KLAYMAN v. OBAMA et al
Filing
44
MEMORANDUM by LARRY E. KLAYMAN, CHARLES STRANGE, MARY ANN STRANGE. (Attachments: # 1 Exhibit 1 -- Binder Part 1, # 2 Exhibit 1 -- Binder Part 2, # 3 Exhibit 2 -- Gov't Opposition in In Re Epic)(Klayman, Larry)
No. 13-58
In the Supreme Court of the United States
IN RE ELECTRONIC PRIVACY INFORMATION CENTER,
PETITIONER
ON PETITION FOR A WRIT OF MANDAMUS AND PROHIBITION,
OR A WRIT OF CERTIORARI,
TO THE FOREIGN INTELLIGENCE SURVEILLANCE COURT
BRIEF FOR THE UNITED STATES IN OPPOSITION
DONALD B. VERRILLI, JR.
Solicitor General
Counsel of Record
JOHN P. CARLIN
Acting Assistant Attorney
General
JEFFREY M. SMITH
ADITYA BAMZAI
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTIONS PRESENTED
1. Whether this Court should issue a writ of mandamus and prohibition to review the Foreign Intelligence Surveillance Court’s determination that the
government has “reasonable grounds to believe” certain telephony records are “relevant to an authorized
investigation.” 50 U.S.C. 1861(b)(2)(A).
2. Whether this Court has jurisdiction in this case
to issue a writ of certiorari to the Foreign Intelligence
Surveillance Court under 50 U.S.C. 1803(b) and
1861(f )(3).
(I)
TABLE OF CONTENTS
Page
Opinion below .................................................................................. 1
Jurisdiction ...................................................................................... 1
Statement ......................................................................................... 2
Argument:
I. The petition does not satisfy the requirements
for mandamus relief ........................................................ 14
A. FISA provides that only the government or
the recipient of an order may seek appellate
review of a FISC decision under Section 1861 ..... 16
B. Petitioner has not shown that review would
be unavailable in district court but available
in this Court ............................................................... 20
C. No exceptional circumstances justify exercise of this Court’s discretionary powers,
and petitioner has not demonstrated a
“clear and indisputable” right to a writ of
mandamus .................................................................. 23
II. This Court lacks jurisdiction to issue a writ of
certiorari ........................................................................... 34
Conclusion ...................................................................................... 35
TABLE OF AUTHORITIES
Cases:
Application of the U.S. for an Order Pursuant to
18 U.S.C. Section 2703(D), In re, 707 F.3d 283
(4th Cir. 2013) ........................................................................ 18
Baltimore Sun Co. v. Goetz, 886 F.2d 60 (4th Cir.
1989) ....................................................................................... 18
Block v. Community Nutrition Inst., 467 U.S. 340
(1984) ...................................................................................... 25
Block v. North Dakota ex rel. Bd. of Univ. & Sch.
Lands, 461 U.S. 273 (1983) .................................................. 26
Blodgett, In re, 502 U.S. 236 (1992)....................................... 22
(III)
IV
Cases—Continued:
Page
Boston Herald, Inc., In re, 321 F.3d 174 (1st Cir.
2003) ....................................................................................... 18
Carlisle v. United States, 517 U.S. 416 (1996) ..................... 19
Chandler v. Judicial Council of the Tenth Circuit,
398 U.S. 74 (1970) ................................................................. 17
Cheney v. United States Dist. Ct., 542 U.S. 367
(2004) .............................................................. 14, 16, 20, 24, 32
CIA v. Sims, 471 U.S. 159 (1985) ........................................... 31
Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138
(2013) ................................................................................ 24, 25
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) ........ 24
De Beers Consol. Mines, Ltd. v. United States,
325 U.S. 212 (1945) ............................................................... 33
Devlin v. Scardelletti, 536 U.S. 1 (2002) ............................... 19
EEOC v. Shell Oil Co., 466 U.S. 54 (1984)...................... 29, 32
Fahey, Ex parte, 332 U.S. 258 (1947) ................................... 14
FAA v. Cooper, 132 S. Ct. 1441 (2012) .................................. 29
Grand Jury Proceedings, In re, 827 F.2d 301
(8th Cir. 1987) ........................................................................ 29
Hollingsworth v. Perry, 558 U.S. 183 (2010) ....................... 15
Kaiser Gypsum Co. v. Kelly, 921 F.2d 1310 (3d Cir.
1990), cert. denied, 499 U.S. 976 (1991) ............................. 14
Kerr v. United States Dist. Ct., 426 U.S. 394 (1976) ........... 20
Mallard v. United States Dist. Ct., 490 U.S. 296
(1989) ...................................................................................... 33
Martin v. Wilks, 490 U.S. 755 (1989) .................................... 21
Match-E-Be-Nash-She-Wish Band of Pottawatomi
Indians v. Patchak, 132 S. Ct. 2199 (2012) ....................... 25
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340
(1978) ...................................................................................... 28
V
Cases—Continued:
Page
Oregonian Pub. Co. v. U.S. Dist. Ct. for Dist. of Or.,
920 F.2d 1462 (9th Cir. 1990), cert. denied, 501 U.S.
1210 (1991) ............................................................................. 18
Pennsylvania Bureau of Corr. v. United States
Marshals Serv., 474 U.S. 34 (1985) .................................... 19
Peru, Ex parte, 318 U.S. 578 (1943) ................................ 17, 33
Richmond Newspapers, Inc. v. Virginia, 448 U.S.
555 (1980) ............................................................................... 18
Roche v. Evaporated Milk Ass’n, 319 U.S. 21
(1943) .......................................................................... 17, 19, 23
Schlagenhauf v. Holder, 379 U.S. 104 (1964) ...................... 33
Smith v. Maryland, 442 U.S. 735 (1979) .............................. 33
Subpoena Duces Tecum, In re, 228 F.3d 341 (4th Cir.
