evidence because “there is no indication that the prerequisites for a FISA warrant were present in this case.”324

On January 29, 2014, Judge Coleman ruled that Daoud’s secured counsel 

should be able to review FISA application materials pertaining to Daoud’s 

case.325

Here, counsel for defendant Daoud has stated on the record that he has 

top secret SCI (sensitive compartmented information) clearance. Assuming 

that counsel’s clearances are still valid and have not expired, top secret SCI 

clearance would allow him to examine the classified FISA application material, if he were in the position of the Court or the prosecution. Furthermore, 

the government had no meaningful response to the argument by defense 

counsel that the supposed national security interest at stake is not implicated where defense counsel has the necessary security clearances. The government’s only response at oral argument was that it has never been done. 

318. United States v. Daoud, 980 F.3d 581, 584–86 (7th Cir. 2020); United States v. 

Daoud, 755 F.3d 479, 480 (7th Cir. 2014); Minutes, United States v. Daoud, No. 1:12-cr-723 

(N.D. Ill. Sept. 15, 2012), D.E. 2; see Michael Schwirtz & Marc Santora, Chicago-Area Teenager Accused of Terrorism Plot, N.Y. Times, Sept. 16, 2012, at 20; Annie Sweeney, Dawn 

Rhodes & Ryan Haggerty, FBI: Car Bomb Plan Foiled, Chi. Trib., Sept. 16, 2012, at 4. See 

generally Human Rights Watch, Illusion of Justice 6, 28–30, 192–93 (2014).

319. Docket Sheet, Daoud, No. 1:12-cr-723 (N.D. Ill. Sept. 20, 2012).

320. Notice, id. (Sept. 18, 2012), D.E. 9; Daoud, 755 F.3d at 480.

321. FISA Clarification Motion, Daoud, No. 1:12-cr-723 (N.D. Ill. May 22, 2013), 

D.E. 43.

322. FISA Clarification Motion Response, id. (June 12, 2013), D.E. 46.

323. FISA Clarification Motion Sur-Reply, id. (Aug. 8, 2013), D.E. 49.

324. FISA Suppression Motion at 2, id. (Aug. 9, 2013), D.E. 52.

325. Opinion, id. (Jan. 29, 2014), D.E. 92 [hereinafter Jan. 29, 2014, N.D. Ill. Daoud

Opinion], 2014 WL 321384; Daoud, 755 F.3d at 481; see Andrew Grossman, Lawyers Win 

Right to See Secret Court Files, Wall St. J., Jan. 30, 2014, at A5; Jason Meisner, Defense to Get 

Terrorism Files, Chi. Trib., Jan. 30, 2014, at 11; Ellen Nakashima, Terrorism Suspect Challenges Warrantless Surveillance Program, Wash. Post, Jan. 30, 2014, at A13; Charlie Savage, 

Warrantless Surveillance Challenged by Defendant, N.Y. Times, Jan. 30, 2014, at A13.
Foreign Intelligence Surveillance Act Litigation

46 Federal Judicial Center 1/31/2023

That response is unpersuasive where it is the government’s claim of privilege to preserve national security that triggered this proceeding. Without a 

more adequate response to the question of how disclosure of materials to 

cleared defense counsel pursuant to protective order jeopardizes national 

security, this Court believes that the probable value of disclosure and the 

risk of nondisclosure outweigh the potential danger of disclosure to cleared 

counsel. Upon a showing by counsel, that his clearance is still valid, this 

Court will allow disclosure of the FISA application materials subject to a 

protective order consistent with procedures already in place to review classified materials by the court and cleared government counsel.

While this Court is mindful of the fact that no court has ever allowed 

disclosure of FISA materials to the defense, in this case, the Court finds that 

the disclosure may be necessary. This finding is not made lightly, and follows a thorough and careful review of the FISA application and related materials. The Court finds however that an accurate determination of the legality of the surveillance is best made in this case as part of an adversarial proceeding. The adversarial process is the bedrock of effective assistance of 

counsel protected by the Sixth Amendment. Anders v. California, 386 U.S. 

738, 743 (1967). Indeed, though this Court is capable of making such a determination, the adversarial process is integral to safeguarding the rights of 

all citizens, including those charged with a crime. “The right to the effective 

assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing.” United 

States v. Cronic, 466 U.S. 648, 656 (1984).326

On June 4, 2014, the court of appeals—Circuit Judges Richard A. Posner, 

Michael S. Kanne, and Ilana Diamond Rovner—heard the government’s appeal from Judge Coleman’s order granting Daoud’s attorneys access to FISA 

application materials.327 Following a public argument, the court held a closed 

ex parte session with the government.328 Daoud’s attorneys were not notified 

in advance that the court would hold part of the proceeding ex parte.329

Because of an error by court staff, the public argument was not recorded 

as it should have been.330 Court staff members misinterpreted security precautions for the ex parte session as a signal that the public session should not 

be recorded.331 The ex parte session was recorded by a cleared court reporter, 

326. Jan. 29, 2014, N.D. Ill. Daoud Opinion, supra note 325, at 4–5.

327. Daoud, 755 F.3d 479; Docket Sheet, United States v. Daoud, No. 14-1284 (7th Cir. 

Feb. 11, 2014) [hereinafter 7th Cir. Daoud Docket Sheet]; see Jason Meisner, Secret Appeals 

Hearing Held, Chi. Trib., June 5, 2014, at 12.

Judge Posner retired on September 2, 2017. FJC Biographical Directory, supra note 8.

328. Daoud, 755 F.3d at 479 n.*, 485; see Defendant’s Objection, Daoud, No. 14-1284 

(7th Cir. June 8, 2014) [hereinafter 7th Cir. Daoud Defendant’s Objection]; see also Meisner, 

supra note 327.

329. See 7th Cir. Daoud Defendant’s Objection, supra note 328; see also Meisner, supra

note 327.

330. Daoud, 755 F.3d at 479 n.*; see Jason Meisner, Court Didn’t Record Terror Case Arguments, Chi. Trib., June 6, 2014, at 4.

331. See Meisner, supra note 330.
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 47

however.332 The court agreed to ask the government to approve a redacted 

transcript for defense counsel’s use.333 Attached to a motion to remove some 

redactions, the defense filed the redacted transcript on the public docket.334

To remedy the recording error, the court ordered a second argument session at the beginning of the following week.335 Daoud was represented by a 

different attorney at the second argument.336

At the second argument, Judges Posner and Rovner explained to the defense attorney that the purpose of the ex parte proceeding was to provide the 

court with an opportunity to cross-examine the government about the government’s representations to the court.337 At the closed proceeding, the government assured the court that Senator Feinstein’s comment about Daoud 

“was not meant to be understood as a statement that the FAA was used in 

this case.”338 Following the ex parte proceeding, the court issued a “Classified

Ex Parte Order Requiring Additional Submission from the Government.”339

On June 16, the court of appeals reversed Judge Coleman’s discovery order, because she had not adequately established Daoud’s attorneys’ “need to 

know” the classified FISA application materials.340

The court of appeals also ruled that the investigation of Daoud did not 

violate FISA.341 The court determined that Senator Feinstein had not identified Daoud’s case as an FAA success story; the court concluded that Senator 

Feinstein meant to list thwarted attacks as evidence of needed vigilance, only 

some of which were FAA success stories.342

Also filed against Daoud were indictments for attempted murder following detention.343 On August 25, 2016, Judge Coleman found Daoud “incompetent to stand trial at this time,” noting that “his rational understanding of 

332. Daoud, 755 F.3d at 479 n.*; see Meisner, supra note 330.

333. Daoud, 755 F.3d at 485; 7th Cir. Daoud Docket Sheet, supra note 327; Oral 

Argument, Daoud, No. 14-1284 (7th Cir. June 9, 2014), D.E. 53 [hereinafter June 9, 2014, 

7th Cir. Daoud Oral Argument], media.ca7.uscourts.gov/sound/2014/rs.14-1284.14-1284_06_

09_2014.mp3 (audio recording).

334. Transcript Motion, Daoud, No. 14-1284 (7th Cir. June 25, 2014) [hereinafter 7th 

Cir. Daoud Transcript Motion].

335. Daoud, 755 F.3d at 479 n.*; Orders, Daoud, No. 14-1284 (7th Cir. June 6, 2014); see

Jason Meisner, Court Will Redo Terror Case Oral Arguments, Chi. Trib., June 7, 2014, at 4.

336. 7th Cir. Daoud Docket Sheet, supra note 327.

337. June 9, 2014, 7th Cir. Daoud Oral Argument, supra note 333; see Daoud, 755 F.3d at 

485; see also Steve Schmadeke, Attorney, Judge Trade Shots in Terror Case, Chi. Trib., June 

10, 2014, at 9.

338. Transcript at 7, attached to 7th Cir. Daoud Transcript Motion, supra note 334.

339. Order, Daoud, No. 14-1284 (7th Cir. June 6, 2014) (cover page).

340. Daoud, 755 F.3d at 484, cert. denied, 574 U.S. 1158 (2015); United States v. Daoud, 

980 F.3d 581, 587 (7th Cir. 2020); see Ellen Nakashima, Landmark Surveillance Disclosure 

Order Reversed, Wash. Post, June 17, 2014, at A2.

341. Daoud, 755 F.3d at 485.

342. United States v. Daoud, 761 F.3d 678, 682–83 (7th Cir. 2014).

343. Indictment, United States v. Daoud, No. 1:15-cr-487 (N.D. Ill. Aug. 13, 2015), D.E. 

1; Indictment, United States v. Daoud, No. 1:13-cr-703 (N.D. Ill. Aug. 29, 2013), D.E. 1; 

Daoud, 980 F.3d at 586–87 (7th Cir. 2020).
Foreign Intelligence Surveillance Act Litigation

48 Federal Judicial Center 1/31/2023

the proceedings is significantly undermined by his pervasive belief that the 

Court and the prosecution are members of the Illuminati and that his attorneys are Freemasons.”344 Following many months of treatment with psychotropic medication, Judge Coleman found on March 12, 2018, that Daoud was 

competent to stand trial.345

On November 26, 2018, Judge Coleman accepted Daoud’s plea of guilty 

in all three cases while maintaining his innocence pursuant to North Carolina v. Alford.

346 Following a sentencing hearing held from April 29 to May 6, 

2019,347 Judge Coleman sentenced Daoud to sixteen years in prison on May 

20.348 The court of appeals vacated that sentence in 2020 and remanded the 

case for sentencing by a different judge.349 The district court reassigned 

Daoud’s prosecutions to Judge John Z. Lee,

350 but upon Judge Lee’s elevation 

to the court of appeals on September 9, 2022,

351 Daoud’s prosecutions were 

reassigned to Judge Matthew F. Kennelly.352 On December 20, Judge Kennelly denied an October 4 motion by Daoud’s new attorney to withdraw the 

guilty plea and granted Daoud permission to proceed pro se.

353

344. Opinion at 1–2, United States v. Daoud, No. 1:12-cr-723 (N.D. Ill. Aug. 25, 2016), 

D.E. 216; id. at 4 (“it is in the best interest of the defendant to be immediately placed in a 

secure psychiatric treatment facility where persistent treatment for an initial period of three 

months may assist in a finding of competency”); see id. at 2–3 (noting that the government’s 

forensic psychologist “appeared to be conflicted about Daoud’s sincerity in his espoused 

beliefs”); Transcript, id. (Aug. 25, 2016, filed Oct. 3, 2016), D.E. 223 (ruling); Transcript, id.

(Aug. 18 to 19, 2016, filed Oct. 3, 2016), D.E. 221, 222 (hearing); see Daoud, 980 F.3d at 587–

88.

345. Minutes, Daoud, No. 1:12-cr-723 (N.D. Mar. 12, 2018), D.E. 246; Daoud, 980 F.3d at 

588.

346. Order, Daoud, No. 1:12-cr-723 (N.D. Ill. Nov. 26, 2018), D.E. 303; Transcript, id.

(Nov. 26, 2018, filed Jan. 29, 2019), D.E. 307; see North Carolina v. Alford, 400 U.S. 25 

(1970); see also Alford Motion, Daoud, No. 1:12-cr-723 (N.D. Ill. Nov. 14, 2018), D.E. 295.

347. Transcripts, Daoud, No. 1:12-cr-723 (N.D. Ill. Apr. 29 and 30 and May 1 and 6, 

2019, filed June 10, 2019), D.E. 338 to 342; Minutes, id. (Apr. 29 and 30 and May 1 and 6, 

2019), D.E. 330, 331, 332, 335.

348. Judgments, Nos. 1:12-cr-723, 1:13-cr-703, and 1:15-cr-487 (N.D. Ill. May 20, 2019), 

D.E. 386, 45, and 55, respectively; Amended Judgment, No. 1:13-cv-703 (May 28, 2019), D.E. 

47; Daoud, 980 F.3d at 588–90, 596 (noting that the sentence was one year longer than recommended by Daoud’s probation officer); see BOP Locator, supra note 277 (noting a release 

date of May 3, 2026, reg. no. 43222-424); see also Jason Meisner, 16 Years for Plot to Bomb 

Loop Bar, Chi. Trib., May 7, 2019, at C1.

349. Daoud, 980 F.3d 581.

Three judges dissented from the court’s decision not to rehear the appeal en banc. United States v. Daoud, 989 F.3d 610 (7th Cir. 2021).

350. Transfer Orders, Nos. 1:12-cr-723, 1:13-cr-703, and 1:15-cr-487 (N.D. Ill. Mar. 29 

and Apr. 1, 2021), D.E. 369, 75, and 90, respectively.

Tim Reagan attended a telephonic status hearing on January 27, 2022, in which Judge 

Lee determined that Daoud was competent to request new counsel. Minutes, Daoud, No. 

1:12-cr-723 (N.D. Ill. Jan. 27, 2022), D.E. 402. Tim Reagan also attended telephonic status 

conferences on May 25 and July 27, 2022.

