Case M:06-cv VRW Document Filed 04/07/2008 Page 1 of 33

Transcription

1 Case M:06-cv VRW Document Filed 04/07/2008 Page 1 of 33 1 ELECTRONIC FRONTIER FOUNDATION CINDY COHN (CSB No ) 2 cindy@eff.org LEE TIEN (CSB No ) 3 KURT OPSAHL (CSB No ) KEVIN S. BANKSTON (CSB No ) 4 CORYNNE MCSHERRY (CSB No ) JAMES S. TYRE (CSB No. 0837) Shotwell Street San Francisco, CA Telephone: (415) Facsimile: (415) LAW OFFICE OF RICHARD R. WIEBE 8 RICHARD R. WIEBE (CSB No. 1256) 425 California Street, Suite San Francisco, CA Telephone: (415) Facsimile: (415) FENWICK & WEST LLP 12 LAURENCE F. PULGRAM (CSB No. 5163) lpulgram@fenwick.com Ipulgram@fenwick.com 13 JENNIFER KELLY (CSB No ) 14 CANDACE MOREY (CSB No ) 555 California Street, 12th Floor 15 San Francisco, CA Telephone: (415) Facsimile: (415) Attorneys for Amici UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA IN RE NATIONAL SECURITY AGENCY ) MDL Docket No VRW 20 TELECOMMUNICATIONS RECORDS ) ) 21 LITIGATION, MDL No AMICI CURIAE MEMORANDUM OF OF ) MDL PLAINTIFFS ADDRESSING THE ) 22 This Document Relates To: ) APPLICATION OF THE PROTOCOL OF ) SECTION 1806(f), TITLE 50 U.S.C., TO ) v. ) ) ELECTRONIC SURVEILLANCE ) 25 Bush, et al. (07-CV-0109-VRW) ) Date: April 23, 2008 ) 26 Time: 10:00 a.m. ) ) Courtroom: 6, 17th Floor 27 ) Judge: The Hon. Vaughn R. Walker ) No. M VRW AMICI CURIAE MEMORANDUM OF MDL PLAINTIFFS ADDRESSING THE APPLICATION OF THE PROTOCOL OF

2 1 TABLE OF CONTENTS INTRODUCTION ARGUMENT I. 1. THE FIVE-STEP PROTOCOL OF OF SECTION 1806(F) PERMITS COURTS TO TO RESOLVE THE THEMERITS 4 OF CIVIL MERITS ACTIONS ALLEGING UNLAWFUL SURVEILLANCE THE EXECUTIVE A. Before FISA, The The Executive Branch Routinely Abused Its Power When Conducting 8 Electronic Surveillance For National Security Purposes B. Revelations Leading Up Up to to Formation of of the the Church Committee C. The The Church Committee's Committee s Findings That Intelligence Agencies Had Engaged in Massive Spying Abuses... 6 D. Congress Passed FISA To End The Executive's Executive s Abuse Of Warrantless Surveillance In 12 The Name Of National Security E. Congress Intended For The Judiciary To Play A Significant Oversight Role In the Executive s Executive's Electronic Surveillance Activities III. 1. TO 15 WHENEVER THE GOVERNMENT SEEKS To PROTECT FROM DISCLOSURE INFORMATION RELATING TO To ELECTRONIC SURVEILLANCE ON GROUNDS OF OF HARM TO To THE NATIONAL SECURITY, IT MUST INVOKE THE SECTION 1806(F) PROTOCOL B. It It Is Is The The Government, Not Not The Party Seeking Discovery, That Triggers Section 1806(f) By Contending That Disclosure Of Information Regarding Surveillance Would Cause Harm 19 To The National Security C. Section 1806(f) Applies To All Causes Of Action In Which The Lawfulness Of 21 Electronic Surveillance Is At Issue D. Use Use Of Of Section 1806(f)'s 1806(f) s Protocol To To Decide The Legality Of Of Massive, Suspicionless Dragnet Surveillance Will Not Threaten National Security Case M:06-cv VRW Document Filed 04/07/2008 Page 2 of 33 4 OF CIVIL ACTIONS ALLEGING UNLAWFUL SURVEILLANCE 1 II. 5. CONGRESS ENACTED THE THE SECTION 1806(F) PROTOCOL AND AND THE THE CIVIL LIABILITY PROVISIONS OF FISA AS PART OF ITS EFFORT TO To CURB MASSIVE DRAGNET SURVEILLANCE BY... A. Congress Intended For Section 1806(f) To Apply To Civil As Well As Criminal Cases IV. THE THE GOVERNMENT'S GOVERNMENT S NOTION THAT SECTION 1806(F) DOES NOT SPEAK DIRECTLY TO To THE USE OF EVIDENCE THAT WOULD OTHERWISE BE SUBJECT To TO THE STATE SECRETS PRIVILEGE IS MERITLESS V. CONGRESS HAS THE AUTHORITY To TO REGULATE THE USE IN LITIGATION OF INFORMATION THAT THE EXECUTIVE ASSERTS IS A STATE SECRET CONCLUSION i-

