Google Inc. et al v. Egger et al

Filing 333

Google Inc. et al v. Egger et al

Doc. 333 Att. 9

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK _______________________________________ | CENTER FOR CONSTITUTIONAL RIGHTS, | TINA M. FOSTER, GITANJALI S. GUTIERREZ, | SEEMA AHMAD, MARIA LAHOOD, | RACHEL MEEROPOL, | | Plaintiffs, | | v. | | GEORGE W. BUSH, | President of the United States; | NATIONAL SECURITY AGENCY, | LTG Keith B. Alexander, Director; | DEFENSE INTELLIGENCE AGENCY, | LTG Michael D. Maples, Director; | CENTRAL INTELLIGENCE AGENCY, | Michael V. Hayden, Director; | DEPARTMENT OF HOMELAND SECURITY, | Michael Chertoff, Secretary; | FEDERAL BUREAU OF INVESTIGATION, | Robert S. Mueller III, Director; | JOHN D. NEGROPONTE, | Director of National Intelligence, | | Defendants. | _______________________________________|

Case No. 06-cv-313 Judge Gerard E. Lynch Magistrate Judge Kevin N. Fox

REPLY MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

William Goodman [WG-1241] Shayana Kadidal [SK-1278] Michael Ratner [MR-3357] CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 10012-2317 [phone]

Dockets.Justia.com

Lazar Bloch (law student) Mariko Hirose (law student) CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 10012-2317 David Cole (CCR Cooperating Counsel) c/o Georgetown University Law Center 600 New Jersey Avenue, N.W. Washington, D.C. 20001 [phone] Michael Avery J. Ashlee Albies NATIONAL LAWYERS GUILD c/o Suffolk Law School 120 Tremont Street Boston, MA 02108 [phone] Attorneys for Plaintiffs August 29, 2006

TABLE OF CONTENTS TABLE OF AUTHORITIES ....................................................................................................... ii I. PLAINTIFFS HAVE ESTABLISHED STANDING.............................................................. 1 A. B. C. Laird v. Tatum does not mandate that every chilling effect result from a "regulatory, proscriptive, or compulsory" exercise of government power....... 1 The Scope of the NSA Program Is Broad Enough to Encompass Plaintiffs' Communications .................................................................................................. 4 Plaintiffs Are Justifiably More Chilled by Warrantless Surveillance outside of Judicial Supervision Than by Surveillance under FISA or Other Means........ 5

II. DEFENDANTS HAVE FAILED TO ESTABLISH THAT PLAINTIFFS' SUMMARY JUDGMENT MOTION SHOULD BE DENIED .............................................. 8 III. DEFENDANTS' DISCUSSION OF THE ALLEGED STATUTORY PRIVILEGES CONFUSES THE ISSUES .................................................................................................. 13

