Jewel et al v. National Security Agency et al

Filing 30

DECLARATION of Cindy Cohn in Opposition to 29 Memorandum in Opposition, Declaration of Cindy Cohn Pursuant to Fed. R. Civ. P. 56(f) in Opposition to Government Defendants' Motion to Dismiss and For Summary Judgment filed byGregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton, Tash Hepting. (Attachments: # 1 Exhibit A)(Related document(s) 29 ) (Meny, Rachael) (Filed on 6/3/2009)

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1 ELECTRONIC FRONTIER FOUNATION CINY COHN (SBN 145997) 2 LEE TIEN (SBN 148216) 3 KURT OPSAHL (SBN 191303) KEVIN S. BANSTON (SBN 217026) 4 JAMES S. TYR (SBN 083117) 454 Shotwell Street 5 San Francisco, California 94110 Telephone: (415) 436-9333; Facsimile: (415) 436-9993 6 KEKER & V AN NEST, LLP 7 RACHAELvE.cMENY (SBN 178514) rmeny~k n. om PAULA L. BLIZZAR (207920) 8 MICHAEL S. KWU (198945) 9 AUDREY WALTON-HADLOCK (250574) 710 Sansome Street San Francisco, California 94111-1704 10 Telephone: (415) 391-5400; Facsimile: (415) 397-7188 11 LAW OFFICE OF RICHAR R. WIEBE RICHAR R. WIEBE (SBN 121156) 12 425 California Street, Suite 2025 13 San Francisco, California 94104 Telephone: (415) 433-3200; Facsimile: (415) 433-6382 14 THE MOORE LAW GROUP 15 THOMASmoorelawteam. com 115107) E. MOQRE III (SBN tmooretq 16 228 Hamilton Avenue, 3ro Floor Palo Alto, California 94301 17 Telephone: (650) 798-5352; Facsimile: (650) 798-5001 Attorneys for Plaintiffs 18 UNITED STATES DISTRICT COURT 19 NORTHERN DISTRICT OF CALIFORNIA 20 CAROLYN JEWEL, TASH HEPTING, 21 GREGORY HICKS, ERI KNTZEN and themselves JOICE WALTON, on behalf of 22 and all other similarly situated, 23 Case No. C-08-4373-VRW CLASS ACTION DECLARTION OF CINDY COHN PURSUANT TO FED. R. CIV. P. 56(1) IN OPPOSITION TO GOVERNMENT DEFENDANTS' MOTION TO DISMISS AND FOR SUMMARY JUDGMENT Date: Time: Dept: Judge: Plaintiffs, v. 24 25 NATIONAL SECURTY AGENCY, et aI., 26 July 15, 2009 10:30 a.m. Defendants. 27 28 6, 1 ih Floor Vaughn R. Walker Date Compo Filed: September 18,2008 442718.02 DECLARATION OF CINY COHN PURSUANT TO FED. R. CIV. P. 56(f) IN OPPOSITION TO GOVERNMENT DEFENDANTS' MOTION TO DISMISS AND FOR SUMMARY JUGMENT CASE NO. C-08-4373-VRW 1 I, CINDY COHN, declare and state: 2 1. I am an attorney duly licensed to practice law in the courts of the State of 3 California, and I am a member of the bar of this district. I am also Legal Director for the 4 Electronic Frontier Foundation, counsel of record to the Plaintiffs in this action. I am familiar 5 with the records and proceedings in this action as well as the records and proceedings (with the 6 exception of the in camera, ex parte materials submitted by the Governent) in In Re National 7 Security Agency Telecommunications Records Litigation, MDL No. 06-1791 VRW("the 8 MDL"). 9 2. In Mohamed v. Jeppesen Dataplan, Inc., 563 F.3d 992, (9th Cir. 2009), the Ninth 10 Circuit held that neither the Federal Rules of Civil Procedure nor the state secrets evidentiary 11 privilege established in United States v. Reynolds, 345 U.S. 1,9-10 (1953) would permit a 12 district court to dismiss a well-pleaded complaint at the pleadings stage on the basis of an 13 evidentiary privilege that must be invoked during discovery or at triaL. 563 F.3d at 1009. As in 14 Jeppesen, the Governent here has not filed an answer to the complaint in this case, and 15 discovery has not begun. However, because the Governent has styled its motion as a motion to 16 dismiss or alternatively for summar judgment, Plaintiffs are compelled to invoke their rights 17 under Rule 56(f) to have an opportunity to conduct discovery to obtain "facts essential to justify 18 its opposition" to summar judgment. 19 3. During the course of opposing the Governent's motion to dismiss and/or for 20 summar judgment in the MDL, on October 16,2008, Plaintiffs filed an extensive factual record 21 that establishes the genuine issues as to the material facts surrounding the Governent's 22 unlawful surveilance of milions of ordinary Americans. MDL Docket Nos. 479,486-495. This the existence of 23 Court may take judicial notice of that factual record under Federal Rule of 24 Evidence 201. Plaintiffs summarzed that factual record in their Summary of Voluminous 25 Evidence filed under Federal Rule of Evidence 1006, a true and correct copy of which is attached 26 hereto as Exhibit A. i Plaintiffs have also fied several Notices of Additional Authorities 27 28 i The Sumary of Voluminous Evidence was filed electronically as MDL Docket No. 481. The evidence itselfwas filed manually, see MDL Docket No. 484, because it was too voluminous to 1 DECLARATION OF CINY COHN PURSUANT TO FED. R. CIV. P. 56(f) IN OPPOSITION TO 442718.02 GOVERNMENT DEFENDANTS' MOTION TO DISMISS AND FOR SUMMARY JUGMENT CASE NO. C-08-4373-VRW 1 containing additional information that has been discovered since the Summary of Voluminous 2 Evidence was filed. MDL Docket Nos. 535,627 ("Additional Authorities"). 