3 1 TABLE OF AUTHORITIES 2 CASES 3 ACLU v. Barr, 952 F.2d 457 (1991)... 4, 17 4 Al-Haramain Islamic Found., Inc. v. v. Bush, 507 F.3d 90 (9th Cir. 2007) Hamdan v. Rumsfeld, 126 S.Ct. 2749, 2773 (2006)..., 25 6 Hamdi v. Rumsfeld, 542 U.S. 507 (2004) Hepting v. AT&T Corp., 439 F.Supp.2d 974 (N.D. Cal. 2006)...passim.passim 8 In re Evans, 452 F.2d 1239 (D.C. Cir. 1971) Kasza v. Browner, 133 F.3d 59 (9th Cir. 1998)...21, 22, Little v. Barreme, 6 U.S. 170 (1804)... Case M:06-cv VRW Document Filed 04/07/2008 Page 3 of 33 Masalosalo v. Stonewall Ins. Co., 718 F.2d 955 (9th Cir. 1983) Plotkin v. Pacifc Pacific Tel. and Tel. Co. 688 F.2d 1291 (9th Cir. 1982) U.S. v. Stanley, 483 U.S. 669 (1987) U.S. v. Vielguth, 502 F.2d 1257 (9th Cir. 1974) U.S. v. v. Yanagita, 552 F.2d 940 (2d Cir. 1977) Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 (1996) Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)...8,, STATUTES U.S.C. 2510(8) 2510(8) U.S.C. 25(2)(a)(ii)(B) 25(2)(a)(ii)(B) U.S.C. 25(f) 25(f)... 9, U.S.C. 2712(b)(4) 2712(b)(4) U.S.C , 16 U.S.C. 1292(b) 1292(b) U.S.C U.S.C. 1801(f)(2) U.S.C. 1801(f)(2) U.S.C. 1801(k) 1801(k) ii-

4 1 50 U.S.C. 1801(n) U.S.C U.S.C. 1806(c) U.S.C. 1806(e) U.S.C. 1806(f)...passim.passim 6 50 U.S.C. 1806(d) Fed. R. Civ. Pro. 26(b)(1) Foreign Intelligence Surveillance Act of 1978, Pub.L. 95-5, 92 Stat , 9 9 Case M:06-cv VRW Document Filed 04/07/2008 Page 4 of CONSTITUTIONAL PROVISIONS Const. art. I, 8, cl Const. art. I, 8, cl Const. art. I, 8, cl Const. art. III, Const., art. I, 8, cl LEGISLATIVE MATERIALS Cong. Rec., 91st Cong., 2nd Sess Cong. Rec. 427, at at 106(g) (g) Electronic Surveillance for National Security Purposes: Hearings Before the Subcomm. on Criminal Laws and Procedures and Constitutional Rights, 93rd Cong. (1974) Foreign Intelligence Surveillance Act of of 1977, Hearings on on S. S Before the Subcomm. On 21 Criminal Laws and Procedures of the Senate Comm. on the Judiciary, 95th Cong. (1977). 10, H.R. Conf. Rep. No (1978), reprinted in 1978 U.S.C.C.A.N H.R. Rep. No (1978) S. Rep. No at 10 (2007) S. Rep. No (1976) S. Rep. No (I) (1978), reprinted in 1978 U.S.C.C.A.N , S. Rep. No (1978) reprinted in 1978 U.S.C.C.A.N , 15 Senate Select Comm. to Study Governmental Operations with Respect to to Intelligence Activities, -iii-

5 1 ( Church ("Church Committee Reports ), Reports"), Book II: Intelligence Activities and the Rights of of Americans, S. Rep. No (1976) available at 2 7, 8 3 Senate Select Comm. to Study Governmental Operations with Respect to to Intelligence Activities ("Church Committee Reports"), Book III: Supplementary Detailed Staff Reports on Intelligence 4 Activities and the Rights ofamericans, S. Rep. No (1976), available at 6, 7 5 OTHER AUTHORITIES 6 Athan Theoharis, Spying on Americans: Political Surveillance From Hoover To the Huston Plan (1978) Christopher H. Pyle, CONUS Intelligence: The Army Watches Civilian Politics, Wash. Monthly, January James Bamford, The Puzzle Palace 303 (1983) Peter Swire, The System of of Foreign Intelligence Surveillance Law, 72 Geo. Wash. L. Rev (2004) Seymour Hersh, Huge C.I.A. C.IA. Operation Reported in U.S. US. Against Antiwar Forces, Other Dissidents in Nixon Years, N.Y. Times, Dec. 21, ,66 13 Siobhan Gorman, NSA s 's Domestic Spying Grows as Agency Sweeps Up Data, Wall St. J., Mar. 10, Case M:06-cv VRW Document Filed 04/07/2008 Page 5 of iv-

6 1 2 The government s government's motion to dismiss pending before this Court in the Al-Haramain action 3 raises the general question posed to to the the Court by by the the Ninth Circuit in its remand in Al-Haramain v. 4 Bush: whether section 1806(f) of title 50 U.S.C. preempts the state secrets privilege and, in civil 5 actions alleging unlawful surveillance, permits the use by the Court, under appropriate security 6 precautions, of materials relating to electronic surveillance whose disclosure might harm the 8 Haramain action, and it it is one in in which the MDL plaintiffs joining in this brief all have an interest.' 1 9 In section 1806(f), Congress after much deliberation crafted a careful protocol specifically I. 1. ARGUMENT The Five-Step Protocol Of Section 1806(f) Permits Courts To Resolve The Merits Of 21 Civil Actions Alleging Unlawful Surveillance 22 As always, the appropriate starting point is the statutory language itself. Section 1806(f) of 23 title 50 U.S.C. (hereafter section "section 1806(f) 1806(f)" or " 1806(f)") 1806(f) ) has two sentences. The first sentence of section 1806(f) begins by describing the three categories of events to which the section applies (we 25 have added indentations and line breaks for ease of reading): 26 Case M:06-cv VRW Document Filed 04/07/2008 Page 6 of 33 INTRODUCTION designed to address the question of how a court should proceed to determine the lawfulness of electronic surveillance in a civil action once the government asserts that disclosures of materials relating to the surveillance would harm the national security. Section 1806(f) lays out a detailed, five-step protocol that directs the court to make its determination of lawfulness by using an in camera proceeding to consider the materials relating to the surveillance. Because section 1806(f) preempts the state secrets privilege, in unlawful surveillance civil actions when the government makes an assertion that harm to the national security would result from the disclosure of evidence, the evidence is not excluded and the court proceeds forward under section 1806(f) to a determination of the merits national security. This is is a general question that permeates all of the MDL actions, not just the Al- 1 ' This amici memorandum is joined in by the plaintiffs identifed identified on on the signature page. -1-