2000) ....................................................................................... 29
Taylor v. Sturgell, 553 U.S. 880 (2008) ................................. 21
United States, Ex parte, 287 U.S. 241 (1932) ................ 17, 22
United States v. Denedo, 556 U.S. 904 (2009) ............... 19, 20
United States v. Fausto, 484 U.S. 439 (1988) ...................... 25
United States v. Miller, 425 U.S. 435 (1976) ....................... 27
United States v. R. Enters., Inc., 498 U.S. 292 (1991) ........ 29
West v. Radio-Keith-Orpheum Corp., 70 F.2d 621
(2d Cir. 1934) ......................................................................... 18
Zivotofsky v. Clinton, 132 S. Ct. 1421 (2012) ....................... 22
Constitution, statutes, regulations and rules:
U.S. Const. Art. III ..................................................... 16, 24, 28
Act of Feb. 27, 2010, Pub. L. No. 111-141, § 1(a), 124
Stat. 37 ................................................................................... 11
All Writs Act, 28 U.S.C. 1651(a) ................................ 14, 15, 23
FISA Amendments Act of 2008, Pub. L. No. 110-261,
§ 109(b)(1)(B), 122 Stat. 2464 ................................................ 3
VI
Statutes, regulations and rules—Continued:
Page
50 U.S.C. 1871(a)(4) ............................................................ 7
50 U.S.C. 1881a(h)(6) (Supp. V 2011) ............................... 3
Foreign Intelligence Surveillance Act of 1978,
50 U.S.C. 1801 et seq. ............................................................ 2
50 U.S.C. 1801(f) .................................................................. 2
50 U.S.C. 1803 (2006 & Supp. V 2011) ............................ 34
50 U.S.C. 1803(a) (Supp. V 2011) ...................................... 2
50 U.S.C. 1803(a)(2)(A) (Supp. V 2011) .................. 3, 6, 23
50 U.S.C. 1803(b) ..................................................... 3, 22, 34
50 U.S.C. 1803(c) ................................................................. 3
50 U.S.C. 1803(f) (Supp. V 2011) ..................................... 22
50 U.S.C. 1804(a)(3) (Supp. V 2011) .................................. 2
50 U.S.C. 1805(a)(2) (Supp. V 2011) .................................. 2
50 U.S.C. 1806(a) ............................................................... 26
50 U.S.C. 1808 (2006 & Supp. V 2011) .............................. 3
50 U.S.C. 1810 .................................................................... 27
Intelligence Authorization Act for Fiscal Year 1995,
Pub. L. No. 103-359, § 807(a)(3), 108 Stat. 34433452 (50 U.S.C. 1821-1829) .................................................... 2
50 U.S.C. 1822(d) ................................................................. 3
50 U.S.C. 1826 ...................................................................... 3
50 U.S.C. 1828 .................................................................... 27
Intelligence Authorization Act for Fiscal Year 1999,
Pub. L. No. 105-272, 112 Stat. 2396 (50 U.S.C. 18411846):
§ 601(2), 112 Stat. 2404-2410 .............................................. 2
§ 602, 112 Stat. 2411 ............................................................ 4
50 U.S.C. 1846 ...................................................................... 3
50 U.S.C. 1862(b)(2)(B) (2000) ........................................... 4
PATRIOT Sunsets Extension Act of 2011, Pub. L.
No. 112-14, § 2(a), 125 Stat. 216 ........................................... 7
VII
Statutes, regulations and rules—Continued:
Page
USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat.
287:
§ 223, 115 Stat. 293 ............................................................ 26
§ 224, 115 Stat. 295 .............................................................. 7
50 U.S.C. 1861 (§ 215) ......................................................... 4
50 U.S.C. 1861(a)(1) ............................................................ 4
50 U.S.C. 1861(a)(2)(A) ....................................................... 5
50 U.S.C. 1861(b)(2) (Supp. I 2001) .................................. 4
50 U.S.C. 1861(b)(2)(A)....................................... 4, 5, 14, 30
50 U.S.C. 1861(b)(2)(B)........................................... 5, 13, 27
50 U.S.C. 1861(c)(1)............................................................. 5
50 U.S.C. 1861(c)(2)(A)-(C) ................................................ 5
50 U.S.C. 1861(c)(2)(D) ..................................................... 29
50 U.S.C. 1861(c)(2)(E) ....................................................... 5
50 U.S.C. 1861(d)(1) ...................................................... 5, 26
50 U.S.C. 1861(f )(2)(A)(i) ............................................. 6, 26
50 U.S.C. 1861(f )(2)(A)(ii) .................................................. 6
50 U.S.C. 1861(f )(2)(B) ....................................................... 6
50 U.S.C. 1861(f )(2)(D) ................................................. 6, 25
50 U.S.C. 1861(f )(3) .................................................. passim
50 U.S.C. 1861(f )(4) ............................................................. 7
50 U.S.C. 1861(f )(5) ............................................................. 7
50 U.S.C. 1861(g) ............................................................... 13
50 U.S.C. 1861(g)(2) ............................................................ 5
50 U.S.C. 1861(h) ............................................................... 13
50 U.S.C. 1862(a) (Supp. V 2011) ...................................... 7
50 U.S.C. 1862(b) ................................................................. 7
50 U.S.C. 1862(c) ................................................................. 7
50 U.S.C. 1874(a)(4) ............................................................ 7
VIII
Statutes, regulations and rules—Continued:
Page
USA Patriot Improvement and Reauthorization Act
of 2005, Pub. L. No. 109-177, § 106(b), 120 Stat. 196 ........ 4
5 U.S.C. 701(a)(1) ..................................................................... 25
5 U.S.C. 702 .............................................................................. 26
18 U.S.C. 2712(a) ..................................................................... 27
28 U.S.C. 41 .............................................................................. 35
28 U.S.C. 43(a) ......................................................................... 35
28 U.S.C. 1254 .......................................................................... 35
28 U.S.C. 1291 .......................................................................... 19
Exec. Order No. 12,333, 3 C.F.R. 210 (1981 Comp.)
(50 U.S.C. 401 note) ................................................................ 5
Fed. R. Civ. P. 26(b)(1) ........................................................... 30
Sup. Ct. R. 20.1 ...................................................... 15, 17, 22, 24
Miscellaneous:
Administration White Paper: Bulk Collection of Telephony Metadata under Section 215 of the USA
PATRIOT Act (Aug. 9, 2013) .......................................... 8, 10
152 Cong. Rec. 2426 (2006) ..................................................... 29
156 Cong. Rec.:
H838 (daily ed. Feb. 25, 2010) ......................................... 11
S2109 (daily ed. Mar. 25, 2010) ........................................ 11
Letter from Assistant Attorney General Ronald
Weich to the Honorable Silvestre Reyes, Chairman, House Permanent Select Committee on Intelligence (Dec. 14, 2009), http://www.dni.gov/files/
docments/2009_CoverLetter_Report_Collection.
pdf ........................................................................................... 11
IX
Miscellaneous—Continued:
Page
Letter from Rep. Silvestre Reyes, Chairman, Permanent Select Committee on Intelligence, to Colleagues (Feb. 24, 2010) ......................................................... 11
Letter from Sen. Diane Feinstein, Chairman, and
Sen. Christopher Bond, Vice Chairman, Select
Committee on Intelligence, to Colleagues (Feb. 23,
2010) ....................................................................................... 11
Office of the Director of National Intelligence, Foreign Intelligence Surveillance Court Renews Authority to Collect Telephony Metadata (July 19,
2013), http://www.dni.gov/index.php/
newsroom/press-releases/191-press-releases2013/898-foreign-intelligence-surveillance-courtrenews-authority-to-collect-telephony-metadata ............ 13
Report on the National Security Agency’s Bulk Collection Programs Affected by USA PATRIOT Act
Reauthorization (Dec. 2009) ............................................... 11
S. 2369, 109th Cong., 2d Sess. (2006) .................................... 30
In the Supreme Court of the United States
No. 13-58
IN RE ELECTRONIC PRIVACY INFORMATION CENTER,
PETITIONER
ON PETITION FOR A WRIT OF MANDAMUS AND PROHIBITION,
OR A WRIT OF CERTIORARI,
TO THE FOREIGN INTELLIGENCE SURVEILLANCE COURT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINION BELOW
Petitioner has identified as the opinion below a
previously classified order of the Foreign Intelligence
Surveillance Court, In re Application of the Federal
Bureau of Investigation for an Order Requiring the
Production of Tangible Things [etc.], Docket No. 1380, Secondary Order (F.I.S.C. Apr. 25, 2013) (Secondary Order). See Pet. App. 1a-3a. The United States
government has declassified the Secondary Order.
JURISDICTION
The Foreign Intelligence Surveillance Court entered the Secondary Order on April 25, 2013. The
petition for a writ of mandamus and prohibition or a
writ of certiorari was filed on July 8, 2013. Petitioner
invokes this Court’s jurisdiction under 28 U.S.C. 1651
and 50 U.S.C. 1803 and 1861(f ). As explained below,
see pp. 34-35, infra, this Court lacks jurisdiction to
(1)
2
issue a writ of certiorari to the Foreign Intelligence
Surveillance Court.