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TABLE OF AUTHORITIES Federal Cases Allen v. Wright, 468 U.S. 737 (1984) ............................................................................................. 7 Chicago & Southern Air Lines v. Waterman, 333 U.S. 103 (1948) ............................................. 10 City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ....................................................................... 6-7 Davis v. Village Park II Realty Co., 578 F.2d 461 (2d Cir. 1978).................................................. 7 Halkin v. Helms (Halkin II), 690 F.2d 977 (D.C. Cir. 1982).......................................................... 2 In re Sealed Case, 310 F.3d 717 (FISA Ct. Rev. 2002) ................................................................. 9 Initiative & Referendum Inst. v. Walker, 450 F.3d 1082 (10th Cir. 2006) (en banc) ..................... 2 Laird v. Tatum, 408 U.S. 1 (1972)...................................................................................... 1, 3, 4, 7 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..................................................................... 6 Meese v. Keene, 481 U.S. 465 (1987)............................................................................................. 2 Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518 (9th Cir. 1989)............................... 2 Socialist Workers Pty. v. Attorney General, 419 U.S. 1314 (1974) ............................................... 1 United Presbyterian Church v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984) ..................................... 2 United States v. Brown, 484 F.2d 418 (5th Cir. 1973).................................................................... 8 United States v. Butenko, 494 F.2d 593 (3d Cir. 1970) (en banc) .................................................. 8 United States v. Clay, 430 F.2d 165 (5th Cir. 1970), rev'd on other grounds, 403 U.S. 698.......... 8 United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) ........................................... 10 United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980).......................................... 8, 10 United States v. United States District Court, 407 U.S. 297 (1972)............................................... 9 Youngstown Sheet & Tube Co. v. Sawyer, 385 U.S. 579 (1952) ............................................. 11-12 Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1976) (en banc) ................................................. 8-11 Federal Statutes and Constitution 10 U.S.C. § 1582........................................................................................................................... 14 H.R. Rep. No. 86-231 ................................................................................................................... 14 Pub. L. 86-36............................................................................................................................ 13-14 An Act for the safe keeping and accommodation of prisoners of war, 2 Stat. 777, 12th Cong., 1st Sess. (1812)............................................................................................................................... 13 An Act concerning Letters of Marque, Prizes, and Prize Goods, 2 Stat. 759, 12th Cong., 1st Sess., § 7 (1812)........................................................................................................................ 13 U.S Const., Art. I, sec. 8 ............................................................................................................... 13 Other Authorities Brief for the United States, United States v. Humphrey and United States v. Truong, Nos. 765176 (4th Cir. May 14, 1979), 1979 WL 212414 ....................................................................... 9 A. Mark Weisburd, Due Process Limits on Federal Extraterritorial Legislation?, 35 Colum. J. Transnat'l L. 379 (1997) ............................................................................................................. 2

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I.

PLAINTIFFS HAVE ESTABLISHED STANDING Defendants' primary argument against Plaintiffs' standing to sue is that Laird v. Tatum,

408 U.S. 1 (1972), mandates that any "challenged exercise of government power [be] regulatory, proscriptive, or compulsory in nature and that the complainant [be] presently or prospectively subject to the regulations, proscriptions, or compulsions that he [is] challenging." Id. at 11 (quoted in Defs. Reply at 6). This argument fails because Laird does not institute a requirement that the actions creating a chilling effect be "regulatory, proscriptive, or compulsory." Defendants also claim that Plaintiffs' communications fall far afield of the scope of the NSA Program and that, in any event, Plaintiffs had no reason to experience an additional chilling effect from the existence of the Program. For the reasons set forth below, neither argument is availing. A. Laird v. Tatum does not mandate that every chilling effect result from a "regulatory, proscriptive, or compulsory" exercise of government power In summarizing a number of its previous "chilling effect" opinions, the Supreme Court in Laird also stated that in each of them, the "challenged exercise of governmental power was regulatory, proscriptive, or compulsory in nature." Id. While the government labors to establish this as the holding of Laird,1 that part of the opinion merely surveyed and distinguished previous Supreme Court cases. It did not announce a new standard for future cases.2 Subsequent cases

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See Defs. Motion to Dismiss (MTD) at 19, 22 n.9; Defs. Reply at 4-7.

Justice Marshall, sitting alone as Circuit Justice to review a denial of a stay, similarly stated that this was too broad a reading of Laird, rejecting precisely the argument Defendants make here. See Socialist Workers Pty. v. Attorney General, 419 U.S. 1314, 1318 (1974) (Marshall, Circuit J.): The Government has contended that under Laird, a `chilling effect' will not give rise to a justiciable controversy unless the challenged exercise of governmental power is `regulatory, proscriptive, or compulsory in nature,' and the complainant is either presently or prospectively subject to the regulations, proscriptions, or compulsions that he is challenging. Id. In my view, the Government reads Laird too broadly. In the passage relied upon by the Government, the Court

have made it clear that Laird did not hold that only "regulatory, proscriptive, or compulsory" uses of government power may convey standing. See, e.g., Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 522 (9th Cir. 1989) (rejecting argument that government intrusion must reach the level of "`coercive action'" before standing may be found in chill cases); Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1096 (10th Cir. 2006) (en banc) (McConnell, J.) ("in some cases, First Amendment plaintiffs can assert standing based on a chilling effect on speech even where the plaintiff is not subject to criminal prosecution, civil liability, regulatory requirements, or other `direct effect[s],'"); id. at 1095 ("To be sure, `chilling effect' cases most often involve speech deterred by the threat of criminal or civil liability. Yet neither this Court nor the Supreme Court has held that plaintiffs always lack standing when the challenged statute allegedly chills speech in some other way."). The Supreme Court effectively rejected such a standard in Meese v. Keene, 481 U.S. 465, 473 (1987) ("governmental action need not have a direct effect on the exercise of First Amendment rights, we held [in Laird], [but] it must have caused or must threaten to cause a direct injury to the plaintiffs").3

