Google Inc. et al v. Egger et al

Filing 435

Google Inc. et al v. Egger et al

Doc. 435

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Jon B. Eisenberg, California Bar No. 88278 ([e-mail]) William N. Hancock, California Bar No. 104501 ([e-mail]) Eisenberg & Hancock LLP 1970 Broadway, Suite 1200 · Oakland, CA 94612 510.452.258l ­ Fax [phone] Steven Goldberg, Oregon Bar No. 75134 ([e-mail]) River Park Center, Suite 300 · 205 SE Spokane St.· Portland, OR 97202 503.445.4622 ­ Fax [phone] Thomas H. Nelson, Oregon Bar No. 78315 ([e-mail]) P.O. Box 1211, 24525 E. Welches Road · Welches, OR 97067 503.622.3123 - Fax: [phone] Zaha S. Hassan, California Bar No. 184696 ([e-mail]) 8101 N.E. Parkway Drive, Suite F-2 · Vancouver, WA 98662 360.213.9737 - Fax [phone] J. Ashlee Albies, Oregon Bar No. 05184 ([e-mail]) Steenson, Schumann, Tewksbury, Creighton and Rose, PC 815 S.W. Second Ave., Suite 500 · Portland, OR 97204 503.221.1792 ­ Fax [phone] Lisa R. Jaskol, California Bar No. 138769 ([e-mail]) 610 S. Ardmore Ave.· Los Angeles, CA 90005 213.385.2977 ­ Fax [phone] Attorneys for Plaintiffs Al-Haramain Islamic Foundation, Inc., Wendell Belew and Asim Ghafoor IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA IN RE NATIONAL SECURITY AGENCY ) TELECOMMUNICATIONS RECORDS ) ) LITIGATION ) This Document Relates Solely To: ) ) Al-Haramain Islamic Foundation, Inc., et al. v. ) Bush, et al. (C07-CV-0109-VRW) ) ) ) ) MDL Docket No. 06-1791 VRW April 23, 2008; 10:00 a.m. MEMORANDUM IN OPPOSITION TO DEFENDANTS' SECOND MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT Al-Haramain Islamic Foundation, Inc., et al., v. Bush, et al.

MEMORANDUM IN OPPOSITION TO DEFENDANTS' SECOND MOTION TO DISMISS, ETC. MDL DOCKET NO. 06-1791 VRW
Dockets.Justia.com

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TABLE OF CONTENTS PAGE INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 I. II. III. The FISA Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 The Warrantless Surveillance Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Plaintiffs' Surveillance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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I. II. III. IV.

The Al-Haramain Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 The State Secrets Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 The Pretrial Motions and the Oregon District Court's Decision . . . . . . . . . . . . . . . . . . . . . 7 The Ninth Circuit's Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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I.

FISA PREEMPTS THE COMMON LAW STATE SECRETS PRIVILEGE. . . . . . . . . . . 8 A. FISA Strikes a Balance Between Protecting National Security and Safeguarding Civil Liberties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 The State Secrets Privilege is a Rule of Federal Common Law That Congress May Preempt With a Comprehensive Regulatory Program . . . . . . . . . . . . . . . . . . . 9 FISA's Comprehensive Regulatory Program Speaks Directly to Protection of National Security in FISA Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 1. FISA Section 1806(f) Speaks Directly to Security Procedures and Rules of Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 FISA Section 1810 Speaks Directly Against Outright Dismissal . . . . . . . 14

B.

C.

2. D.

FISA Section 1806(f) is Not Limited to "Acknowledged" Surveillance . . . . . . . . 15

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II.

EVEN IF THE STATE SECRETS PRIVILEGE IS CONSTITUTIONALLY BASED, FISA STILL PREEMPTS THE PRIVILEGE THROUGH CONGRESS'S EXERCISE OF CONCURRENT CONSTITUTIONAL AUTHORITY . . . . . . . . . . . . . . . . . . . . . . . . 18 A. Congress Has Constitutional Authority to Regulate Protection of State Secrets . . 18 The President Lacks Inherent Power to Disregard Congressional Preemption of the State Secrets Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

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B.

III.
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THE NINTH CIRCUIT DID NOT PRECLUDE ADJUDICATION OF THE FACT OF PLAINTIFFS' SURVEILLANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 DEFENDANTS PREMATURELY ASSERT SOVEREIGN IMMUNITY, WHICH IN ANY EVENT DOES NOT BAR THIS ACTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

IV.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

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TABLE OF AUTHORITIES CASES ACLU Foundation v. Barr, 952 F.2d 457 (D.C. Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

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Adams v. City of Battle Creek, 250 F.3d 980 (6th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Adarand Constructors, Inc. v. Slater, 528 U.S. 216 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Afroyim v. Rusk, 387 U.S. 253 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Al-Haramain Islamic Foundation, Inc. v. Bush, 451 F. Supp.2d 1215 (D. Ore. 2006) . . . . . . . 7, 12 Al-Haramain Islamic Foundation, Inc. v. Bush, 507 F.3d 1190 (9th Cir. 2007) . . . . 7, 9, 11, 20, 23

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Asmar v. U.S. Dept. of Treasury, 680 F.Supp. 248 (E.D. Mich. 1987) . . . . . . . . . . . . . . . . . . . . . 25 Buckley v. Valeo, 424 U.S. 1 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Burgos v. Milton, 709 F.2d 1 (1st Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Butz v. Economou, 438 U.S. 478 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Campbell v. United States, 365 U.S. 85 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

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City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Clinton v. Jones, 520 U.S. 681 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985) . . . . . . . . . . . . . . . . . . . . . . . . 11 Dickerson v. United States, 530 U.S. 428 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000) 27 Gilbert v. DaGrossa, 756 F.2d 1455 (9th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Halkins v. Helms, 690 F.2d 977 (D.C. Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Halpern v. U.S., 258 F.2d 36 (2d Cir. 1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15 Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 21, 22 Hamdi v. Rumsfeld, 542 U.S. 507 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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Home Building & Loan Ass'n v. Blaisdell, 290 U.S. 398 (1934) . . . . . . . . . . . . . . . . . . . . . . . . . 22 In re United States, 872 F.2d 472 (D.C. Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 ITSI TV Productions, Inc. v. Agricultural Associations, 3 F.3d 1289 (9th Cir. 1993 . . . . . . . . . . 18