7 1 Whenever "Whenever a court or other authority 2 [i] is notified pursuant to subsection (c) or (d) of this section, or 3 [ii] whenever a motion is made pursuant to subsection (e) of this section, or 4 [iii] whenever any motion or or request is is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before 5 any court or other authority of the United States or any state 6 to discover or obtain applications or orders or other materials relating 7 to electronic surveillance or 8 to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter,...." (f) (bracketed numbers added). The first two categories are not relevant to civil actions for 10 unlawful surveillance; the first arises when the federal or a state government intends to use surveillance evidence against a person in a judicial or administrative proceeding ( 1806(c); (d)), and the second arises when a person against whom the government has said it intends to 13 use surveillance evidence moves to suppress that evidence ( 1806(e)). 14 It is the third category, and the first frst prong under that category, that are relevant here. The 15 plaintiff in in an unlawful surveillance civil action is is entitled to to make a "request," request, pursuant to the 16 discovery provisions of the Federal Rules, to "to discover or obtain applications or orders or other 17 materials relating to electronic surveillance. surveillance." By doing so, the plaintiff opens the door to the 18 government to assert its interest in secrecy through the section 1806(f) protocol, as follows: 19 the "the United States district court or, where the motion is made before another 20 authority, the United States district court in the same district as the authority, Case M:06-cv VRW Document Filed 04/07/2008 Page 7 of 33 shall, notwithstanding any other law, 23 if the Attorney General fles files an affdavit affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, 25 review in camera and ex parte 26 the application, order, and such other materials relating to the surveillance as may be necessary 27 to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted. conducted." -2-

8 1 1806(f) (line breaks added for clarity). Thus, if if in in response to any of the three categories of 2 events, the Attorney General triggers section 1806(f) by contesting the disclosure of the "the 3 application, order, and such other materials relating to the surveillance surveillance" as harmful to the national 4 security, section 1806(f) directs that the Court, notwithstanding "notwithstanding any other law, law," shall "shall" proceed to 5 review the "materials materials relating to the surveillance" surveillance and "determine determine whether the surveillance of the 6 aggrieved person was lawfully authorized and conducted." conducted. 7 Section 1806(f) concludes with a separate provision in its second sentence authorizing 8 disclosure to the surveilled person, under appropriate security procedures, where necessary to assist 9 in the court in making an accurate determination of the legality of the surveillance: 10 In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is 12 necessary to make an accurate determination of the legality of the surveillance Case M:06-cv VRW Document Filed 04/07/2008 Page 8 of (f). 1806(f) The Ṫhe provisions of section 1806(f) relevant to unlawful surveillance civil actions can be condensed as follows: 16. whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court... of the 17 United States... to discover or obtain applications or orders or other materials relating to electronic surveillance... the United States district court... shall, notwithstanding notwan any other oer thl law, if thatt the eattorney orneyeneraes General G l files an aavuner an affidavit ffidit oaunder d oath that disclosure or an adversary adversarhearinwould hearing harm the the national securitof security theyg of 19 United States, review in camera and exparte the application, order, and such other 20 materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted. In 21 making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, 22 order, orer, d or or oter other h materias materials lreatng relating li to to te the hsurveance surveillance on only where such disclosure dil is 23 necessary to make an accurate determination of the legality of the surveillance. 1806(f) (emphasis added). In section 1806(f), Congress thus laid out a five-step protocol for the Executive and the 25 Judiciary alike to follow whenever, in civil litigation over the lawfulness of electronic surveillance 26 like the MDL actions, the Executive resists on national security grounds a request for disclosure of 27 materials related to the electronic surveillance. The five-step protocol is as follows: -3-

9 1. The protocol begins with a motion "motion or request by an aggrieved person..... to 1 discover or obtain.... materials relating to electronic surveillance." surveillance. 1806(f) Once that request comes, in camera, ex parte proceedings are triggered if in response 3 the "the Attorney General [then] files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States. States." Id Upon receipt of that affidavit, the "court court..... shall, notwithstanding any other law, review in camera and ex parte parte" any materials relating to the surveillance "as as may be necessary [to allow the court] to determine whether the surveillance of the aggrieved 6 person was lawfully authorized and conducted. conducted." Id. This provision authorizes the court to review not just the specific materials requested by the plaintiff but also any other 7 materials necessary "necessary" to its determination Based upon that submission, the court decides whether to "disclose disclose to the aggrieved 9 person" person any materials "materials relating to the surveillance a surveillance"-a step that is permissible only "only where such disclosure is necessary to make an accurate determination of of the legality of 10 the surveillance. surveillance." Id. 5. If If the the court concludes that disclosure to to the plaintiff is is necessary, the court discloses the 12 materials under appropriate "appropriate security procedures and protective orders orders" to protect against any national security risk. Id In the end, whether or not the materials relating to the surveillance are disclosed to to the plaintiff, the 15 Case M:06-cv VRW Document Filed 04/07/2008 Page 9 of 33 Court must determine "determine whether the surveillance of the aggrieved person was lawfully authorized 16 and conducted. conducted." Id.; ACLU v. Barr, 952 F.2d 457, 462, 465 & n.7 (1991). 17 Section 1806(f) was enacted in 1978 as part of the original FISA statute. Pub. L. 18 No. 95-5, 106(f); 92 Stat. 1783, It has not been amended since. FISA s FISA's civil liability 19 provision, section 1810, was also enacted in 1978 as as part of of the original FISA statute. Pub. L. L. 20 No. 95-5, 0; 92 Stat. 1783, It, It, too, has never been amended. 21 II. Congress Enacted The Section 1806(f) Protocol And The Civil Liability Provisions Of FISA As Part Of Its Effort To Curb Massive Dragnet Surveillance By The Executive 22 Given the dispositive clarity of the statutory text, the government makes only a few half- 23 hearted textual arguments against section 1806(f) s 1806(f)'s application to civil actions. Instead, the government argues that Congress did not intend for section 1806(f) to apply according to its plain 25 terms. As the context in which Congress acted in 1978 when it enacted FISA makes clear, 26 Congress intended to to authorize civil actions seeking relief from unlawful surveillance, even in 27 cases where the government asserts that evidence relating to the surveillance must be kept secret. -4-