351. FJC Biographical Directory, supra note 8.

352. Order, Daoud, No. 1:12-cr-723 (N.D. Ill. Sept. 8, 2022), D.E. 414.

353. Minutes, id. (Dec. 20, 2022), D.E. 426; see Motion, id. (Oct. 4, 2022), D.E. 417.
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 49

The Qazi Brothers

In another case highlighted by Senator Feinstein, the court determined that 

section 702 was not at issue.

Raees Alam Qazi and Sheheryar Alam Qazi, brothers who were born in 

Pakistan and who became naturalized U.S. citizens, were indicted on November 30, 2012, in the Southern District of Florida for a plot to use a weapon of mass destruction.354 On December 6, the government filed notices that 

it would use FISA evidence against the defendants.355

On April 22, 2013, the defendants moved for notice whether any of the 

FISA evidence was obtained pursuant to the FAA.356 The defendants observed that their capture also was championed by Senator Feinstein as an 

FAA success.357 On May 6, Magistrate Judge John J. O’Sullivan granted the 

defendants’ motion so that they could challenge the lawfulness of any FAA 

surveillance, as promised by Clapper.

358

On September 5, 2014, Judge O’Sullivan issued a report and recommendation advising that (1) after “a thorough in camera, ex parte review of the 

classified Foreign Intelligence Surveillance Act (“FISA”) materials, the undersigned respectfully recommends that the defendants’ motions to disclose 

FISA materials and to suppress evidence of FISA intercepts be DENIED”359

and (2) because “the government does not intend to introduce or otherwise 

use or disclose evidence obtained or derived from FAA surveillance,”360 de354. Indictment, United States v. Qazi, No. 0:12-cr-60298 (S.D. Fla. Nov. 30, 2012), D.E. 

1; see Scott Hiaasen, Broward Brothers Held on Terror Charges, Miami Herald, Dec. 1, 2012, 

at 1B.

355. Notice, Qazi, No. 0:12-cr-60298 (S.D. Fla. Dec. 6, 2012), D.E. 10 (Sheheryar); Notice, id. (Dec. 6, 2012), D.E. 9 (Raees).

356. Amended FAA Motion, id. (Apr. 22, 2013), D.E. 67 [hereinafter Qazi Amended 

FAA Motion] (motion by Sheheryar); see Order, id. (Apr. 24, 2013), D.E. 73 (granting Raees 

permission to join Sheheryar’s motion).

357. Qazi Amended FAA Motion, supra note 356, at 3–4.

358. Opinion, Qazi, No. 0:12-cr-60298 (S.D. Fla. May 6, 2013), D.E. 77; see Adam Liptak, 

A Secret Surveillance Program Proves Challengeable in Theory Only, N.Y. Times, July 16, 

2013, at A11.

I would like to have someone here maybe, you know, from the Solicitor General’s 

Office who took the position in front of the Supreme Court that, “Hey, Supreme Court, 

don’t rule on this now because, you know, these people don’t have standing,” but some 

day there is going to be somebody who is going to have standing, and they are going to 

be able to come before the Supreme Court, and now we have got some folks here who 

may have standing, but you don’t want to tell them they have standing.

Transcript at 5, Qazi, No. 0:12-cr-60298 (S.D. Fla. July 26, 2013, filed July 30, 2013), D.E. 129 

(remarks by Judge O’Sullivan).

Judge O’Sullivan retired in January 2022. Judicial Milestones, www.uscourts.gov/judicialmilestones/john-j-osullivan; see Cindy Kent, People on the Move, S. Fla. Sun-Sentinel, Jan. 

23, 2022, at A35.

359. Redacted Report and Recommendation at 5, Qazi, No. 0:12-cr-60298 (S.D. Fla. Sept. 

5, 2014), D.E. 245 [hereinafter Sept. 5, 2014, Qazi Redacted Report and Recommendation]; 

see Redacted Report and Recommendation, id. (Sept. 3, 2014, filed Sept. 19, 2014), D.E. 250 

(showing the locations in the document of the redactions).

360. Sept 5, 2014, Qazi Redacted Report and Recommendation, supra note 359, at 9.
Foreign Intelligence Surveillance Act Litigation

50 Federal Judicial Center 1/31/2023

ciding the constitutionality of the FAA would be an impermissible advisory 

opinion.361

District Judge Beth Bloom adopted Judge O’Sullivan’s opinion.362 The 

Qazis pleaded guilty to some counts of a superseding indictment on March 

12, 2015.363

On June 12, Judge Bloom sentenced Raees Alam Qazi to thirty-five years, 

and she sentenced Sheheryar Alam Qazi to twenty years.364

Najibullah Zazi

While sentencing was pending, the government filed a section 702 notice in 

Najibullah Zazi’s case on July 27, 2015.365 Zazi was indicted in the Eastern 

District of New York on September 23, 2009, for conspiracy to use weapons 

of mass destruction.366 Upon Zazi’s agreement to plead guilty and cooperate 

in other prosecutions, the indictment was converted to an information on 

February 22, 2010.367 Recognizing Zazi’s cooperation and his testimony at 

two trials, Judge Raymond J. Dearie sentenced Zazi to ten years in prison on 

May 3, 2019.368

361. Id. at 17.

362. Opinion, Qazi, No. 0:12-cr-60298 (S.D. Fla. Oct. 29, 2014), D.E. 259.

363. Plea Agreement, id. (Mar. 12, 2015), D.E. 283 (Raees); Plea Agreement, id. (Mar. 12, 

2015), D.E. 282 (Sheheryar); Transcript, id. (Mar. 12, 2015, filed Sept. 17, 2015), D.E. 304; see

Factual Basis, id. (Mar. 12, 2015), D.E. 284; Superseding Indictment, id. (Jan. 15, 2015), D.E. 

267.

364. Judgments, id. (June 12, 2015), D.E. 301, 302; see Curt Anderson, Brothers Sentenced 

for Plot to Bomb NYC Landmarks, Bos. Globe, June 12, 2015, at A7; Jay Weaver, Brothers Get 

Long Terms for “Evil” Plot, Miami Herald, June 12, 2015, at 1B; see also BOP Locator, supra 

note 277 (noting release dates of January 24, 2030, for Sheheryan, reg. no. 01224-104, and 

September 26, 2042, for Raees, reg. no. 01223-104).

A pro se habeas corpus action by Raees claiming that the guilty plea resulted from a misunderstanding was unsuccessful. Order, Qazi v. United States, No. 0:16-cv-61177 (S.D. Fla. 

June 13, 2017), adopting Report and Recommendation, id. (May 15, 2017), D.E. 16.

365. Notice, United States v. Zazi, No. 1:09-cr-663 (E.D.N.Y. July 27, 2015), D.E. 59.

366. Indictment, id. (Sept. 23, 2009), D.E. 1; see William K. Rashbaum, Terror Suspect Is 

Charged with Preparing Explosives, N.Y. Times, Sept. 25, 2009, at A1. See generally Matt 

Apuzzo & Adam Goldman, Enemies Within: Inside the NYPD’s Secret Spying Unit and Bin 

Laden’s Final Plot Against America (2013); Simon Akam, Alison Leigh Cowan, Michael Wilson & Karen Zraick, From Smiling Coffee Vendor to Terror Suspect, N.Y. Times, Sept. 26, 

2009, at A1; Peter Bergen, United States of Jihad 113–23 (2016); id. at 114 (Zazi “wanted to 

blow up as many commuters as possible, and himself, on the New York City subway system”).

367. Information, Zazi, No. 1:09-cr-663 (E.D.N.Y. Feb. 22, 2010), D.E. 29; Cooperation 

Agreement, id. (Feb. 22, 2010, filed June 30, 2010), D.E. 44; see Carrie Johnson & Spencer S. 

Hsu, N.Y. Terror Plea Hailed as Validation of Court Strategy, Wash. Post, Feb. 23, 2010, at 

A1; A.G. Sulzberger & William K. Rashbaum, Guilty Plea Made in Plot to Bomb New York 

Subway, N.Y. Times, Feb. 23, 2010, at A1; see also United States v. Medunjanin, 752 F.3d 576 

(2d Cir. 2014); Mosi Secret, Man Convicted of a Terrorist Plot to Bomb Subways Is Sent to 

Prison for Life, N.Y. Times, Nov. 17, 2012, at A19.

368. Judgment, Zazi, No. 1:09-cr-663 (E.D.N.Y. May 3, 2019), D.E. 76; see Colin Moynihan, Trained by Al Qaeda, He Later Switched Sides, N.Y. Times, May 3, 2019, at A22; Emily 
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 51

Zazi was under federal surveillance when he was stopped on September 

10, 2009, by New York authorities on the George Washington Bridge during 

a drive from Colorado to New York.369 A recipe for explosives was found on 

his computer.

370 Because of several signs of surveillance in New York, Zazi 

flew back to Colorado on September 12.371 He and his father were arrested in 

Colorado on September 21 and initially charged with making false statements.372

The father was indicted on January 28, 2010, in the Eastern District of 

New York for conspiracy to obstruct justice, and six related counts were added on November 29.

373 Following a jury verdict of guilty, the father was sentenced on February 15, 2012, by Judge Gleeson to four years for the Eastern 

Saul, NY Bomb Plotter Gets “Time Served,” N.Y. Post, May 3, 2019, at 13 (“a sentence that 

amounts to time served”).

Abid Naseer was initially sentenced on January 26, 2016, to forty years in prison. Judgment, United States v. Naseer, No. 1:10-cr-19-4 (E.D.N.Y. Jan. 28, 2016), D.E. 464 (noting 

credit of two and one-half years for pre-extradition detention in England), aff’d, 775 F. 

App’x 28 (2d Cir. 2019), D.E. 164, cert. denied, 589 U.S. ___, 140 S. Ct. 826 (2020); see BOP 

Locator, supra note 277 (noting a release date of September 2, 2044, reg. no. 05770-748); 

Transcript at 252–319, Naseer, No. 1:10-cr-19-4 (E.D.N.Y. Feb. 18, 2015, filed July 20, 2016), 

D.E. 468 (partial record of Zazi’s testimony); see also Stephanie Clifford, Defendant Tries to 

Foil a Witness at His Trial, N.Y. Times, Feb. 19, 2015, at A20 (describing Zazi’s testimony).

The sentence was reduced to thirty years in December 2022 in light of intervening law on 

sentencing enhancements for crimes of violence. Amended Judgment, Naseer, No. 1:10-cr19-4 (E.D.N.Y. Jan. 9, 2023), D.E. 537; Opinion, id. (Dec. 15, 2022), D.E. 536, 2022 WL 

17718800, appeal pending, Docket Sheet, No. 23-37 (2d Cir. Jan. 10, 2023); see United States 

v. Davis, 588 U.S. ___, 139 S. Ct. 2319 (2019) (holding unconstitutionally vague a sentencing 

enhancement for using a firearm while committing a crime of violence).

Adis Medunjanin was sentenced on November 20, 2020, to ninety-five years in prison. 

Amended Judgment, United States v. Medunjanin, No. 1:10-cr-19-1 (E.D.N.Y. Nov. 20, 

2020), D.E. 519; see www.bop. gov (noting a release date of January 15, 2091, reg. no. 65114-

053); see also Mosi Secret, Bomb-Making Described in Thwarted Subway Plot, N.Y. Times, 

Apr. 19, 2012, at A23 (describing Zazi’s testimony); Mosi Secret, Organizer of Subway Plot 

Testifies About Plan’s Evolution, N.Y. Times, Apr. 18, 2012, at A21 (same).

369. See Transcript at 25–28, Zazi, No. 1:09-cr-663 (E.D.N.Y. Feb. 22, 2010, filed Apr. 4, 

2013), D.E. 57 (defendant’s recitation of facts at his plea colloquy); see also Al Baker & Karen 

Zraick, F.B.I. Searches Colorado Home of Man in Terror Inquiry That Reached Queens, N.Y. 

Times, Sept. 17, 2009, at A27; Greenberg, supra note 29, at 191.

370. See Carrie Johnson & Spencer S. Hsu, U.S. Resident Held Without Bail in Terrorism 

Case, Wash. Post., Sept. 22, 2009, at A6.

371. See William K. Rashbaum & Al Baker, How Using Imam in Terror Inquiry Backfired 

on New York Police, N.Y. Times, Sept. 23, 2009, at A1; Karen Zraick & David Johnston, Man 

in Queens Raids Denies Any Terrorist Link, N.Y. Times, Sept. 16, 2009, at A24.

372. Complaint, United States v. Zazi, No. 1:09-mj-3001 (D. Colo. Sept. 19, 2009), D.E. 1 

(Najibullah Zazi); Complaint, United States v. Zazi, No. 1:09-mj-3000 (D. Colo. Sept. 19, 

2009), D.E. 1 (Mohammed Wali Zazi); see William K. Rashbaum & David Johnston, U.S. 

Agents Arrest Father and Son in Terror Inquiry, N.Y. Times, Sept. 21, 2009, at A28.

373. Superseding Indictment, United States v. Zazi, No. 1:10-cr-60 (E.D.N.Y. Nov. 29, 

2010), D.E. 42; Indictment, id. (Jan. 28, 2010), D.E. 1; see Order, United States v. Zazi, No. 

1:09-cr-438 (D. Colo. Feb. 1, 2010), D.E. 50 (dismissing without prejudice an indictment in 

Colorado).
Foreign Intelligence Surveillance Act Litigation

52 Federal Judicial Center 1/31/2023

District indictment and to an additional six months for a Southern District of 

New York indictment for visa fraud, to which the father pleaded guilty.