was merely distinguishing earlier cases, not setting out a rule for determining whether an action is justiciable or not. ... Because the `chilling effect' alleged by respondents in Laird arose from their distaste for the Army's assumption of a role in civilian affairs or from their apprehension that the Army might at some future date `misuse the information in some way that would cause direct harm to (them),' ibid., the Court held the `chilling effect' allegations insufficient to establish a case or controversy. In this case, the allegations are much more specific: the applicants have complained that the challenged investigative activity will have the concrete effects of dissuading some YSA delegates from participating actively in the convention and leading to possible loss of employment for those who are identified as being in attendance. Whether the claimed `chill' is substantial or not is still subject to question, but that is a matter to be reached on the merits, not as a threshold jurisdictional question. The specificity of the injury claimed by the applicants is sufficient, under Laird, to satisfy the requirements of Art. III. Id. at 1318-19.
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Notably, the surveillance cases Defendants cite against finding standing here both predate Keene, and in any event neither recites the "regulatory, proscriptive, or compulsory" standard Defendants suggest here. See Defs. Reply at 7 (citing United Presbyterian Church v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984) and Halkin v. Helms (Halkin II), 690 F.2d 977 (D.C. Cir. 1982)).

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In any event, such a standard would be hopelessly unclear, especially in application to the facts of the present case. While "proscriptive" and "compulsory" are relatively definite terms, their meaning in regards to prospective injury--which Laird clearly permits to underlie standing--will always be open to interpretation and judicial judgment. For instance, is a threat of prosecution "proscriptive" if it is unlikely to come to fruition? Exactly this sort of ambiguity is presaged by the remainder of the sentence in Laird that Defendants insist contains its entire holding: the Court's statement that in the prior cases it surveyed, plaintiffs were "either presently or prospectively subject to" such government action. Laird, 408 U.S. at 11 (emphasis added) (quoted in Defs. Reply at 6). Moreover, the separate meaning of the term "regulatory" finds little guidance in the rest of the Laird opinion. Nothing in the examples given in Laird, 408 U.S. at 1112, clarifies the term as a limitation on standing. Whatever its meaning, the Second Circuit has never adopted such a standard. Indeed, the Supreme Court itself has never repeated the "regulatory, proscriptive, or compulsory" formulation since Laird, and did not mention it in Keene. In Meese v. Keene the government action on which standing was based--and which thus presumably met Defendant's alleged "regulatory, proscriptive, or compulsory" threshold--was the threat that Keene would be forced to label films he wished to show as "political propaganda." An analogous threat in our case would be if the government required us to give a disclaimer, at the outset of every sensitive phone call, that our communications were subject to monitoring by the government without judicial oversight or judicially-supervised minimization. But in fact that is exactly what Plaintiffs here are compelled--by their professional ethical obligations, as surely

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as if a statute required it, see Gillers Affirmation at ¶¶ 9-11--to do as a direct result of the Program.4 B. The Scope of the NSA Program Is Broad Enough to Encompass Plaintiffs' Communications Defendants again attempt to claim that "plaintiffs' claim of a chill is patently unreasonable because it applies to communications with a category of people significantly broader than those potentially subject" to the Program. (Defs. Reply at 4.) In listing examples of these "communications well outside the scope of the TSP," id., Defendants claim that Plaintiff Maria LaHood has claimed to be chilled "in conversations with `Canadian Attorneys' representing a terrorism suspect." (Id. at 5.) Defendants neglect to add that the Affirmation states that these are "Canadian attorneys representing Maher Arar"--a man the United States government continues to insist is a member of Al Qaeda. (LaHood Aff. at ¶ 7.) Defendants imply that the Supplemental Affirmation of William Goodman claims fear of surveillance of communications with generic "family members of detainees, `foreign witnesses, experts, and human rights advocates'" (Defs. Reply at 5), ignoring the statement that these communications are with people we "need to communicate with in the course of the litigation" of cases relating to Guantánamo detainees. (Goodman Supp. Aff. at ¶ 4.) The admitted scope of the NSA Program clearly subsumes these sorts of communications. See Pls. Memorandum in Support of Partial Summary Judgment at 8 (describing Program's scope).