10 A. Before FISA, The Executive Branch Routinely Abused Its Power When 1 Conducting Electronic Surveillance For National Security Purposes 2 In the years leading up to passage of of FISA in 1978, it came to light that the National 3 Security Agency (NSA), Federal Bureau of Intelligence (FBI) and Central Intelligence Agency 4 (CIA) secretly had been monitoring the communications and activities of millions of innocent 5 Americans-without Americans without warrants or or other legal authorization, and and in in many cases for reasons that had 6 nothing to do with national security-for security for nearly fve five decades. These massive surveillance abuses 7 were unearthed in the 1970s by the press and by a congressional committee formed to investigate 8 and address the lack of oversight of intelligence activities being conducted by the Executive Case M:06-cv VRW Document Filed 04/07/2008 Page 10 of 33 B. Revelations Leading Up to Formation of the Church Committee In the early 1970s, a series of startling allegations began to surface, starting with allegations that the U.S. Army had been spying on the civilian population and keeping records of their domestic political activities in in a secret database under a program dubbed CONUS. Christopher H. Pyle, CONUS Intelligence: The Army Watches Civilian Politics, Wash. Monthly, January 1970, at 4, reprinted in 6 Cong. Rec (1970). According to Pyle, the Army began CONUS in 1965 to gather logistical information for use during civil disturbances, but the program morphed over the years as the Army began spying on political activities and maintain[ing] "maintain[ing] files on the membership, ideology, programs, and practices of of virtually every political activist group in the country. country." Ibid. The public outcry that followed prompted the Senate Subcommittee on Constitutional Rights to investigate the alleged spying program with public hearings to investigate the "the dangers the Army s Army's program presents to the principles of the Constitution. Constitution." 6 Cong. Rec (1970). Then came a cascade of revelations that, since the 1950s, the CIA had been engaging in illegal and unauthorized domestic operations that included wiretapping and physical surveillance of reporters and investigative journalists, opening of citizens citizens' mail to and from selected countries, and amassing files on 9,900-plus Americans related to their opposition to the Vietnam War. Memorandum for the File: CIA Matters, James A. Wilderotter, Assoc. Dep. Atty. Gen. (Jan. 3, 1975). Investigative journalist Seymour Hersh reported that: 27 The Central Intelligence Agency, directly violating its its charter, conducted a massive, illegal domestic intelligence operation during the Nixon Administration against the -5-

11 antiwar movement and other dissident groups in the United States, according to 1 well-placed Government sources. 2 Seymour Hersh, Huge C.I.A. C.IA. Operation Reported in U.S. US. Against Antiwar Forces, Other Dissidents 3 in Nixon Years, N.Y. Times, Dec. 21, 1974, at 1. 4 Congress formed the Senate Select Committee to Study Governmental Operations with 5 Respect to Intelligence Activities on January 27, Known informally as the Church "Church 6 Committee, Committee," after its Chairman, Senator Frank Church, the bipartisan committee was tasked with 7 conducting a comprehensive investigation of intelligence gathering by agencies controlled by the 8 Executive, and making a recommendation as to any needed reforms. 9 C. The Church Committee's Committee s Findings That Intelligence Agencies Had 10 Engaged in Massive Spying Abuses Case M:06-cv VRW Document Filed 04/07/2008 Page of 33 The Church Committee s Committee's in-depth investigation of intelligence activities revealed that the government had been spying on American citizens, without warrants or other legal authorization, for decades. S. Select Comm. to Study Governmental Operations with Respect to Intelligence Activities, ("Church ( Church Committee Reports ), Reports"), Book II: I: Intelligence Activities and the Rights of Americans ( Book ("Book II"), II ), S. S. Rep. No at 12 (1976) (concluding that "surveillance surveillance was often conducted conducted by by illegal illegal or or improper improper means ). 2 means").2 As the Church Committee found, successive Attorneys General consistently interpreted the Federal Communications Act of 1934 (the 1934 "1934 Act ) Act") to allow wiretapping as long as no information was shared outside the government. Book II at 36. This "questionable questionable interpretation interpretation" (ibid.) eliminated any judicial or legislative oversight of the Executive's Executive s surveillance activities. Moreover, the Church Committee found that there was a "steady steady increase in the government s government's capability and willingness to pry into, and even disrupt, the political activities and personal lives of the people. people." Book II at 21. Eventually intelligence activity began targeting organizations and citizens engaged in in constitutionally protected political speech and activities. Id. at 22; see also Church Committee Reports, Book III: Supplementary Detailed Staff Reports on Intelligence Activities and the Rights of ofamericans ( Book ("Book III ) II") at at 4-5, 81, The Church Committee reports are available online at -6-