STATEMENT
1. a. Congress enacted the Foreign Intelligence
Surveillance Act of 1978 (FISA), 50 U.S.C. 1801 et
seq., to authorize and regulate certain governmental
surveillance of communications and other activities
conducted to gather foreign intelligence. As originally
enacted, FISA regulated domestically focused electronic surveillance. See 50 U.S.C. 1801(f ).1 The statute created a procedure for the government to obtain
ex parte judicial orders authorizing such surveillance
upon a showing that, inter alia, the target of the surveillance was a foreign power or an agent of a foreign
power. 50 U.S.C. 1804(a)(3), 1805(a)(2). Congress
amended FISA in 1994 and 1998 to add provisions
enabling the government to obtain ex parte orders
authorizing physical searches, pen registers, and trapand-trace devices. See Intelligence Authorization Act
for Fiscal Year 1995, Pub. L. No. 103-359, § 807(a)(3),
108 Stat. 3443-3452 (50 U.S.C. 1821-1829); Intelligence
Authorization Act for Fiscal Year 1999, Pub. L. No.
105-272, § 601(2), 112 Stat. 2404-2410 (50 U.S.C. 18411846).
FISA created a special court, the Foreign Intelligence Surveillance Court (FISC), composed of district
court judges appointed by the Chief Justice, to adjudicate the government’s applications for ex parte orders. 50 U.S.C 1803(a). Congress specified that proceedings before the FISC are to be “conducted as
1
Unless otherwise noted, all citations of FISA in this brief are to
the 2006 edition of the United States Code as supplemented, where
relevant, by the Code’s 2011 Supplement.
3
expeditiously as possible” with records “maintained
under [appropriate] security measures.” 50 U.S.C.
1803(c).
FISA also established a process for appellate review of orders issued by a FISC judge. FISA created
a Foreign Intelligence Surveillance Court of Review
(FISA Court of Review), comprising three federal
judges appointed by the Chief Justice. 50 U.S.C.
1803(b). The FISA Court of Review has “jurisdiction
to review the denial of any application” by the government to conduct surveillance. Ibid.; see also, e.g.,
50 U.S.C. 1822(d), 1881a(h)(6). If the FISA Court of
Review “determines that [an] application was properly
denied,” the government may then file a petition for a
writ of certiorari in this Court to challenge that determination. 50 U.S.C. 1803(b). As amended in 2008,
FISA also now authorizes the FISC to sit en banc to
review any order “on its own initiative” or “upon the
request of the Government.” 50 U.S.C. 1803(a)(2)(A);
see FISA Amendments Act of 2008, Pub. L. No. 110261, § 109(b)(1)(B), 122 Stat. 2464.
In addition to this system of judicial review, FISA
established procedures for congressional oversight.
In particular, the Attorney General must furnish certain reports detailing activities under the provisions
discussed above semiannually to the Senate Select
Committee on Intelligence, the Permanent Select
Committee on Intelligence of the House of Representatives, and the Senate and House Judiciary Committees. See 50 U.S.C. 1808, 1826, 1846.
b. In 1998, Congress added a provision to FISA
providing for the FBI to apply for an ex parte order
authorizing specified entities (e.g., common carriers,
vehicle rental facilities) to release to the FBI copies of
4
business records. See Intelligence Authorization Act
for Fiscal Year 1999, Pub. L. No. 105-272, § 602, 112
Stat. 2411. That provision required the FBI’s application to the FISC to “specify that * * * there are
specific and articulable facts giving reason to believe
that the person to whom the records pertain is a foreign power or an agent of a foreign power.” 50 U.S.C.
1862(b)(2)(B) (2000).
In 2001, Section 215 of the USA PATRIOT Act replaced FISA’s business-records provision with a
broader provision, codified at 50 U.S.C. 1861. The
new provision authorizes the FBI to apply to the
FISC “for an order requiring the production of any
tangible things (including books, records, papers,
documents, and other items) for an investigation to
obtain foreign intelligence information not concerning
a United States person or to protect against international terrorism or clandestine intelligence activities.”
50 U.S.C. 1861(a)(1). Section 1861 originally provided
that the FBI’s application “shall specify that the records concerned are sought for” such an investigation.
50 U.S.C. 1861(b)(2) (Supp. I 2001). In 2006, Congress
amended Section 1861 to provide that the FBI’s application must include “a statement of facts showing that
there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation.” 50 U.S.C. 1861(b)(2)(A); see USA Patriot
Improvement and Reauthorization Act of 2005, Pub.
L. No. 109-177, § 106(b), 120 Stat. 196.
Section 1861 also includes other requirements for
an order to produce business records or other tangible
things. The investigation to which the request relates
must be authorized and conducted under guidelines
approved by the Attorney General under Executive
5
Order No. 12,333 (or a successor thereto), which governs the acquisition of foreign intelligence. 50 U.S.C.
1861(a)(2)(A) and (b)(2)(A); see Exec. Order No.
12,333, 3 C.F.R. 210 (1981 Comp.), reprinted as
amended in 50 U.S.C. 401 note. In addition, the application must “enumerat[e] * * * minimization
procedures adopted by the Attorney General * * *
that are applicable to the retention and dissemination
by the Federal Bureau of Investigation of any tangible
things to be made available” to the FBI under the
order. 50 U.S.C. 1861(b)(2)(B). FISA defines “minimization procedures” to mean, among other things,
“specific procedures that are reasonably designed in
light of the purpose and technique of an order for the
production of tangible things, to minimize the retention, and prohibit the dissemination, of nonpublicly
available information concerning unconsenting United
States persons consistent with the need of the United
States to obtain, produce, and disseminate foreign
intelligence information.” 50 U.S.C. 1861(g)(2).
If the FBI makes the requisite factual showing, a
FISC judge “shall enter an ex parte order as requested, or as modified, approving the release of tangible
things.” 50 U.S.C. 1861(c)(1). The order must “describe the tangible things,” “include the date on which
the tangible things must be provided,” and “provide
clear and conspicuous notice” that the recipient is
prohibited from disclosing that the FBI “has sought
or obtained tangible things pursuant to an order.” 50
U.S.C. 1861(c)(2)(A)-(C) and (d)(1). Consistent with
the need for secrecy in the investigation, the order
“shall not disclose that such order is issued for purposes of [a foreign intelligence] investigation.” 50
U.S.C. 1861(c)(2)(E).
6
c. Section 1861 establishes specialized procedures
for the recipient of an order to challenge it in court.
The statute provides that a person who receives a
Section 1861 order may challenge the “legality of that
order by filing a petition with” the FISC. 50 U.S.C.
1861(f )(2)(A)(i). The “presiding judge” of the FISC
“shall immediately assign” the petition to one of the
FISC’s judges, who “shall conduct an initial review of
the petition” within 72 hours to determine whether
“the petition is frivolous.” 50 U.S.C. 1861(f )(2)(A)(ii).
If the judge determines that the petition is “not frivolous,” the judge “shall promptly consider the petition,”
ibid., and may grant the petition “only if the judge
finds that [the] order does not meet the requirements”
of Section 1861 or “is otherwise unlawful,” 50 U.S.C.
1861(f )(2)(B).