374

Mohammads and Salims

December 21, 2015, notices of intent to use section 702 evidence375 were filed 

in a case against two pairs of brothers on a September 30 indictment in the 

Northern District of Ohio for conspiracy to provide material support to terrorism.376

Following a report that one of the defendants was seeking the murder of 

Judge Jack Zouhary, to whom the case was assigned, a second indictment was 

filed against Yahya Farooq Mohammad on July 6, 2016.377 The circuit’s chief 

judge reassigned the two cases to Judge Edmund A. Sargus, Jr., a judge in 

Ohio’s other district.378

Mohammad pleaded guilty in both cases in July 2017,379 and the case 

against the other defendants was reassigned to Northern District Judge Jeffrey J. Helmick.380

Mohammad was sentenced on November 8, 2017, to twenty-seven-anda-half years in prison,381 following which he will be deported to India.382

Judge Helmick denied Mohammad’s motion to suppress section 702 evidence on March 20, 2018, in an opinion released on September 11 following 

a classification review.383

374. Judgment, Zazi, No. 1:10-cr-60 (E.D.N.Y. Feb. 15, 2012), D.E. 195; see Jury Verdict, 

id. (July 22, 2011), D.E. 169; Consent to Transfer, United States v. Zazi, No. 1:11-cr-718 

(E.D.N.Y. Oct. 21, 2011), D.E. 1; Indictment, United States v. Zazi, No. 1:11-cr-604 

(S.D.N.Y. July 15, 2011), D.E. 1; see Mosi Secret, Prison for Father Who Lied About Terror 

Plot, N.Y. Times, Feb. 11, 2012, at A19.

375. Notices, United States v. Mohammad, No. 3:15-cr-358 (N.D. Ohio Dec. 21, 2015), 

D.E. 27, 28, 29; see Charlie Savage, Disclosures in Cases Put Surveillance in Question, N.Y. 

Times, Apr. 27, 2016, at A14.

376. Indictment, Mohammad, No. 3:15-cr-358 (N.D. Ohio Sept. 30, 2015), D.E. 1; United 

States v. Mohammad, 339 F. Supp. 3d 724, 730 (N.D. Ohio 2018).

377. Indictment, United States v. Mohammad, No. 3:16-cr-222 (N.D. Ohio July 6, 2016), 

D.E. 1.

378. Order, id. (July 12, 2016), D.E. 3; Order, Mohammad, No. 3:15-cr-358 (N.D. Ohio 

July 12, 2016), D.E. 108.

379. Minutes, Mohammad, No. 3:16-cr-222 (N.D. Ohio July 10, 2017), D.E. 59; Minutes, 

Mohammad, No. 3:15-cr-358 (N.D. Ohio July 10, 2017), D.E. 252; Mohammad, 339 F. Supp. 

3d at 730.

380. Order, Mohammad, No. 3:15-cr-358 (N.D. Ohio July 7, 2017), D.E. 60.

381. Judgment, Mohammad, No. 3:16-cr-222 (N.D. Ohio Nov. 8, 2017), D.E. 68; Judgment, Mohammad, No. 3:15-cr-358 (N.D. Ohio Nov. 8, 2017), D.E. 284; Transcript at 18, 

Mohammad, No. 3:16-cr-222 (filed Nov. 6, 2017, Apr. 27, 2021), D.E. 80; see BOP Locator,

supra note 277 (noting a release date of April 18, 2039, reg. no. 86552-083); Opinion, Mohammad, No. 3:15-cr-358 (N.D. Ohio June 27, 2019), D.E. 393, 2019 WL 2644211 (denying 

habeas relief); see also Earl Rinehart, Ex-OSU Student Gets 27 1⁄2 Years, Columbus Dispatch, 

Nov. 7, 2017, at 1B.

382. Stipulated Judicial Order of Removal, Mohammad, No. 3:16-cr-222 (N.D. Ohio 

Nov. 7, 2017), D.E. 67; Stipulated Judicial Order of Removal, Mohammad, No. 3:15-cr-358 

(N.D. Ohio Nov. 7, 2017), D.E. 283.
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 53

[The] facts do not evince a voluntary connection to the United States 

sufficient to bestow on Farooq the Fourth Amendment’s protections. 

Farooq studied in the United States for roughly five years. But Farooq finished his studies in the United States years before the acquisitions at issue 

occurred. And after finishing his studies and leaving the United States in 

2004, Farooq returned to visit the country only twice in the subsequent 

years—for around 25 days in 2007 and for around 16 days in 2008.

. . .

That Farooq’s wife is a United States citizen does little to alter the 

Fourth Amendment analysis. Farooq’s marriage is to an individual, not a 

nation.384

Judge Helmick also concluded the following: (1) “When a search is electronic, the location of the search carries less weight.”385 (2) “[N]o warrant was 

required.”386 (3) “I agree an individual loses some expectation of privacy in 

an electronic communication after it has reached its recipient.”387 “When this 

limited expectation of privacy in delivered electronic communications is 

weighed against the Government’s interest in acquiring foreign intelligence 

information through Section 702, the Government’s interest prevails.”388

The case against the other three defendants was dismissed on the government’s motion.389

Aws Mohammed Younis al-Jayab

Aws Mohammed Younis al-Jayab received a section 702 notice on April 8, 

2016,390 in a material-support case filed in the Northern District of Illinois on 

March 17.391 Later transferred to the Northern District of Illinois392 was a 

January 14 indictment filed in the Eastern District of California for failure to 

disclose travel to Syria to recruit terrorists.393

383. Mohammad, 339 F. Supp. 3d at 730, 746–53; Docket Sheet, Mohammad, No. 3:15-

cr-358 (N.D. Ohio Sept. 30, 2015).

The motion had been joined by the other two defendants who received section 702 notices. Mohammad, 339 F. Supp. 3d at 730 n.1; Motion, Mohammad, No. 3:15-cr-358 (N.D. 

Ohio Oct. 16, 2016), D.E. 160; Motion, id. (Oct. 7, 2016), D.E. 155.

384. Mohammad, 339 F. Supp. 3d at 748–49.

385. Id. at 749.

386. Id. at 750.

387. Id. at 752.

388. Id. at 753.

389. Judgment, United States v. Mohammad, No. 3:15-cr-358 (N.D. Ohio Jan. 22, 2019), 

D.E. 384 (Ibrahim Mohammad); Judgment, id. (Jan. 16, 2019), D.E. 378 (Sultane Roome 

Salim); Judgment, id. (Nov. 9, 2018), D.E. 377 (Asif Ahmed Salim).

390. Notice, United States v. Al-Jayab, No. 1:16-cr-181 (N.D. Ill. Apr. 8, 2016), D.E. 14; 

see Savage, supra note 375.

391. Indictment, Al-Jayab, No. 1:16-cr-181 (N.D. Ill. Mar. 17, 2016), D.E. 1.

392. Docket Sheet, United States v. Al-Jayab, No. 1:18-cr-721 (N.D. Ill. Oct. 22, 2018).

393. Indictment, United States v. Al-Jayab, No. 2:16-cr-8 (E.D. Cal. Jan. 14, 2016), 

D.E. 13.
Foreign Intelligence Surveillance Act Litigation

54 Federal Judicial Center 1/31/2023

On June 28, 2018, Judge Sara L. Ellis held that the section 702 surveillance was constitutional in al-Jayab’s case.394 Warrants are not required for 

surveillance of persons in foreign countries who are not United States persons.395 Judge Ellis found the surveillance a constitutionally reasonable way 

to obtain foreign intelligence information.396

Both cases were resolved by a guilty plea in October.397 Al-Jayab was sentenced to five years in prison on October 31, 2019.398 He was released on 

April 10, 2020.399

Moalin, Mohamud, Doreh, and Nasir

Southern District of California Judge Jeffrey T. Miller denied a new trial motion on November 14, 2013, a motion based in part on postconviction Snowden revelations.400 “Here, when Defendant Basaaly Saeed Moalin used his 

telephone to communicate with third parties, whether in Somalia or the 

United States, he had no legitimate expectation of privacy in the telephone 

numbers dialed.”401

The defendants—also including Mohamed Mohamed Mohamud, Issa 

Doreh, and Ahmed Nasir Taalil Mohamud—were indicted in San Diego late 

in 2010 for sending money to support Al Shabaab in Somalia.402 A jury found 

them guilty on February 22, 2013.403 Sentences ranged from six to eighteen 

years.404 Affirming the convictions in all respects on September 2, 2020, the 

court of appeals concluded

394. Redacted Opinion at 38–64, 84, Al-Jayab, No. 1:16-cr-181 (N.D. Ill. June 28, 2018), 

D.E. 115.

395. Id. at 43–45.

396. Id. at 48–56.

397. Plea Agreement, id. (Oct. 31, 2018, filed Nov. 2, 2018), D.E. 129; see Revised Superseding Information, id. (Nov. 5, 2018), D.E. 131; Superseding Information, id. (Oct. 29, 

2018), D.E. 125.

398. Judgment, id. (Oct. 31, 2019), D.E. 154; Judgment, United States v. Al-Jayab, No. 18-

cr-721 (Oct. 31, 2019), D.E. 31; Transcript at 59, Al-Jayab, No. 1:16-cr-181 (N.D. Ill. Oct. 3, 

2019, filed Oct. 23, 2019), D.E. 153.

399. BOP Locator, supra note 277 (reg. no 74900-097).

400. Amended Opinion, United States v. Moalin, No. 3:10-cr-4246 (S.D. Cal. Nov. 18, 

2013), D.E. 388 [hereinafter Amended S.D. Cal. Moalin Opinion], 2013 WL 6079518; United 

States v. Moalin, 973 F.3d 977, 987–88 (9th Cir. 2020).

401. Amended S.D. Cal. Moalin Opinion, supra note 400, at 12; see Smith v. Maryland, 

442 U.S. 735 (1979); see also Moalin, 973 F.3d at 989–90.

402. Indictment, United States v. Mohamud, No. 3:10-cr-4645 (S.D. Cal. Nov. 19, 2010), 

D.E. 1 (Nasir); Indictment, Moalin, No. 3:10-cr-4246 (S.D. Cal. Oct. 22, 2010), D.E. 1 (Moalin, Mohamud, and Doreh); see Second Superseding Indictment, id. (June 8, 2012), D.E. 147 

(all four defendants); Superseding Indictment, id. (Jan. 14, 2011), D.E. 38 (same); Moalin, 

973 F.3d at 985.

403. Jury Verdict, Moalin, No. 3:10-cr-4246 (S.D. Cal. Feb. 22, 2013), D.E. 303; Moalin, 

973 F.3d at 987.

404. Judgment, Moalin, No. 3:10-cr-4246 (S.D. Cal. Jan. 31, 2014), D.E. 431 (six years for 

Nasir); Judgment, id. (Nov. 21, 2013), D.E. 394 (ten years for Doreh); Judgment, id. (Nov. 

12, 2013), D.E. 393 (thirteen years for Mohamud); Judgment, id. (Nov. 22, 2013), D.E. 392 

(eighteen years for Moalin); see also BOP Locator, supra note 277 (noting releases from pris-
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 55

that the government may have violated the Fourth Amendment and did 

violate the Foreign Intelligence Surveillance Act (“FISA”) when it collected 

the telephony metadata of millions of Americans, including at least one of 

the defendants, but suppression is not warranted on the facts of this case. 

Additionally, we confirm that the Fourth Amendment requires notice to a 

criminal defendant when the prosecution intends to enter into evidence or 

otherwise use or disclose information obtained or derived from surveillance 

of that defendant conducted pursuant to the government’s foreign intelligence authorities. We do not decide whether the government failed to provide any required notice in this case because the lack of such notice did not 

prejudice the defendants.405

Summary of Section 702 Notice Cases

So far, no court has found a constitutional infirmity in section 702 surveillance. All of the section 702 notice cases described here are included in a list 

maintained by the University of Michigan Law School’s Civil Rights Litigation Clearinghouse, a list which also includes a couple of other cases that did 

not involve section 702 litigation.

406

President Obama’s Reforms

On December 12, 2013, the President’s Review Group on Intelligence and 

Communications Technologies issued a 303-page report presenting forty-six

recommendations for surveillance reform.

407 One month later, Judge Bates, 

who served as Director of the Administrative Office of the U.S. Courts from 

July 1, 2013, to January 5, 2015, submitted to Congress a report on behalf of 

on on February 22, 2016, for Nasir, reg. no. 23137-298; July 18, 2019, for Doreh, reg. no. 

22869-298; November 29, 2021, for Mohamud, reg. no. 22868-298; and noting a release date 

of March 2, 2026, for Moalin, reg. no. 22855-298).

405. Moalin, 973 F.3d at 984; see Devlin Barrett, Court: Effort That Collected Phone Data 

Was Illegal, Wash. Post, Sept. 3, 2019, at A2; Kristina Davis, NSA Program Illegal, but S.D. 

Convictions Upheld, San Diego Union-Trib., Sept. 3, 2020, at A1.

In 2021, Judge Miller denied Moalin’s motions for compassionate release. Opinion, 

Moalin, No. 3:10-cv-4246 (S.D. Cal. Sept. 29, 2021), D.E. 554; Opinion, id. (Aug. 4, 2021), 

D.E. 553, 2021 WL 3419417.

406. Civil Rights Litigation Clearinghouse, www.clearinghouse.net/results.php?

searchSpecialCollection=55; see Docket Sheet, United States v. Daher, No. 2:18-cr-20559-2 

(E.D. Mich. Aug. 14, 2018); Docket Sheet, United States v. Gartenlaub, No. 8:14-cr-173 

(C.D. Cal. Oct. 23, 2014).

407. Liberty and Security in a Changing World (Dec. 12, 2013), obamawhitehouse.

archives.gov/sites/default/files/docs/2013-12-12_rg_final_report.pdf; see Donohue, 

supra note 159, at 611–12; Siobhan Gorman, Panel Pushes Revamp of NSA, Wall St. J., Dec. 

