Jewel et al v. National Security Agency et al

Filing 38

MOTION for Leave to File Supplemental Brief on the Scope of FISA Act Preemption filed by Tash Hepting, Gregory Hicks, Carolyn Jewel, Erik Knutzen, Joice Walton. (Attachments: # 1 Supplement Supplemental Memorandum on the Scope of FISA Act Preemption, # 2 Affidavit Wiebe Declaration ISO Supplemental Memorandum, # 3 Exhibit A to Wiebe Decl., # 4 Exhibit B to Wiebe Decl., # 5 Exhibit C to Wiebe Decl., # 6 Exhibit D to Wiebe Decl., # 7 Exhibit E to Wiebe Decl., # 8 Proposed Order Allowing Supplemental Memorandum)(Blizzard, Paula) (Filed on 8/3/2009)

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Pages 1 - 66 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE VAUGHN R. WALKER ) ) ) ) Plaintiffs, ) ) vs. ) ) NATIONAL SECURITY AGENCY ("NSA"); ) KEITH B. ALEXANDER, Director of ) the NSA; UNITED STATES OF AMERICA; ) BARACK OBAMA, President of the ) United States; UNITED STATES ) DEPARTMENT OF JUSTICE; ) ERIC HOLDER, Attorney General of ) the United States; ) DENNIS C. BLAIR, Director of ) National Intelligence, ) ) Government Defendants ) Sued in their ) _____________Official Capacity.____) CAROLYN JEWEL, TASH HEPTING, GREGORY HICKS, ERIK KNUTZEN, and JOICE WALTON, NO. C 08-4373-VRW San Francisco, California Wednesday July 15, 2009 11:35 a.m. TRANSCRIPT OF PROCEEDINGS APPEARANCES: For Plaintiffs: Keker & Van Nest, LLP 710 Sansome Street San Francisco, California (415) 391-5400 (415) 397-7188 (fax) PAULA LENORE BLIZZARD 94111-1704 BY: (Appearances Continued On Next Page) Reported By: Lydia Zinn, CSR #9223, RPR Official Reporter - U.S. District Court 2 1 2 3 4 5 6 APPEARANCES (CONT'D) For Plaintiffs: Electronic Frontier Foundation 454 Shotwell Street San Francisco, CA 94110 (415) 436-9333 x 108 CINDY ANN COHN KURT BRADFORD OPSAHL KEVIN STUART BANKSTON JAMES SAMUEL TYRE Law Office of Richard R. Wiebe 425 California Street, Suite 2025 San Francisco, CA 94104 (415) 433-3200 (415) 433-6382 (fax) RICHARD ROY WIEBE U.S. Department of Justice Civil Division 20 Massachusetts Avenue, N.W. Washington, D.C. 20001 (202) 514-4652 ANTHONY JOSEPH COPPOLINO Office of the Director of National Intelligence 2B-215 LX-2 Washington, D.C. 20511 (703) 275-2509 (703) 275-1281 (fax) TRICIA S. WELLMAN United States Department of Justice Civil Division, Torts Branch Constitutional & Specialized Torts 1425 New York Avenue, N.W. Washington, D.C. 20005 (202) 616-4169 (202) 616-4314 (fax) JAMES R. WHITMAN Office of the General Counsel National Security Agency SCOTT A. CHUTKA BY: For Plaintiffs: 7 8 9 10 11 12 BY: 13 For Defendants: 14 15 16 BY: 17 For Defendants: 18 19 20 21 22 23 24 25 For Defendants: BY: BY: For Defendants: BY: Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE CLERK: Calling Civil Case 08-4373, Carolyn Jewel Alvarez versus National Security Agency, et al. Counsel, appearances. MR. COPPOLINO: Anthony Coppolino, Department of And I'm joined at the end of Justice, for the United States. the table, your Honor, by Scott Chutka, Office of General Counsel, National Security Agency; Tricia Wellman, Office of General Counsel of the Office of Director of National Intelligence. THE COURT: Very well. Good morning. MR. WHITMAN: Good morning, your Honor. James Whitman, for the Department of Justice, on behalf of the individual-capacity defendants. THE COURT: Good morning. Kevin Bankston, on behalf of the Jewel MR. BANKSTON: plaintiffs. THE COURT: MR. WIEBE: plaintiffs. THE COURT: MR. OPSAHL: Good morning, Mr. Bankston. Richard Wiebe, on behalf of the Jewel Yes, Mr. Wiebe. Good morning, your Honor. Kurt Opsahl, on behalf the Jewel plaintiffs. THE COURT: MR. TYRE: Mr. Opsahl. Good morning, your Honor. James Tyre, also for the Jewel plaintiffs. Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it? MS. BLIZZARD: Good morning, your Honor. Paula Blizzard, for the Jewel plaintiffs. THE COURT: MS. COHN: Ms. Blizzard. Good morning, your Honor. Cindy Cohn, on behalf of the Jewel plaintiffs. THE COURT: Very well. Well, let's see. It's your motion. Mr. Coppolino, I suppose you want to start. And, in any event, I'd like to talk to you about this. MR. COPPOLINO: THE COURT: Thank you, your Honor. Now, let's talk about sovereign immunity. I know you have other things to say as well, but sovereign immunity is what's on my mind. One of the prerogatives of being the Judge is you get to talk about what's on the Judge's mind, at least, first; so let's chat about that. MR. COPPOLINO: THE COURT: Section 2712. you. MR. COPPOLINO: THE COURT: this before. I do, your Honor. We've, of course, looked at Well, your Honor -- Let's take a look at 18 U.S.C. It might be helpful if you have that in front of All right. 2712(a) provides any person who's aggrieved by any willful violation of this chapter -Now, what's this chapter? That's Chapter 121, isn't MR. COPPOLINO: Correct. Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: And what is Chapter 121? I believe it's -- Chapter 121 is the MR. COPPOLINO: Stored Communications Act. THE COURT: Chapter 121 is the Stored Wire and Electronic Communications Act? MR. COPPOLINO: THE COURT: Chapter 119. Right. And it goes on -- or of Okay. Well, what's Chapter 119? Wiretap Act. MR. COPPOLINO: THE COURT: And that would include the Electronic Communications Privacy Act? MR. COPPOLINO: THE COURT: I believe so, your Honor, or -- I beg your pardon? I think it might be in 121, but it MR. COPPOLINO: covers them all. THE COURT: Okay -- or of Sections 106(a), 305(a), or 405(a) of the Foreign Intelligence Surveillance Act of 1978. Now, that seems to be pretty specific. It would embrace the Stored Communications Act, the Electronic Communications Privacy Act, the so-called "Wire Act," I gather, in their totality, and then specific identified provisions of F.I.S.A.. Now, how is it that this provision is not a waiver of sovereign immunity? MR. COPPOLINO: your Honor. It is a waiver of sovereign immunity, The difference of opinion is over precisely the Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 scope of it. And I acknowledge that this is our most -- of our four jurisdictional arguments, this is clearly the most challenging one. And, if I could just give you a brief moment of context for why we have raised it, I think it's important that we preserve as many issues as possible in the District Court on jurisdiction, in particular, where cases involve the assertion of a State Secrets Privilege, because, as you know, it's a privilege assertion that's not to be lightly invoked. this case, as in any case, we would like to give the District Court and reviewing courts alternative grounds to eliminate or narrow claims so that they can focus precisely on what the State Secrets Privilege assertion applies to. And so And in that's the context and the spirit in which these arguments have been raised. And in particular, we think they really only have, construing all their claims, a constitutional claim for prospective relief. With respect to this particular provision in Section 2712, our argument is -- and I think it's a colorable one; and I actually think it's correct, but I acknowledge there is a tension there with this particular language. Our argument is that you shouldn't evaluate the waiver of sovereign immunity in 2712 based solely on this one sentence. What you should look at is the Supreme Court has, over and over, stressed the Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 structure, the object, the purpose of the statute. And in particular, the statute here is Section 223 of the Patriot Act, which, as we've detailed in our brief -- and we have actually attached a copy in our appendix -- actually enacted several provisions at the same time. And in those provisions, it did several things to the Wiretap Act, the Stored Communications Act, before implementing this waiver of sovereign immunity. And what it did in particular was, in Section 223(a) of the Patriot Act, it actually eliminated a cause of action against the United States under the Wiretap Act. And it inserted a particular cause of action for a willful violation by government employees of the disclosure of information collected pursuant to electronic surveillance or pen register trap and trace. In the second section of the Patriot Act -- I believe it's Section 223(b) -- again, the Congress eliminated a cause of action against the United States, but also inserted a cause of action in general in that provision to -- for liability against government employees for unauthorized, willful disclosures. And then, with that as the preceding sections, Congress then added Section 2712, which you have just quoted. And our view is that that cause of action should be read in context of the prior two provisions. Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Well, when was 2712 enacted? I believe it was enacted with the MR. COPPOLINO: Patriot Act, in Section 223 of the Patriot Act, which would have been in October of 2001. time. And when you look at the statutory provisions, the reference to the willful violations -THE COURT: So you're saying that this provision came All of this was done at the same into effect at the same time as the Patriot Act provisions that you're also relying upon? MR. COPPOLINO: Yes. I'm saying that Section 223 of And it also went the Patriot Act is what created Section 2712. back and it amended the Wiretap Act and the Stored Communications Act. And those first two amendments eliminated causes of action against the United States; specifically excluded the United States. THE COURT: How does that help? Admittedly, it helps you with respect to those omitted claims, but you have a situation where Congress omitted particular claims and it expressly included others, and not just included whole statutes in a wholesale fashion, although it did that, but also particularized the provisions in F.I.S.A. as to which this provision applies and constitutes a waiver. So Congress appears to have known how to give a broad waiver and a narrow waiver. Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. COPPOLINO: This -- again, I think if you look at it from the standpoint of what did Congress do at the same time on the same day in the same statutory provision, we think reading the entire statute in harmony, all of its provisions, suggests that what they were seeking to do was add the unauthorized disclosure violation, which is the very title of Section 223 of the Patriot Act: Unauthorized Disclosures. Add that cause of action to the Wiretap Act, the Stored Communications Act, and then a cause of action to sue the government for that violation, having expressly excluded the government from the other violations, from -- more broadly, from causes of action under those statutes separately. The phrase "willful violation" that you quoted when you came out is a phrase that we think gathers meaning from the use of the term "willful" in the surrounding provisions. Another specific thing which we think gives this context is the -THE COURT: alleged here? MR. COPPOLINO: Your Honor, they've alleged a The cause of action Isn't that what the plaintiffs have Civil Liability for Certain different type of disclosure violation. that Congress enacted is a cause of action that's -- it's an anti-leak provision. It originated in a proposal from And the Representative Frank in the House of Representatives. Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 provision is much like a Privacy Act provision, which says that if the government collects information pursuant to surveillance or a pen register trap and trace, and then leaks it or discloses or misuses it, then there's a cause of action against the government. Their allegation here is different. Their allegation is that the government, in conjunction with the telecommunications carriers, allegedly induced the carriers to disclose information to the government. The cause of action concerns information disclosed by the government to the public, or a misuse of information about an individual collected. It is, in effect, an embodiment of a Privacy Act-type provision in the Criminal Code. So, as I say, I think if you look at the object and policy of all of Section 223, we think certainly a colorable argument could be made that Congress intended to adjust this unauthorized disclosure and provision. THE COURT: Well, take me through the other provisions that you think shed light upon what appears to be the very clear language of 2712. MR. COPPOLINO: If you look at -- and when submitted this as an exhibit, your Honor -- it's Exhibit 2 to our motion for summary judgment, which is Section 223 of the Patriot Act. And, as I said -THE COURT: That's been codified where? Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. COPPOLINO: Well, they're codified in different spots in the U.S. Code, but Section -THE COURT: All right. Well, let's -- MR. COPPOLINO: THE COURT: Pardon me? Let me -- where are they codified? Okay. MR. COPPOLINO: Section 223 first amends a cause of action that is available under the Wiretap Act, which is Title 18, 18 U.S.C., 2520. THE COURT: Okay. Okay. MR. COPPOLINO: And that's a provision which authorizes a cause of action for violations of the Wiretap Act; but what Congress did in the Patriot Act is it expressly excluded the United States from that cause of action. And it also inserted the unauthorized improper disclosure violation that I've been preferring to in -- in the Wiretap Act. So it added the unauthorized disclosure violation, but said, "You can't sue the government under 18 U.S.C. 2520." And the second provision of the Patriot Act amended Title 18 Section 2707, the cause of action available for claims brought under the Stored Communications Act. And it again said You're -- you can't sue the government under this provision. we've added an unauthorized disclosure violation, but you can't sue the government under the general cause of action for Stored Communications Act violations. Then it adds 2712. And in 2712, it makes clear you Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 can sue the government for something. And what we're disagreeing about is what that something is. Does it include everything under the Wiretap Act or Stored Communications Act, or does it include just that narrow unauthorized disclosure violation? Now, the backdrop of this for us is it's a waiver of sovereign immunity. It's got to be clear. It can't be ambiguous. And if there's a plausible interpretation otherwise, it has to be interpreted in the favor of the sovereign. And our view is that we have a colorable argument that what Congress intended to do was to create a cause of action against the government solely for the unauthorized disclosure violation. I recognize that it's a tough argument in the context of the specific language you quoted. My argument is if you look at the entirety of what Congress did in an Act enacting Section 223 of the Patriot Act, it appears that willful violation -- any willful violation -- is an attempt to refer back to the willful unauthorized disclosure violation. And I support that argument by citing the fact that in 2712, the specific provisions of the F.I.S.A. which they've authorized a cause of action under are provisions which concern the use of and the disclosure of information. And I further support it with legislative history which entirely supports our