Once the FISC judge rules, the government or the
recipient of the order may seek en banc review before
the full FISC, 50 U.S.C. 1803(a)(2)(A), or may file a
petition for review with the FISA Court of Review, 50
U.S.C. 1861(f )(3). After the FISA Court of Review
renders a written decision, “the Government or any
person receiving such order” may petition this Court
for writ of certiorari “to review such decision.” Ibid.
Unless a Section 1861 order has been “explicitly modified or set aside consistent with this subsection,” it
“remain[s] in full effect” during review. 50 U.S.C.
1861(f )(2)(D).
As with other provisions of FISA, and consistent
with the basic objectives of the statute, Section 1861
expressly provides that “[a]ll petitions under this
subsection shall be filed under seal,” the “record of
proceedings * * * shall be maintained under [appropriate] security measures,” and “[ j]udicial pro-
7
ceedings under this subsection shall be concluded as
expeditiously as possible.” 50 U.S.C. 1861(f )(4) and
(5). Section 1861 also requires the Attorney General
to report all requests under Section 1861 annually or
semiannually to the Senate and House Intelligence
and Judiciary Committees. 50 U.S.C. 1862(a); see also
50 U.S.C. 1862(b) and (c), 1871(a)(4).
d. Section 1861 was originally scheduled to expire
on December 31, 2005. See USA-PATRIOT Act, Pub.
L. No. 107-56, § 224, 115 Stat. 295. Congress, however, has repeatedly extended its sunset date. Section
1861 is currently scheduled to expire on June 1, 2015.
See PATRIOT Sunsets Extension Act of 2011, Pub. L.
No. 112-14, § 2(a), 125 Stat. 216.
2. The government has developed a counterterrorism program under Section 1861 in which it compiles
and retains business records created by certain telecommunications companies (the Telephony Records
Program). The records collected under the Telephony
Records Program consist of “metadata”—such as
information about what numbers were used to make
and receive calls, when the calls took place, and how
long the calls lasted. Decl. of Acting Assistant Director Robert J. Holley, Federal Bureau of Investigation,
at ¶ 5, ACLU v. Clapper (S.D.N.Y. Oct. 1, 2013) (13cv-03994 Docket entry No. 62); Decl. of Teresa H.
Shea, Signals Intelligence Director, National Security
Agency, at ¶ 7, Clapper, supra (Oct. 1, 2013) (13-cv03994 Docket entry No. 63). The records collected
under the program do not include any information
about the content of those calls or the names, addresses, or financial information of any party to the
calls. Holley Decl. ¶¶ 5, 7; Shea Decl. ¶ 15. Through
targeted computerized searches of those records, the
8
National Security Agency (NSA) endeavors to uncover
connections between terrorist organizations and previously unknown terrorist operatives located in this
country. Holley Decl. ¶ 5; Shea Decl. ¶¶ 8-10.
In response to unauthorized disclosures about the
Telephony Records Program, the government has now
confirmed the program’s existence. Although aspects
of the program remain properly classified, the government has declassified and made available to the
public certain facts about the program. See generally
Administration White Paper: Bulk Collection of Telephony Metadata under Section 215 of the USA PATRIOT Act (Aug. 9, 2013) (White Paper). 2 Because
petitioner elected to initiate its challenge directly in
this Court, the public record in this case does not
describe the program as implemented by the government. The following description is drawn from the
White Paper and recent government filings in ACLU
v. Clapper, No. 13-cv-03994 (S.D.N.Y.).
a. Under the Telephony Records Program, the
FBI has obtained FISC orders under Section 1861
directing certain telecommunications companies to
produce records of the telephony metadata previously
discussed. Holley Decl. ¶ 6. The companies create
and maintain these records as part of their business of
providing telecommunications services to customers.
Id. ¶ 10; Shea Decl. ¶ 18. The NSA consolidates the
metadata records provided by different telecommunications companies into one database. Shea Decl. ¶ 23.
That compilation enables the agency’s analysts to
draw connections, across providers, between numbers
2
The White Paper is available online at http://apps.washington
post.com/g/page/politics/obama-administration-white-paperon-nsa-surveillance-oversight/388/.
9
reasonably suspected to be associated with terrorist
activity and with other, unknown numbers. Holley
Decl. ¶¶ 5, 8; Shea Decl. ¶¶ 46, 60.
The FISC orders governing the Telephony Records
Program provide that the records may be accessed
only for counterterrorism purposes (and technical
maintenance). Holley Decl. ¶ 8. NSA intelligence
analysts may access the records to obtain foreign
intelligence information only through queries of the
records using telephone numbers or other identifiers
associated with terrorist activity approved as “seeds”
by one of 22 designated officials in NSA’s Homeland
Security Analysis Center or other parts of NSA’s
Signals Intelligence Directorate. Shea Decl. ¶ 31.
Such approval may be given only upon a determination by one of those designated officials that there
exist facts giving rise to a “reasonable, articulable
suspicion” that the selection term to be queried is
associated with one or more of the specified foreign
terrorist organizations approved for targeting by the
FISC. Holley Decl. ¶¶ 15-16.
Once an NSA intelligence analyst has obtained approval to conduct a query, the query is limited to records of communications within three “hops” from the
seed. Shea Decl. ¶ 22. The query results thus will
include only identifiers and their associated metadata
having a direct contact with the seed (the first “hop”),
identifiers and associated metadata having a direct
contact with first “hop” identifiers (the second “hop”),
and identifiers and associated metadata having a direct contact with second “hop” identifiers (the third
“hop”). Ibid. Following that trail of connections
allows the analyst to discover information that
may not be readily ascertainable through targeted
10
intelligence-gathering techniques. Id. ¶ 46. For
example, the query might reveal that a seed telephone
number has been in contact with a previously unknown U.S. telephone number. Id. ¶ 58. Chaining
out to the second and third hops to examine the contacts made by that telephone number may reveal a
contact with other telephone numbers already known
to the government to be associated with a foreign
terrorist organization. Id. ¶¶ 47, 62.
As of October 1, 2013, fourteen different judges of
the FISC, on thirty-four separate occasions, have
approved Section 1861 orders directing telecommunications service providers to produce records in connection with the Telephony Records Program. Shea
Decl. ¶ 14. Under those orders, the government must
periodically seek renewal of the authority to collect
telephony records (typically every 90 days). Ibid.
When failures to comply with the minimization procedures set forth in the orders due to human error or
technological issues have occurred, the Executive
Branch has reported those failures to the FISC and
has worked promptly to remedy them. Id. ¶¶ 36-43.
b. In early 2007, the Department of Justice began
providing all significant FISC pleadings and orders
related to the Telephony Records Program to the
Senate and House Intelligence and Judiciary Committees. See White Paper 18. By December 2008, all four
committees had received the FBI’s initial application
and the first order authorizing the telephony records
collection. See ibid. The Executive Branch provided
all later pleadings and orders reflecting significant
legal developments regarding the program to all four
committees. See ibid.
11
In December 2009, the Department of Justice provided a classified briefing paper to the House and
Senate Intelligence Committees that could be made
available to all Members of Congress regarding the
Telephony Records Program. 3 Both Intelligence
Committees made that classified briefing paper available to all Members of Congress before Congress
extended the authorization of Section 1861 without
change in 2010.4 See Act of Feb. 27, 2010, Pub. L. No.
111-141, § 1(a), 124 Stat. 37 (extending sunset of USA
PATRIOT Act, including Section 1861, until February
28, 2011).