13, 2013, at A1; Siobhan Gorman, Devlin Barrett & Carol E. Lee, Obama Urged to Curb NSA 

Spying, Wall St. J., Dec. 19, 2013, at A1; Ellen Nakashima & Ashkan Soltani, Panel Urges New 

Curbs on Surveillance by U.S., Wash. Post, Dec. 19, 2013, at A1; David E. Sanger, Obama 

Panel Said to Urge N.S.A. Curbs, N.Y. Times, Dec. 13, 2013, at A1; David E. Sanger & Charlie 

Savage, Obama Is Urged to Sharply Curb N.S.A. Data Mining, N.Y. Times, Dec. 19, 2013, at 

A1.
Foreign Intelligence Surveillance Act Litigation

56 Federal Judicial Center 1/31/2023

the judiciary urging moderation in any reforms that would substantially 

change the work of the FISA court.408

At a televised address to the Justice Department on January 17, 2014, 

President Obama announced that he was “ordering a transition that will end 

the Section 215 Bulk metadata program as it currently exists, and establish a 

mechanism that preserves the capabilities we need without the government 

holding this bulk metadata.”409

Among the ordered changes, the President decided that the NSA’s extensive database of who has called whom now “can be queried only after a judicial finding or in the case of a true emergency.”410 On February 6, the Director of National Intelligence reported that the FISA court had approved such 

a change in procedures.411

President Obama ordered the attorney general and the intelligence 

community to present by March 28 alternatives to the NSA’s maintaining the 

metadata database.412 On March 25, newspapers reported that a proposal in 

development would cease the government’s bulk harvesting of metadata and 

rely on individual orders for metadata customarily held by telecommunication companies.413 In the event, “the deadline came and went, and the program continued.”414

The Freedom Act

The House of Representatives’ Permanent Select Committee on Intelligence 

proposed to the House on May 8, 2014, a Uniting and Strengthening Ameri408. Comments of the Judiciary on Proposals Regarding the Foreign Intelligence Surveillance Act, Jan. 10, 2014, www.feinstein.senate.gov/public/index.cfm/files/serve/?File_id= 

70bed5e2-c28f-4f3c-ad94-7cb6d647f328; Letter from John D. Bates to Senator Dianne 

Feinstein, Jan. 13, 2014, www.feinstein.senate.gov/public/index.cfm/files/serve/?File_id= 

3bcc8fbc-d13c-4f95-8aa9-09887d6e90ed; see Peter Baker & Charlie Savage, Obama to Place 

Some Restraints on Surveillance, N.Y. Times, Jan. 15, 2014, at A1; Ellen Nakashima, Judges 

Oppose Secret-Court Changes, Wash. Post, Jan. 15, 2014, at A3; Mike Scarcella, FISA Judges’ 

Concerns, Nat’l L.J., Jan. 20, 2014, at 16; see also FJC Biographical Directory, supra note 8.

409. Remarks by the President on Review of Signals Intelligence, Jan. 17, 2014 

[hereinafter President’s Jan. 17, 2004, Remarks], www.whitehouse.gov/the-press-office/2014/

01/17/remarks-president-review-signals-intelligence; see ACLU v. Clapper, 785 F.3d 787, 798 

(2d Cir. 2015); see also Anita Kumar, Days Later, Obama’s Speech on Surveillance Perplexes, 

Miami Herald, Jan. 23, 2014, at 3A; Mark Landler & Charlie Savage, Obama Outlines 

Calibrated Curbs on Phone Spying, N.Y. Times, Jan. 18, 2014, at A1; Carol E. Lee & Siobhan 

Gorman, Obama Shakes Up Surveillance Program, Wall St. J., Jan. 18, 2014, at A1; Ellen 

Nakashima & Greg Miller, Obama Moves to Rein in Surveillance: Orders Limits on Phone 

Data, Wash. Post, Jan. 18, 2014, at A1.

410. President’s Jan. 17, 2004, Remarks, supra note 409.

411. FISC Approves Government’s Request to Modify Telephony Metadata Program, IC 

on the Record (Feb. 6, 2014), icontherecord.tumblr.com/post/75842023946/test.

412. President’s Jan. 17, 2004, Remarks, supra note 409.

413. Ellen Nakashima, Bill Will Target NSA Phone Program, Wash. Post, Mar. 25, 2014, 

at A3; Charlie Savage, Obama Will Seek Limits for N.S.A. on Call Records, N.Y. Times, Mar. 

25, 2014, at A1; see Andrews et al., supra note 137, at 203.

414. Donohue, supra note 11, at 51.
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 57

ca by Fulfilling Rights and Ending Eavesdropping, Dragnet Collection, and 

Online Monitoring Act (USA FREEDOM Act), which would modify the 

NSA’s surveillance authority.415 Judge Bates, on May 13, asked that the committee’s report include another letter by him on behalf of the judiciary recommending that Congress not impose on the FISA court “a permanent institution of a public advocate or impose[e] an adversarial process in the general 

run of cases” or create a requirement for public summaries of secret FISAcourt opinions, because summaries in the absence of access to the originals 

could be misleading.416 Judge Bates expressed similar sentiments in an August 5 letter to Senate Judiciary Committee Chair Patrick Leahy, explaining 

that while occasional amicus curiae participation in FISA-court proceedings 

could be helpful, a special advocate would interfere with the court’s special ex 

parte relationship with the government.417

415. 160 Cong. Rec. D486 (May 8, 2014); see ACLU v. Clapper, 785 F.3d 787, 799 (2d Cir. 

2015); Greenberg, supra note 29, at 261; Ellen Nakashima, NSA Reform Measure to Move to 

House Floor, Wash. Post, May 9, 2014, at A3; Charlie Savage, House Panel Passes Bill to Replace N.S.A. Program, N.Y. Times, May 9, 2014, at A17; see also Savage, supra note 16, at 600 

(reporting that the initial spell-out for the acronym was created by a Republican congressional staffer and two high school friends). See generally Thomas Massie, Opening Remarks, 

Cato Conference, supra note 1.

416. Letter from John D. Bates to Representative Mike Rogers, May 13, 2014, in

Committee Report for H.R. 3361, www.congress.gov/113/crpt/hrpt452/CRPT-113hrpt452-pt2.

pdf (page 41). See generally Lawfare Podcast: The Case For and Against a FISA Advocate

(episode 79, June 14, 2014), www.lawfareblog.com/2014/06/lawfare-podcast-episode-79-thecase-for-and-against-a-fisa-advocate/.

417. Letter from John D. Bates to Senator Patrick J. Leahy, Aug. 5, 2014, online.wsj.com/ 

public/resources/documents/Leahyletter.pdf; see Siobhan Gorman, Federal Judge Blasts Bill 

to Revamp Surveillance, Wall St. J., Aug. 7, 2014, at A2.

On August 14, 2014, the Ninth Circuit’s Chief Circuit Judge Alex Kozinski, an ex officio

member of the Judicial Conference of the United States, wrote to Senator Leahy to state, “I 

was not aware of Director Bates’s letter before it was sent, nor did I receive a copy afterwards. I first learned of the letter this past weekend when a copy was sent to me by a distinguished law professor.” Letter from Alex Kozinski to Senator Patrick J. Leahy, Aug. 14, 2014, 

images.politico.com/global/2014/08/20/kozinski_to_leahy.html (archived at web.archive.org/web/

20170226214128/http://images.politico.com/global/2014/08/20/kozinski_to_leahy.html). Judge 

Kozinski concluded, “I have serious doubts about the views expressed by Judge Bates. Insofar as Judge Bates’s August 5th letter may be understood as reflecting my views, I advise the 

Committee that this is not so.” Id. Judge Kozinski retired on December 18, 2017. FJC Biographical Directory, supra note 8.

Retired District of Massachusetts Judge Nancy Gertner opposed Judge Bates’s letter in a 

National Law Journal opinion essay on September 22. Nancy Gertner, Opinion Essay, One 

Voice on Surveillance Doesn’t Make a Chorus, Nat’l L.J., Sept. 22, 2014, at 34.

On November 18, retired Southern District of New York Judge Michael B. Mukasey, who 

also was President George W. Bush’s third attorney general, co-authored with Michael V. 

Hayden, a former director of both the NSA and the CIA, a newspaper column opposing the 

USA FREEDOM Act. Michael V. Hayden & Michael B. Mukasey, Opinion Essay, NSA Reform That Only ISIS Could Love, Wall St. J., Nov. 18, 2014, at A19; see Ellen Nakashima & Ed 

O’Keefe, NSA Reform Measure’s Shifting Fortunes, Wash. Post, Nov. 20, 2014, at A2.
Foreign Intelligence Surveillance Act Litigation

58 Federal Judicial Center 1/31/2023

President Obama signed the USA FREEDOM Act on June 2, 2015.418 By 

then, the acronym stood for “Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring,” which 

changed what the letters EDO stood for.

The new act ended bulk metadata surveillance by the government, and 

the act required telecommunication companies to maintain metadata for at 

least eighteen months.419 The act also required the FISA court and the FISA 

court of review to jointly appoint at least five persons to act as occasional 

amici curiae in cases deemed by the courts to involve novel or significant interpretations of the law.420

The new act provided for a delay of 180 days, from June 2 until November 29, before curtailment of bulk metadata surveillance.

421 On June 17, FISA 

Court Judge Saylor determined that although bulk metadata surveillance authority had sunsetted on June 1, the Freedom Act’s establishment of December 15, 2019, as a new sunset date revived bulk surveillance authority.422 On 

June 29, 2015, Judge Mosman agreed with Judge Saylor and disagreed with 

the Second Circuit conclusion that bulk metadata collection was not authorized by FISA.423

On October 29, 2015, the Second Circuit’s court of appeals agreed that 

Congress had authorized bulk collection for the Freedom Act’s first 180 days, 

418. Pub. L. No. 114-23, 129 Stat. 268 (2015) [hereinafter Freedom Act]; see Klayman v. 

NSA, 280 F. Supp. 3d 39, 47 (D.D.C. 2017). See generally Donohue, supra note 11, at 51–53; 

Mondale et al., supra note 1, at 2268–69, 2273–75; Savage, supra note 16, at 616–20.

419. See Mike DeBonis, Senate Vote Rolls Back a Post-9/11 Spy Power, Wash. Post, June 

3, 2015, at A1; Ellen Nakashima, Two Years After Snowden’s Leaks, Law Marks a Milestone, 

Wash. Post, June 3, 2015, at A2; Jennifer Steinhauer & Jonathan Weisman, U.S. Surveillance 

in Place Since 9/11 Is Sharply Limited, N.Y. Times, June 3, 2015, at A1.

420. Freedom Act, § 401; see 50 U.S.C. § 1803(i) (2020).

421. Pub. L. No. 114-23, Freedom Act § 109(a), 50 U.S.C. § 1861 note; Opinion at 10, In 

re Tangible Things, Nos. BR 15-75 and Misc. 15-1 (FISA Ct. June 29, 2015) [hereinafter 

Mosman Freedom Act Opinion], www.fisc.uscourts.gov/sites/default/files/BR%2015-75%20

Misc%2015-01%20Opinion%20and%20Order.pdf, 2015 WL 5637562.

422 Opinion, In re Tangible Things, Nos. BR 15-77 and BR 15-78 (FISA Ct. June 17, 

2015), www.fisc.uscourts.gov/sites/default/files/BR%2015-77%2015-78%20Memorandum%20

Opinion.pdf.

423. Mosman Freedom Act Opinion, supra note 421; ACLU v. Clapper, 804 F.3d 617, 

621 (2d Cir. 2015); see Mondale et al., supra note 1, at 2273, 2302–03 (noting that FISAcourt proceedings are less adversarial than proceedings before the circuits’ courts of appeals); Charlie Savage, Surveillance Court Rules That N.S.A. Can Resume Bulk Data Collection, N.Y. Times, July 1, 2015, at A14; see also Order, Tangible Things, No. BR 15-75 (FISA 

Ct. June 29, 2015), www.fisc.uscourts.gov/sites/default/files/BR%2015-75%20Primary%20

Order%20%28redacted%29%20.pdf, 2015 WL 5662641 (surveillance order, a companion to 

Judge Mosman’s opinion).
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 59

as a transition period.424 The court also declined to enjoin bulk collection 

during the transition period on constitutional grounds.425

We need not, and should not, decide such momentous constitutional issues 

based on a request for such narrow and temporary relief. To do so would 

take more time than the brief transition period remaining for the telephone 

metadata program, at which point, any ruling on the constitutionality of the 

demised program would be fruitless.426

On November 24, Judge Mosman determined that metadata collected before November 29 could be retained only pursuant to evidence preservation 

obligations in the warrantless wiretap litigation in the Northern District of 

California and for limited data-quality purposes to expire on February 29, 

2016.427

A key document leaked in 2013 by Edward Snowden and made public by 

journalists was an April 25, 2013, secondary FISA-court order issued by 

Judge Vinson requiring Verizon Business Network Services to continue to 

provide “all call detail records or ‘telephony metadata’ created by Verizon for 

communications (i) between the United States and abroad; or (ii) wholly 

within the United States, including local telephone calls.”428 On August 28, 

2015, the U.S. Court of Appeals for the District of Columbia Circuit reversed 

Judge Leon’s injunction against bulk surveillance for lack of standing because 

“plaintiffs are Verizon Wireless subscribers and not Verizon Business Network Services subscribers. Thus, the facts marshaled by plaintiffs do not fully 

establish that their own metadata was ever collected.”429 Although Circuit 

424. ACLU, 804 F.3d at 625–26; see Charlie Savage, No Early End to Collection of Records 

by the N.S.A., N.Y. Times, Oct. 30, 2015, at A16.

“Such a transitional period would likely have been appropriate even had we held § 215 

unconstitutional in our earlier decision in the instant matter.” ACLU, 804 F.3d at 626.

425. ACLU, 804 F.3d at 623–25.

426. Id. at 626 (footnote omitted).

427. Opinion, In re Tangible Things, No. BR 15-99 (FISA Ct. Nov. 24, 2015), www.fisc.

uscourts.gov/sites/default/files/BR%2015-99%20Opinion%20and%20Order.pdf, 2015 WL 

12696366; see Order, id. (Sept. 17, 2015), www.fisc.uscourts.gov/sites/default/files/BR%2015-99

%20Order%20Appointing%20Amicus%20Curiae.pdf (order appointing amicus curiae); see also

Ellen Nakashima, NSA’s Bulk Collection of Americans’ Phone Records to End, Wash. Post, 

Nov. 28, 2015, at A2; Damian Paletta, NSA Won’t Extend Phone Program, Wall St. J., Nov. 

28, 2015, at A3.

428. Secondary Order at 2, In re Tangible Things, No. BR 13-80 (FISA Ct. Apr. 25, 2013), 

www.theguardian.com/world/interactive/2013/jun/06/verizon-telephone-data-court-order; 

Klayman v. NSA, 280 F. Supp. 3d 39, 45 (D.D.C. 2017); see Savage, supra note 16, at 168.