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Kasza v. Browner, 133 F.3d 1159 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 9, 11 Kentucky v,. Graham, 473 U.S. 159 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Lane v. Pena, 518 U.S. 187 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Milwaukee v. Illinois, 451 U.S. 304 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10 Mistretta v. United States, 488 U.S. 361 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

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Monarch Assur. P.L.C. v. U.S., 244 F.3d 1356 (Fed. Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Multi Denominational Ministry of Cannabis and Rastafari, Inc. v. Gonzales, 474 F. Supp.2d 1133 (N.D. Cal. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25 Organizacion JD Ltda. v. U.S. Dept. of Justice, 18 F.3d 91 (2d Cir. 1994) . . . . . . . . . . . . . . . . . 25 Rochon v. Gonzales, 438 F.3d 1211 (D.C. Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Salazar v. Heckler, 787 F.2d 527 (10th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 SD Warren Co. v. Maine Board of Environmental Protection, 547 U.S. 370 (2006) . . . . . . . . . . 16 Shelton v. United States, 404 F.2d 1292 (D.C. Cir. 1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Tenet v. Doe, 544 U.S. 1 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 United States v. Denver & Rio Grande Railroad Company, 191 U.S. 84 (1903) . . . . . . . . . . . . . 18 United States v. Nixon, 418 U.S. 683 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 22 United States v. Reynolds, 345 U.S. 1 (1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 10 Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952) . . . . . . . . . . . . . 2, 18, 20, 21, 22 Zucherbraun v. General Dynamics Corp., 935 F.2d 544 (2d Cir. 1991) . . . . . . . . . . . . . . . . . . . . 10

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CONSTITUTION, STATUTES AND RULES U.S. Const., art. I, § 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19 10 U.S.C. § 801 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

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18 U.S.C. § 2520(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 24 18 U.S.C. § 2707(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 25 18 U.S.C. § 2712(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 26 18 U.S.C. § 2712(b)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 28 U.S.C. § 1292(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

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35 U.S.C. § 181 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26 42 U.S.C. § 2000e-16(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 47 U.S.C. § 605(e)(3)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 50 U.S.C. § 1801(f)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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50 U.S.C. § 1801(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 50 U.S.C. § 1801(m) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25, 26 50 U.S.C. § 1806(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 50 U.S.C. § 1806(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 50 U.S.C. § 1806(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 50 U.S.C. § 1806(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 50 U.S.C. § 1806(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 50 U.S.C. § 1809 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 24 50 U.S.C. § 1810 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 50 U.S.C. § 1825(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
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50 U.S.C. § 1845(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Fed. R. Civ. P. 4(m) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Fed. R. Evid. 501 notes of Committee on the Judiciary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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OTHER AUTHORITIES BLACK'S LAW DICTIONARY 1084 (7th ed. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Excerpt from Press Conference of the President (Dec. 19, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . 5 124 CONG. REC. 10,903-04 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 14 H. CONF. REP. NO. 95-1720 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 13, 14, 21

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H. REP. NO. 95-1283(I) (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 13 Letter from Attorney General Alberto R. Gonzales to Senator Patrick Leahy (Jan. 17, 2007) . . . 27 National Security Agency Act of 1959 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 S. REP. NO. 95-604(I) (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9, 13 S. REP. NO. 95-701 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

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TH E FEDERALIST NO. 47 (James Madison) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 U.S. Dept. of Justice, Legal Authorities Supporting the Activities of the National Security Agency Described by the President (Jan. 19, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 19

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INTRODUCTION This lawsuit challenges defendants' warrantless electronic surveillance of Al-Haramain Islamic Foundation, Inc. and two of its lawyers, Wendell Belew and Asim Ghafoor. The United States Court of Appeals for the Ninth Circuit has remanded the case to this Court for a determination whether the Foreign Intelligence Surveillance Act (FISA) preempts the state secrets privilege. If FISA preempts the privilege, this Court can proceed to determine plaintiffs' standing and, thereafter, the merits of this lawsuit. FISA was enacted to curb governmental abuses of modern electronic surveillance capabilities by requiring a warrant for the sort of eavesdropping to which plaintiffs were subjected. FISA created an exclusive statutory framework for the domestic use of electronic surveillance to acquire foreign intelligence information ­ and for litigating claims of unlawful surveillance ­ in order to prevent the Executive Branch from unnecessarily intruding on civil liberties in the name of national security. FISA strikes a balance between two potentially competing interests ­ protecting national security and safeguarding civil liberties ­ by authorizing the courts to adjudicate claims of unlawful surveillance within the protective framework of ex parte and in camera proceedings. In contrast, the state secrets privilege ­ which permits exclusion of evidence from litigation or, in rare instances, outright dismissal of a lawsuit when the government successfully asserts national security concerns ­ abides no such balancing of interests, at the expense of civil liberties. FISA's protective framework for litigating claims of unlawful surveillance preempts the state secrets privilege by embracing the balancing of interests that the state secrets privilege eschews. Preemption also results from the prescription of a private right of action for FISA violations, which is wholly inconsistent with the state secrets privilege ­ for, absent such preemption, the government could evade private lawsuits at will, making the private right completely illusory. Congress cannot possibly have envisioned use of the state secrets privilege to subvert FISA's statutory scheme for challenging unlawful surveillance. Defendants claim the state secrets privilege is rooted in the Constitution, and thus any effort by Congress to preempt the privilege is constitutionally suspect. The Ninth Circuit has said otherwise: The privilege is one of federal common law. As such, it is subject to congressional preemption with
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a comprehensive regulatory scheme like FISA. And even if the privilege is constitutionally based, that just means the President and Congress have concurrent constitutional authority to regulate protection of state secrets. According to the formulation set forth in Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952) for determining the parameters of such concurrent authority under our Constitution's separation of powers and its system of checks and balances, Congress can preempt the privilege, even if it is constitutionally based, by enacting legislation like FISA that puts presidential power at its lowest ebb. Defendants claim the President has inherent power to disregard FISA entirely, but the Youngstown formulation forecloses that claim. The President does not have inherent power to ignore FISA. Congress having passed ­ and the 39th President having signed ­ laws regulating electronic surveillance and prescribing security procedures for litigating claims of unlawful surveillance, the 43rd President must follow those laws. The protective statutory framework for FISA litigation enables this lawsuit to go forward, with ample safeguards to protect national security, so that this Court can proceed to decide the merits of this case. FACTUAL BACKGROUND I. The FISA Context Congress enacted FISA in 1978 as a response to past instances of abusive warrantless wiretapping by the National Security Agency (NSA) and the Central Intelligence Agency (CIA). See H. REP. NO. 95-1283(I), at 21-22 (1978), Decl. of Jon B. Eisenberg, Ex. E; S. REP. NO. 95-604(I), at 7-8 (1977), Decl. of Jon B. Eisenberg, Ex. F.1/ FISA provides an exclusive framework for the domestic use of electronic surveillance to acquire foreign intelligence information. See H. REP. NO. 95-1283(I), supra, at 22 (FISA prescribes "the exclusive means by which electronic surveillance, as defined, could be used for foreign intelligence purposes"), Decl. of Jon B. Eisenberg, Ex. E; S. REP. NO. 95-604(I), supra, at 6 (FISA, combined with the Omnibus Crime Control and Safe Streets Act of 1968, "constitutes the exclusive means by which electronic surveillance, as defined, . . . may be conducted;