12 1 The Church Committee also uncovered a massive espionage program operated by the NSA, 2 known as SHAMROCK, which bears disturbing similarity to the NSA's NSA s warrantless surveillance 3 programs at issue in these actions. As the Committee found: Case M:06-cv VRW Document Filed 04/07/2008 Page 12 of 33 Book III at at The NSA disseminated the information collected through SHAMROCK to other governmental agencies, including the FBI and the CIA. Id. at 735. Then as Then-as now, over thirty years later-the later the intelligence agencies sought to justify their dragnet warrantless surveillance activities by invoking national "national security security" and foreign "foreign intelligence. intelligence." Book II II at at 205, 208. The Committee was greatly troubled by this, observing that: 15 [A]pplication of of vague and elastic standards for wiretapping and bugging has 16 resulted in electronic surveillances which, by any objective measure, were improper and seriously infringed the Fourth Amendment rights of both the targets and those 17 1 with whom the targets communicated. 18 Book III at 332. The Committee concluded SHAMROCK likely violated the Fourth Amendment, 19 as well as the 1934 Act and the controlling National Security Council Directive. Id. at The Church Committee ultimately concluded that "the the massive record of intelligence 21 abuses over the years years" had undermined "undermined the constitutional rights of citizens... primarily because 22 checks and balances designed by the framers of the Constitution to assure accountability have not 23 been applied. applied." Book II at 290, 9. The Committee urged fundamental "fundamental reform reform" (id.), 4 SHAMROCK is is the code-name for a special program in which the NSA received copies of most international telegrams leaving the United States between August and May Two of the participating international telegraph companies companies- 6 RCA Global and ITT World Communications provided Communications-provided virtually all their international message traffic to NSA. The third, Western Union International, only 7 provided copies of certain foreign traffic from 1945 until SHAMROCK was probably the largest governmental interception program affecting Americans ever 8 undertaken. Although the total number of telegrams read during its course is not available, NSA estimates that in the last two or three years of of SHAMROCK s SHAMROCK's 9 existence, about 150,000 telegrams per month were reviewed by NSA analysts. 3 The telegraph companies initially were hesitant to to participate in in SHAMROCK, fearingthe the 25 program violated the 1934 Act s Act's ban on wiretapping and that their participation could subject them to criminal prosecution. James Bamford, The Puzzle Palace 303 (1983). Company executives 26 therefore conditioned their cooperation in the program upon receiving either assurances of immunity from criminal prosecution or clear congressional authorization of the program. Athan 27 Theoharis, Spying on Americans: Political Surveillance From Hoover To the Huston Plan 120 (1978). Choosing the path that would shield their their conduct from from judicial or or legislative scrutiny, the Executive the opted to promise the telegraph companies immunity from prosecution. Bamford, at

13 Case M:06-cv VRW Document Filed 04/07/2008 Page 13 of 33 1 recommending legislation to "make make clear to the Executive branch that [Congress] will not condone, 2 and does not accept, any theory of of inherent or or implied authority to violate the Constitution, the 3 proposed new charters, or any other statutes. statutes." Id. at 297. Citing Youngstown Sheet & Tube Co. v. 4 Sawyer, 343 U.S. 579 (1952), it noted that [c]ertainly, "[c]ertainly, there would be no such authority after 5 Congress has... covered the field by enactment of a comprehensive legislative charter charter" that would 6 provide "provide the exclusive legal authority for domestic security activities, activities," including "warrantless warrantless 7 electronic surveillance. surveillance." Book II II at at 297 & n. n.10. The Committee also recommended creation of 8 civil remedies for unlawful surveillance and anticipated the protocol of section 1806(f), stating that 9 courts "courts will be able to fashion discovery procedures, including inspections of materials in 10 chambers, and to issue orders as as the the interests of of justice require, to to allow plaintiffs with substantial claims to uncover enough factual material to argue their case, while protecting the secrecy of 12 governmental information in which there is a legitimate security interest. interest." Id. at D. Congress Passed FISA To End The Executive s Executive's Abuse Of Warrantless Surveillance In The Name Of National Security FISA was Congress' Congress response to the Church Committee s Committee's revelations that warrantless "warrantless electronic surveillance in the name of national security has been seriously abused. abused." S. Rep. No (I) at 7 (1978), reprinted in 1978 U.S.C.C.A.N. 3904, A "precisely precisely drawn legislative charter charter" (Book I II at at 309), FISA reflects Congress' Congress intent to to restore balance between the protection of civil liberties and the protection of the national security by providing "effective, effective, reasonable safeguards to ensure accountability and prevent improper surveillance surveillance" by the Executive. S. Rep. No (I) at To fulfill this intent, Congress expressly provided in FISA that FISA and the domestic law 23 4 Much of FISA s FISA's legislative history is available online at and is discussed in the Brief of Amicus Curiae People for the American Way Foundation in Support of Plaintiffs-Appellees, Hepting v. AT&T, Nos , (9th Cir. filed May 3, 2007) As Senator Kennedy stated in in introducing the bill that ultimately became FISA: The "The complexity 26 1 of the problem must not be underestimated. Electronic surveillance can be a useful tool for the Government s Government's gathering of certain kinds of information; yet, if if abused, it it can also constitute a 27 L particularly tillidi arynscrmnae indiscriminate ii anpenerangnvason t and d penetrating tti invasion i oe prvacy i of f the oour privacy i czens.ur of f our ocitizens. Our Ob objective jecve,q has been to to reach some kind kind of of balance that that will willrotect protect the security securitof y of the United States without infringing mtrmgmg on our citizens' citizens human liberties and rights." rights. S. S. Kep. Rep. No. 94-1U at. -8-