429. Obama v. Klayman, 800 F.3d 559, 563 (D.C. Cir. 2015) (Judge Janice Rogers 

Brown); see id. at 565 (Judge Williams: “plaintiffs are subscribers of Verizon Wireless, not of 

Verizon Business Network Services, Inc.—the sole provider that the government has 

acknowledged targeting for bulk collection.”); Klayman, 280 F. Supp. 3d at 49; Docket 

Sheets, Klayman v. Obama, No. 14-5016 and 14-5017 (D.C. Cir. Jan. 15, 2014) (crossappeals); Docket Sheets, Klayman v. Obama, Nos. 14-5004 and 14-5005 (D.C. Cir. Jan. 9, 

2014) (appeals); Oral Argument, id. (Nov. 4, 2014), www.cadc.uscourts.gov/recordings/

recordings2015.nsf/B35F13E83B42FB8485257D860062C672/$file/14-5004.mp3 (audio recording); see also Devlin Barrett, Panel Rules Collection of Phone Data Legal, Wall St. J., Aug. 29, 
Foreign Intelligence Surveillance Act Litigation

60 Federal Judicial Center 1/31/2023

Judge David Sentelle would have ordered the case dismissed, Circuit Judges 

Janice Rogers Brown and Stephen Williams agreed to remand the case to 

Judge Leon for a possible standing cure.430

Following amendment of the complaint to include Verizon Business customers,431 Judge Leon again enjoined the surveillance program on November 

9, 2015.

432 On November 16, the court of appeals stayed the injunction pending another appeal,433 and the court of appeals vacated Judge Leon’s injunction as moot on April 4, 2016.434 Judge Leon determined on November 21, 

2017, that the claims the plaintiffs had standing to pursue were mooted by 

the Freedom Act.435 On March 5, 2018, Judge Leon dismissed a June 5, 2017, 

complaint of widespread improper government surveillance filed by Larry 

Klayman and Dennis Montgomery.

436 On February 5, 2019, the court of appeals affirmed Judge Leon’s 2017 and 2018 rulings.437

Senator Rand Paul had filed an action in the district court for the District 

of Columbia challenging bulk surveillance on February 18, 2014.438 Judge Leon dismissed Paul’s action in 2019 for want of prosecution.439

2015, at A4; Ellen Nakashima, Court Deals Blow to NSA Call Records Suit, Wash. Post, Aug. 

29, 2015, at A2; James Risen, N.S.A. Phone Program Can Go On, Court Says, N.Y. Times, 

Aug. 29, 2015, at A13.

430. Obama, 800 F.3d 559; see Klayman, 280 F. Supp. 3d at 49.

Judge Brown retired on August 31, 2017, and Judge Williams died on August 7, 2020. 

FJC Biographical Directory, supra note 8.

431. Fourth Amendment Complaint, Klayman v. Obama, No. 1:13-cv-851 (D.D.C. Sept. 

8, 2015), D.E. 145-1.

432. Klayman v. Obama, 142 F. Supp. 3d 172 (D.D.C. 2015); Klayman, 280 F. Supp. 3d at 

49; see Spencer S. Hsu, Judge Again Hits NSA Program, Wash. Post, Nov. 10, 2015, at A7; 

Charlie Savage, Judge Curbs N.S.A. Data Collection, N.Y. Times, Nov. 10, 2015, at A17.

433. Order, Klayman v. Obama, No. 15-5307 (D.C. Cir. Nov. 16, 2015); Klayman, 280 F. 

Supp. 3d at 49; see Klayman v. Obama, 805 F.3d 1148 (2015) (Circuit Judge Brett M. Kavanaugh concurring in the denial of rehearing en banc).

434. Order, Klayman, No. 15-5307 (D.C. Cir. Apr. 4, 2016); Klayman, 280 F. Supp. 3d 

at 49.

435. Klayman, 280 F. Supp. 3d at 50–58; see Opinion, Klayman v. Obama, No. 1:14-cv-92 

(D.D.C. Mar. 28, 2018), D.E. 55 (dismissing the third class action, observing that accusations 

that the judge had been coopted by the Deep State was no substitute for a well-pleaded complaint).

436. Montgomery v. Comey, 300 F. Supp. 3d 158 (D.D.C. 2018); see Complaint, Montgomery v. Comey, No. 1:17-cv-1074 (D.D.C. June 5, 2017), D.E. 1; Klayman, 280 F. Supp. 3d 

at 42 n.1.

437. Klayman v. Obama, 759 F. App’x 1 (D.C. Cir. 2019) (2017 ruling); Montgomery v. 

Comey, 752 F. App’x 3 (D.C. Cir. 2019) (2018 ruling).

438. Complaint, Paul v. Obama, No. 1:14-cv-262 (D.D.C. Feb. 18, 2014), D.E. 3; Amended Complaint, id. (Mar. 26, 2014), D.E. 17; see also Dana Milbank, In Rand Paul’s NSA Sideshow, a Plaintiffs Tiff, Wash. Post, Feb. 20, 2014, at A2.

The court of appeals dismissed as frivolous appeals from denials of intervention by a pro 

se litigant in Senator Paul’s case and Larry Klayman’s cases. Orders, Nos. 14-5207 to 14-5209 

and 14-5212 (D.C. Cir. Mar. 4, 2015).

439. Order, Paul, No. 1:14-cv-262 (D.D.C. Feb. 7, 2019), D.E. 39.
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 61

Also because of Congress’s passing the Freedom Act, the Ninth Circuit’s 

court of appeals remanded the District of Idaho case back to Judge Winmill 

on March 22, 2016.440 The plaintiff did not pursue the case further.441

Section 402(a) of the Freedom Act requires the declassification and public release of any opinion by the FISA courts that “includes a significant construction or interpretation of any provision of law.”442 The Electronic Frontier Foundation filed an April 19, 2016, federal complaint to enforce a March

7 FOIA request for FISA-court opinions and orders covered by section 

402(a).443 Eighty-five redacted opinions and orders were produced:444 eighteen on June 13, 2017,445 twenty-three on September 25, 2017,

446 thirteen on 

January 30, 2018,

447 and thirty-one on August 20, 2018.448 Among the redactions were dates of issue and case numbers. Northern District of California 

Judge Haywood S. Gilliam, Jr., determined on March 26, 2019, that an additional six court rulings were properly withheld in full.449 A stipulated payment of attorney fees and costs brought the case to a close.450

440. Smith v. Obama, 816 F.3d 1239 (9th Cir. 2016); see Oral Argument, Smith v. 

Obama, No. 14-35555 (9th Cir. Dec. 8, 2014), www.ca9.uscourts.gov/media/video/?20141208/

14-35555/ (video recording).

441. Docket Sheet, Smith v. Obama, No. 2:13-cv-257 (June 12, 2013) (April 14, 2016, minute order, D.E. 43, noting that the plaintiff was given two weeks to express an intention to 

pursue the case).

442. 50 U.S.C. § 1872(a) (2020).

443. Complaint, Electronic Frontier Found. v. U.S. Dep’t of Just., No. 4:16-cv-2041 (N.D. 

Cal. Apr. 19, 2016), D.E. 1; see Significant FISC Opinions, www.eff.org/cases/significant-fiscopinions (the plaintiff’s website).

444. See Release of FISA Title IV and V Documents, icontherecord.tumblr.com/post/

165800143933/release-of-fisa-title-iv-and-v-documents.

445. FISC Opinions on Sec. 702, www.eff.org/document/fisc-opinions-sec-702; Status 

Report, Electronic Frontier Found., No. 4:16-cv-2041 (N.D. Cal. June 21, 2017), D.E. 49; see

Additional Release of FISA Section 702 Documents, icontherecord.tumblr.com/post/

161824569523/additional-release-of-fisa-section-702-documents.

446. Update: EFF Lawsuit Results in Release of More FISC Opinions, www.eff.org/

deeplinks/2017/09/update-eff-lawsuit-results-release-more-fisc-opinions; Status Report, Electronic Frontier Found., No. 4:16-cv-2041 (N.D. Cal. Sept. 28, 2017), D.E. 53.

447. Newly Released Surveillance Orders Show That Even with Individualized Court 

Oversight, Spying Powers Are Misused, www.eff.org/deeplinks/2018/02/newly-releasedsurveillance-orders-show-even-individualized-court-oversight-spying; see Status Report, 

Electronic Frontier Found., No. 4:16-cv-2041 (N.D. Cal. Jan. 8, 2018), D.E. 57.

448. New Surveillance Court Orders Show That Even Judges Have Difficulty Understanding and Limiting Government Spying, www.eff.org/deeplinks/2018/09/new-surveillancecourt-orders-show-even-judges-have-difficulty-understanding-and; see Status Report, Electronic Frontier Found., No. 4:16-cv-2041 (N.D. Cal. June 7, 2018), D.E. 62.

449. Electronic Frontier Found. v. U.S. Dep’t of Just., 376 F. Supp. 3d 1023 (N.D. Cal. 

2019).

450. Stipulated Dismissal, Electronic Frontier Found., No. 4:16-cv-2041 (N.D. Cal. July 3, 

2019), D.E. 82; Joint Status Report, id. (June 10, 2019), D.E. 81.
Foreign Intelligence Surveillance Act Litigation

62 Federal Judicial Center 1/31/2023

In 2020, the government allowed authorization to lapse for some surveillance activities that began as part of Stellar Wind and came to be authorized 

by the Freedom Act.451

Additional Rulings

On August 6, 2015, Western District of Texas Judge Kathleen Cardone 

stayed and administratively closed a February 18, 2014, action filed in El 

Paso, noting the plaintiffs’ heavy reliance on pending appeals in other circuits for authority.452

An attorney’s pro se complaint filed in the Western District of Pennsylvania on June 2, 2014, alleged that “[n]ow, for the first time in history, a 

small group of persons within the United States government is attempting to 

seize all of the private, electronic communications of the American citizenry, 

with little or no independent review.”453 Judge Cathy Bissoon dismissed the 

complaint, observing that “courts have refused to find standing based on naked averments that an individual’s communications must have been seized 

because the government operates a data collection program and the individual utilized the service of a large telecommunications company or companies.”454 The court of appeals determined that the plaintiff “alleged a program 

of government surveillance that, though universal in scope, is unmistakenly 

personal in the purported harm.”455 On remand, Judge Bissoon concluded, 

“Defendants have shown, by a preponderance of the evidence, that the government did not engage in dragnet-type collection activity . . . .”456 A differ451. See Devlin Barrett & Ellen Nakashima, Democrats Wary of Administration Bid to 

Renew NSA Surveillance Program, Wash. Post, Sept. 19, 2019, at A19; Ellen Nakashima, NSA 

Halts Program Using Phone Logs After Value Doubted, Wash. Post, Mar. 6, 2019, at A6; Andrew Restuccia & Dustin Volz, Surveillance Powers Are Nearing Expiration, Wall St. J., Mar. 

5, 2020, at A3; Charlie Savage, McConnell Appears Set to Let Long-Debated Surveillance Bill 

Wither, N.Y. Times, Aug. 15, 2020, at A16; Charlie Savage, N.S.A. Has Ended Gleaning of 

Data from U.S. Phones, N.Y. Times, Mar. 5, 2019, at A1; Aruna Viswanatha & Dustin Volz, 

Surveillance Law’s Lapse Limits Terror Probes, Justice Official Says, Wall St. J., Apr. 13, 2020, 

at A3; Dustin Volz, NSA Eyes Killing Call Monitoring Program, Wall St. J., Mar. 5, 2019, at 

A6; Dustin Volz, NSA Urges Dropping Call-Data Collection, Wall St. J., Apr. 25, 2019, at A1.

452. Order, Perez v. Clapper, No. 3:14-cv-50 (W.D. Tex. Aug. 6, 2015), D.E. 79; see Third 

Amended Complaint, id. (Oct. 31, 2014), D.E. 26; Second Amended Complaint, id. (Sept. 12, 

2014), D.E. 21; Amended Complaint, id. (May 27, 2014), D.E. 12; Complaint, id. (Feb. 5, 

2014), D.E. 1.

453. Complaint at 5, Schuchardt v. Obama, No. 2:14-cv-705 (W.D. Pa. June 2, 2014), 

D.E. 1; Schuchardt v. President, 839 F.3d 336, 340 (3d Cir. 2016); see Second Amended 

Complaint, Schuchardt, No. 2:14-cv-705 (W.D. Pa. Nov. 24, 2014), D.E. 19; Amended Complaint, id. (Sept. 1, 2014), D.E. 9.

454. Opinion at 10, Schuchardt, No. 2:14-cv-705 (W.D. Pa. Sept. 30, 2015), D.E. 28, 2015 

WL 5732117; Schuchardt, 839 F.3d at 342.

455. Schuchardt, 839 F.3d at 346.

456. Opinion at 2, Schuchardt, No. 2:14-cv-705 (W.D. Pa. Feb. 4, 2019), D.E. 77, 2019 

WL 426482.
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 63

ent panel of the court of appeals concluded on April 23, 2020, that Judge Bissoon did not abuse her discretion.457

Judge Hogan issued an opinion on November 6, 2015, which was publicly released in redacted form on April 19, 2016, that blessed law enforcement 

searches of foreign intelligence surveillance collected pursuant to section 

702.458 FISA section 101 defines minimization procedures to include “the retention and dissemination of information that is evidence of a crime which 

has been, is being, or is about to be committed and that is to be retained or 

disseminated for law enforcement purposes.”459 Judge Hogan reasoned,

It would be a strained reading of the definition of minimization procedures 

to permit FBI personnel to retain and disseminate Section 702 information 

constituting evidence of a crime implicating a United States person for law 

enforcement purposes, but to prohibit them from querying Section 702 data 

in a manner designed to identify such evidence.460

The FISA court of review issued an opinion on April 14, 2016,

461 which 

was made public in redacted form on August 22,462 that validated an interpretation of pen-register authority by FISA-court judges that differed from 

the consensus of judges in the district courts.463 A pen register is a surveillance device that records the digits entered when initiating a telephone call.464

Digits entered after a call is established are post-cut-through digits, which 

might (1) be entered to complete the intended call if the first digits merely 

establish access to a long-distance service and additional digits are required 

to establish access to the intended recipient of the call or (2) be communication content, such as a password, account number, or instruction.465 The 

FISA court of review determined that “a court can authorize the use of a pen 

register to collect post-cut-through digits, as long as the collecting agency 

takes all reasonably available steps to minimize the collection of content in457. Schuchardt v. President, 802 F. App’x 69 (3d Cir.), cert. denied, 592 U.S. ___, 141 S. 