argument, and which -- there is no Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 support for the plaintiffs' argument that, in the aftermath of 9/11, Congress sought to make it easier to sue the government on all claims; but rather, the legislative history of Congressman Frank's amendment made clear that it was solely focused on creating a cause of action against government officials for unauthorized leaks. House Reports say that. floor. Mr. Frank said that. Two Senator Leahy said that on the Senate There are two summaries in the Congressional Record of the Patriot Act Section 223 which describe the provision in that manner. THE COURT: Well, first of all, Section 2520 is part of Chapter 119, which is expressly referred to in Section 2712. MR. COPPOLINO: THE COURT: That's correct. Okay. And there's a bit of -- and that, I MR. COPPOLINO: think, leads to some of the ambiguity, because 2520 is a part of Chapter 119; but in the cause of action for that, it says you can sue a person for intercepting disclosure or intentionally using information intercepted. You can sue a That's what was person or entity other than the United States. added in the Patriot Act, along with 2520(g), the improper disclosure violation. So that was added on the same day that they created the cause of action under 2712. Likewise, in the Stored Communications Act it says -in 2707 it creates a cause of action for violations of Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Chapter 121 other than violations against the United States. THE COURT: All right. Mm-hm. That's Well, let me finish. MR. COPPOLINO: THE COURT: 2520 is part of Chapter 119. expressly referred to in Section 2712. And the provision that you're referring to in 2512, Subsection G, simply provides any willful disclosure or use by an investigative or law enforcement officer or government entity of information beyond the extent permitted by Section 2517 is a violation of this chapter for purposes of 2520(a). That is, it's sweeping into the coverage of 25(a) a willful disclosure. MR. COPPOLINO: THE COURT: But since it's -- But -Mm-hm. MR. COPPOLINO: THE COURT: Section 2712, which, of course, includes Chapter 119, refers to any willful violation. MR. COPPOLINO: THE COURT: Right. That is, it could Any willful violation. be an unlawful disclosure or any other violation. MR. COPPOLINO: Right. And I think, read literally, that phrase is -- it suggests that they could -- they could sue for any violation of 2520. My point to you is simply that they did it all in the same day. Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Sentence one: Sentence two: you can't sue the government. you can sue the government. How are we supposed to So what does that mean? figure this out? Well, they took out the causes of action under 2520 and 2707, but they added them back in a third section. What does that mean? Did they mean to negate what they did in the first two sections, or did they mean to limit the cause of action solely to the unauthorized disclosure violation? Our argument simply, your Honor, is that, viewed in full context, we think we have a plausible argument that Congress intended to solely focus on unauthorized disclosure by the government. Legislative history firmly supports that in the context of sovereign immunity, where waivers need to be clear. We wanted to preserve the argument. THE COURT: Where is the legislative history? I've attached -- MR. COPPOLINO: THE COURT: Oh, I know. -- virtually all of it. MR. COPPOLINO: THE COURT: a tough sledding. what you have. MR. COPPOLINO: Well, but you know, you're having kind of Point out So take me through your argument. All right. Well, first of all, the first bit of legislative history would be a hearing where this Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 originated, where Congressman Frank actually introduced the legislation out of the House Judiciary Committee mark up. is Exhibit 3 that we provided on summary judgment, Docket Number 18-2. It's a draft. And it begins at page 11 of that docket number. It's an excerpt from the Committee hearing where And Congressman Frank This Attorney General Ashcrof was testifying. first raised the topic of whether there should be included in the Patriot Act a cause of action to sue the government if it leaks information obtained through surveillance or pen register trap and trace. THE COURT: Well, that's what I'm looking at now. Point out specifically these comments that you think cabin the cause of action created under 2712. MR. COPPOLINO: There wasn't any draft language at Okay. It's simply the this point, so it's not there. origination of Mr. Frank's proposal that ended up being in 2712. And the purpose of it so this simply shows that what Congress -- that the beginning of the change in the legislative process was a proposal by Mr. Frank to create an unauthorized disclosure violation. And that turned into what became Section 223 of the Patriot Act, which is the statutory provisions that we have been talking about; the ones that simultaneously exclude and include a waiver of sovereign immunity against the government. So that's all. I cited that. Exhibit 4. We have Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 cited two House Reports; one from 2001. And this would be Exhibit 4 to our summary-judgment motion, Docket 18-2 -- it starts at page 17 -- a House Report which refers to an amendment offered by Mr. Frank to provide increased civil liability for unlawful disclosures of information obtained by wire or electronic interception. And that -- and so that describes the purpose of Mr. Frank's amendment. There was actually a similar House Report four years later when the Patriot Act was reauthorized, which we attached as Exhibit 5. Again, Docket 18-2 starts at page 20, which again describes Mr. Frank's amendment in similar terms. In fact, there is nothing in the legislative history that suggests that Congress was intending to broadly encompass all claims under the Wiretap Act and Stored Communications Act against the government. Now you might say, well, that's what that language does. Isn't it -- even though there's nothing in the The concern we have with that argument, legislative history. though, is that, where Congress simultaneously did all of the various things that I pointed out, that it's ambiguous, at best. Authorized suit under the government -- all claims under that provision where it expressly included a provision that there was to be no suit against the government for those provisions. THE COURT: Aren't we in a situation where the Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 legislative history is ambiguous, but the statutory language is clear? MR. COPPOLINO: THE COURT: I would say, actually -- And in that situation, it's pretty clear what a judge should do, isn't it? MR. COPPOLINO: I would argue, your Honor, that perhaps the opposite is the case; that the legislative history is clear that -THE COURT: Well, the legislative history that's ambiguous in the face of a clear statute? MR. COPPOLINO: the legislative -THE COURT: I trust you're not advising Let me just say two things. I think Judge Sotomayor on her testimony; that kind of advice. MR. COPPOLINO: the statute is ambiguous. The legislative history is clear, and Read as a whole, all three provisions, and trying to read them in harmony, and, you know, again, recognizing that there is some tension in that language, we felt that we needed to preserve this argument in the context of both the need for waivers of sovereign immunity to be clear, and to provide this Court and reviewing courts alternative grounds for narrowing the State Secrets Privilege assertion. So that's why we raise the argument, your Honor. I was not going to spend a great deal of time on the other jurisdictional arguments, unless you wanted to. Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 I think 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you've seen these before, and I think they're much more straightforward than the 2712 argument. We've argued, again, that there's no waiver of sovereign immunity under Section 1810 of the F.I.S.A. You've ruled on that in the Al-Haramain case, we're just preserving our position. The other jurisdictional arguments we've made have simply are whether the plaintiffs can have a claim for injunctive relief under the A.P.A. and under the Larson Doctrine. And, for the reasons we've set forth in our brief, we don't believe there is any cause of action for injunctive relief. THE COURT: fully. Spell that argument out a little more You know, it's always helpful to hear the argument And -- articulated orally as well as to read it. MR. COPPOLINO: THE COURT: Okay. So -- Take me through this matter. In addition to making various claims, MR. COPPOLINO: they seek damages under Sections 1810 of the F.I.S.A., 50 U.S.C. 1810 and 18 U.S.C. 2712. That's their damages claims. They also seek injunctive relief, and they seek that under at least three different theories. One is that they seek The other is that And the it for an alleged constitutional violation. they seek it under the Administrative Procedures Act. third theory is that they seek it under the doctrine of the Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Larson case, on the theory that the alleged actions are ultra vires; that they exceeded the statutory authority of the officer of the government. The A.P.A. argument, I think, is clearly wrong. Under Section 702 of the A.P.A., sovereign immunity is waived as to -- for challenges to agency actions against the government; but Section 702 makes clear that it is not waiver of sovereign immunity where there are other limitations on judicial review that either expressly or impliedly forbid the relief sought. And Ninth Circuit, actually, and the Supreme Court have construed this provision at some length. And the bottom line is the A.P.A. doesn't waive sovereign immunity where some other statute controls. That's the principle. Now, their argument -- our argument is that if there are other statutes that control here, they would be Section 2712, whatever its scope -- and we disagree about that -- and Section 1810; and that those provisions, for example, both foreclose injunctive relief against the government. They -- or impliedly foreclose. They say They make a rather interesting argument. that because Section 2520 and 2707 expressly forbid injunctive relief against the government, you can get it under the A.P.A. That's clearly wrong. Section 702 says that when injunctive relief is Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 expressly forbidden against the government in another statute, you can't it get it under the A.P.A. Then they go on to say under Section 2707 for their damages claim, "You can only get damages. injunctive relief. You can't get And so therefore, we ought to be able to get injunctive relief under the A.P.A." That's clearly wrong. And the reason it's clearly wrong is that what the law is in this area is that when Congress enacts a specific statutory remedy, that's what governs over the A.P.A. So that's why they don't have a A lot of it -- we separate A.P.A. claim for injunctive relief. simply are not going to allow a jurisdictional argument to go unmentioned, because the fact of the matter is they're simply misapplying the A.P.A. to seek injunctive relief under statutory provisions. And the very statutory provisions that expressly exclude injunctive relief against the United States, 2520 and 2707, the Larson Doctrine, to the extent it still has any viability -- and I think that's questionable in the Ninth Circuit, but the Larson Doctrine purports to allow you to sue officers of the United States for injunctive relief without regard to sovereign immunity if they have acted in excess of statutory or other authority, Constitutional authority; but the Ninth Circuit and the Supreme Court made clear that that rule applies. The rule is this; that it's a suit against the Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 government -- the sovereign -- if judgments sought would expend itself on the public treasury or domain, or interfere with the public administration, or the effect of the judgment would be to restrain the government from acting or compelling it to act. That's the Dugan versus Rank case, 372 U.S. 609. And the Ninth Circuit has said the same thing in a case called "Palomar Pomerado Health System" -- I can spell that for you later, which -- it says that relief nominally sought against an officer is sought against the sovereign if it would operate against the government. Now, all I'm saying on the Larson argument is it can't seriously be disputed that they're seeking injunctive relief against the government. And if you're seeking injunctive relief against the government, you don't have a Larson argument. So that, I think, really sums up all of the jurisdictional arguments, your Honor. Unless you have questions, I would like to just turn to the State Secrets issues, but I'll do whatever you -THE COURT: Mr. Coppolino. MR. COPPOLINO: Well, your Honor, just to briefly set No. Go ahead. Complete your argument, the stage, as you're probably very familiar with this case, this is the same group of plaintiffs, I think, with the exception of one, that filed a Hepting action in 2006. Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 And the 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 substance of their allegations is the same. The difference is And, as in that they're suing the government, and not AT&T. Hepting, if you recall, going back to the summer of 2006, the government asserted the State Secrets Privilege to protect the intelligence sources and methods that are at issue in this case. Now, the Hepting action was just dismissed by the Court That is the action against under Section 802 of the F.I.S.A. AT&T. So we're here dealing with the identical allegations and claims against the government. And our view is that you ought to do what we think is the standard, two-step process in the State Secrets Privilege, which is: at first, review the privilege and determine whether the D.N.I. has properly supported his conclusion that harm would result to national security through the disclosure of the information that he seeks to protect; and then -- once you've reviewed the privilege assertion, then, to determine what consequences the exclusion of that information would have on the litigation. there is the two-step process. And our view is that the information that's necessary to litigate the case is subject to the privilege assertion, and has been properly excluded by the D.N.I. THE COURT: Well, let me ask you this. What -So obviously, we've discussed this three years ago in the Hepting case. And I certified -- essentially certified that decision Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for interlocutory appeal. What has changed between now and 2006 that suggests that I should take a different view of this argument in this case than I took in the Hepting case? MR. COPPOLINO: THE COURT: Well -- Have we received guidance from the Ninth Circuit that suggests that the Hepting view was incorrect? MR. COPPOLINO: Since 2006 the Ninth Circuit has issued two rulings on the State Secrets Privilege -- I believe just two: one in Al-Haramain, and one just recently in a case That's the case that they called, "Mohamed versus Jeppesen." presently relied on. THE COURT: Yeah. MR. COPPOLINO: Now, Mohamed versus Jeppesen and And Jeppesen is Al-Haramain are inconsistent, in our view. also inconsistent with Kasza, in our view. And the government has filed a rehearing petition in Jeppesen, which is still pending. when that will decided. And I obviously don't know I suggested in our papers that the Court ought to consider at least waiting some time, to see if Jeppesen will, in fact, remain Circuit precedent. Erroneous decision conflicts with Reynolds and other Supreme Court authority. And if it doesn't hold, it would be the wrong road to go down, because Jeppesen suggests that the privilege can only be asserted at the discovery phase, not at the pleading stage, and only on an item-by-item basis. Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Now, of course, Al-Haramain, which came down in 2007 and was not overruled and cannot be overruled by -- Jeppesen ruled just the opposite. Al-Haramain actually reviewed and upheld the State Secrets Privilege at the pleading stage, and held that the privilege foreclosed the information necessary for plaintiffs to establish their standing, and said the case would have to be dismissed under the State Secrets Privilege. Now we have this issue of statutory preŽmption hanging out there. THE COURT: But there's the preŽmption part. That's not the State Secrets issue, I recognize the MR. COPPOLINO: though Jeppesen doesn't talk about preŽmption. preŽmption issue is still there to be dealt with in terms of the law of the states. THE COURT: I don't think there's any preŽmption issue in Jeppesen, is there? MR. COPPOLINO: No, there is not simply a case about what does the State Secrets Privilege mean, and how is it to be interpreted so as -My real pitch to you, your Honor, is first not only wait before -- to see what happens in Jeppesen, because it -if you're going to go down that road, the road may get pulled out from under us before this litigation is over, and we would have proceeded down a path that is simply not Circuit precedent. Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Second argument I would make is that there is other Circuit precedent. And I think you have to try to construe Not only did Al-Haramain Jeppesen consistently with that. consider the privilege at the pleading stage, Kasza itself is directly inconsistent, suggesting that the agency at issue does not have to personally review every particular piece of evidence before asserting a privilege. I also have, though, an additional argument I would make about Jeppesen. And that is that I think you can rule and grant in favor of the government's motion and grant the government's motion consistent with Jeppesen because there are several points on which I think Jeppesen can be distinguished. First, Jeppesen considered the assertion of State Secrets Privilege under a Rule 12(b)(6) motion. And it made clear on that appeal that the question was whether a motion to dismiss under Rule 12(b)(6) should have been granted. said that the plaintiffs had stated their claim. Our motion in this case does not rely on Rule 12(b)(6). We do not rest solely on a Totten argument. We And it don't rest solely on a very subject matter of the pleadings argument. Rather, we follow the language of the Ninth Circuit This is set forth in Al-Haramain, which says -- I'll quote it. the Ninth Circuit in Al-Haramain. The suit itself may not be barred because of its subject matter, yet Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ultimately the State Secrets Privilege may nonetheless preclude the case from proceeding to the merits. That's the case in Al-Haramain. the case here. That's our view of And that's how Kasza went off, because the Court found that if the plaintiff couldn't establish standing or a prima facie case or the government couldn't present the information necessary to defend or the private party, then summary judgment was required. Now, Jeppesen says -- first of all, Jeppesen doesn't even address summary judgment, but what it does say is this. In deciding a State Secrets Privilege, you need three things: an actual request for discovery, plaintiff's explanation of the need for the information, and a formal assertion of privilege. Our view, your Honor, is that you have all of that before you now. In substance, the plaintiffs are going to say, We haven't submitted any discovery "Well, wait, wait. requests." What they have submitted is a Rule 56(f) affidavit, which is a roadmap to their discovery; a detailed roadmap that the discovery they seek will be evidenced protected by the State Secrets Privilege assertion. You don't need to look further than that to know that, even consistent with Jeppesen and Al-Haramain and Kasza -- that you can look at the substance of the issue and determine now that the information subject to Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the privilege assertion not only is relevant, but it's exactly what they seek. this is a quote. Plaintiffs would seek discovery regarding the fact of the carriers' interception and disclosure of the communications and communications records of telecommunications companies' customers, including plaintiffs. That's what they want to seek discovery on. that's what the D.N.I. has asserted privilege over: information necessary to confirm or deny those allegations. They also say they would seek discovery of telecom companies, including AT&T, regarding their dealings with N.S.A that's subject to the privilege assertion. They want discovery And Paragraph 13 of their 56(f) affidavit -- and of the facility at Folsom Street in San Francisco as to whether there was an N.S.A. secure room there; whether there is certain equipment in that room; what goes on in that room. other secure rooms around the country? That's all subject to the privilege assertion. They want to depose numerous government officials and former government officials about -- quote, "about communications carriers' involvement in the N.S.A. warrantless surveillance." That's paragraph seven. Are there And in paragraph 20 they say all of the topics of Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 discovery that they have identified in their 56(f) affidavit, quote, "would lead to evidence regarding the nature and scope of the government's surveillance program." That's what the privilege assertion is about: the nature and scope of the government's surveillance activities, and if they exist. So I don't think you need any more for purposes of Jeppesen to see that the discovery they seek is -- in fact, goes right to the heart of the State Secrets Privilege. you don't need to wait for a particular request. And the reason I urge you not to do that, your Honor, is that not only would that elevate form over substance, and it -- and bring us right back to where we are if they were to seek that kind of discovery, but the very process of going through the -- of discovery like that would put at risk the disclosure of the information subject to the D.N.I. privilege assertion. Indeed, that, I think, is the point of the And that's why it's something that, And discovery sought. obviously, we would have to put a very large circle around. But one thing that I think the plaintiffs concede in their 56(f) affidavit is that the mass of information that they have put in the record in their so-called "summary of evidence" from media reports, books, and some limited government statements, they recognize would have to be reduced to actual sworn facts concerning whether or not these allegations are Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 true. That's the discover -- that's the litigation process. It's a very exacting process, which turns speculation and conjecture and limited information into actual fact. And that's the concern that the D.N.I. has in the State Secrets Privilege; that to establish whether or not particular facts are true would risk exceptional harm to national security. And, as I think you pointed out in Hepting, it would be a process whereby uncertainty is brought to certainty either that the allegations exist or don't exist, or at least that there is more certainty about that. In fact, if I may, I would quote a very fine District Judge, Walker, of the Northern District of California, who said in Hepting, Simply because statements have been publicly made does not mean that the truth of those statements is a matter of public knowledge, and that verification of the statements is harmless. And so the plaintiffs' argument is, "Look. We want to go down the road of trying to find out what is privileged and what is not privileged." And that's what's going to risk the very disclosures that are at stake here. Even Jeppesen says, by the way, that the case can proceed, quote, "so long as the underlying facts could be Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 proven without resort to the privileged information"; but that's impossible here, because you know now that they seek disclosure of the privileged information. Now they're going to get up and say that what they seek, they believe, is not privileged. Well, first of all, that's going to be disputed; but secondly, as I just quoted to you from the 56(f) affidavit, they're seeking information that goes to the core of the privilege. You know, your Honor, I'm not just trying to make an argument here. I'm actually trying to point out to you that if you look at what's at issue in this case, they want to know what is behind the D.N.I.'s privilege assertion. know: They want to Is it is the government engaged in a content dragnet? engaged in a communications dragnet that includes both content and noncontent? And I would like to focus your attention on those specific allegations as a last point that I make here. First of all, the communications-records allegation -- this is the allegation, as you may be familiar with, that the N.S.A. collected in bulk from carriers particular records of people's communications. You address this issue in Hepting. You did not uphold the State Secrets Privilege at that time, but you deferred discovery. And I believe the reasons you deferred And more, discovery are still valid, and haven't changed. Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 upholding the privilege, you said at that time the government has neither confirmed nor denied whether it monitors communications records, and has never publicly disclosed whether such a program actually exists. three years. You said that revealing that a communications-records program exists might encourage terrorists to switch to less efficient but less detectable forms of communications. hasn't changed. You said revealing that such a program does not exist might encourage a terrorist to use AT&T services when it would not have done so. You said that terrorists who operate with full information are able to communicate more securely and efficiently than a terrorist that operates in an atmosphere of uncertainty. I think that's exactly right, and nothing has That That hasn't changed in changed to alter the conclusion. And Judge Kennelly, in the Terkel case, upheld the State Secrets Privilege with respect to the communications records, and dismissed that case. THE COURT: You say nothing has changed. What do you make of this Inspector General report? MR. COPPOLINO: The Inspector General report, in our view, your Honor, doesn't warrant any different conclusion for a couple of reasons. And the Inspector General, first of all, Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 made clear that the only -- the only intelligence activity that's been publicly acknowledged was the terrorist surveillance program, which was described as a content one: international Al Qaeda-related communications. Now he said that there are other activities that the government authorized to detect and prevent Al Qaeda and terrorist attacks, but he stresses that those remain highly classified. On pages five and six of his report he says, and the I.G. does nothing to -- doesn't say anything that would remotely confirm or even address whether there was a dragnet on communications, or communications records inclusion program. And the plaintiffs' argument just simply boils down to: we should be able to use this as a jumping-off pad to try to find out what are those other highly classified activities that the O.I.G. report referred to? So my first response is: the O.I.G. report continues to protect undisclosed intelligence sources and methods that may or may not even be at issue in this lawsuit, but in any event, haven't been disclosed. Second point I'd make about this I.G. report -- and this is a bit of phenomenon we see a lot of in Washington, where information that was revealed years ago gets recycled, revealed, and disclosed again, and it's suddenly news; but in 2007 the government advised Congress of the very information that was in this report. That's in the post 9/11 Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 authorizations by the President to N.S.A. Terrorist Surveillance Program was just one of the activities that was authorized, but that -- there were other activities. In fact, the D.N.I.'s letter to Senator Specter is in the record of this case filed in 2007. It's Docket Number 356 in M.D.L. 1791 And that's where the government filed on August 20th, 2007. indicated; that there -- there was more than one activity authorized to detect and prevent Al Qaeda attacks. T.S.P. was one of them. And the So that's not news, but what is, I think, significant is that since 2006 the government has not changed its view that the particulars about what those other activities are continues to need to be protected. And the last point I would make -- and I'll sit down, your Honor -- is this. The State Secrets Privilege assertion, as you know, has been reaffirmed by new the President, new presidential administration, and a new D.N.I. And President Obama inherited a number of surveillance activities from the prior administration. And the President has made clear that he doesn't intend to use the State Secrets Privilege to cover up alleged illegal activities or to frustrate oversight by Congress, but that there remain rare occasions where the privilege has to be invoked in order protect harms to national security. This case concerns intelligence sources and That is the crown And I think it methods for detecting terrorist attacks. jewel of U.S. National Security Administration. Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 should speak volumes that the administration, after very close and careful review, has continued to seek to protect this information. Last point. I would just urge your Honor to actually read the ex parte materials, if you haven't had a chance to, before proceeding down any road, because once you read them, I think you will see what the concerns are; and, in particular, the concerns with allowing the plaintiffs to take discovery in this particular area, and what is at stake, and what the harms might be. And certainly you shouldn't embark on a course Typically, most without having that base of information. courts actually uphold the privilege even before allowing discovery, so that it's known what the ground rules are as to what could be gone into; but I submit that if you look at that material, you will see the precise concerns that we're talking about, and recognize that, even consistent with Jeppesen, you could dismiss the case. Thank you, your Honor. THE COURT: Very well. Thank you, Mr. Coppolino. And let me -- Mr. Bankston -Mr. Whitman, do you have anything to say on behalf of the individual defendants? MR. WHITMAN: Your Honor, we're prepared if you want to discuss the individual-capacity defendants' motion that we filed last Friday, but I didn't know if you wanted to wait Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 until after argument on the government's motion, or not. THE COURT: I see. All right. You don't have anything to add at this juncture? MR. WHITMAN: your Honor. THE COURT: side? MR. BANKSTON: Kevin Bankston. Would you like to ask Who's going to be arguing on the other Not as to Mr. Coppolino's argument, specific questions at the outset? THE COURT: As a matter of fact, I would -Certainly. MR. BANKSTON: THE COURT: -- pick up on the last few points Mr. Coppolino was making. We have been through this State Secrets Privilege business in Hepting and Al-Haramain and so forth. MR. BANKSTON: THE COURT: We have, indeed. Now, why is the State Secrets Privilege applicable to all of the claims that the plaintiffs have asserted, except the F.I.S.A. claim? MR. BANKSTON: Well, first, your Honor, I'd point out, of course, that, as this Court has held, 1806(f) preŽmpts the State Secrets Privilege regarding material. THE COURT: For F.I.S.A.? No, your Honor; in any civil or MR. BANKSTON: criminal case regarding materials for electronic surveillance. Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 On its plain language it applies in any case where an aggrieved party -- i.e., someone subjected to electronic surveillance -has made any motion to or request for discovery or to obtain electronic surveillance materials. THE COURT: You mean you read the decision as saying the State Secrets Privilege is dead; is just plain dead? MR. BANKSTON: THE COURT: I -- Not applicable to anything? To materials relating to electronic MR. BANKSTON: surveillance, your Honor. This conclusion is bolstered by, as you were discussing earlier, 18 U.S.C. 2712. The cause of action for Wiretap- and Stored Communications Act are direct violations against the government, which specifically calls out 1806(f). THE COURT: Secrets Privilege. Privilege. MR. BANKSTON: 1806(f) in those cases is the Well, but that doesn't waive the State 2712 doesn't waive the State Secrets exclusive means, notwithstanding any other law by which such materials shall be reviewed. And so our position is, as laid out fully in our brief -- is that 1806(f) is not limited to F.I.S.A. causes of action, which, in -- would be contrary, indeed, to the plain language of 2712, which speaks of 1806(f) as well; but instead 1806(f)'s plain language applies to any request or motion to obtain material or discover materials Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 related to electronic surveillance. THE COURT: All right. Spin that out for me. What -- why -- why is it that you think the preŽmption of the State Secrets Privilege under F.I.S.A. extends far beyond the reach of the F.I.S.A. statute itself? MR. BANKSTON: Congress passed a number of statutes to comprehensively regulate the government's electronic surveillance act; not only F.I.S.A., but the Wiretap Act and the Electronic Communications Privacy Act. 1806(f) is located in F.I.S.A, but on 18 U.S.C. 2712's own terms specifically applies in cases against the United States for violations of the Wiretap Act. THE COURT: Secrets, is there? MR. BANKSTON: THE COURT: Your Honor, I direct you to 2712(b). There's nothing in 2712 about State State of proceedings. (b)(4). MR. BANKSTON: THE COURT: (b)(4)? Yes, your Honor. We did cite to this MR. BANKSTON: in our brief. Notwithstanding any other provision of law, the procedures set forth in section 106(f), skipping over a few, 106(f), which is 50 -Notwithstanding any other provision of law, the procedures set forth in Section 106(f) of the F.I.S.A., which is 50 Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 U.S.C. 1806(f), shall be the exclusive means by which materials governed by those sections may be reviewed. 1806(f) governs the disclosure and review of applications, orders, or other materials related to electronic surveillance, and in no way cabins itself to cases brought directly under F.I.S.A.. It may be instructive to look at the plain language of 1806(f) itself. Let me just pull that, up, your Honor. Whenever a court or other authority -- and I'm going to skip over the nonpertinent parts. authority -- I'm sorry. Whenever a court or other Whenever any motion or request is made by an aggrieved person -So, of course, the party must be an aggrieved person. -- under F.I.S.A. -- i.e., subject to electronic surveillance, which we have alleged. THE COURT: You're looking at 1806(f)? When any motion or request made any MR. BANKSTON: aggrieved person pursuant to any other statute or rule of the United States before any any court or authority of the United States to discover or obtain applications, orders, or other materials relating to electronic surveillance, the U.S. District Court shall, notwithstanding any other law, if the Attorney General files the appropriate affidavit, review those materials in camera. Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 There is nothing in this language that cabins this provision to claims brought under F.I.S.A. And indeed, Congress specified in 2001, when it created 18 U.S.C. 2712, that in civil actions against the United States, 1806(f) is the inclusive means for the review of such materials. Does that address your question, your Honor? THE COURT: Well, I'm not -- I'm not letting that cat out of the bag at the moment. MR. BANKSTON: THE COURT: Certainly. Next point. But to address your question, assuming MR. BANKSTON: that 1806(f) does not preŽmpt as to all our claims, which we do argue here and in our briefing, we do think several things have changed in regard to records since you first heard this -- the Hepting case in 2006. Mr. Coppolino highlights that the I.G. reports confirmation that there were activities authorized by the President's program order beyond the so-called "Terrorist Surveillance Program" Isn't news, but it is news since we last hit this issue in Hepting. At the point of Hepting, the government had not admitted to any conduct beyond the T.S.P. It hadn't submitted that there was other intelligence activities beyond the Terrorist Surveillance Program that were authorized by the President's program order. And although the Executive Branch Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 has so far not indicated what those activities were, numerous Senators and Congresspersons who were briefed on the program have confirmed that it involved the government's acquisition of records. And I'll direct you to a few examples which are in our summary of evidence appended to Ms. Cohn's 56(f) Declaration. Senator Kit Bond, when questioned about the records program, and after being briefed on the other aspects of the program, said the President's program uses information collected from phone companies. records. The phone companies keep their They have a record, and it shows what telephone number called what other telephone number. Senator Pat Roberts similarly stated that the N.S.A. was looking at the phone calls collected during the surveillance; not at the content, just at the pattern of the phone calls; i.e., a reference to calling patterns reflected in records. Representative Jane Harman noted that there is a program that involved the collection of some phone