All citations to the "Decl. of Jon B. Eisenberg" are to the declaration and exhibits filed simultaneously with this memorandum.
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1/

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the bill recognizes no inherent power of the President in this area"), Decl. of Jon B. Eisenberg, Ex. F. With narrow exceptions not applicable here, FISA requires the government to obtain a court order ­ that is, a warrant ­ in order to conduct electronic surveillance of a "United States person," meaning a citizen, resident alien or association of such persons. 50 U.S.C. § 1801(i). FISA imposes criminal penalties for its violation, making it an offense to "engage[] in electronic surveillance under color of law except as authorized by statute." 50 U.S.C. § 1809(a)(1). FISA also imposes civil liability for its violation. Victims of unlawful electronic surveillance "shall have a cause of action against any person who committed such violation" and "shall be entitled to recover" actual damages, punitive damages, and reasonable attorney's fees and costs. 50 U.S.C. § 1810. II. The Warrantless Surveillance Program Shortly after the terrorist attacks of September 11, 2001, President Bush authorized a secret program for the NSA to engage in warrantless electronic surveillance of international communications into and out of the United States where the NSA believed that one of the participants was affiliated with or working in support of al-Qaeda. President Bush regularly re-authorized the warrantless surveillance program at 45-day intervals upon written certifications by the Department of Justice (DOJ) until January 2007, when the program purportedly was suspended. The warrantless surveillance program did not comply with the requirements of FISA. In a 42-page "White Paper" the DOJ issued in January 2006, defendants have publicly asserted their legal justifications for the program. See U.S. Dept. of Justice, Legal Authorities Supporting the Activities of the National Security Agency Described by the President (Jan. 19, 2006), available at http://www.usdoj.gov/opa/whitepaperonnsalegalauthoriti es.pdf, Decl. of Jon B. Eisenberg, Ex. A at 11-12, 34. As of early March 2004, former Attorney General John Ashcroft and former Deputy Attorney General James B. Comey had determined that the warrantless surveillance program was unlawful. Decl. of Jon B. Eisenberg, Ex. A at 11-12, 33-34. During a meeting at the White House on March 9, 2004 ­ two days before the DOJ's next 45-day written re-certification was due ­ Comey conveyed this conclusion to Vice-President Dick Cheney and members of his and the President's staffs, telling them the DOJ would not re-certify the program. Id., Ex. A at 11-12, 31, Ex. B at 2, 4. The Director of the //
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Federal Bureau of Investigation (FBI), Robert S. Mueller III ­ one of the defendants in this case ­ also harbored what he called "serious reservations" about the program's legality. Id., Ex. C at 27. On March 10, 2004, while Ashcroft was hospitalized, two White House officials went to Ashcroft's bedside and attempted to obtain the written re-certification from Ashcroft, but he refused. Id., Ex. A at 10, 14. Nevertheless, despite the advice that the warrantless surveillance program as then constituted was unlawful, the President did not direct Comey or the FBI to discontinue or suspend any portion of the program. Instead, the program went ahead without the DOJ's re-certification for a period of several weeks ­ the precise time when the plaintiffs in the present case were subjected to surveillance. Id., Ex. A at 27-28, 32-33, 43, Ex. B at 4. III. Plaintiffs' Surveillance In February 2004, defendant Office of Foreign Assets Control (OFAC) temporarily froze the assets of plaintiff Al-Haramain Islamic Foundation, Inc., pending a proceeding to determine whether to declare Al-Haramain a "Specially Designated Global Terrorist" organization. Decl. of Barbara C. Hammerle ¶ 4.2/ On August 20, 2004, in the course of that proceeding, OFAC produced a group of unclassified materials to Al-Haramain counsel Lynne Bernabei, who gave copies to five other AlHaramain lawyers, including plaintiffs Wendell Belew and Asim Ghafoor, and to Al-Haramain directors Soliman al-Buthi and Pirouz Sedaghaty. Decl. of Frances R. Hourihan ¶¶ 3-8; Decl. of Lynne Bernabei ¶¶ 4-6; Decl. of Wendell Belew ¶ 4; Decl. of Asim Ghafoor ¶ 4. Also included in this production ­ evidently by accident ­ was a document (hereafter "the Document") bearing an extremely high top secret classification. Decl. of Frances R. Hourihan ¶ 4; Suppl. Decl. of Frances R. Hourihan ¶¶ 4-5. In late August 2004, the FBI was notified of the Document's inadvertent disclosure. Decl. of Frances R. Hourihan ¶ 3; Suppl. Decl. of Frances R. Hourihan ¶ 3. In mid-October 2004, FBI agents retrieved copies of the Document from all counsel. Decl. of Frances R. Hourihan ¶ 7; Suppl. Decl. of Frances R. Hourihan ¶ 7; Decl. of Lynne Bernabei ¶ 9; Decl. of Wendell Belew ¶¶ 5-6, Decl. of Asim Ghafoor ¶¶ 5-7. The FBI did not, however, contact

2/

The declarations of Barbara C. Hammerle, Frances R. Hourihan, Lynne Bernabei, Wendell Belew, and Asim Ghafoor cited in this memorandum are on file with this Court, having been filed in connection with prior proceedings.