3. a. Petitioner is a “non-profit public interest research center,” Pet. App. 4a, that seeks to challenge
directly in this Court an order issued by a FISC judge
on April 24, 2013 (the Secondary Order). Petitioner
seeks a writ of mandamus and prohibition in this
Court, or, in the alternative, a writ of certiorari. Petitioner was not a party to the proceeding in the FISC
that resulted in the Secondary Order. Nor was it
subject to, named in, or served with that order.
3
See Letter from Assistant Attorney General Ronald Weich to
the Honorable Silvestre Reyes, Chairman, House Permanent
Select Committee on Intelligence (Dec. 14, 2009); Report on the
National Security Agency’s Bulk Collection Programs Affected by
USA PATRIOT Act Reauthorization 3 (Dec. 2009).
4
See Letter from Sen. Diane Feinstein, Chairman, and
Sen. Christopher Bond, Vice Chairman, Select Committee on
Intelligence, to Colleagues (Feb. 23, 2010); Letter from
Rep. Silvestre Reyes, Chairman, Permanent Select Committee on
Intelligence, to Colleagues (Feb. 24, 2010); see also 156 Cong. Rec.
H838 (daily ed. Feb. 25, 2010) (statement of Rep. Hastings); 156
Cong. Rec. S2109 (daily ed. Mar. 25, 2010) (statement of Sen.
Wyden).
12
The Secondary Order reflects the finding by a
FISC judge that the FBI’s application for an “[o]rder
requiring the production of tangible things * * *
satisfies the requirements of 50 U.S.C. § 1861.” Pet.
App. 1a. The order requires the recipient of the order, Verizon Business Network Services, Inc. (VBNS),
to provide the NSA with “call detail records or ‘telephony metadata’ created by [VBNS] for communications (i) between the United States and abroad; or
(ii) wholly within the United States, including local
telephone calls.” Id. at 1a-2a. The Secondary Order
explains that “[t]elephony metadata includes comprehensive communications routing information” but does
not include “the substantive content of any communication” or “the name, address, or financial information
of a subscriber or customer.” Id. at 2a. Petitioner
contends that the order affects it because petitioner
“is currently a Verizon telephone customer and has
been since prior to April 2013.” Id. at 5a.
On July 31, 2013, the Director of National Intelligence substantially declassified a “Primary Order,”
which granted the government’s application for an
order directing production of records under Section
1861 and was issued in conjunction with, and on the
same day as, the Secondary Order. See In re Application of the FBI for an Order Requiring the Production of Tangible Things [etc.], Docket No. 13-80, Primary Order 1-2 (F.I.S.C. Apr. 25, 2013) (Primary
Order).5 The Primary Order directs the government
to comply with minimization procedures that limit the
extent to which information received under the Secondary Order may be reviewed, used, or disseminated
5
See http://www.dni.gov/files/documents/PrimaryOrder_
Collection_215.pdf.
13
and requires submission of monthly reports to the
FISC detailing how the database has been accessed.
See id. at 4-17; see also 50 U.S.C. 1861(b)(2)(B), (g)
and (h). The record underlying the Primary and Secondary Orders—including the government’s applications to the FISC—remains classified.
b. The Secondary Order expired on July 19, 2013.
See Pet. App. 3a. On that day, the government announced that it had filed an application with the FISC
seeking renewal of the authority to collect telephony
records and that the FISC had renewed that authority.6
c. On August 29, 2013, a judge of the FISC issued
an opinion concluding that the Telephony Records
Program meets the statutory requirements under
Section 1861 and complies with the Fourth Amendment. That opinion was partially declassified on September 17, 2013. See Amended Mem. Op., Docket No.
13-109 (Aug. 29, 2013) (Aug. 29 Op.). 7
4. Since the disclosure of the Telephony Records
Program, parties have sued the government in federal
district courts to enjoin the program. See Clapper,
supra (filed June 11, 2013); see also First Unitarian
Church of L.A. v. NSA, 13-cv-03287 (N.D. Cal. filed
July 16, 2011); cf. Klayman v. Obama, 1:13-cv-00851RJL (D.D.C. filed June 6, 2013). No district court has
6
See Office of the Director of National Intelligence, Foreign
Intelligence Surveillance Court Renews Authority to Collect Telephony Metadata (July 19, 2013), http://www.dni.gov/index.php/
newsroom/press-releases/191-press-releases-2013/898-foreignintelligence-surveillance-court-renews-authority-to-collecttelephony-metadata.
7
See http://www.uscourts.gov/uscourts/courts/fisc/br13-09-primary-order.pdf.
14
yet ruled on those challenges or otherwise adjudicated
the lawfulness of the program.
ARGUMENT
Petitioner asks this Court to entertain in the first
instance its challenge to the statutory basis for a
counterterrorism program approved by the FISC.
According to petitioner (Pet. 17-25), the Telephony
Records Program does not comply with Section 1861’s
requirement that there exist “reasonable grounds to
believe that the tangible things sought are relevant to
an authorized investigation.” 50 U.S.C. 1861(b)(2)(A).
Petitioner asks this Court to issue a writ of mandamus
and prohibition to the FISC or, in the alternative, to
grant certiorari to review the Secondary Order. The
petition, however, does not meet the stringent requirements for mandamus relief, and this Court lacks
jurisdiction to issue a writ of certiorari to the FISC in
these circumstances. Accordingly, the petition should
be denied.
I. THE PETITION DOES NOT SATISFY THE REQUIREMENTS FOR MANDAMUS RELIEF
The All Writs Act, 28 U.S.C. 1651(a), authorizes
this Court to issue a writ of mandamus to a lower
court “in aid of ” the Court’s jurisdiction. As this
Court has explained, however, mandamus is a
“ ‘drastic and extraordinary’ remedy” that is “ ‘reserved for really extraordinary causes.’ ” Cheney v.
United States Dist. Ct., 542 U.S. 367, 380 (2004) (quoting Ex parte Fahey, 332 U.S. 258, 259-260 (1947)). 8
8
Petitioner has also styled its requested relief as a “writ of prohibition.” The modern “writ of prohibition” is often used interchangeably with the writ of mandamus, see Kaiser Gypsum v.
Kelly, 921 F.2d 1310, 1313 (3d Cir. 1990), cert. denied, 499 U.S. 976
15
This Court’s rules accordingly instruct that “[i]ssuance by the Court of an extraordinary writ authorized by 28 U.S.C. § 1651(a) is not a matter of right,
but of discretion sparingly exercised.” Sup. Ct. R.
20.1. Mandamus relief is available only where three
requirements are met: “[i] the writ will be in aid
of the Court’s appellate jurisdiction,
*
*
*
[ii] exceptional circumstances warrant the exercise
of the Court’s discretionary powers, and * * *
[iii] adequate relief cannot be obtained in any other
form or from any other court.” Ibid.; Pet. 12; see
Hollingsworth v. Perry, 558 U.S. 183, 190 (2010). The
petition does not satisfy those requirements.
First, consistent with the basic nature of proceedings before the FISC and the foreign-intelligence
objectives of the statute, Congress has permitted only
the government or the recipient of an order to appeal
FISC rulings under Section 1861.
50 U.S.C.
1861(f )(3). Accordingly, there is a substantial question whether the mandamus relief sought by petitioner, which is not a recipient of a Section 1861 order and
was not a party to the proceedings before the FISC,
would be “in aid of the Court’s appellate jurisdiction.”