14 Case M:06-cv VRW Document Filed 04/07/2008 Page 14 of 33 1 enforcement electronic surveillance provisions of title 18 (originally enacted as Title III of the 2 Omnibus Crime Control and Safe Streets Act of 1968) are the exclusive means by which the 3 Executive may conduct electronic surveillance within the United States: 4 [T]he procedures in this chapter [chapter 9 of of title 18, the codification of of Title III] and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means 5 by which electronic surveillance, as defined in section 101 of such Act [50 U.S.C. 1801], ], and the interception of domestic wire, oral, and electronic communications 6 may be conducted. 7 Pub. L. No. 95-5; 92 Stat. at 1794 (emphasis added); codified codifed at at 18 U.S.C. 25(2)(f). FISA 8 I created a comprehensive set of procedural and substantive restraints on conducting electronic 9 surveillance activities for foreign intelligence purposes, including setting up the Foreign 10 Intelligence Surveillance Court (the "FISC") FISC ) to to authorize such surveillance. 50 U.S.C et seq. FISA permits surveillance of American citizens and others only where the FISC determines, 12 upon a showing of probable cause, that the target is an agent "agent of a foreign power power" as defined in the 13 statute. Id. at 1801(b). FISA also provides for criminal and civil liability against those who 14 conduct electronic surveillance in violation of the statute. Id. at at 1809, Congress has amended FISA several times since it was passed in in 1978, including via the 16 USA Patriot Act in See Pub. L. No Yet the procedural and substantive framework 17 Congress originally created remains intact including intact-including the Judiciary's Judiciary s role in reviewing the legality 18 of the Executive s Executive's surveillance activities, both ex ante and ex ex post, civil liability for unlawful 19 surveillance, and the precisely drawn protocol of section 1806(f) governing how sensitive 20 1 information pertaining to the national security is to be handled in litigation. See Peter Swire, The 21 1 System of Foreign Intelligence Surveillance Law, 72 Geo. Wash. L. Rev. 1306, 1312 (2004). 22 E. Congress Intended For The Judiciary To Play A Significant Signifcant Oversight Role 23 In the Executive's Executive s Electronic Surveillance Activities Through FISA, Congress expressly empowered the Judiciary to review the legality of the 25 government s government's electronic surveillance activities in two ways. First, FISA provides for judicial 26 review of electronic surveillance before it may be initiated. See 50 U.S.C (requiring that 27 intelligence officers obtain a warrant from the FISC before commencing surveillance). Second, FISA authorizes the courts to review the legality of governmental surveillance activities after afer they -9-

15 Case M:06-cv VRW Document Filed 04/07/2008 Page 15 of 33 1 have occurred, substantively by creating civil liability for unlawful electronic surveillance (50 2 U.S.C. 1810) and procedurally by creating the five-step protocol of section 1806(f). 3 From the very inception of the legislative process, Congress made clear its view that the 4 Executive s Executive's unchecked assertion of a right to conduct electronic surveillance in the name of 5 national "national security" security must end. Eg., E.g., S. S. Rep. No (I) at 8, 1978 U.S.C.C.A.N. at 3910 (stating 6 that the bill was designed to "to curb the practice by which the Executive Branch may conduct 7 warrantless electronic surveillance on its own unilateral determination that national security 8 justifies it"); it ); S. S. Rep. No at at (1976) ("the ( the past record establishes clearly that the 9 executive branch cannot be the sole or final arbiter of when such proper circumstances exist ), exist"), (noting that the bill "is is based on the premise (supported by history), that executive self-restraint, in the area of national security electronic surveillance, is neither feasible nor wise ). wise"). 12 Congress determined that the Judiciary was the appropriate body to exercise oversight. 13 Both the House and the Senate considered the same arguments the government now raises here: 14 the Judiciary is ill-suited for this oversight role because of judges' judges alleged lack of experience in 15 matters of foreign policy and national security, and the national security will be harmed if secret 16 information pertaining to matters of national security is used in litigation, even in camera and ex 17 parte. See, e.g., Electronic Surveillance for National Security Purposes, Hearings Before the 18 Subcomms. on Criminal Laws and Procedures and Constitutional Rights of the S. Comm. on the 19 Judiciary, 93rd Cong., 255 (1974); H.R. Rep. No at 25 (1978). 20 These arguments were soundly rejected by a strong majority in Congress. The legislative 21 record is replete with expressions of Congress Congress' firm view that the government's government s need for secrecy in 22 matters of national security simply did not trump the need for judicial oversight of its electronic secrecy and emergency, judicial competence and and purpose do purpose-do not call for any different result in 25 the case of foreign intelligence collection through electronic surveillance. ); surveillance."); Foreign Intelligence 26 Surveillance Act of 1977, Hearings on S Before the Subcomm. on Criminal Laws and 27 Procedures of the S. Comm. on the Judiciary, 95th Cong., at 27 (1977) (Attorney General Bell asserting that [t]he "[t]he most leakproof branch of the Government is the judiciary. judiciary.... I have seen 23 surveillance activities. See S. Rep. No at 79 ( We ("We believe that these same issues issues- -10-