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Al-Buthi or Sedaghaty, who were living overseas at the time. Decl. of Frances R. Hourihan ¶ 8. The Document demonstrates that, in March and April of 2004 ­ during the period when the Attorney General and other high governmental officials had determined that the warrantless surveillance program was unlawful yet it went forward without certification ­ Al-Haramain and its attorneys were subjected to warrantless electronic surveillance in violation of FISA. Testimony by Director of National Intelligence Mike McConnell and NSA Director Keith Alexander before the Senate Select Committee on Intelligence has confirmed that plaintiffs' surveillance was within the scope of FISA's requirement of a warrant. One of FISA's definitions of the types of "electronic surveillance" that invoke the warrant requirement is "the acquisition . . . of the contents of any wire communication to or from a person in the United States . . . if such acquisition occurs in the United States . . . ." 50 U.S.C. § 1801(f)(2) (emphasis added). McConnell and Alexander explained that, because of technological innovations since FISA's inception, communications between persons located inside and outside the United States are now transmitted over wire, and the interception of such communications occurs in the United States. Decl. of Jon B. Eisenberg, Ex. D at 7-9, 22-23. Thus, according to McConnell, "when seeking to monitor foreign persons suspected of involvement in terrorist activity who are physically located in foreign countries, the intelligence community is required under today's FISA [50 U.S.C. § 1801(f)(2)] to obtain a court order to conduct surveillance." Id., Ex. D at 9. The communications at issue in this case occurred between persons located inside and outside the United States. Those communications thus were "electronic surveillance" within the scope of FISA. The applicability of section 1801(f)(2) to this case was previously obscured by President Bush's assertion on December 19, 2005 ­ now known to be untrue ­ that "these calls are not intercepted within the country." See Excerpt from Press Conference of the President (Dec. 19, 2005), available at http://www.whitehouse.gov/news/releases/2005/12/20051219-2.html, Decl. of Jon B. Eisenberg, Ex. J. // // //
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STATEMENT OF THE CASE I. The Al-Haramain Complaint On February 28, 2006, plaintiffs Al-Haramain, Belew and Ghafoor filed a complaint in the United States District Court for the District of Oregon alleging a private cause of action under FISA. The complaint also alleges violations of the constitutional separation of powers, the First, Fourth and Sixth Amendments, and the International Covenant on Civil and Political Rights. The complaint alleges that defendants "have engaged in electronic surveillance of plaintiffs without court orders." Compl. ¶ 2. Specifically, the complaint alleges that in March and April 2004, the NSA targeted and engaged in electronic surveillance of attorney-client communications between a director or officer of Al-Haramain and its attorneys Belew and Ghafoor without obtaining a warrant or otherwise complying with FISA, and that in May 2004 the NSA gave logs of those surveilled communications to OFAC. Id., ¶¶ 19-20. Along with the complaint, plaintiffs filed a copy of the Document under seal with the Oregon district court in order to establish the fact of their surveillance and thus their standing as "aggrieved" persons to assert a private cause of action under FISA. II. The State Secrets Privilege Defendants responded to this lawsuit by invoking the state secrets privilege, which ­ where applicable ­ allows the government to refuse discovery of classified information that poses a risk to national security if publicly disclosed. United States v. Reynolds, 345 U.S. 1, 6, 10 (1953). In Kasza v. Browner, 133 F.3d 1159, 1165 (9th Cir. 1998), the Ninth Circuit explained the state secrets privilege as follows: The state secrets privilege is "a common law evidentiary privilege." Id. It "allows the government to deny discovery of military secrets" which, in the interest of national security, should not be divulged. Id. "Once the privilege is properly invoked and the court is satisfied as to the danger of divulging state secrets, the privilege is absolute." Id. at 1165-66. The government can invoke the privilege with regard to "particular evidence," so that the privileged evidence "is completely removed from the case," which then "goes forward based on evidence not covered by the privilege." Id. Further, if the "very subject matter of the action" is a state secret, the court must "dismiss the plaintiff's action." Id. //
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III.

The Pretrial Motions and the Oregon District Court's Decision Defendants filed a motion for dismissal of this action, or alternatively for summary judgment,

based on the state secrets privilege. They also filed a motion to bar plaintiffs from having access to the Document. Plaintiffs responded that (1) FISA section 1806(f) preempts the state secrets privilege and vests the district court with authority to permit use of the Document under secure conditions to determine plaintiffs' standing, and (2) even if the state secrets privilege applies here, it does not require dismissal of this lawsuit. In an opinion filed September 7, 2006, the Oregon district court declined to dismiss the action or grant summary judgment based on the state secrets privilege, concluding that the warrantless surveillance program is no longer a secret to the general public and, because of the Document's inadvertent disclosure, "it is not a secret to plaintiffs whether their communications have been intercepted." Al-Haramain Islamic Foundation, Inc. v. Bush, 451 F. Supp.2d 1215, 1222-23 (D. Ore. 2006). Instead, the judge said he would "permit plaintiffs to file in camera any affidavits attesting to the contents of the document from their memories to support their standing in this case and to make a prima facie case." Id. at 1229. The Oregon district court did not decide the issue whether FISA preempts the state secrets privilege, saying "I decline to reach this very difficult question at this time, which involves whether Congress preempted what the government asserts is a constitutionally-based privilege." Id. at 1231. The court noted, however, that defendants' arguments against preemption "would nullify FISA's private remedy and would be contrary to the plain language of Section 1806(f)." Id. IV. The Ninth Circuit's Decision The Ninth Circuit granted defendants' request to permit an interlocutory appeal pursuant to 28 U.S.C. section 1292(b). Thereafter, the Judicial Panel on Multidistrict Litigation transferred the action to this Court. On November 16, 2007, the Ninth Circuit reversed the Oregon district court's decision and ordered the case remanded to this Court for further proceedings. Al-Haramain Islamic