records. And, keeping in mind that the statements of AT&T that you considered important in Hepting, Edward Whitacre, the CEO of AT&T, responded to a question about the records program by saying, "If it's legal, we do it." And then later, AT&T opined in a letter to Congress that it would be legal for it to provide -- excuse me -- it would be legal for the government to Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 request various forms of intelligence assistance from the private sector pursuant to the President's Article II powers. And so, in addition to the numerous news reports, in addition to the books that have dealt with this program, there have also been confirmations from previous members of Congress that the records program does, indeed, exist, and is no longer a secret, regardless of the government's claim. If you have any other questions on that matter, your Honor -- or shall I proceed? THE COURT: (Indicating) To expand on my comments about 50 MR. BANKSTON: U.S.C. 1806, your Honor, I think that it has on its face one clear purpose, and that's to allow you to reach the legality of the surveillance, despite the government's claims of secrecy. And, as noted, on its plain language, it is not limited to F.I.S.A. causes of action; a conclusion bolstered by reference to it in 18 U.S.C. 2712. We also note that, although the government continues to claim a danger of risk of disclosure if we proceed under 1806(f), 1806(f) is more than adequately protective. So long as the government files its required affidavit, electronics surveillance materials cannot be disclosed by the Court, except to the plaintiffs under a appropriate security procedures and protective orders, and only if that disclosure is necessary to determine the legality of the surveillance. Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So we think Congress has struck an appropriate balance between the needs of litigants and the needs of national security, a balance which, notably, has not changed since 1978, despite numerous amendment to F.I.S.A. since then. Although F.I.S.A. 1806(f) does preŽmpt the State Secrets Privilege as to all of our claims, we don't believe that the State Secrets Privilege requires dismissal at this stage. Even if that were not the case, we think that Mohamed v. Jeppesen deals with that issue. We do not think that there is any need for this Court to wait to see whether that is taken en banc. First of all, of course, you can rely on its reasoning even if you cannot cite it; but also, its holding and a decision not to dismiss based on state secrets would be consistent with Al-Haramain v. Bush, the decision from the Ninth Circuit, and your ruling in Hepting, which both make clear that the entire subject matter of the program is not a state secret. Al-Haramain also makes clear that before considering the impact of the State Secrets Privilege on standing, the Court must independently evaluate the purportedly privileged evidence, as the Ninth Circuit did in Al-Haramain. To do otherwise would put the cart before the horse, in the words of Mohamed; something that this Court refused to do in Hepting, recognizing that reaching the standing and prima facie case Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 issues would be premature, considering we are entitled at least to discovery of unprivileged evidence to support our claims. As this Court has previously recognized, and as discussed by Mr. Coppolino, F.I.S.A.'s 18 U.S.C -- 50 U.S.C. 1810 waives -- I'm sorry. 50 U.S.C. 1810 does waive sovereign And immunity for damages, as this Court found in Al-Haramain. the government offers no new argument on this point. We have provided in our briefs some additional support for that holding, and have also, to the extent you care to use it, provided an alternative basis for finding that waiver. As this court has noted, the waiver regarding sovereign immunity in terms of damages is also concretely clear from the plain language of 18 U.S.C. 2712, where, insofar as our Wiretap Act claims -- and actually, just a terminology clarification, Chapter 121 is, as Mr. Coppolino noted, the Stored Communications Act portion of the E.C.P.A., which also updated the Wiretap Act, which is at Chapter 119. As far as equitable relief, under Larson, when an officer acts in excess of his statutory authority, those ultra vires actions are not considered -- those of the sovereign -and therefore, sovereign immunity does not apply to equitable claims seeking to confine officers to their statutory authority. Application of the Larson Doctrine is especially Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 proper here, where the defendants' dragnet surveillance goes far beyond the narrow, restrictive, and exclusive authority of the comprehensive surveillance statutes: E.C.P.A. and the Wiretap Act. I'd like to point out that, in regard to Mr. Coppolino's pointing to Dugan in the Ninth Circuit, certainly Dugan does state the general rule that actions that would restrain the sovereign are against the sovereign. However, it also specifically notes Larson as an exception to that rule. And, notably, the Ninth Circuit has broadly F.I.S.A., the construed that exception, such that an action against for ultra vires conduct will not be considered against the sovereign unless it would impose an intolerable burden on governmental functions that outweighs any other private interest. So to stay that Dugan does not support our Larson claim is simply incorrect. Indeed, the Larson Doctrine is sometimes referred to in cases as "the Larson/Dugan exception." So considering that Larson does apply to our claims against the federal officers, the Court does not need to reach the Administrative Procedures Act issue; but if it does, we think that the government is approaching that issue from the wrong perspective, as if there is a presumption against sovereign immunity as to equitable relief post Administrative Procedures Act. The default, the presumption, the baseline is that plaintiffs can obtain equitable relief against the Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sovereign under the A.P.A. And the question then becomes: did Congress do anything specifically to eliminate that A.P.A. relief? There is nothing in the statutes that does so, either expressly or impliedly. And this makes sense, considering that the notion that Congress would take away the A.P.A.'s equitable relief is inconsistent with the clear purpose of the statutes to regulate comprehensively the government's electronic surveillance activities. To take away an equitable remedy for plaintiffs would make those statutes a dead letter, as the Court would have no way to enforce its restrictions. So I believe I've covered all of the bases covered by the government. If -- unless your Honor has other specific questions, I shall take my seat. THE COURT: Very well. Thank you, Mr. Bankston. Anybody else want to be heard before we submit the matter? MR. COPPOLINO: Your Honor, unless you had questions in response to his presentation, I have nothing to add; but Mr. Whitman and Ms. Cohn may want to discuss the individual capacity. claims. THE COURT: All right. Who's going to take the They may want to discuss the individual-capacity laboring oar on that, Ms. Cohn? MS. COHN: I will, your Honor. I wanted to address Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that if we could, but this is not on the government's motion that was just argued, so I don't know that it needs to stop you from submitting that issue; but there was a motion brought by the individual-capacity defendants on last Friday which we maintain

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