Sup. Ct. R. 20.1. At the very least, petitioner’s status
as a non-recipient and non-party weighs heavily
against mandamus relief. Second, the proper way for
petitioner to challenge the Telephony Records Program is to file an action in federal district court to
enjoin the program, as other parties have done. Although the government may assert certain threshold
defenses to such a suit, those same defenses apply in
(1991), and petitioner has not argued that the requirements for a
writ of prohibition differ from the requirements for a writ of mandamus.
16
this Court, and so this Court does not provide a more
suitable forum for petitioner to raise its challenge in
the first instance. Finally, petitioner has not shown a
“clear and indisputable” right to relief, Cheney, 542
U.S. at 381, or identified exceptional circumstances
warranting mandamus. Petitioner has not demonstrated Article III standing, and FISA does not grant
third parties the right to enforce the requirements of
Section 1861. In any event, the Telephony Records
Program fully complies with Section 1861.
A. FISA Provides That Only The Government Or The Recipient Of An Order May Seek Appellate Review Of A
FISC Decision Under Section 1861
Petitioner is not permitted to seek appellate review
of a determination under Section 1861. Congress
established that only specified parties—the government or the recipient of an order—may seek review in
this Court of a FISC decision under Section 1861. See
50 U.S.C. 1861(f )(3). Thus, for example, if the party
ordered to produce business records under Section
1861 elected to challenge a FISC decision affirming or
modifying the order, it could appeal to the FISA
Court of Review and later seek certiorari review in
this Court. Petitioner, which was not the recipient of
the order, is not permitted by statute to seek such
review.
There is a substantial question whether a mandamus petition would be “in aid of ” this Court’s appellate jurisdiction if the Court could never have jurisdiction over an eventual appeal by the mandamus petitioner—at least where, as here, the mandamus petitioner was not a party to the lower-court proceedings,
Congress has clearly specified and limited the class of
persons who can invoke appellate jurisdiction, and
17
mandamus relief is not necessary to facilitate appellate review by such a party. 9 As this Court has explained, “[w]here the appeal statutes establish the
conditions of appellate review, an appellate court
cannot rightly exercise its discretion to issue a writ
whose only effect would be to avoid those conditions.”
Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 30
(1943). That is because “[t]he historic use of writs of
prohibition and mandamus directed by an appellate to
an inferior court has been to exert the revisory appellate power over the inferior court.” Ex parte Peru,
318 U.S. 578, 582-583 (1943) (emphasis added); see
also Ex parte United States, 287 U.S. 241, 246 (1932).
Here, however, as petitioner acknowledges (Pet. 1516), this Court would never have jurisdiction over an
appeal of the Secondary Order brought by petitioner
under Section 1861(f )(3). And petitioner has not argued that it even has a right to participate in proceedings before the FISC, that it has a separate statutory
avenue to appeal a Section 1861 order apart from
Section 1861(f )(3), or that mandamus relief would be
necessary to facilitate this Court’s ability to review
the Secondary Order if properly challenged by a party
that has such rights. Accordingly, there is a substantial question whether mandamus would be “in aid of
the Court’s appellate jurisdiction,” Sup. Ct. R. 20.1,
and in any event these considerations weigh heavily
against the extraordinary relief of mandamus.
9
Cf. Chandler v. Judicial Council of the Tenth Circuit, 398 U.S.
74, 115 (1970) (Harlan, J., concurring in the denial of writ) (explaining that a mandamus challenge by a district judge may be
permissible because parties to cases assigned to a different judge
may have no adequate means to appeal purportedly unlawful case
assignments).
18
That conclusion is not undermined by decisions cited by petitioner’s amici that have allowed media entities to seek mandamus relief to obtain public access to
lower-court proceedings under Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). See Profs.
James E. Pfander & Stephen I. Vladeck Amicus Br.
12-13. As an initial matter, the mandamus petitioners
in those cases had first intervened or otherwise participated in proceedings in the district court and then
sought mandamus. Because the media entities were
parties to the particular proceedings below, they could
properly invoke the appellate jurisdiction of the circuit court and thus could satisfy at least that prerequisite to mandamus. See In re Boston Herald, Inc.,
321 F.3d 174, 175-176 (1st Cir. 2003) (“A magistrate
judge allowed the intervention but denied the motion
to unseal.”); Oregonian Pub. Co. v. U.S. Dist. Ct. for
Dist. of Or., 920 F.2d 1462, 1463-1464, 1466 (9th Cir.
1990) (“The district court allowed The Oregonian to
intervene in the case.”), cert. denied, 501 U.S. 1210
(1991).10
More generally, if a statute allows appeal by all
parties to a proceeding, a person not technically a
party “is often allowed to appeal” “if the decree affects his interest.” West v. Radio-Keith-Orpheum
Corp., 70 F.2d 621, 623-624 (2d Cir. 1934) (Hand, J.);
10
See also In re Application of the U.S. for an Order Pursuant
to 18 U.S.C. Section 2703(D), 707 F.3d 283, 288-289 (4th Cir. 2013)
(petitioners “moved the [district] court to vacate the [order],
unseal all documents relating to the [order], and unseal and publicly docket any other [pertinent] orders”); Baltimore Sun Co. v.
Goetz, 886 F.2d 60, 62-63 (4th Cir. 1989) (media organization “petitioned to intervene” and district court denied motion to unseal affidavit on the merits).
19
see also Devlin v. Scardelletti, 536 U.S. 1, 7 (2002)
(“We have never * * * restricted the right to appeal to named parties to the litigation”); id. at 9
(“[P]etitioner will only be allowed to appeal that aspect of the District Court’s order that affects him.”).
As a result, in appropriate circumstances involving
general appellate-jurisdiction statutes, e.g., 28 U.S.C.
1291, persons who were permitted to participate in
proceedings before the lower court but are not named
parties may seek mandamus if they could also ultimately seek appellate review.
Here, by contrast, Section 1861(f )(3) specifically
permits appeals by only the government or the recipient of the order. It would defeat the evident purpose
behind Section 1861’s express limitation on the persons who can appeal to the FISA Court of Review and
ultimately invoke this Court’s certiorari jurisdiction if
a third party for whom there is no basis to participate
even before the FISC could obtain review by changing
the label on its appellate papers to seek mandamus
relief instead. “[T]o grant the writ in [this] case would
be a plain evasion of the Congressional enactment.”
Roche, 319 U.S. at 30 (internal quotation marks and
citation omitted); see also Carlisle v. United States,
517 U.S. 416, 429 (1996) (“Where a statute specifically
addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling.”)
(quoting Pennsylvania Bureau of Corr. v. United
States Marshals Serv., 474 U.S. 34, 43 (1985)).
Amici also err in asserting that this Court’s decision in United States v. Denedo, 556 U.S. 904 (2009),
supports the proposition that mandamus relief is appropriate as long as the Court would have jurisdiction
over an appeal by some party other than the party
20
seeking the relief. See Pfander & Vladeck Amicus Br.
12. In Denedo, the Court stated that relief under the
All Writs Act turns on this Court’s “subject-matter
jurisdiction over the case or controversy.” 556 U.S. at
911. But by observing that jurisdiction under the All
Writs Act “is contingent on” a court’s Article III jurisdiction in a case involving a writ of coram nobis,
ibid., Denedo did not purport to do away with other
limits on writs of mandamus under the Act. Adopting
the rule proposed by petitioner would allow circumvention of an express statutory limit on this Court’s
appellate jurisdiction—in the name of “aid[ing]” the
Court’s jurisdiction—by allowing persons who are not
parties and who are statutorily excluded from ordinary appellate review to inject themselves into proceedings by seeking review through mandamus.