Foundation, Inc. v. Bush, 507 F.3d 1190 (9th Cir. 2007). The Ninth Circuit held that the Oregon district court properly determined the warrantless surveillance program is no longer a state secret, but that the district court erred in permitting the plaintiffs to establish their standing by filing affidavits
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describing the Document from memory, because the Document is a state secret and the district court's ruling was an improper "back door around" the state secrets privilege. Id. at 1193. The Ninth Circuit did not decide whether FISA preempts the state secrets privilege. Noting that this issue has now become "central to Al-Haramain's ability to proceed with this lawsuit," id. at 1205-06, the Ninth Circuit said: "Rather than consider the issue for the first time on appeal, we remand to the district court to consider whether FISA preempts the state secrets privilege and for any proceedings collateral to that determination." Id. at 1206.3/ ARGUMENT I. FISA PREEMPTS THE COMMON LAW STATE SECRETS PRIVILEGE. A. FISA Strikes a Balance Between Protecting National Security and Safeguarding Civil Liberties.

We begin with the issue that the Ninth Circuit remanded for this Court's decision: whether
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FISA preempts the state secrets privilege. The answer is that FISA preempts the privilege via two
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statutory provisions: FISA section 1810, which prescribes the private cause of action, and FISA section
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1806(f), which prescribes security procedures for FISA litigation.
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FISA's legislative history demonstrates Congress's intent to strike a balance between two
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potentially competing interests ­ protecting national security and safeguarding civil liberties. Enacted
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in the wake of governmental abuses of modern surveillance techniques, FISA is intended to restore
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that balance by (1) prescribing an exclusive framework for the domestic use of electronic surveillance
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to acquire foreign intelligence information, and (2) specifying the judiciary's role in approving
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proposed surveillance and determining the legality of past surveillance. After extensive deliberation
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and debate, Congress concluded that protection of civil liberties requires comprehensive judicial
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oversight of electronic surveillance conducted in the name of national security, as a check against
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documented overreaching by the Executive Branch. A 1978 House Conference Report explained that
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section 1806(f) "adequately protects the rights of the aggrieved person" and at the same time "ensures
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3/

The remanded issue is a pure question of law. Defendants, however, have lodged in camera and ex parte a secret "Classified Supplemental Memorandum" in support of their second dismissal motion. Absent some legitimate justification (which is difficult to imagine) for filing a secret argument on a pure question of law, plaintiffs object to this secret filing.

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adequate protection of national security interests." H. CONF. REP. NO. 95-1720, at 32 (1978), Decl. of Jon B. Eisenberg, Ex. G. Similarly, a Senate Judiciary Committee report called section 1806(f) "a reasonable balance between an entirely in camera proceeding . . . and mandatory disclosure, which might occasionally result in the wholesale revelation of sensitive foreign intelligence information." S. REP. NO. 95-604(I), supra, at 58, Decl. of Jon B. Eisenberg, Ex. F. In this respect, FISA departs from the state secrets privilege, where the rule of outright dismissal precludes any balancing of competing interests. See Halkins v. Helms, 690 F.2d 977, 997 n.71 (D.C. Cir. 1982) ("the state secrets privilege, being absolute, requires no such balancing"). Section 1806(f), in contrast, embraces such balancing ­ and thereby preempts the state secrets privilege ­ by prescribing a procedure whereby the courts can safeguard civil liberties by adjudicating claims of unlawful surveillance yet protect national security by considering sensitive information ex parte and in camera. B. The State Secrets Privilege is a Rule of Federal Common Law That Congress May Preempt With a Comprehensive Regulatory Program.

The threshold question is whether the state secrets privilege arises from the Constitution or
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from federal common law. This question is important because the Supreme Court has prescribed a
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special standard for determining preemption of federal common law, which differs from the standard
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that would apply if the state secrets privilege were constitutionally based. The standard for
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"determining if federal statutory law governs a question previously the subject of federal common law"
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does not require "evidence of a clear and manifest purpose" to preempt ­ as does the standard for
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determining whether federal law preempts state law. Milwaukee v. Illinois, 451 U.S. 304, 316-17
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(1981). Rather, a federal statutory scheme can preempt federal common law, even without explicit
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evidence of a clear and manifest purpose to do so, if Congress has "occupied the field through the
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establishment of a comprehensive regulatory program." Id. at 317 (emphasis added).
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The Ninth Circuit has now implicitly resolved the question whether the state secrets privilege
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is one of federal common law or is constitutionally based: Once again, as in Kasza, the Ninth Circuit
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has plainly described the privilege as "a common law evidentiary privilege." Al-Haramain, 507 F.3d
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at 1196; accord, Kasza, 133 F.3d at 1167 ("the state secrets privilege is an evidentiary privilege rooted
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in federal common law"); Monarch Assur. P.L.C. v. U.S., 244 F.3d 1356, 1358 (Fed. Cir. 2001) ("common-law state secrets privilege"); Zuckerbraun v. General Dynamics Corp., 935 F.2d 544, 546 (2d Cir. 1991) ("common law evidentiary rule"); In re United States, 872 F.2d 472, 474 (D.C. Cir. 1989) (same). That description is consistent with Reynolds, which said the privilege is "well established in the law of evidence," 345 U.S. at 6-7 (emphasis added), not in constitutional law. See also Fed R. Evid. 501 notes of Committee on the Judiciary, H. Rep. No. 93-650 (describing "secrets of state" privilege as one of nine "nonconstitutional privileges" the Supreme Court submitted to Congress). In this respect, the state secrets privilege differs from executive privilege, which the Supreme Court has suggested is "inextricably rooted in the separation of powers under the Constitution." United States v. Nixon, 418 U.S. 683, 708 (1974). The Supreme Court has never said that the state secrets privilege is similarly rooted in the constitutional separation of powers. Defendants rely on Nixon for the proposition that "the state secrets privilege derives from the President's authority under Article II of the Constitution to protect national security," Defs.' Second Mo. To Dismiss etc. at 13, but Nixon held nothing of the sort. Nixon did not adjudicate any issues regarding the state secrets privilege. As a federal common law privilege, the state secrets privilege may be displaced by statute. Dickerson v. United States, 530 U.S. 428, 437 (2000) ("Congress retains the ultimate authority to modify or set aside any judicially created rules of evidence and procedure that are not required by the Constitution"); see also Tenet v. Doe, 544 U.S. 1, 11 (2005) (Stevens, concurring) ("Congress can modify the federal common-law rule"). And the privilege, as one of federal common law, may be preempted by a "comprehensive regulatory program" like FISA. Milwaukee v. Illinois, 451 U.S. at 317. In Milwaukee v. Illinois, a statutory scheme regulating interstate water pollution preempted federal common law on nuisance abatement, even without any mention of the federal common law in legislative history, because "[t]he establishment of such a self-consciously comprehensive program by Congress . . . strongly suggests that there is no room for courts to attempt to improve on that program with federal common law." Id. at 319. Similarly here, FISA preempts the state secrets privilege by occupying the entire field of foreign intelligence surveillance with a comprehensive
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regulatory program that includes a warrant requirement and secure procedures for adjudicating civil actions for FISA violations. As Senator Gaylord A. Nelson (one of FISA's co-sponsors) explained during floor debate, FISA "[a]long with the existing statute dealing with criminal wiretaps . . . blankets the field." 124 CONG. REC. 10,903-04 (1978) (emphasis added.) As the Ninth Circuit put it, FISA "provides a detailed regime to determine whether surveillance `was lawfully authorized and conducted.'" Al-Haramain, 507 F.3d at 1205 (emphasis added). Thus, it is inconsequential that, as defendants argue, FISA's "legislative history does not even mention the state secrets privilege." Defs.' Second Mo. To Dismiss etc. at 19. It may be true that FISA's legislative history does not explicitly mention the state secrets privilege by name, but Congress plainly intended to create a comprehensive regulatory program that includes a statutory scheme for challenging unlawful surveillance. And if the privilege is one of federal common law, then it is preempted by this comprehensive regulatory program. C. FISA's Comprehensive Regulatory Program Speaks Directly to Protection of National Security in FISA Litigation.