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The relief Plaintiffs seek is also not barred by Laird's refusal to grant "a broad-scale investigation ... to probe into ... intelligence-gathering activities." (MTD at 19 (quoting Laird at 14).) Plaintiffs are not demanding a "broad-scale" probe; instead, they are demanding the injunctive relief and the limited disclosure they need in order to continue to function as civil rights lawyers and carry out their continuing duties to their clients.

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C.

Plaintiffs Are Justifiably More Chilled by Warrantless Surveillance outside of Judicial Supervision Than by Surveillance under FISA or Other Means Defendants claim that due to the "ordinary risk that international communications with al

Qaeda members, agents, and affiliates are subject to monitoring by other methods or entities, the TSP cannot cause Plaintiffs or others any reasonable chill when engaging in such communications." (Defs. Reply at 8.) Of course, this argument ignores the primary defect with the NSA Program: the total absence of judicial oversight. A communication with an individual the executive merely suspects of a link to terrorism, without evidence sufficient to reach the requisite threshold for cause, will not be subject to surveillance under FISA, but will be subject to surveillance under the NSA Program. Moreover, as Plaintiffs noted in their Opposition to the Motion to Dismiss, "under the [pre-NSA Program] regime attorneys could trust (and assure their clients) that their privileged communications would remain confidential because any information intercepted under the standard lawful procedures was subject to `minimization procedures required' to protect privileged information." (Pls. Opp. to MTD at 11.) Defendants have no real response to this argument. They claim that there is no evidence that the NSA Program "has any fewer minimization protections[] than does the interception of such communications under FISA or by a foreign government or other entity." (Defs. Reply at 9.) But, as Plaintiffs' Response to the Motion to Dismiss made clear, the constitutional requirement of minimization includes the "vital aspect" of ongoing judicial oversight. (Pls. Opp. to MTD at 12.) That aspect is absent from the NSA Program. (Pls. Mem. in Support of Summary Judgment at 7-8 and 7 n.22.) Indeed, as Plaintiffs noted in their earlier brief, the administration has admitted that attorney communications are "not ... categorically excluded from interception" under the NSA Program. (Pls. Opp. to MTD at 12.)

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The risk of foreign government surveillance of the same international communications is speculative, and such interceptions are self-evidently less likely to be communicated back to United States authorities (who might then use the information against vulnerable detainees, or against their interests in court cases or other proceedings) as intelligence agencies typically do not easily share information with other agencies, much less other governments. In any event, the risk of foreign government surveillance is no more relevant to the chilling effect in this case than the risk of private party surveillance (for instance, a phone company employee eavesdropping on calls and conveying that information anonymously to the government). In neither foreign government surveillance nor private party eavesdropping is the information overheard generally as likely to be used to the detriment of the client's physical safety (if detained by the United States) or his case. In response to Plaintiffs' averments that third parties have refused to communicate with them in light of the NSA Program's disclosure, Defendants claim that the "subjective" reaction of third parties not before the Court "is an even more attenuated and insufficient claim of injury" than that based in Plaintiffs' own reaction to the Program. (Defs. Rep. at 7-8.) It is worth noting that in Keene, the prospective harm was the damage to Keene's chances of reelection created by the predicted reactions of voters to his showing of foreign films labeled "political propaganda." Presumably Defendants would find those third-party reactions equally insufficient to support a claim of standing, yet the Supreme Court came to the opposite conclusion in Keene. *** Contrary to Defendants' position, there is nothing formulaic about standing analysis. Neither cases involving secret surveillance programs nor cases not involving "regulatory, proscriptive, or compulsory" action are categorically excluded from the federal courts. The