Ct. 367 (2020).

458. Opinion, ___, No. ___ (FISA Ct. Nov. 6, 2015) [hereinafter Nov. 6, 2015, Hogan 

Opinion], as redacted, www.dni.gov/files/documents/20151106-702Mem_Opinion_Order_

for_Public_Release.pdf; see Ellen Nakashima, Court Rejects Assessment of FBI Use of Surveillance Data, Wash. Post, Apr. 21, 2016, at A3; Charlie Savage, Judge Rejects Challenge to 

Searches of Emails Gathered Without a Warrant, N.Y. Times, Apr. 20, 2016, at A7; cf.

Donohue, supra note 29, at 265 (“The best example of practice beyond the pale is in the query of Section 702 data using U.S. person information for potential violations of criminal 

law.”).

459. 50 U.S.C. §1801(h)(3) (2020).

460. Nov. 6, 2015, Hogan Opinion, supra note 458, at 33.

461. In re Certified Question of Law, 858 F.3d 591 (FISA Ct. Rev. 2016) (redacted).

462. Release of FISC Question of Law & FISCR Opinion, icontherecord.tumblr.com/post/

149331352323/release-of-fisc-question-of-law-fiscr-opinion.

463. Certification of Question at 9–10, In re A U.S. Person, No. PR/TT 2016-___ (FISA 

Ct. Feb. 12, 2016) (redacted), www.fisc.uscourts.gov/sites/default/files/PCTD%20FISC-R%20

Certification%20Redactions%2020160818%20pdf.pdf.

464. 18 U.S.C. § 3127(3).

465. E.g., In re Pen Register and Trap and Trace Device or Process, 411 F. Supp. 2d 816, 

818 (S.D. Tex. 2006).
Foreign Intelligence Surveillance Act Litigation

64 Federal Judicial Center 1/31/2023

formation and is prohibited from making use of any content information 

that may be collected.”466

The question came to the court of review as a certified question of law 

from Presiding FISA Court Judge Hogan on February 12, following a discussion of the issue by the FISA-court judges at their semiannual conference in 

October 2015.467

Following an extensive review of compliance, Judge Collyer approved 

section 702 certifications on April 26, 2017, in an opinion that began with a 

recognition of violations brought to the court’s attention in 2016 and 2017.468

On October 24, 2016, the government orally apprised the Court of significant noncompliance with the NSA’s minimization procedures involving 

queries of data acquired under Section 702 using U.S. person identifiers. 

The full scope of non-compliant querying practices had not been previously 

disclosed to the Court. . . .

On January 3, 2017, the government made a further submission describing its efforts to ascertain the scope and causes of those compliance 

problems and discussing potential solutions to them. The Court was not 

satisfied that the government had sufficiently ascertained the scope of the 

compliance problems or developed and implemented adequate solutions for 

them and communicated a number of questions and concerns to the government.469

On April 11, 2019, Presiding Judge Collyer denied

a motion for appointment as amicus curiae and for leave to file an amicus 

curiae brief to assist the Court in deciding whether the appointment of Matthew Whitaker as Acting Attorney General was unlawful, such that he could 

not properly act as Attorney General pursuant to the Foreign Intelligence 

Surveillance Act.470

Judge Collyer observed that by the time of her ruling William P. Barr had 

been confirmed as attorney general and “[t]he government has not relied on 

any action taken by Mr. Whitaker as the Acting Attorney General in any 

submission to the Court.”471

The FISA Amendments Reauthorization Act of 2017 added to section 

702 a new subsection (f) regulating queries of surveillance data collected pur466. Certified Question, 858 F.3d at 598.

467. Certification of Question, supra note 463, at 5.

468. Opinion, ___, No. ___ (FISA Ct. Apr. 26, 2017) [hereinafter Apr. 26, 2017, Collyer 

Opinion], www.dni.gov/files/documents/icotr/51117/2016_Cert_FISC_Memo_Opin_Order_

Apr_2017.pdf; see Tim Johnson, Secret Court Rebukes NSA for Illegal Surveillance of U.S. 

Citizens, Miami Herald, May 27, 2017, at 16A.

469. Apr. 26, 2017, Collyer Opinion, supra note 468, at 4–5.

470. Order, In re Appointment of Goldstein, No. Misc. 18-4 (FISA Ct. Apr. 11, 2019)

[hereinafter Goldstein Order], www.fisc.uscourts.gov/sites/default/files/Misc%2018-04%20

Order%20190411.pdf; see Motion, id. (Dec. 11, 2018), www.fisc.uscourts.gov/sites/default/

files/FISC%20Misc%2018-04%20Motion%20of%20Thomas%20C.%20Goldstein%20181211.

pdf.

471. Goldstein Order, supra note 470, at 1.
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 65

suant to FISA.472 On July 12, 2019, the FISA court of review agreed with FISA 

Court Judge James E. Boasberg, of the district court for the District of Columbia, that the government was not adequately memorializing whether 

query terms were United States persons, and the court ordered the government to revise its procedures.473

On July 16, 2013, a collection of eighteen organizations, including the 

First Unitarian Church of Los Angeles, Greenpeace, the California Association of Federal Firearms Licensees, and the National Organization for the 

Reform of Marijuana Laws, filed a complaint against the government in the 

Northern District of California alleging “an illegal and unconstitutional program of dragnet electronic surveillance.”474 Judge White accepted the case as 

related to the warrantless wiretap litigation.475 The Court of appeals determined in 2021 that plaintiffs in the litigation did not have standing.476

Carter Page’s Surveillance

The presentation to the FISA court of political opposition research to obtain 

a surveillance order embroiled the FISA court in significant partisan politics.

A dossier was compiled by former British intelligence officer Christopher 

Steele, who was stationed in Russia in the 1990s.477 It was prepared as part of 

opposition research commissioned by opponents of presidential candidate 

472. Pub. L. No. 115-118, 132 Stat. 3 (2018), 50 U.S.C. § 1881a(f) (2020); see Karoun 

Demirjian, Senate Votes to Reauthorize Surveillance Program One Day Before Deadline, 

Wash. Post, Jan. 19, 2018, at A13; Charlie Savage, Surveillance Program Is Extended for 6 

Years, N.Y. Times, Jan. 19, 2018, at A14.

473. In re DNA/AG 702(h) Certifications 2018, 941 F.3d 547 (FISA Ct. Rev. 2019), aff’g 

in part Secret Court Opinion, 402 F. Supp. 3d 45 (FISA Ct. 2018).

Available on Westlaw is an earlier “Secret Court Opinion,” (FISA Ct. Aug. 24, 2012), 

2012 WL 9189263.

474. Complaint, First Unitarian Church of L.A. v. NSA, No. 4:13-cv-3287 (N.D. Cal. July 

16, 2013), D.E. 1; see Second Amended Complaint, id. (Aug. 20, 2014), D.E. 119; Amended 

Complaint, id. (Sept. 10, 2013), D.E. 9 (adding six additional plaintiff organizations); see also

Bob Egelko, Suit Seeks Limit on Government Data Collection, S.F. Chron., July 16, 2013, at 

D1. 

475. Order, First Unitarian Church of L.A., No. 4:13-cv-3287 (N.D. Cal. July 24, 2013), 

D.E. 7.

476. Jewel v. NSA, 856 F. App’x 640 (9th Cir. 2021), aff’g Opinion, No. 4:08-cv-4373 

(N.D. Cal. Apr. 25, 2019), D.E. 462, cert. denied, 596 U.S. ___, 142 S. Ct. 2812 (2022).

477. See Jane Mayer, The Man Behind the Dossier, New Yorker, Mar. 12, 2018, at 48; 

Tom Hamburger & Rosalind S. Helderman, How a British Ex-Spy Became a Flash Point in 

Russia Probe, Wash. Post, Feb. 7, 2018, at A1; Evan Perez, Jim Sciutto, Jake Trapper & Carl 

Bernstein, Intel Chiefs Presented Trump with Claims of Russian Efforts to Compromise Him, 

CNN, Jan. 12, 2017, www.cnn.com/2017/01/10/politics/donald-trump-intelligence-reportrussia/index.html; see also www.documentcloud.org/documents/3259984-Trump-IntelligenceAllegations.html (apparent posting of dossier documents by BuzzFeed); Ken Bensinger, Miriam Elder & Mark Schoofs, These Reports Allege Trump Has Deep Ties to Russia, BuzzFeed, 

Jan. 10, 2017, www.buzzfeed.com/kenbensinger/these-reports-allege-trump-has-deep-tiesto-russia?utm_term=.yk261zjg3#.gla5RWwK9.
Foreign Intelligence Surveillance Act Litigation

66 Federal Judicial Center 1/31/2023

Donald Trump: Republicans during the primary elections and Democrats 

during the general election.478

Among the dossier’s assertions was that Carter Page represented the 

Trump campaign in meetings with senior Russian officials to negotiate deals 

on business, sanctions, and Russia’s interference with the presidential election.479

Page was a witness in a 2013 federal prosecution of a Russian spy.480

The intelligence community presented the dossier to a FISA-court judge 

in July 2016 to justify permission to surveil Page as an agent of a foreign 

power.481

A two-page synopsis of the dossier was presented to President Obama 

and President-Elect Trump in January 2017.482

Republican Representative Devin Nunes oversaw the preparation of a 

four-page memo concluding that the Page FISA surveillance order was part 

of an abuse of surveillance authority.483 Two Republican senators referred 

Steele to the Justice Department for a criminal investigation into whether he 

falsely represented to the FISA court that he had not discussed the dossier 

with journalists.484

Public release of the classified memo became a partisan issue: one party 

appeared motivated to discredit the Justice Department’s investigation of 

President Trump, and the other party argued that the memo was not an objective assessment but rather a collection of partisan talking points.485

478. See U.S. Dep’t of Just. Office of the Inspector Gen., Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation 93 (Dec. 2019) [hereinafter DOJ OIG Crossfire Hurricane Review], www.justice.gov/storage/120919-examination.

pdf (revised, and redacted for public release); Jeremy Herb, GOP Considers Releasing Intel 

Behind Memo Alleging FISA Abuses, CNN, Jan. 22, 2018, www.cnn.com/2018/01/22/politics/

gop-classified-intelligence-fisa-memo/index.html; Mayer, supra note 477, at 54; Perez et al., 

supra note 477.

479. See Evan Perez, Shimon Prokupecz & Manu Raju, FBI Used Dossier Allegations to 

Bolster Trump-Russia Investigation, CNN, Apr. 18, 2017, www.cnn.com/2017/04/18/politics/

fbi-dossier-carter-page-donald-trump-russia-investigation/index.html.

480. See Perez et al., supra note 479.

481. See Herb, supra note 478; Josh Meyer, Former Trump Adviser Page Says He Welcomes FISA Warrant Against Him, Politico, Apr. 11, 2017, www.politico.com/story/2017/04/

carter-page-fisa-russia-trump-237137; Perez et al., supra note 479.

482. See Perez et al., supra note 477.

483. See Devlin Barrett, Karoun Demirjian & Philip Rucker, Memo Released, and Recriminations Fly, Wash. Post, Feb. 3, 2018, at A1; Herb, supra note 481.

484. See Glenn Kessler, What You Need to Know About Christopher Steele, the FBI and 

Trump “Dossier,” Wash. Post, Jan. 14, 2018, at A4.

485. See Herb, supra note 481; Ellen Nakashima, Devlin Barrett & Karoun Demirjian, 

GOP Memo on Surveillance “Abuse” Targets Dossier, Wash. Post, Jan. 21, 2018, at A2; Charlie Savage, Nicholas Fandos & Adam Goldman, Justice Dept. Challenges Republican Chief of 

Intelligence Committee Over Memo, N.Y. Times, Jan. 25, 2018, at A20.
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 67

Following FOIA actions,486 the government released redacted FISA filings 

in Page’s case on July 21, 2018.487 The October 21, 2016, FISA application 

stated, “The target of this application is Carter W. Page”; it further stated, 

“The target of this application is an agent of a foreign power.”488

The Department of Justice’s inspector general issued a report of more 

than four hundred pages: “Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation.”489 The report disclosed 

486. E.g., Settlement Order, N.Y. Times Co. v. Dep’t of Just., No. 1:18-cv-2054 (S.D.N.Y. 

Aug. 9, 2018), D.E. 16.

FISA-court filings in February 2018 also sought Page FISA order records. Motion, In re

Matters Before the Foreign Intelligence Surveillance Court Relating to Carter Page, No. 

Misc. 18-2 (FISA Ct. Feb. 8, 2018), www.fisc.uscourts.gov/sites/default/files/Misc%2018-02

%20Motion%20For%20Leave%20to%20File.pdf; Motion, In re Orders and Records of This 

Court Related to the Surveillance of Carter Page, No. Misc. 18-1 (FISA Ct. Feb. 6, 2018), 

www.fisc.uscourts.gov/sites/default/files/Case%20No%20Misc%2018-01.pdf. A July 25 motion, later dismissed voluntarily, sought transcripts of any Page application hearings. Order, 

In re Transcripts of This Court Related to the Surveillance of Carter Page, No. Misc. 18-3 

(FISA Ct. July 13, 2020), www.fisc.uscourts.gov/sites/default/files/Misc%2018%2003%20Order

%20JEB%20July%2013%202020%20200713.pdf; Motion, id. (July 25, 2018), www.fisc.uscourts.

gov/sites/default/files/FISC%20Misc%2018-03%20Judicial%20Watch%20Inc%27s%20Motion

%20For%20Publication%20of%20Transcripts%20180725_2.pdf.