B. Petitioner Has Not Shown That Review Would Be Unavailable In District Court But Available In This
Court
1. Mandamus relief is unwarranted unless “the
party seeking issuance of the writ” has “no other
adequate means to attain the relief he desires.” Cheney, 542 U.S. at 380 (quoting Kerr v. United States
Dist. Ct., 426 U.S. 394, 403 (1976)). In the government’s view, petitioner cannot challenge the Telephony Records Program on statutory grounds in any
court because of certain threshold barriers. See pp.
24-28, infra. But if those threshold impediments did
not prevent petitioner’s challenge, the proper course
would be to file suit in a federal district court. That is
the ordinary means to challenge assertedly unlawful
government action, and petitioner has identified no
special circumstances here that require its statutory
challenge to begin in this Court. Indeed, other plain-
21
tiffs have recently filed such claims advancing legal
arguments similar to those advanced by petitioner.
Those cases are currently pending in district courts.
See p. 13, supra. If petitioner can bring its claim in
any court, that is the proper avenue to challenge the
Telephony Records Program.
It is true that if petitioner were to file a challenge
in a district court, the United States may raise certain
threshold defenses to petitioner’s ability to obtain an
order enjoining government officials from implementing the Telephony Records Program. But that does
not suggest that petitioner should be allowed to seek
mandamus here, because those same threshold arguments apply in this Court. For example, the government would argue in both forums that FISA impliedly
precludes a third party from seeking to enforce the
requirements of Section 1861. See, e.g., Defs’ Mem. of
Law in Supp. of Mot. to Dismiss Compl., Clapper,
supra (Aug. 26, 2013) (13-cv-03994 Docket entry No.
33); pp. 25-28, infra. The substantive defenses that
the government possesses therefore could not serve to
render this Court the only suitable forum to adjudicate petitioner’s claim in the first instance.
Nor does the fact that the FISC has approved the
Telephony Records Program suggest that review
must begin in this Court and not in a district court. In
general, no constitutional or procedural bar prohibits
a plaintiff from seeking injunctive relief that, if granted, would conflict with an order previously entered in
another proceeding to which the plaintiff was not a
party. See Taylor v. Sturgell, 553 U.S. 880, 892-893
(2008); Martin v. Wilks, 490 U.S. 755, 761 (1989).
Petitioner might not obtain through a claim for equitable relief in district court precisely the same relief
22
that it seeks to obtain in this Court, namely, “vacatur”
of the Secondary Order issued by the FISC. Pet. 14.
But this Court’s Rule 20.1 requires, as a condition of
mandamus relief, that petitioner have no “adequate
relief ” in any appropriate “form.” Here, an equitable
claim in district court could, if successful, allow petitioner to obtain a declaratory judgment against the
responsible Executive Branch officials that the Telephony Records Program (which the Secondary Order authorizes) is not consistent with FISA or, if appropriate, to obtain an injunction against those officials barring its implementation as to petitioner.
2. In any event, whether or not an equitable cause
of action in district court could afford petitioner “adequate relief,” this Court would not be the appropriate
forum in which to bring an action in the first instance.
This Court is “a court of final review and not first
view.” Zivotofsky v. Clinton, 132 S. Ct. 1421, 1430
(2012) (citation omitted). Thus, an “application for the
writ [of mandamus] ordinarily must be made to the
intermediate appellate court, and made to this court
as the court of ultimate review only in * * * exceptional cases.” Ex parte United States, 287 U.S. at
249; see also In re Blodgett, 502 U.S. 236, 240 (1992)
(per curiam) (denying mandamus because petitioner
had not first sought relief in the court of appeals).
The FISA Court of Review is the intermediate
court with jurisdiction over FISC decisions under
Section 1861. See 50 U.S.C. 1803(b) and (f ); 50 U.S.C.
1861(f )(3). The All Writs Act authorizes the FISA
Court of Review, like this Court and “all courts established by Act of Congress,” to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of
23
law.” 28 U.S.C. 1651(a). If petitioner were correct
that this Court could grant mandamus relief, at the
behest of a person who was a stranger to proceedings
before the FISC, with respect to a FISC order directed at a telecommunications service provider, then
the FISA Court of Review would appear to have the
same mandamus authority under the All Writs Act.
See, e.g., Roche, 319 U.S. at 24-25. Petitioner, however, failed to seek a writ of mandamus from the FISA
Court of Review before requesting one from this
Court.
Petitioner argues that it cannot seek relief from the
FISA Court of Review because “[t]he FISC may only
review business record orders upon petition from the
recipient or the Government,” and the FISA Court of
Review may review “decisions to affirm, modify, or set
aside business record orders [only] after a petition by
the Government or the recipient.” Pet. 15-16 (citing
50 U.S.C. 1803(a)(2)(A), 1861(f )(3)).
The United
States agrees that the statute precludes a person like
petitioner from appealing a Section 1861 order. But
the same holds true for certiorari review by this
Court. See 50 U.S.C. 1861(f )(3); p. 16, supra. Petitioner has offered no explanation for why, if petitioner
is correct that this statutory bar does not foreclose
mandamus relief by this Court, it would nevertheless
foreclose mandamus relief by the FISA Court of Review.
C. No Exceptional Circumstances Justify Exercise Of
This Court’s Discretionary Powers, And Petitioner
Has Not Demonstrated A “Clear And Indisputable”
Right To A Writ Of Mandamus
Even if the other requirements for mandamus were
met, petitioner has not demonstrated “exceptional
24
circumstances warrant[ing] the exercise of the Court’s
discretionary powers,” Sup. Ct. R. 20.1, or a “clear
and indisputable” right to issuance of the writ, Cheney, 542 U.S. at 381. Petitioner essentially argues that
the judges of the FISC have misapplied a statutory
standard in requiring VBNS to provide copies of certain of its own business records to the NSA. That
argument does not demonstrate that petitioner has a
clear and indisputable entitlement to mandamus relief.
1. Petitioner’s argument suffers from two threshold flaws. First, petitioner has not identified a theory
under which it has Article III standing to challenge
the Telephony Records Program. See Clapper v.
Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013).
Because petitioner elected to initiate its challenge
directly in this Court rather than a district court, it
has not submitted a complaint that sets forth its purported basis for standing. See DaimlerChrysler Corp.
v. Cuno, 547 U.S. 332, 352 (2006) (“[T]he standing
inquiry requires careful judicial examination of a
complaint’s allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the
particular claims asserted.”) (internal quotation
marks, internal citation, and emphasis omitted). To
the extent that petitioner is concerned that the government might use information contained in telephony
records pertaining to its members in a way that impedes petitioner’s activities, the mandamus petition
does not establish that it is more than speculative that
the NSA has reviewed, or might in the future review,
records pertaining to petitioner’s members, particularly given the stringent, FISC-imposed restrictions
that limit access to the database to counterterrorism
25
purposes. Petitioner “cannot manufacture standing
merely by inflicting harm on [itself] based on [its]
fears of hypothetical future harm that is not certainly
impending.” Clapper, 133 S. Ct. at 1151.
Second, petitioner—an entity that was not the recipient of a Section 1861 order—lacks the statutory
authority to obtain judicial review of compliance with
Section 1861’s “relevance” requirement. Congress
expressly provided that a Section 1861 order “shall
remain in full effect” unless it has been “explicitly
modified or set aside consistent with this subsection.”