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central analytical concepts are those laid out by the Supreme Court as the "irreducible constitutional minimum"5 of Article III's case-or-controversy requirement: that a plaintiff "has sustained or is immediately in danger of sustaining some direct injury"6 to a legally protected interest; that the injury must be "concrete and particularized"7 and not "hypothetical" or "conjectural";8 and that it must be "fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief."9 None of these requirements--particularly the causality requirement, and the closely-intertwined redressability requirement--can be addressed algebraically; there will always be an element of judgment involved in a finding of causation in a case involving allegations of chilling effect. In Laird, the Supreme Court--applying its judgment, not a formula--denied standing where the plaintiffs were subject to lawful surveillance,10 where the chill they experienced was of low intensity,11 if it existed at all,12 and

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Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983). Allen v. Wright, 468 U.S. 737, 756 (1984). Lyons, 461 U.S. at 102. Allen, 468 U.S. at 751.

It is worth noting that the Laird Court itself stated that claims of more substantial military interference with civilian life, especially "unlawful activities," might support standing: the claims alleged in the complaint ... reflect a traditional and strong resistance of Americans to any military intrusion into civilian affairs. That tradition has deep roots in our history and found early expression, for example, in the Third Amendment's explicit prohibition against quartering soldiers in private homes without consent and in the constitutional provisions for civilian control of the military. Those prohibitions are not directly presented by this case, but their philosophical underpinnings explain our traditional insistence on limitations on military operations in peacetime. Indeed, when presented with claims of judicially cognizable injury resulting from military intrusion into the civilian sector, federal courts are fully empowered to consider claims of those asserting such injury; there is nothing in our Nation's history or in this Court's decided cases, including our holding today, that can properly be seen as giving any indication that actual or threatened injury by reason of unlawful activities of the military would go unnoticed or unremedied.

Laird, 408 U.S. at 15-16. The NSA is, of course, an agency of the Defense Department.

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was evidenced by no subsequent objective harm (and thus received the label "subjective"). None of these factors are present here. Plaintiffs have more than met their burden of showing all the necessary elements of standing. II. DEFENDANTS HAVE FAILED TO ESTABLISH THAT PLAINTIFFS' SUMMARY JUDGMENT MOTION SHOULD BE DENIED Notwithstanding the fact that the Court denied the defendants' motion for a stay with respect to plaintiffs' Motion for Summary Judgment until after Defendants' state secrets motion was decided, the defendants failed to address the merits of the summary judgment motion in their Reply Brief. (Defs. Reply 50-54.) Defendants argued that the only appropriate response to the summary judgment motion was the assertion of the state secrets privilege. The government evidently takes the position that there is nothing it can say to provide constitutional justification for the NSA Program, other than what is implicit in its argument about state secrets. The government's argument that the courts cannot resolve the general question of whether the president has authority to engage in warrantless electronic surveillance of communications between Americans and persons overseas without access to state secrets is unprecedented. None of the four circuit courts of appeals that have ruled on this issue previously have had access to such information. It is fatally inconsistent to its argument for the government to argue both that there is persuasive precedent that such surveillance is constitutional and that courts cannot decide the question without access to state secrets that were not available in the previous cases.

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See Davis v. Village Park II Realty Co., 578 F.2d 461, 463 (2d Cir. 1978) ("The district judge read Laird too broadly. That case did not hold that chilling effect is not legally cognizable; rather, it held that the chilling effect alleged in that case was so remote and speculative that there was no justiciable case or controversy"). See Pls. Opp. to MTD, at 7 n.4.

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In United States v. Clay, 430 F.2d 165 (5th Cir. 1970), rev'd on other grounds, 403 U.S. 698, United States v. Brown, 484 F.2d 418 (5th Cir. 1973), United States v. Butenko, 494 F.2d 593 (3d Cir. 1970) (en banc), United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980) and Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1976) (en banc), the courts had no state secrets information. Nor did the government argue in the most recent of those cases that the question of the president's constitutional authority could not be resolved without state secrets information. See Brief for the United States, United States v. Humphrey and United States v. Truong, Nos. 765176, 78-5177 (4th Cir. May 14, 1979), 1979 WL 212414. Finally, the court perhaps most likely to recognize any need for state secrets to analyze the constitutional issue made no reference to them when it simply took for granted that the power existed. In re Sealed Case, 310 F.3d 717 (FISA Ct. Rev. 2002). Yet all of these courts ruled on the question of whether the president has constitutional authority to conduct warrantless electronic surveillance for foreign intelligence purposes. Similarly, the Supreme Court relied upon no state secrets or classified information when it resolved the issue of whether the president had constitutional authority to conduct warrantless electronic surveillance with respect to domestic threats to national security. United States v. United States District Court, 407 U.S. 297 (1972) ("Keith").13 The error in the government's reasoning is its assumption that the issue in the case is "not whether the President has authority to undertake foreign intelligence surveillance, given his core Article II responsibilities, but when that authority may be applied." (Defs. Reply at 37). From this they draw the conclusion that a detailed exposition of NSA activities and information is