3 4. In addition to the evidence Plaintiffs have already presented, Plaintiffs are entitled 4 under Rule 56(f) to conduct discovery before the Court decides the Governent's motion. 5 Plaintiffs respectfully submit that further information supporting their opposition is in the hands 6 of other parties and witnesses, including the Governent and its agents and employees and the 7 telecommunications companies and their agents and employees. Discovery is likely to reveal 8 additional facts that will help demonstrate that there are genuine issues of material fact that 9 preclude granting the Governent's motion. 10 11 least some of 5. As the Court ordered in Al Haramain (MDL Docket No. 537), if necessary, at Plaintiffs' attorneys would seek a security clearance in orderto allow them to 12 conduct discovery. 13 6. . The evidence that Plaintiffs intend to uncover through discovery is available 14 through several channels, as outlined below. 15 7. Plaintiffs would take the deposition of former governent offcials who have 16 spoken publicly about the communications carrers' involvement in the NSA's warrantless 17 surveilance, including Defendants Richard B. Cheney, Michael B. Mukasey, John M. 18 McConnell, David S. Addington, Alberto R. Gonzales, John D. Ashcroft and John D. 19 Negroponte, and nonparties Michael Chertoff, Keith B. Alexander, Michael V. Hayden, James 20 Corney, Andrew Card, Jack Goldsmith, John Yoo, Patrick Philbin, Robert S. Mueller III, 21 Thomas M. Tamm, Royce C. Lamberth and Russell Tice. As noted above, if needed Plaintiffs 22 would seek a security clearance to enable them to conduct this discovery in a manner that 23 protects national security. 24 8. Plaintiffs would seek further wrtten and deposition discovery arsing out of the Voluminous Evidence and in the the information inthose 25 documents summarized in the accompanying Summary of 26 Additional Authorities filed in part to address any claims that any of 27 documents requires authentication, is hearsay, or is otherwise inadmissible. 28 be filed electronically. 442718.02 2 DECLARATION OF CINY COHN PURSUANT TO FED. R. CIV. P. 56(f) IN OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR SUMMARY mDGMENT CASE NO. C-08-4373-VRW 1 9. For instance, the Summary of Voluminous Evidence references the unclassified 2 nature of 17 paragraphs of notes of then White House Counsel Alberto Gonzales' March 10, 3 2004 meeting with certain members of Congress known as the "Gang of Eight." The notes the Department of Justice 4 discuss legal concerns about the program. As the Inspector General of 5 reported: "The NSA officials determined that 3 of 21 paragraphs in the notes contains SCI 6 information about the NSA surveillance program (and) 1 paragraph contains SCI information 7 about signals intelligence." Declaration of Kurt Opsahl ("Opsahl Decl.," MDL Docket No. 479) Investigation Regarding 8 Ex. 7 (Office of the Inspector General, Us. Dept. of Justice, Report of 9 Allegations of Mishandling of Classifed Documents by Att Y Gen. Alberto Gonzales (Sep. 2, 10 2008), at p. 10, n.14). Those notes themselves are evidence, or at a minimum are likely to lead 11 to the discovery of admissible evidence, about the scope and legal justification for some portion 12 of the alleged surveillance. 10. 13 14 Attorney General Similarly, testimony regarding issues discussed at the March 10, 2004 meeting in Ashcroft's hospital room is not classified, since non-cleared personnel were 15 present. See Opsahl Decl. Ex. 11 (Dept. of Justice Oversight: Hearing before the S. Judiciary 16 Comm. 110th Congo (Jan 18, 2007)).2 Again, those issues are either directly relevant to the 17 sureilance alleged in this case or are likely to lead to the discovery of admissible evidence 18 about the facts of the surveillance that led to legal concerns about it at the Department of Justice. 19 11. Plaintiffs would take depositions of and seek documents from the named sources Voluminous Evidence (Exhibit A hereto) 20 in the published reports included in the Summary of 21 and in the Additional Authorities, regarding those sources' personal knowledge of published or 22 unpublished information or their discussions with or knowledge of other sources of information. 