16 1 intelligence matters in the courts. courts.... I have great confidence in the courts, courts," and Senator Orrin Hatch 2 replying, "I I do also."). also. ). 3 Instead, Congress addressed the concern that the national security could be harmed if 4 matters relating to the government s government's electronic surveillance activities were publicly disclosed, 5 while still preserving the safeguard of civil liability for those, including telecommunications 6 carriers, who participate in unlawful surveillance, by carefully crafting a comprehensive protocol to 7 deal with sensitive information. That protocol is section 1806(f). 8 Iii. III. Whenever The Government Seeks To Protect From Disclosure Information Relating 9 10 To Electronic Surveillance On Grounds Of Harm To The National Security, It Must Invoke The Section 1806(f) Protocol Congress intended section 1806(f) to provide an exclusive protocol for the government to Case M:06-cv VRW Document Filed 04/07/2008 Page 16 of 33 use to protect against harm to the national security in both civil and criminal cases in which the lawfulness of electronic surveillance is at issue, while providing courts with a mechanism for determining whether the surveillance was lawful. 14 A. Congress Intended For Section 1806(f) To Apply To Civil As Well As 15 Criminal Cases 16 The government suggests that section 1806(f) is is limited to the government s government's use of 17 surveillance evidence against "against" an aggrieved person in a criminal case (e.g., Motion at 13:3) and 18 does not apply when the government asserts that disclosure of of information relating to electronic 19 surveillance sought by civil plaintiffs will harm the national security. This suggestion is contrary 20 to the text of the statute, the statutory scheme, and the legislative history. 21 As explained in Section I(A) above, section 1806(f) applies to three distinct categories of 22 events. Only the first two of of these categories involve the government's government s use of surveillance 23 evidence against a person. The third category contains no such limitation, but applies whenever "whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the 25 United States... to discover or obtain applications or orders or other materials relating to electronic 26 surveillance. surveillance." 1806(f). 27 This makes sense given FISA s FISA's statutory scheme as a whole. Because the government and the telecommunications carrier are the only ones aware that covert electronic surveillance is --

17 Case M:06-cv VRW Document Filed 04/07/2008 Page 17 of 33 1 occurring, Congress recognized that telecommunications carriers had a critical role to play in 2 keeping the government honest and making sure that the only electronic surveillance that occurs is 3 that authorized by FISA and Title III, II, i.e., that FISA and Title III remain the "exclusive exclusive means" means by 4 which surveillance is conducted. 18 U.S.C. 25(f). Telecommunications carriers would have 5 no incentive to play this role and stand up to unlawful requests by the government, however, unless 6 they were individually liable for unlawful surveillance. So So Congress in 18 U.S.C and 7 50 U.S.C made telecommunications carriers and others who participate in unlawful 8 electronic surveillance civilly liable as a central means for enforcing the exclusivity of FISA and 9 Title II. III. Congress completed the statutory scheme by providing the section 1806(f) protocol as the 10 practical means by which the civil liability necessary to protect the exclusivity of FISA and Title III could be enforced without endangering the national security. 12 The legislative history also confirms that section 1806(f) applies to civil cases. The Senate 13 and the House of Representatives in in 1978 passed two different FISA bills, each with a different 14 version of the provision that became section 1806(f), before ultimately reaching agreement on the 15 FISA bill that was enacted into law. The Senate bill provided a single protocol for determining the 16 legality of electronic surveillance in both criminal and civil cases. The House bill had two separate 17 protocols for determining the legality of electronic surveillance: One House protocol applied to 18 criminal cases where the government sought to use surveillance evidence against an aggrieved 19 person, i.e., the first frst two categories of the enacted version of section 1806(f). The other House 20 protocol applied to civil cases in which a determination of the legality of the surveillance was at 21 issue, i.e., the third category of the enacted version of section 1806(f). The two House protocols 22 had different standards for disclosure to the aggrieved person, among other differences. 23 The report of the joint House and Senate Committee of Conference for the enacted version of FISA describes the Senate and House versions and their differences as follows: 25 The Senate bill provided a single procedure for determining the legality of electronic surveillance in a subsequent in camera and ex parte proceeding..... The Senate bill 26 also provided that, in making this determination, the court should disclose to the 27 aggrieved person materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance. -12-

18 The House amendments provided two separate procedures of determining the legality 1 of electronic surveillance..... In criminal cases, there would be an in camera proceeding; and the court might disclose to the aggrieved person... materials relating 2 to the surveillance if if there were a reasonable question as to the legality of the 3 surveillance and if disclosure would promote a more accurate determination of such legality, or if disclosure would not harm the national security. In civil suits, there 4 would be an in camera and ex parte proceeding before a court of appeals; and the court would disclose... to the aggrieved person or his attorney materials relating to 5 the surveillance only if if necessary to afford due process to the aggrieved person. 6 H.R. Conf. Rep. No at (1978), reprinted in 1978 U.S.C.C.A.N. 4048, ( FISA ("FISA Con Conf. Comm. Rep."). Rep. ). 8 In the end, Congress adopted a modified version of the Senate protocol, deeming a single 9 protocol sufficient both for criminal cases in in which the the aggrieved person was seeking to suppress The conferees agree that an in camera and ex parte proceeding is appropriate for 13 determining the lawfulness of electronic surveillance in both criminal and civil cases Case M:06-cv VRW Document Filed 04/07/2008 Page 18 of 33 surveillance evidence the government intended to use against him or her and for civil cases in which the aggrieved person was seeking a determination of the legality of electronic surveillance: FISA Conf. Comm. Rep. at at 32, 1978 U.S.C.C.A.N. at at 4061 (emphasis added); see also 18 U.S.C. 2712(b)(4) (As part of the congressionally mandated process for litigating FISA and wiretapping claims against the United States, Congress directed, [n]otwithstanding "[n]otwithstanding any other provision of law, law," that the procedures set forth in section 1806(f), along with similar provisions in sections 1825(g) and 1845(f), are the exclusive "exclusive means by which certain materials may be reviewed. reviewed.") ) This legislative history shows that Congress repeatedly and in detail considered how best to structure the protocol for determining the legality of surveillance in a way that accommodates both the interests of national security and the need for due process and the rule of law. Congress deliberately chose to make section 1806(f) available not just to criminal defendants facing the use of electronic surveillance evidence against them, but but to to civil plaintiffs seeking vindication of constitutional and statutory rights violated by unlawful surveillance. 25 B. It Is The Government, Not The Party Seeking Discovery, That Triggers Section 1806(f) By Contending That Disclosure Of Information Regarding 26 Surveillance Would Cause Harm To The National Security 27 The government argues that section 1806(f) only applies if the persons who are seeking discovery relating to electronic surveillance are persons whom the government has already -13-