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The government argues that it is "quite beside the point" that the Supreme Court did not delve into the details of how the surveillance was conducted in Keith. It gives no explanation of this statement. We rely on Keith as an appropriate analogy on the question of whether sensitive information is necessary to resolve the basic question of the president's constitutional authority.

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required. In fact, however, the question in this case is the most basic one: whether the president has constitutional authority to undertake warrantless foreign intelligence surveillance. The authority on which the government relies to establish the president's constitutional authority is unconvincing. Clay, Brown and Butenko were decided before FISA was enacted, which severely undercuts their precedential authority. Moreover, the analysis in these cases is exceedingly brief, shallow and unpersuasive.14 Truong, although decided after FISA, involved surveillance that ended well before FISA was passed,15 and conducts such an abbreviated analysis that it mentions the new statute only in a footnote and contains no analysis of FISA's impact on the president's implied authority pursuant to Justice Jackson's concurrence in Youngstown. A far more thorough, historical and scholarly analysis was conducted by Judge Skelly Wright in Zweibon, in the plurality opinion that concluded that the president lacks constitutional power to conduct warrantless electronic surveillance. That argument has been considerably strengthened by the passage of FISA, which demonstrated that Congress not only does not recognize any such general power on the part of the president, but has made its attempted exercise a criminal offense. The government's brief also cites the usual cases to establish the proposition that the president has preeminent authority with respect to the conduct of foreign affairs. Cases such as United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) and Chicago & Southern Air Lines v. Waterman, 333 U.S. 103 (1948) do not resolve the question of whether the president has

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See the detailed analysis of the weaknesses of these opinions in Zweibon, 516 F.2d at 639-41.

The surveillance at issue in Truong terminated in January 1978; FISA was enacted in October of that year. See Truong, 629 F.2d at 912 ("Truong's phone was tapped and his apartment was bugged from May, 1977 to January, 1978. ... Truong and Humphrey were arrested on January 31, 1978"). Thus the court's holding can only relate to the pre-FISA regime.

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the power claimed in this case, however.16 Both of those cases involved presidential power exercised pursuant to Congressional authorization. Moreover, the president's powers as

Commander-in-Chief do not imply unilateral control over domestic policies, even those related to the conduct of foreign wars. As Justice Jackson warned in Youngstown Sheet & Tube Co. v. Sawyer, 385 U.S. 579, 636, n.2 (1952) (concurring op.), "no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture." Indeed, Jackson explained that an argument that the Commander-in-Chief can act in the domestic sphere without restraint by the other branches stands the constitutional design on its head: "The purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office. No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role." Id. at 646. The question of the president's constitutional authority must be resolved by resort to first principles, not by analysis of the facts of a specific threat at a specific point in time. As Justice Jackson noted in Youngstown, "[t]he opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power's validity with the cause it is invoked to promote ... The tendency is strong to emphasize transient results upon policies ... and lose sight of enduring consequences upon the balanced power structure of our Republic." Id. at 634.

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In Zweibon v. Mitchell, Judge Skelly Wright noted that the recognition of the president's implied powers in the area of foreign affairs is "inapposite to the question of how those powers are to be reconciled with the mandate of the Fourth Amendment." 516 F.2d at 621.