The specific preemption inquiry is whether FISA's comprehensive regulatory program
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"`"[speaks] directly to [the] question" otherwise answered by federal common law.'" Kasza, 133 F.3d
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at 1167 (emphasis in original) (quoting County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 23617

37 (1985)). The question, simply put, is whether FISA speaks directly to protection of national
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security in FISA litigation. Two sub-issues are presented: (1) Does FISA speak directly to security
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procedures and rules of disclosure that are otherwise prescribed by the state secrets privilege? (2)
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Does FISA speak directly to the rule of outright dismissal that is otherwise prescribed by the state
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secrets privilege? The answer in both instances is yes.
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1.
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FISA Section 1806(f) Speaks Directly to Security Procedures and Rules of Disclosure.

On the first sub-issue, FISA section 1806(f) speaks directly to security procedures and rules of disclosure by prescribing rules for judicial determination and protection of national security concerns where, as here, a private cause of action is alleged under FISA section 1810. This regime speaks directly to use and disclosure that would otherwise be governed by the state secrets privilege. It speaks directly to secure use of the Document in the present case to demonstrate plaintiffs' standing.
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And its application "notwithstanding any other law," 50 U.S.C. § 1806(f), means the state secrets privilege is preempted. Plaintiffs invoked section 1806(f)'s security regime by opposing defendants' motion to bar plaintiffs from having access to the Document. Section 1806(f) authorizes this Court to review the Document in camera and ex parte to determine plaintiffs' standing. Further, section 1806(f) authorizes this Court, in its discretion, to give plaintiffs access to the Document under appropriate security procedures and protective orders ­ e.g., redaction of sensitive information from the Document ­ for purposes of counsel's discussion of the Document in subsequent argument before this Court on the issue of standing. See 50 U.S.C. § 1806(f) (court may disclose to aggrieved parties underlying documentation "under appropriate security procedures and protective orders . . . where such disclosure is necessary to make an accurate determination of the legality of the surveillance"). This case is unusual in that the aggrieved parties are plaintiffs in a civil action rather than defendants in a criminal action, and the Attorney General never filed the prescribed affidavit. But nothing in section 1806(f) restricts its application to either circumstance. By its plain language, section 1806(f) applies whenever a "request is made by an aggrieved person . . . to . . . obtain materials relating to electronic surveillance . . . ." That language is more than broad enough to encompass the plaintiffs here, to the extent they sought access to the Document. That is why the Oregon district court concluded that defendants' arguments against preemption "would be contrary to the plain language of Section 1806(f)." Al-Haramain, 451 F. Supp.2d at 1231.4/ Moreover, Congress envisioned the statute's application in civil actions and/or where, as here,