487. See Charlie Savage, FISA Files on Former Trump Aide Are Released, N.Y. Times, July 

22, 2018, at 18; see also Shane Harris, Justice Department Releases Application to Wiretap 

Page, Wash. Post, July 22, 2018, at A6; Elise Viebeck & David A. Fahrenthold, Carter Page 

Denies Spying Allegations After FISA Release, Wash. Post, July 23, 2018, at A3; Del Quentin 

Wilber & Byron Tau, Carter Page Records Revive Partisan Spat, Wall St. J., July 23, 2018, at 

A4.

A FOIA action seeking fewer redactions was unsuccessful. Opinion, James Madison Project v. U.S. Dep’t of Just., No. 1:17-cv-597 (D.D.C. Mar. 3, 2020), D.E. 62, 2020 WL 1033301; 

see Notice, id. (July 31, 2020), D.E. 70 (voluntary dismissal); Opinion, id. (May 4, 2020), D.E. 

67 (clarifying a denial of relief); Opinion, id. (July 30, 2019), D.E. 51, 2019 WL 3430728 (requiring more information to resolve summary-judgment motions).

488. Application, In re Page, No. 16-1182 (FISA Ct. Oct. 21, 2016), vault.fbi.gov/d1-

release/d1-release (FBI’s electronic reading room), int.nyt.com/data/documenthelper/95-

carter-page-fisa-documents-foia-release/full/optimized.pdf (New York Times posting of 

produced documents); see Order, id. (Jan. 7, 2020), www.fisc.uscourts.gov/sites/default/files/

FISC%20Declassifed%20Order%2016-1182%2017-52%2017-375%2017-679%20%20200123.

pdf (disclosing the application’s case number); DOJ OIG Crossfire Hurricane Review, supra

note 478, at vi, 5, 121 (disclosing October 21 as the date of the application).

489 DOJ OIG Crossfire Hurricane Review, supra note 478; see Devlin Barrett, Matt 

Zapotosky, Karoun Demirjian & Ellen Nakashima, FBI Probe of Trump Not Biased, Report 

Says, Wash. Post, Dec. 10, 2019, at A1; Adam Goldman & Charlie Savage, Report Is Said to 

Clear F.B.I. of Bias Claims, N.Y. Times, Nov. 23, 2019, at A1; Shane Harris, Carol D. Leonnig 

& Rosalind S. Helderman, Tip About Possible Russian Assistance Shook FBI Officials, Wash. 

Post, Dec. 10, 2019, at A8; Mark Mazzetti, Trump’s Allies Look to the Next Query, N.Y. 

Times, Dec. 10, 2019, at A1; Charlie Savage, Surveillance Court Orders Review of Actions by 

an Ex-F.B.I. Lawyer, N.Y. Times, Dec. 21, 2019, at A20; Charlie Savage, Adam Goldman & 

Katie Benner, Report Debunks Anti-Trump Plot in Russia Inquiry, N.Y. Times, Dec. 10, 2019, 

at A1; Scott Shane, Report Details Bungled Relationship Between F.B.I. and Dossier Author, 

N.Y. Times, Dec. 10, 2019, at A18; Aruna Viswanatha, Sadie Gurman & Byron Tau, Report 

Points to FBI Failures, Sees No Bias in Russia Probe, Wall St. J., Dec. 10, 2019, at A1; see also
Foreign Intelligence Surveillance Act Litigation

68 Federal Judicial Center 1/31/2023

that surveillance of Page was part of an operation called Crossfire Hurricane 

“into whether individuals associated with the Donald J. Trump for President 

Campaign were coordinating, wittingly or unwittingly, with the Russian government’s efforts to interfere in the 2016 U.S. presidential election.”490 Three 

FISA-court renewal applications in 2017 followed the initial FISA Page surveillance application.491 Although the inspector general “did not find documentary or testimonial evidence that political bias or improper motivation 

influenced the FBI’s decision to seek FISA authority on Carter Page,”492 he

found that FBI personnel fell far short of the requirement in FBI policy that 

they ensure that all factual statements in a FISA application are “scrupulously accurate.” We identified multiple instances in which factual assertions relied upon in the first FISA application were inaccurate, incomplete, 

or unsupported by appropriate documentation, based upon information the 

FBI had in its possession at the time the application was filed.493

On December 17, 2019, Presiding FISA Court Judge Collyer issued a 

published order that the government inform her court “what it has done, and 

plans to do, to ensure that the statement of facts in each FBI application accurately and completely reflects information possessed by the FBI that is material to any issue presented by the application.”494 In March 2020, Presiding 

Judge Boasberg determined that the government’s remedial measures held 

promise and that the court would continue to oversee improvements.495 Later 

Ellen Nakashima, After Finding Surveillance Errors in Trump Probe, IG Looks For Pattern, 

Wash. Post, Dec. 15, 2019, at A6.

490. DOJ OIG Crossfire Hurricane Review, supra note 478, at i.

491. Id. at vi (“A different FISC judge considered each application . . . .”).

492. Id.

493. Id. at viii.

The wrongdoing led to a criminal prosecution. See Adam Goldman, Ex-F.B.I. Lawyer 

Expected to Plead Guilty in Review of Russia Inquiry, N.Y. Times, Aug. 15, 2020, at A16; 

Charlie Savage, Ex-F.B.I. Lawyer Who Altered Email in Russia Case Is Given Probation, N.Y. 

Times, Jan. 30, 2021, at A20; Byron Tau, Ex-FBI Lawyer Admits Altering Warrant Email, 

Wall St. J., Aug. 15, 2020, at A3; Byron Tau, Former FBI Lawyer Sentenced to Probation, Wall 

St. J., Jan. 30, 2021, at A3; Matt Zapotosky & Devlin Barrett, Ex-FBI Lawyer to Plead Guilty 

in Case Tied to Russia Probe, Washington Post, Aug. 15, 2020, at A1.

494. In re Accuracy Concerns Regarding FBI Matters Submitted to the FISC, 411 F. 

Supp. 3d 333, 337 (FISA Ct. 2019); see Government Response, In re Accuracy Concerns Regarding FBI Matters Submitted to the FISC, No. Misc. 19-2 (FISA Ct. Jan. 10, 2020), www.

fisc.uscourts.gov/sites/default/files/Misc%2019%2002%20Response%20to%20the%20Court

%27s%20Order%20Dated%20December%2017%202019%20200110.pdf; Order, In re All 

Matters Submitted to the Foreign Intelligence Surveillance Court, No. ___ (FISA Ct. Dec. 5, 

2019), www.fisc.uscourts.gov/sites/default/files/FISC%20Dec%205%20Redacted%20Order%20 

191220.pdf (noting that an FBI attorney who altered an email in evidence had resigned and 

become the object of a criminal referral); see also Devlin Barrett, Court Orders Explanation of 

FBI Failings in 2016 Case, Wash. Post, Dec. 18, 2019, at A1; Charlie Savage, Berating F.B.I., 

Federal Court Orders Fix to Wiretap Process, N.Y. Times, Dec. 18, 2019, at A1; Byron Tau & 

Dustin Volz, FISA Court Rebukes FBI on Wiretap, Wall St. J., Dec. 18, 2019, at A1.

495. Corrected Opinion, Accuracy Concerns, No. Misc. 19-2 (FISA Ct. Mar. 5, 2020), 

www.fisc.uscourts.gov/sites/default/files/Misc%2019%2002%20Corrected%20Opinion%20and%20

Order%20JEB%20200305.pdf; see Charlie Savage, F.B.I. Pledges Fixes to Wiretap Requests, 
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 69

that month, the inspector general revealed “that his investigators found errors in every FBI application to [the FISA] court examined as part of an ongoing review.”496

Judge Boasberg ordered additional reporting from the government on its 

FISA application procedures.497 The most recent report was filed on November 28, 2022.498

A May 23, 2019, FISA-court motion for publication of records sought 

orders, opinions, and other records concerning the “Carter Page FISA application.”499 Presiding Judge Boasberg determined on September 15, 2020, that 

the FISA court

is not empowered by Congress to consider constitutional claims generally, 

First Amendment claims specifically, or freestanding motions filed by persons who are not authorized by FISA to invoke this Court’s jurisdiction. By 

the same token, FISA does not grant the FISC jurisdiction over claims asserting a common-law right of access either.500

N.Y. Times, Jan. 11, 2020, at A16; Charlie Savage, F.B.I.’s Proposals to Fix Surveillance Fall 

Short, Expert Tells FISA Court, N.Y. Times, Jan. 16, 2020, at A15; Charlie Savage, 

Surveillance Court Bars F.B.I. Agents from Page Case, N.Y. Times, Mar. 5, 2020, at A18; 

Byron Tau, DOJ Rethinks Basis for Surveillance, Wall St. J., Jan. 24, 2020, at A4; Matt 

Zapotosky, Justice Dept. Cites Flaws in 2 Requests to Monitor Page, Wash. Post, Jan. 24, 2020, 

at A6.

496. Devlin Barrett & Ellen Nakashima, Audit of FBI Surveillance Finds Chronic Problems, Wash. Post, Apr. 1, 2020, at A1; see Aruna Viswanatha & Dustin Volz, FBI Wiretap 

Requests Show Persistent Flaws, Wall St. J., Apr. 1, 2020, at A1.

497. Opinion, In re Page, Nos. 16-1182, 17-52, 17-375, and 17-679 (FISA Ct. June 25, 

2020), www.intelligence.gov/assets/documents/702%20Documents/declassified/June_2020_

FISC_Opinion.pdf; Order, Accuracy Concerns, No. Misc. 19-2 (FISA Ct. Apr. 3, 2020), www.

fisc.uscourts.gov/sites/default/files/Misc%2019%2002%20Order%20PJ%20JEB%20200403.

pdf, 2020 WL 1975053; see Charlie Savage, Secret Court Orders F.B.I. to Reassess Its Wiretaps, 

N.Y. Times, Apr. 4, 2020, at A21.

498. Letter, Accuracy Concerns, No. Misc. 19-2 (FISA Ct. Nov. 28, 2022), fisc.uscourts.

gov/sites/default/files/Misc.%2019-02%20Letter%20of%20November%2028%2C%202022_0.

pdf.

499. Motion, In re Motion for Publication of Records, No. Misc. 19-1 (FISA Ct. May 23, 

2019), www.fisc.uscourts.gov/sites/default/files/Misc%2019-01%20Motion%20of%20John%20

Solomon%20and%20Southeastern%20Legal%20Foundation%20for%20Publication%20of%20

Records%20190523.pdf; see Notice of Supplemental Information, id. (Jan. 6, 2020), www.

fisc.uscourts.gov/sites/default/files/Misc%2019%2001%20Notice%20of%20Supplemental%20

Information%20200106.pdf (discussing additional public disclosures).

500. Opinion at 3, id. (Sept. 15, 2020), www.fisc.uscourts.gov/sites/default/files/FISC%20

Misc%2019%2001%20PJ%20JEB%20Opinion%20and%20Order%20September%2015%2020

20%20200915.pdf, 2020 WL 5637506 (citations omitted); see Opinion, In re Release of Court 

Records, No. Misc. 13-9 (FISA Ct. Sept. 15, 2020), www.fisc.uscourts.gov/sites/default/files/

FISC%20Misc%2013%2009%20PJ%20JEB%20Opinion%20and%20Order%20September%20

15%202020%20200915.pdf, 2020 WL 5637412 (similar holding).
Foreign Intelligence Surveillance Act Litigation

70 Federal Judicial Center 1/31/2023

Steele Dossier controversy continued in 2021 with the indictment of Igor 

Danchenko, one of Steele’s researchers, for lying to the FBI about his 

sources.501 He was acquitted in October 2022.

502

The Public’s Right of Access to Statutory Interpretation

Over nearly a decade of litigation, efforts to establish a qualified First 

Amendment right of access to judicial interpretations of FISA were unsuccessful.

On November 7, 2013, the ACLU filed a motion with the FISA court “to 

unseal its opinions addressing the legal basis for the ‘bulk collection’ of data 

by the United States government under the Foreign Intelligence Surveillance 

Act.”503 ProPublica filed a similar motion on November 12.504 On December 

5, Presiding Judge Walton granted permission for the Reporters Committee 

for Freedom of the Press and twenty-five other media organizations to file an 

amicus curiae brief.505

Over three years later, noting that “the four opinions that address the legal bases for bulk collection were made public in 2014 after classification reviews [and redaction],” Presiding Judge Collyer relied in part on Judge 

Bates’s 2007 opinion and concluded that the public does not have a qualified 

501. Minutes, United States v. Danchenko, No. 1:21-cr-245 (Aug. 1, 2022), D.E. 63 

(“Government estimates their case to take approximately 5–6 trial days.”); Indictment, id.

(Nov. 3, 2021), D.E. 1; see Devlin Barrett & Tom Jackman, Trump Dossier Source Charged, 

Wash. Post, Nov. 5, 2021, at A1; Adam Goldman & Charlie Savage, Contributor to Steele 

Dossier Is Arrested, N.Y. Times, Nov. 5, 2021, at A14; Glenn Kessler, The Steele Dossier: A 

Guide to Latest Revelations, Allegations, Wash. Post, Nov. 21, 2021, at A4; Michael Kranish 

& Isaac Stanley-Becker, Questions Intensify Over Sourcing of Steele Dossier, Wash. Post, Nov. 

26, 2021, at A1; Salvador Rizzo, In a “Close Call,” Judge Declines to Toss Out Case Against 

Steele Dossier Source, Wash. Post, Sept. 30, 2022, at A4; Salvador Rizzo & Devlin Barrett, 

“Steele Dossier” Source Heads to Trial in Durham Probe, Wash. Post, Oct. 11, 2022, at A3; 

Charlie Savage, Why Discredited Dossier Does Not Undercut Russia Inquiry, N.Y. Times, Dec. 

2, 2021, at A210; Byron Tau & Alan Cullison, Dossier Source Arrested, Accused of Lying to 

FBI, Wall St. J., Nov. 5, 2021, at A3.