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Jackson wisely recognized that the framers were not unaware of emergencies, and yet provided no general relief from constitutional constraints in emergencies: The appeal, however, that we declare the existence of inherent powers ex necessitate to meet an emergency asks us to do what many think would be wise, although it is something the forefathers omitted. They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies. Aside from suspension of the privilege of the writ of habeas corpus in time of rebellion or invasion, when the public safety may require it, they made no express provision for exercise of extraordinary authority because of a crisis. I do not think we rightfully may so amend their work ... Id. at 649-50. Defendants accuse Plaintiffs of relying more on rhetoric than reasoning and suggests that its arguments flow from mere obedience to the law. The argument that the assertion of the state secrets privilege renders this case nonjusticiable is, they claim, merely "a straightforward application of a long recognized constitutionally-based privilege." (Defs. Reply at 11.) The case, however, involves more than that and the government does not recognize, or does not want to admit, two significant consequences that flow from its argument. The first is that if a state secrets claim could disable a court from making a principled decision about whether the Constitution gives the president a general power that on its face violates an explicit provision of the Bill of Rights and the will of Congress, executive power would be unchecked in contravention of basic constitutional principles of limited government and separation of powers. The second devastating implication of the government's position is reflected in its argument in response to Plaintiffs' arguments and declaration that prior to the TSP they understood that all authorized means of government electronic surveillance involved judicial review. The government's response was, "But that is something Plaintiffs could not possibly know." Clearly the law, both in Title III and FISA, provided that electronic surveillance required

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judicial review. The government is apparently saying that plaintiffs could not know whether it had authorized surveillance without judicial review before the TSP. This is an acknowledgement that the government does not recognize one of the essential functions of the Fourth Amendment ­ assuring citizens that they may conduct their affairs in private, except insofar as the law permits government intrusions. If such intrusions may be authorized secretly by the executive with no approval required by the judiciary or the Congress, no citizen could ever know whether he or she could communicate privately without government surveillance. This is far less than the Fourth Amendment guarantees.17 III. DEFENDANTS' DISCUSSION OF THE ALLEGED STATUTORY PRIVILEGES CONFUSES THE ISSUES Defendants note that the original civil service obligations to which Section 6 of the National Security Agency Act relates have been repealed, and imply that this somehow provides

Plaintiffs have not endeavored to comment herein on every claim about the caselaw made in Defendants' reply. However, one miscitation to caselaw by Defendants deserves special attention because the mistake it involves is not intuitive. Defendants claim that Hamdan resolved only a question of whether executive claims to power "were consistent with statutory law in an area where Congress has clear textual powers to regulate" (Defs. Reply at 40 n.15 (emphasis added)), and state that the Supreme Court held that the so-called Captures Clause (U.S Const., Art. I, sec. 8, cl.11, granting Congress the power to "make rules concerning captures on land and water") is such a clear grant of power. However, the Captures Clause conveys no such power. Instead, this provision allowed Congress to recognize or declare the law that applied to prizes seized by American forces--particularly ships and their cargoes captured by American privateers. See, e.g., An Act concerning Letters of Marque, Prizes, and Prize Goods, ch. 107, 4, 2 Stat. 759, 759-60 (June 26, 1812). (The Clause was modeled on the Articles of Confederation art. 9 (1777) (conveying power of "establishing rules for deciding in all cases what captures on land or water shall be legal")). See generally A. Mark Weisburd, Due Process Limits on Federal Extraterritorial Legislation?, 35 Colum. J. Transnat'l L. 379, 406 (1997). Defendants' brief also may create the misimpression that the Hamdan Court--incorrect though it might be--nonetheless relied on the Captures Clause as the sole source of Congressional power to regulate trials of military detainees. It did not; instead, it cited the Clause as one of a panoply of war-related Congressional powers, including also the powers "to `raise and support Armies,' id., cl. 12, to `define and punish ... Offences against the Law of Nations,' id., cl. 10, and `To make Rules for the Government and Regulation of the land and naval Forces,' id., cl. 14." Taken individually, none of these addresses by name the power to detain and try enemy soldiers, including the Captures Clause. While the historical uses and context of these several clauses, taken together, support such a power, the Captures Clause itself does not "clearly" and "textually" convey it. (Regarding the historical uses, see, e.g., An Act for the safe keeping and accommodation of prisoners of war, 2 Stat. 777, 12th Cong., 1st Sess. (1812); see also 2 Stat. 759, supra (regulating custody and safekeeping of prisoners captured on prize vessels by ships operating under executive commission, and safekeeping and support in subsequent custody of United States marshals).