4/

Defendants contend section 1806(f) applies only to electronic surveillance undertaken pursuant to FISA because of the presence of the phrase "under this chapter" in section 1806(f). See Defs.' Second Mo. To Dismiss etc. at 17 n.16 (also citing similar language elsewhere in section 1806). But that phrase modifies only section 1806(f)'s provision regarding motions and requests "to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance." 50 U.S.C. § 1806(f) (emphasis added). Plaintiffs rely not on that provision, but on section 1806(f)'s entirely separate provision regarding motions and requests "to discover or obtain applications or orders or other materials relating to electronic surveillance," 50 U.S.C. § 1806(f) (emphasis added), which includes no "under this chapter" restriction. Indeed, if section 1806(f) applied only to surveillance that was lawfully undertaken pursuant to FISA, then the statute's provisions for determining whether surveillance was "lawfully authorized and conducted," 50 U.S.C. § 1806(f), would be meaningless, because the statute would apply only to lawful surveillance.
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the Attorney General does not file an affidavit asserting harm to national security. The 1978 House Conference Report expressed agreement among the members of Congress "that an in camera and ex parte proceeding is appropriate for determining the lawfulness of electronic surveillance in both criminal and civil cases." H. CONF. REP. NO. 95-1720, supra, at 32 (emphasis added), Decl. of Jon B. Eisenberg, Ex. G. And a 1978 Senate Intelligence Committee report stated that where "no such assertion is made [in an Attorney General's affidavit] the Committee envisions that mandatory disclosure of the application and order, and discretionary disclosure of other surveillance materials, would be available to the [aggrieved party]." S. REP. NO. 95-701, at 63 (1978), Decl. of Jon B. Eisenberg, Ex. H; accord, S. REP. NO. 95-604(I), supra, at 57, Decl. of Jon B. Eisenberg, Ex. F. FISA gives the President a choice between unrestricted disclosure and an Attorney General's affidavit ­ not a choice between unrestricted disclosure and invocation of the state secrets privilege as an end run around an Attorney General's affidavit. FISA's legislative history evinces congressional intent to displace the state secrets privilege with the regime prescribed by section 1806(f). The 1978 House Conference Report declared that "an in camera and ex parte proceeding is appropriate for determining the lawfulness of electronic surveillance[.]" H. REP. NO. 95-1720, supra, at 32, Decl. of Jon B. Eisenberg, Ex. G. The Senate Judiciary Committee said with regard to section 1806(f) that when the legality of surveillance is at issue, "it is this procedure `notwithstanding any other law' that must be used to resolve the question." S. REP. NO. 96-604(I), supra, at 57, Decl. of Jon B. Eisenberg, Ex. F; accord, S. REP. NO. 95-701, supra, at 63, Decl. of Jon B. Eisenberg, Ex. H; H. REP. NO. 95-1283(I), supra, at 91, Decl. of Jon B. Eisenberg, Ex. E. More broadly, FISA's legislative history demonstrates that FISA was meant to curb unfettered electronic surveillance by the Executive Branch via "an exclusive charter for the conduct of electronic surveillance in the United States" and "effective substantive and procedural controls" which "regulate the exercise" of presidential authority to conduct foreign intelligence electronic surveillance. S. REP. NO . 96-604(I), supra, at 15-16, Decl. of Jon B. Eisenberg, Ex. F; accord, H. REP. NO. 95-1283(I), supra, at 24 ("Congress has the power to regulate the conduct of such surveillance by legislating a reasonable procedure, which then becomes the exclusive means by which surveillance may be
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conducted"), Decl. of Jon B. Eisenberg, Ex. E. Senator Nelson explained that FISA is intended to "represent the sole authority for national security electronic surveillance in the United States" and "insures executive accountability," which "is a striking departure from the pattern of the past in which `deniability' was often built into the system to insure that responsibility for intelligence abuses could not be traced . . . ." 124 CONG. REC. 10,903-04 (1978). Thus, FISA departs from the state secrets privilege by replacing its absolute rule of outright dismissal ­ in effect, deniability by silence ­ with statutory provisions for protecting national security while holding the Executive Branch accountable for intelligence abuses. In short, the security regime prescribed by section 1806(f) applies in this case notwithstanding the state secrets privilege. Congress having determined (and the 39th President having agreed) that section 1806(f) adequately ensures protection of national security, see H. CONF. REP. No. 95-1720, supra, at 32, Decl. of Jon B. Eisenberg, Ex. G, the rules of disclosure prescribed by the state secrets privilege become superfluous in FISA litigation. 2. FISA Section 1810 Speaks Directly Against Outright Dismissal.

On the second sub-issue ­ whether FISA speaks directly to the rule of outright dismissal within the state secrets privilege ­ FISA section 1810, by prescribing a private right of action for FISA violations despite the otherwise secret nature of FISA proceedings, plainly displaces the rule of outright dismissal, which is wholly inconsistent with the very notion of a private FISA action. If section 1810 did not displace the rule of outright dismissal, then Congress's prescription of a private FISA action would be meaningless, for the President would be able to evade any private FISA action merely by invoking the state secrets privilege.5/ The situation here is analogous to Halpern v. U.S., 258 F.2d 36 (2d Cir. 1958), a lawsuit arising under the Invention Secrecy Act, 35 U.S.C. § 181, which allowed the patent office to withhold a patent grant for inventions implicating national security, but also allowed inventors to sue for compensation if a patent was denied. When the plaintiff was denied a patent and sued for compensation, the
5/

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The same is true of other private causes of action prescribed for unlawful electronic surveillance. See, e.g., 18 U.S.C. § 2520(a); 18 U.S.C. § 2707(a); 47 U.S.C. § 605(e)(3)(A). Each of those private rights would be meaningless if they could be subverted merely by invocation of the state secrets privilege.

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government invoked the state secrets privilege. The Second Circuit rejected the assertion of the privilege because "the trial of cases involving patent applications placed under a secrecy order will always involve matters within the scope of this privilege," and "[u]nless Congress has created rights which are completely illusory, existing only at the mercy of government officials, the Act must be viewed as waiving the privilege . . . dependent upon the availability and adequacy of other methods of protecting the overriding interest of national security during the course of a trial." Halpern, 258 F.2d at 43. Similarly here, a private FISA action generally involves matters that normally would be within the scope of the state secrets privilege. Id. Unless section 1810 creates "rights which are completely illusory, existing only at the mercy of government officials," id., FISA must be viewed as preempting the state secrets privilege, vesting courts with the power to ensure national security with in camera and ex parte review plus "appropriate security procedures and protective orders." 50 U.S.C. §1806(f). D. FISA Section 1806(f) is Not Limited to "Acknowledged" Surveillance.

Defendants contend section 1806(f) cannot preempt the state secrets privilege because the statute applies only "where the Government has acknowledged the existence of electronic surveillance." Defs.' Second Mo. To Dismiss etc. at 2 (emphasis added); see also id. at 13, 17. Generally speaking, section 1806(f) is invoked in four circumstances: (1) when the government gives notice under section 1806(c)-(d) that it intends to use surveillance-based information against a defendant, (2) when a defendant moves under section 1806(e) to suppress surveillance-based information, (3) when an aggrieved person makes a "motion or request" to "to discover or obtain applications or orders or other materials relating to electronic surveillance," and (4) when an aggrieved person makes a "motion or request" to "discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter." 50 U.S.C. § 1806(f). According to defendants, "each of the circumstances in which Section 1806(f) applies is premised on the fact that electronic surveillance has already been acknowledged by the Government." Defs' Second Mo. To Dismiss etc. at 17. Defendants are wrong. Admittedly, the first two circumstances necessarily involve