502. Judgment of Acquittal, Danchenko, No. 1:21-cr-245 (E.D. Va. Oct. 19, 2022), D.E. 

132 (counts 2–5 by jury verdict); Judgment of Acquittal, id. (Oct. 17, 2022), D.E. 128 (count 

1 by judge’s order); see Salvador Rizzo, Rachel Weiner & Perry Stein, Source for Allegations 

on Trump Acquitted, Wash. Post, Oct. 19, 2022, at A1; Charlie Savage & Linda Qiu, Russia 

Analyst Behind Dossier Wins Acquittal, N.Y. Times, Oct. 19, 2022, at A1; see also Perry Stein, 

Durham’s Inquiry Has Cost Taxpayers at Least $6.5 Million, Wash. Post, Dec. 24, 2022, at 

A2.

503. Motion, In re Bulk Collection Orders and Opinions, No. Misc. 13-8 (FISA Ct. Nov. 

7, 2013), www. fisc.uscourts.gov/sites/default/files/Misc%2013-08%20Motion-2.pdf.

504. Motion, In re Release of Court Records, No. Misc. 13-9 (FISA Ct. Nov. 12, 2013), 

www.fisc.uscourts.gov/sites/default/files/Misc%2013-09%20Motion-2.pdf (“opinions that 

appear to underlie the government’s collection of telephone metadata”).

505. Order, Orders and Opinions, No. Misc. 13-8 (FISA Ct. Dec. 5, 2013), www.fisc. 

uscourts.gov/sites/default/files/Misc%2013-02%20Order-6.pdf; see Brief, id. (Nov. 26, 2013), 

www.fisc.uscourts.gov/sites/default/files/Misc%2013-02%20Brief-2.pdf.
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 71

First Amendment right to FISA-court opinions.506 Judge Collyer dismissed 

the motion for lack of jurisdiction, concluding that the movants did not have 

standing to pursue meritless First Amendment rights.507 En banc, the FISA 

court decided on November 9, 2017, by a vote of six to five, that a standing 

analysis requires a presumption of merit, and the court remanded the motion to Judge Collyer for reconsideration.508 Dissenting from the en banc 

holding, Judge Collyer certified the standing question to the FISA court of 

review.509

The court of review agreed, on March 16, 2018,

with the majority of the FISC judges that the movants have standing to seek 

disclosure of the classified portions of the opinions at issue. As the majority 

explained, standing is a prerequisite to a party’s filing suit. It entails a 

threshold inquiry, one that is separate from the merits of the underlying 

claim—and one that requires far less substantiation. Movants need not 

show that they are ultimately entitled to access the materials in question. Instead, they need only show that their claim is not immaterial nor wholly insubstantial and frivolous. Regardless of whether the movants are entitled to 

relief on their claim, they have standing to present that question to the 

court.510

The court cautioned, however, that

while we agree with the movants that they have standing to litigate the issue 

of access to the redacted portions of the court’s opinions, our decision 

should not be taken as an endorsement of their suggestion that First 

Amendment analysis applies to the FISC in the same manner that it applies 

to more conventional courts.511

A couple of years later, Judge Collyer decided that the public was not entitled to any more in the four opinions than what had already been disclosed.512 She rejected the government’s argument that access to court opinions was beyond the court’s subject-matter jurisdiction.513

506. Collyer Right-of-Access Opinion, supra note 158 (holding that the court did not 

have jurisdiction to hear the motion, because the movants lacked standing to pursue a motion without merit); see In re Motion for Release of Court Records, 526 F. Supp. 2d 484 

(FISA Ct. 2007). 

507. Collyer Right-of-Access Opinion, supra note 158.

508. Opinion, Orders and Opinions, No. Misc. 13-8 (FISA Ct. Nov. 9, 2017), www.fisc. 

uscourts.gov/sites/default/files/Misc%2013-08%20Opinion%20November%209%202017.pdf, 2017 

WL 5983865.

509. Certification, id. (Jan. 5, 2018), www.fisc.uscourts.gov/sites/default/files/Misc%2013%20 

08%20Certification%20Order%20with%20Attached%20En%20Banc%20Decision.pdf, 2018 WL 

396244.

510. Opinion at 2, In re Certification of Questions of Law, No. 18-1 (FISA Ct. Rev. Mar. 

16, 2018), www.fisc.uscourts.gov/sites/default/files/FISCR%2018-01%20Opinion%20March 

%2016%202018.pdf, 2018 WL 2709456.

511. Id. at 3–4.

512. Opinion, Orders and Opinions, No. Misc. 13-8 (FISA Ct. Feb. 11, 2020), www.fisc. 

uscourts.gov/sites/default/files/FISC%20Misc%2013%2008%20Opinion%20RMC%20200211.pdf, 

2020 WL 897659.

513. Id. at 4–11.
Foreign Intelligence Surveillance Act Litigation

72 Federal Judicial Center 1/31/2023

The ACLU’s appeal from Judge Collyer’s decision, however, was beyond 

the FISA court of review’s jurisdiction; the appellate court was established to 

provide the government with appeals.514

In November 2020, the court of review affirmed515 another decision by 

Judge Collyer516 that the FISA court did not have jurisdiction to consider the 

ACLU’s 2016 motion for the unsealing of FISA-court “opinions and orders 

containing novel or significant interpretations of law issued between September 11, 2001, and the passage of the USA FREEDOM Act on June 2, 

2015.”517 The Supreme Court denied review on November 1, 2021.518

On August 12, 2022, the Office of the Director of National Intelligence 

publicly released “redacted versions of all seven remaining [FISA-court] 

opinions and orders” “containing a significant interpretation of law” not 

previously released publicly.519

Section 702 Certifications

FISA’s section 702, enacted in 2008 as part of the FAA, provides for the FISA 

court’s judicial review of the government’s certification that it is complying 

with FISA requirements.520 From time to time, the Director of National Intelligence releases redacted certification opinions.521 Case numbers for these 

514. In re Opinions & Orders by the FISC Addressing Bulk Collection of Data, 957 F.3d 

1344 (FISA Ct. Rev. 2020).

515. Opinion, In re Opinions and Orders of the FISC, No. Misc. 20-2 (FISA Ct. Rev.

Nov. 19, 2020), www.fisc.uscourts.gov/sites/default/files/FISCR%20Misc%2020%2002%20

Opinion%20and%20Order%20Nov%2019%202020%20201119.pdf, 2020 WL 6888073 (also 

declining to certify a question to the Supreme Court).

516. Opinion, In re Opinions and Orders of This Court, No. Misc. 16-1 (FISA Ct. Sept. 

15, 2020), www.fisc.uscourts.gov/sites/default/files/FISC%20Misc%2016%2001%20PJ%20JEB%20

Opinion%20and%20Order%20September%2015%202020%20200915.pdf, 2020 WL 5637419.

517. Motion at 1, id. (Oct. 19, 2016), www.fisc.uscourts.gov/sites/default/files/Misc%20

16%2001%20Motion%20of%20the%20ACLU%20for%20the%20Release%20of%20Court%20

Records%20161019.pdf.

518. ACLU v. United States, 595 U.S. ___, 142 S. Ct. 22 (2021); see id. at ___, 142 S. Ct. at 

23 (Gorsuch, joined by Sotomayor, dissenting: “On the government’s view, literally no court 

in this country has the power to decide whether citizens possess a First Amendment right of 

access to the work of our national security courts.”); see also Charlie Savage, Justices Are 

Asked to Open Secret Rulings of Spy Court, N.Y. Times, Apr. 20, 2021, at A16.

519. ODNI Releases All Remaining FISA Decisions Determined to Contain Significant 

Construction of Law (Aug. 12, 2022), icontherecord.tumblr.com/post/692398319938535424/

odni-releases-all-remaining-fisa-decisions.

520. 50 U.S.C. § 1881a(h), (j) (2020).

521. IC on the Record, icontherecord.tumblr.com/tagged/declassified. Certification opinions include the following:

1. Opinion, In re DNI/AG Certification ___, No. 702(i)-08-1 (FISA Ct. Sept. 4, 

2008), www.dni.gov/files/documents/0315/FISC%20Opinion%20September%204%20

2008.pdf; see Release of Documents Concerning Activities Under the Foreign Intelligence Surveillance Act (Last Updated 9/29/15) (Mar. 3, 2015), icontherecord.

tumblr.com/post/112610953998/release-of-documents-concerning-activities-under.

2. Opinion, ___, No. ___ (FISA Ct. Nov. 30, 2011), www.dni.gov/files/documents/

November%202011%20Bates%20Opinion%20and%20Order%20Part%201.pdf
Foreign Intelligence Surveillance Act Litigation

Federal Judicial Center 1/31/2023 73

opinions typically are redacted, and the opinions are not posted on the FISA 

court’s website, which organizes public FISA-court filings by case number.522

Among other things, certification opinions describe and discuss compliance issues.523 The Director of National Intelligence also issues semiannual 

compliance reports.524

and www.dni.gov/files/documents/November%202011%20Bates%20Opinion%20and

%20Order%20Part%202.pdf; see DNI Declassifies Intelligence Community Documents Regarding Collection Under Section 702 of the Foreign Intelligence Surveillance Act (FISA) (Aug. 21, 2013), icontherecord.tumblr.com/post/58944252298/

dni-declassifies-intelligence-community-documents.

3. Opinion, ___, No. ___ (FISA Ct. Aug. 26, 2014), www.dni.gov/files/documents/

0928/FISC%20Memorandum%20Opinion%20and%20Order%2026%20August

%202014.pdf; see Statement by the Office of the Director of National Intelligence 

and the Department of Justice on the Declassification of Documents Related

to Section 702 of the Foreign Intelligence Surveillance Act (Sept. 29, 2015),

icontherecord.tumblr.com/post/130138039058/statement-by-the-office-of-thedirector-of.

4. Nov. 6, 2015, Hogan Opinion, supra note 458; see Release of Three Opinions Issued by the Foreign Intelligence Surveillance Court (Apr. 19, 2016), icontherecord.

tumblr.com/post/143070924983/release-of-three-opinions-issued-by-the-foreign.

5. Apr. 26, 2017, Collyer Opinion, supra note 468; see Release of the FISC Opinion 

Approving the 2016 Section 702 Certifications and Other Related Documents

(May 11, 2017), icontherecord.tumblr.com/post/160561655023/release-of-the-fiscopinion-approving-the-2016.

6. Secret Court Opinion, 402 F. Supp. 3d 45 (FISA Ct. 2018), aff’d in part, In re

DNA/AG 702(h) Certifications 2018, 941 F.3d 547 (FISA Ct. Rev. 2019).

7. Opinion, ___, No. ___ (FISA Ct. Dec. 6, 2019), www.intelligence.gov/assets/

documents/702%20Documents/declassified/2019_702_Cert_FISC_Opinion_

06Dec19_ OCR.pdf; see Release of Documents Related to the 2019 FISA

Section 702 Certifications (Sept. 4, 2020), icontherecord.tumblr.com/post/

628356110309572608/release-of-documents-related-to-the-2019-fisa; see also

Charlie Savage, Court Approves Warrantless Surveillance Rules While rebuking the 

F.B.I., N.Y. Times, Sept. 6, 2020, at 26.

8. Opinion, ___, No. ___ (FISA Ct. Nov. 18, 2020), www.intel.gov/assets/

documents/702%20Documents/declassified/20/2020_FISC%20Cert%20Opinion_

10.19.2020.pdf; see Release of Documents Related to the 2020 FISA Section

702 Certifications (Apr. 26, 2021), icontherecord.tumblr.com/post/

649560355508486144/release-of-documents-related-to-the-2020-fisa; see also

Charlie Savage, Special Court Scolds F.B.I for Monitoring of Americans, N.Y. 

Times, Apr. 27, 2021, at A17.

522. Public Filings—U.S. Foreign Intelligence Surveillance Court, www.fisc.uscourts.gov/

public-filings.

523. See Charlie Savage, Court Approves Warrantless Surveillance Rules While Rebuking 

the F.B.I., N.Y. Times, Sept. 6, 2020, at 26; Charlie Savage, Special Court Scolds F.B.I. for 

Monitoring of Americans, N.Y. Times, Apr. 27, 2021, at A17.

524. E.g., ODNI Releases 23rd Joint Assessment of Section 702 Compliance (July 18, 

2022), icontherecord.tumblr.com/post/690141801614540800/odni-releases-23rd-jointassessment-of-section-702.

In addition, the Director of National Intelligence annually releases, on behalf of the intelligence community, a transparency report of “statistics and context regarding the government’s use of FISA authorities, National Security Letters, and other national security authorities. E.g., ODNI Releases Annual Intelligence Community Transparency Report (Apr. 29, 
Foreign Intelligence Surveillance Act Litigation

74 Federal Judicial Center 1/31/2023

Transition

The twentieth-century FISA court approved surveillance orders for foreign 

intelligence. In the twenty-first century, the court also assesses the propriety 

of surveillance programs and interprets surveillance statutes, sometimes in 

secret and sometimes publicly.

Over time, litigation in and about the Foreign Intelligence Surveillance 

Court became increasingly complex. The Georgetown University Law Center 

maintains a useful and comprehensive archive of records of that litigation.525

The Director of National Intelligence occasionally releases FISA-court records on Tumblr, often as a result of FOIA lawsuits.526

2022), icontherecord.tumblr.com/post/682887513999818752/odni-releases-annual-intelligencecommunity; see Charlie Savage, Report Shows N.S.A. Use of Court-Approved Domestic 

Surveillance Fell to a New Low, N.Y. Times, Apr. 30, 2022, at A15.

Court-approved national security surveillance on domestic soil fell for the third 

straight year in 2021, extending a trend that has coincided with the decline of the Islamic State, the rise of the coronavirus pandemic and the tightening of procedures after the F.B.I.’s botching of wiretap applications in the Trump-Russa investigation.

Savage, supra; see also Charlie Savage, F.B.I. Surveillance Cases Plummet Amid Pandemic and 

Inquiry Fallout, N.Y. Times, May 2, 2021, at A15; Dustin Volz, Fewer Are Targeted for FISA 

Wiretaps, Wall St. J., May 1, 2021, at A5.

525. Foreign Intelligence Law Collection, repository.library.georgetown.edu/handle/10822/

1052698.

526. IC on the Record, icontherecord.tumblr.com.