23 12. To the extent Plaintiffs are able independently to identify any additional sources 24 of evidence, Plaintiffs would seek to obtain declarations from, or propound depositions on 25 written questions to, any unnamed sources, including those quoted in news reports. 26 27 28 13. Plaintiffs would seek discovery regarding the fact of the carrers' interception and 2Available at http://ww.washingtonpost.comlwpsrv /politics/ documents/ gonzalez_ transcript_ 072407 .htmI. 3 DECLARATION OF CINDY COlIN PURSUANT TO FED. R. CIV. P. 56(f) IN OPPOSITION TO GOVERNENT DEFENDANTS' MOTION TO DISMISS AND FOR SUMMARY JUGMENT CASE NO. C-08-4373-VRW 442718.02 1 disclosure of the communications and communications records of the telecommunications 2 companies' customers, including those of the named Plaintiffs and class members. 3 14. Plaintiffs would take the depositions of Qwest executives including Joseph 4 Nacchio regarding non-privileged discussions with the NSA pertaining to warrantless 5 wiretapping, including content data acquisition. Published accounts note that unlike AT&T, 6 Qwest publicly disclosed that it received a request from the NSA to intercept and disclose 7 customer communications and data, and that it rejected the request. 15. 8 Plaintiffs would take the depositions ofVerizon executives regarding non- 9 privileged discussions with the NSA pertaining to warrantless surveilance, including content 10 data acquisition, among other things. For instance, a Verizon Wireless spokeswoman has 11 publicly disclosed that Verizon Wireless received but rejected requests by the NSA that Verizon i 12 Wireless intercept and disclose customer communications and data. 13 16. Plaintiffs wouldTequest an inspection of the premises of AT&T's Folsom Street 14 facility under Fed. R. Civ. P. 34, including the WorldNet Internet room, the splitter cable, the 15 inside and outside of the splitter cabinet, and the area outside the SG3 Secure Room. Plaintiffs 16 would also request an inspection of the premises outside of other of AT&T's SG3 rooms, which 17 the record indicates exist in Atlanta, Seattle, San Jose, San Diego, and Los Angeles. Declaration 18 of Mark Klein ir 36 (Hepting v. AT&T, No. C-06-672 VRW, Docket No. 31 (VoL. 5, Ex. 78, p. 19 02041)). 20 17. Plaintiffs would take the depositions (or obtain the sworn declarations) of curent 21 or former AT&T employees with knowledge of, and who worked in, the SG3 Secure Room, 22 doing so in a manner that would protect the identities of these witnesses, as needed. Such 23 persons would include, but are not limited to: (1) James W. Russell, who fied a Declaration 24 dated April 10, 2006, under seal due to AT&T trade secret concerns, see Notice of Manual 25 Filing, Hepting Docket No 42; and (2) the named author of certain exhibits to the Klein 26 Declaration that were also filed under seaL. See Notice of Manual Filing, Hepting Docket No. 27 31. 28 18. Plaintiffs would request an inspection of AT&T's facilities housing the Daytona 4 PURSUANT TO FED. R. CIV. P. 56(f) IN OPPOSITION DECLARATION OF CINY COHN TO 442718.02 GOVERNMENT DEFENDANTS' MOTION TO DISMISS AND FOR SUMMARY JUDGMENT CASE NO. C-08-4373-VRW 1 database and databases used for similar purposes at AT&T and other carrers. 2 19. Plaintiffs would take depositions of the persons most knowledgeable about 3 AT &T' s Daytona database and databases used for similar purposes at AT&T and other carriers. 4 20. Each of the topics of specific discovery outlined above is highly likely to yield Plaintiffs' claims. 5 further evidence of genuinely disputed material facts relating to all of 6 Specifically, the discovery would lead to evidence regarding the nature and scope ofthe 7 Governent's surveillance program, the timing of efforts to concoct a legal justification for the the ilegal aspects of 8 program, the efforts to mislead Congress and the FISA court about the 9 program, and the intention on the part of the individual defendants to violate the Wiretap Act, 10 ECl A, FISA and the Fourth Amendment. 11 I declare under penalty of perjury that the foregoing is true and correct. 12 Executed at San Francisco, California, this 3rd day of June 2009. 13 14 15 /s/ per General Order 45X.B CINY COHN 16 17 18 19 20 21 22 23 24 25 26 27 28 5 442718.02 DECLARATION OF CINY COHN PURSUANT TO FED. R. CIV. P. 56(f) IN OPPOSITION TO GOVERNMENT DEFENDANTS' MOTION TO DISMISS AND FOR SUMMARY JUGMENT CASE NO. C-08-4373-VRW

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