19 Case M:06-cv VRW Document Filed 04/07/2008 Page 19 of 33 1 acknowledged it has surveilled. This argument lacks merit. 2 First, the government looks at section 1806(f) through the wrong end of the telescope. It is 3 the government, not the party seeking information relating to electronic surveillance, that triggers 4 section 1806(f) by, for example, responding to a discovery request with the assertion that the 5 disclosure of information would harm the national security. Section 1806(f) is not invoked "invoked by 6 parties seeking to discover discover" materials, contrary to the government s government's contention (Motion at 16); 7 rather, it is invoked by the Attorney General's General s notification to the court "that that disclosure or an 8 adversary hearing would harm the national security. security." 1806(f); S. Rep. No at 63 (1978), 9 reprinted in 1978 U.S.C.C.A.N. 3973, 4032 ("The ( The special procedures... cannot be invoked until 10 they are triggered by a Government affidavit that disclosure or an adversary hearing would harm the national security.... If no such assertion is made, the committee envisions... mandatory 12 disclosure. );...."); FISA Conf. Rep. at at 32 ("The ( The in in camera and ex parte proceeding is invoked if the 13 Attorney General files an affidavit under oath."). oath. ). 14 A civil plaintiff seeking discovery of of information relating to to electronic surveillance does 15 not need to prove that the surveillance actually occurred before making the discovery request, any 16 more than any other party in any other action needs to prove up its case before seeking discovery. 17 Nothing in the section 1806(f) process requires the plaintiff to to prove he or she has been surveilled 18 before seeking discovery. Instead, as in any other case, the right to seek discovery requires nothing 19 more than a complaint whose allegations, including allegations of standing, are sufficiently robust 20 to withstand a motion to dismiss, and a connection of relevance between the discovery requested 21 and the claim "claim or defense of any party, party," Fed. R. Civ. Pro. 26(b)(1). Invocation of section 1806(f) 22 rests in the hands of the government, the same party that knows whether or not the plaintiff is 23 aggrieved; otherwise, the case proceeds as usual. Second, the government s government's argument is fatally fawed flawed because it rests on portions of Senate 25 Intelligence Committee Report No that discuss the suppression of illegal surveillance 26 evidence in criminal trials. Motion at & n.19. The portions of the report that the 27 government relies on discussing the suppression of evidence, however, pertain to a version of Senate bill 1566 whose protocol for the in camera, ex parte review of surveillance materials was -14-

20 1 significantly different from the protocol that was ultimately enacted as section 1806(f) discusses, the third category of of the protocol consisted entirely of: of. "... or whenever any motion 4 or request is made by an aggrieved person pursuant to to section 3504 of of this title [18] or any other 5 statute or rule of the United States, to discover, obtain, or suppress evidence or information 6 obtained or derived from electronic surveillance....." S. 1566, 95th Cong. (as reported by S. Select 7 Comm. on Intelligence, Mar. 14, 1978). In that earlier bill, unlike the enacted version of FISA, the 8 third category of the protocol was limited to what is now its second prong in section 1806(f), the 9 one that permits aggrieved persons to "to discover, obtain, or suppress evidence or information 10 obtained or derived from electronic surveillance. surveillance." 1806(f). This second prong, which does pertain to motions to suppress surveillance evidence itself, i.e., the contents of what was overheard, 12 is not the prong applicable to the evidence sought by by the Al-Haramian plaintiffs or the other MDL 13 plaintiffs. See Opposition at 16. The bill had not yet been broadened to include as well the first 14 prong of the third category of section 1806(f), the prong that applies when a civil plaintiff seeks to "to 15 discover or obtain applications or orders or other materials relating to electronic surveillance. surveillance." (f). It It is is this first prong, not not addressed by the Senate Report on which the government relies, 17 that applies to the evidence sought by the Al-Haramain plaintiffs and the other MDL plaintiffs Third, it was established at the time FISA was enacted that a person was aggrieved "aggrieved" by 19 electronic surveillance if the person had a colorable basis for believing he or she had been 20 surveilled. Even in the narrower Senate Intelligence Committee version of Senate bill 1566 set 21 forth above, motion[s] "motion[s] or request[s] made by an aggrieved person" person included motions under U.S.C S. 1566, 95th Cong. (as reported by S. Select Comm. on Intelligence, Mar. 14, ); see also S. Rep. No at 63, 1978 U.S.C.C.A.N. at 4032 ( This ("This procedure applies, for example, whenever an individual makes a motion... pursuant to U.S.C )....."). Section 25 Case M:06-cv VRW Document Filed 04/07/2008 Page 20 of 33 2 In the Senate Intelligence Committee version of Senate bill 1566 that Senate Report No The first prong of the third category was added later by the House to the version of Senate bill that the House passed September 7, Cong. Rec. 427, 431 at 106(g) (S as reported by the House September 7, 1978). As explained above, the House and Senate versions of Senate bill 1566, and their differing provisions regarding the section 1806(f) protocol, were then reconciled by the Committee of Conference into the final version of FISA that Congress enacted. -15-