acknowledged surveillance, because the government seeks to use surveillance-based information in
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a proceeding the government has initiated. But the third circumstance ­ which is the circumstance of the present case ­ is not necessarily restricted to government-initiated proceedings but can include civil actions initiated against the government under FISA section 1810. (The same is true of the fourth circumstance.) Nothing in section 1806(f) expressly or impliedly injects a requirement in the third circumstance that the governmental must "acknowledge" the challenged surveillance for section 1806(f) to be invoked. Such language simply is not there. And if defendants truly mean to suggest that section 1806(f) is restricted to government-initiated proceedings, they are wrong in light of 18 U.S.C. § 2712(b)(4), which makes the security procedures set forth in section 1806(f) applicable to lawsuits that are prosecuted against the government under 18 U.S.C. § 2712(a). A close reading of section 1806(f) drives the point home. Within the context of this case, the statute states in pertinent part: "Whenever any . . . request is made by an aggrieved person . . . to obtain . . . materials relating to electronic surveillance . . . the United States district court . . . shall . . . review in camera and ex parte the . . . materials . . . as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted . . . ." 50 U.S.C. § 1806(f). The present case invokes this language because plaintiffs, by opposing defendants' motion to bar plaintiffs from having access to the Document, have made a request to obtain material relating to electronic surveillance ­ the Document, which plaintiffs have already seen ­ for use in demonstrating their standing to prosecute a civil action under FISA section 1810. Upon plaintiffs' request, section 1806(f) expressly authorizes this Court to review the Document in camera and ex parte in the course of determining whether plaintiffs were surveilled unlawfully. One searches in vain for anything in the statute that says this language applies only if the government "acknowledges" the surveillance or in government-initiated proceedings.6/

6/

Absent anything in the language of section 1806(f) that supports the interpretation defendants urge, they seek refuge in the canon of statutory construction noscitur a sociis. See Defs.' Second Mo. To Dismiss etc. at 18 n.17. This canon ­ in English, "it is known by its associates" ­ counsels that "the meaning of an unclear word or phrase should be determined by the words immediately surrounding it." BLACK'S LAW DICTIONARY 1084 (7th ed. 1999). The canon, however, is invoked only where statutory language is unclear. Id. Nothing in the language of section 1806(f) is unclear. See generally S.D. Warren Co. v. Maine Board of Environmental Protection, 547 U.S. 370, 380 (2006) (rejecting assertion of noscitur a sociis because "uncritical use of interpretative rules is

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Defendants argue that a request to obtain material relating to electronic surveillance is necessarily "predicated on disclosed surveillance," Defs.' Second Mo. To Dismiss etc. at 17 (emphasis added), because of the statute's requirement that the request be "made by an aggrieved party." 50 U.S.C. § 1806(f). Whether defendants are right about this is beside the point here, because plaintiffs' surveillance was disclosed to them, albeit inadvertently. Surveilled plaintiffs in a civil action under section 1810 certainly know they are aggrieved if the surveillance is disclosed to them, regardless of how the disclosure occurs. That is the situation here. Defendants wrongly equate disclosure with acknowledgment. The two are not the same thing. Disclosure can be accidental, without being acknowledged. The present case demonstrates this: Even though defendants refuse to acknowledge the fact of plaintiffs' surveillance, it was nevertheless disclosed to them when OFAC accidently gave the Document to Al-Haramain counsel Lynne Bernabei. Thus, plaintiffs do not advance, and this Court need not reach, the "radical theory" of which defendants warn ­ that section 1806(f) might allow "litigants in any case to discover whether they are even subject to any surveillance." Defs.' Second Mo. To Dismiss etc. at 18 (emphasis in original); see also id. at 19 ("this very lawsuit is effectively an effort to compel the Government to provide notice of whether or not alleged surveillance has occurred"). Nor, as defendants claim, id. at 18-19, does this case invoke ACLU Foundation v. Barr, 952 F.2d 457 (D.C. Cir. 1991), which observed that the government "has no duty to reveal ongoing foreign intelligence surveillance," id. at 468 n.13, and cannot be "forced to admit or deny such allegations," id. at 468. Plaintiffs do not seek any revelation or admission by defendants as to whether plaintiffs were subjected to surveillance. The Document demonstrates that they were. This Court need only read the Document to know that. Plaintiffs seek no disclosure at all. Thus, the anti-disclosure provision of the National Security Agency Act of 1959, on which defendants also rely, see Defs.' Second Mo. To Dismiss etc. at 21-22, is irrelevant here. In short, plaintiffs seek to use what has already been disclosed to them ­ the Document itself

especially risky in making sense of a complicated statute . . . where technical definitions are worked out with great effort in the legislative process").
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­ to establish their standing to obtain an adjudication whether their surveillance was unlawful.7/ II. EVEN IF THE STATE SECRETS PRIVILEGE IS CONSTITUTIONALLY BASED, FISA STILL PREEMPTS THE PRIVILEGE THROUGH CONGRESS'S EXERCISE OF CONCURRENT CONSTITUTIONAL AUTHORITY. A. Congress Has Constitutional Authority to Regulate Protection of State Secrets.

If this Court determines ­ despite the Ninth Circuit's pronouncement ­ that the state secrets privilege is constitutionally based, then different legal standards are invoked for determining the question of preemption, because that means the President and Congress have concurrent constitutional authority over protection of state secrets. The presence of such concurrent constitutional authority invokes the standards set forth in Youngstown Sheet and Tube Co., 343 U.S. 579 ­ commonly called the Steel Seizure Case ­ for determining the parameters of such authority according to our Constitution's separation of powers and its system of checks and balance. The threshold question is whether Congress has constitutional authority to regulate protection of state secrets. The answer is yes. Congress's authority to do so has multiple roots in the following powers prescribed by Article I, Section 8 of the Constitution:
! ! !

to "provide for the . . . general welfare of the United States." Id., cl. 1. to "constitute tribunals inferior to the Supreme Court." Id., cl. 9. to "make all laws which shall be necessary and proper for carrying into execution the foregoing powers." Id., cl. 18.

7/

Defendants insist that plaintiffs' counsel "conceded" in oral argument before the Oregon district court that "plaintiffs do not `already know' whether they were subject to alleged warrantless surveillance under the TSP in 2004." Defs.' Second Mo. To Dismiss etc. at 23 n.20. But counsel was merely addressing the question whether plaintiffs'