17

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support for their extraordinarily broad reading of Section 6. (Defs. Reply at 47 and 47 n.19.) Presumably Defendants are claiming that since Congress did not modify the language of Section 6 when it repealed the civil service reporting provision, Congress must have intended that Section 6 be read outside of the context of the original civil service reporting provisions it was intended to exempt the NSA from. This ignores the fact that Section 6 was never codified into an actual provision of the U.S. Code; it remains a "note" to the original 1959 NSA Act, Pub. L. 8636. It is not at all clear that Congress would want a note to the original 1959 statute in the Statutes at Large to have a meaning that shifted with the changing provisions of the United States Code. The same error also explains why the current content of 10 U.S.C. § 1582 is irrelevant to the analysis of Section 6. (Cf. Defs. Reply at 48 (noting that current 10 U.S.C. § 1582 is a disability accommodation provision unrelated to Section 6).) Again, it makes far more sense to read Section 6 against the version of 10 U.S.C. § 1582 that existed at the time of its passage-- which was, as Defendants note, a personnel reporting position. (Defs. Reply at 48-49.) The House Report confirms this and explicitly states that Section 6 was intended to be read against the then-existing version of 10 U.S.C. § 1582: Section 6 of the bill, which is in the nature of a savings clause, provides that nothing in the bill will require the disclosure of the organization or any function of the National Security Agency, except as presently provided in the reporting requirements contained in 10 U.S.C. 1582. H.R. Rep. No. 86-231, at 4 (emphasis added) (attached, together with Pub. L. 86-36, as Appendix A to this brief). This part of the Report also indicates that Congress did not intend Section 6 to exempt the NSA from all reporting of any sort for all time. Despite the fact that the text of Section 6(a) reads "nothing in this Act or any other law," the House Report's more limited wording--"nothing in the bill will require ... disclosure ... except as presently provided"--indicates that Section 6 is best read to refer to "any other [existing] law" at the time

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of its passage.18 Congress' generally limited intent with Section 6 is also clear from the additional legislative history cited in Plaintiffs' Opposition to the MTD at 50.19 Respectfully submitted, s/Shayana Kadidal William Goodman [WG-1241] Shayana Kadidal [SK-1278] Michael Ratner [MR-3357] Lazar Bloch (law student) Mariko Hirose (law student) CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 10012-2317 [phone] David Cole (CCR Cooperating Counsel) c/o Georgetown University Law Center 600 New Jersey Avenue, N.W. Washington, DC 20001 [phone] Michael Avery J. Ashlee Albies NATIONAL LAWYERS GUILD c/o Suffolk Law School 120 Tremont Street Boston, MA 02108 [phone] counsel for Plaintiffs August 29, 2006

18

Indeed, in light of the legislative history, it is quite dubious whether Section 6 should be read to trump subsequent general disclosure statutes, such as FOIA, as may have been inadvertently suggested in Plaintiffs' Opposition Brief. Cf. Pls. Opp. to MTD at 51.

19

As to Defendants' claim that "Plaintiffs' argument also makes no sense," Defs. Reply at 48 n.21, it suffers from the same defect as the Linder opinion. We did not "argue that subsection (b) makes NSA employees subject to Civil Service Commission reporting," id.; rather, we argued that "Subsection (b) makes certain NSA employees subject to the Civil Service Commission reporting act," Pls. Opp. at 51 n.47 (emphasis added). Restoring the key word ignored by Defendants ("certain") should clarify matters.

15

Certificate of Service I, Shayana Kadidal, certify that on August 29, 2006, I caused the foregoing Memorandum (together with its Appendix A) to be filed electronically on the ECF system and served via email on the counsel for defendants listed below. Anthony J. Coppolino Special Litigation Counsel United States Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, D.C. 20044 Email: [e-mail] Dated: August 29, 2006 s/ Shayana Kadidal Shayana Kadidal [SK-1278] CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 10012-2317

APPENDIX A H.R. Rep. No. 86-231 Pub. L. 86-36