50 U.S.C. 1861(f )(2)(D). Through its request for mandamus relief, petitioner seeks to “modif[y] or set
aside” the Secondary Order in a manner that is not
“consistent” with Section 1861. Section 1861’s text
therefore precludes that extra-statutory challenge.
More generally, “when a statute provides a detailed
mechanism for judicial consideration of particular
issues at the behest of particular persons, judicial
review of those issues at the behest of other persons
may be found to be impliedly precluded.” Block v.
Community Nutrition Inst., 467 U.S. 340, 349 (1984);
see 5 U.S.C. 701(a)(1). Implied preclusion can be
determined from a statute’s “express language,” as
well as “from the structure of the statutory scheme,
its objectives, its legislative history, and the nature of
the administrative action involved.”
Community
Nutrition Inst., 467 U.S. at 345; see also United
States v. Fausto, 484 U.S. 439, 443-455 (1988). Similarly, “ ‘[w]hen Congress has dealt in particularity
with a claim and [has] intended a specified remedy’—
including its exceptions—to be exclusive, that is the
end of the matter.”
Match-E-Be-Nash-She-Wish
Band of Pottawatomi Indians v. Patchak, 132 S. Ct.
26
2199, 2205 (2012) (quoting Block v. North Dakota ex
rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 286 n.22
(1983)); see 5 U.S.C. 702.
Congress has impliedly precluded challenges alleging violation of FISA’s statutory provisions by a person who is not the recipient of a Section 1861 order—
i.e., is not the person whose business records the
order requires to be produced. Consistent with the
basic purpose of the statute, Section 1861, like the
other provisions of FISA, requires a secret and expeditious process that involves only the government and
the recipient of the order. The recipient, for example,
may not “disclose to any other person that the [FBI]
has sought or obtained” an order under Section 1861.
50 U.S.C. 1861(d)(1). The statute also creates a specific appeal process under which only the government
or the “person receiving a production order” may
challenge the order or appeal the FISC’s decision with
respect to the order. 50 U.S.C. 1861(f )(2)(A)(i); see
also 50 U.S.C. 1861(f )(3). Further review of any determinations may also be obtained only by the government or “any person receiving such order.” Ibid.
Indeed, where Congress intended to allow any private party to sue the government alleging violations of
FISA’s statutory provisions outside of the FISC, it
has expressly so provided. In the same Act in which
Congress added Section 1861, for example, it created
a private right of action against the government under
certain provisions of FISA. See USA PATRIOT Act,
Pub. L. No. 107-56, § 223, 115 Stat. 293. Under that
provision, “[a]ny person who is aggrieved by any willful violation of,” inter alia, Sections 1806(a), 1825(a),
or 1835(a) may initiate an action for money damages
in a district court. Congress did not, however, elect to
27
give private plaintiffs a cause of action to enforce
Section 1861. 18 U.S.C. 2712(a); see also 50 U.S.C.
1810, 1828 (other civil remedies). That choice, particularly considered in conjunction with Congress’s decision not to afford third parties a mechanism to challenge Section 1861 orders, makes clear that Congress
intended to prohibit statutory challenges by anyone
who is not a recipient of a Section 1861 order. That
limitation makes sense in light of the fact that the
business records at issue belong to the telecommunications companies that receive Section 1861 orders,
not to third parties. See United States v. Miller, 425
U.S. 435, 440-441 (1976).
Petitioner’s view that any person to whom a telecommunications provider’s business record pertains
may challenge the order as inconsistent with Section
1861 would have deleterious consequences for the
functioning of foreign-intelligence surveillance by
greatly expanding and complicating judicial proceedings that involve classified information. And if petitioner were correct that a third party could seek to
enforce Section 1861’s “relevance” requirement, then
presumably third parties could similarly enforce Section 1861’s other statutory requirements. The government’s application for a Section 1861 order, for
example, must also “enumerat[e]” “minimization procedures adopted by the Attorney General * * *
that are applicable to the retention and dissemination
by the Federal Bureau of Investigation of any tangible
things.” 50 U.S.C. 1861(b)(2)(B). Petitioner’s theory
would allow third parties to argue that the Attorney
General’s minimization procedures were inadequate or
had been violated in a particular instance. Congress
could not have intended such an intrusion into the
28
Nation’s foreign-intelligence gathering in litigation
initiated by third parties.
2. Even assuming that petitioner has Article III
standing to challenge the Telephony Records Program, that the statute permits a third party to challenge a Section 1861 order on statutory relevance
grounds, and that mandamus could ever conceivably
be available directly in this Court, the petition does
not present exceptional circumstances warranting this
Court’s immediate intervention. Unlike the cases on
which petitioner relies—which involved compelling
allegations of significant constitutional violations,
extraordinary harm that could not be remedied at
final judgment, or lower courts’ ultra vires actions—
petitioner’s challenge essentially reflects its bare
disagreement with the FISC’s interpretation of the
statutory term “relevant” and its application in the
special context of telephony metadata records.
a. Section 1861 authorizes the production of business records where there are “reasonable grounds to
believe” that the records are “relevant” to an authorized and properly predicated ongoing FBI investigation of specific terrorist organizations. In this context, records are relevant to the investigation if they
could lead to other material that could bear on an
issue in the investigation. In the related contexts of
civil and criminal discovery, the term “relevance” has
been understood broadly. This Court, for example,
has construed the phrase “relevant to the subject
matter involved in the pending action” as “broadly
* * * encompass[ing] any matter that bears on, or
that reasonably could lead to other matter that could
bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351
29
(1978) (emphasis added); see United States v. R. Enters., Inc., 498 U.S. 292, 301 (1991) (grand jury subpoena will be upheld against judicial challenge unless
“there is no reasonable possibility that the category of
materials the Government seeks will produce information relevant to the general subject of the grand
jury’s investigation”); EEOC v. Shell Oil Co., 466 U.S.
54, 68-69 (1984) (statutory “relevance” criterion for
administrative subpoena encompasses “virtually any
material that might cast light on the allegations” at
issue in an investigation). Applying that broad understanding of relevance, lower courts, in appropriate
circumstances, have authorized discovery of large
volumes of information where the requester seeks to
identify smaller amounts of information within the
data that could directly bear on the matter. See, e.g.,
In re Subpoena Duces Tecum, 228 F.3d 341, 350-351
(4th Cir. 2000); In re Grand Jury Proceedings, 827
F.2d 301, 305 (8th Cir. 1987).
Congress was aware of that broad understanding of
the word “relevance” when it passed Section 1861.
See 50 U.S.C. 1861(c)(2)(D) (comparing Section 1861
to “a subpoena duces tecum”); 152 Cong. Rec. 2426
(2006) (statement of Sen. Kyl) (“Relevance is a simple
and well established standard of law. Indeed, it is the
standard for obtaining every other kind of subpoena,
including administrative subpoenas, grand jury subpoenas, and civil discovery orders.”). Absent any
countervailing indications, therefore, this Court
should presume that Congress intended to incorporate
a broad understanding of relevance into Section 1861.
See FAA v. Cooper, 132 S. Ct. 1441, 1449 (2012).
That presumption is confirmed by several factors
particular to Section 1861. First, the statute requires
30
a demonstration only that there are “reasonable
grounds to believe” that the records sought are “relevant” to an authorized investigation.
50 U.S.C.
1861(b)(2)(A) (emphasis added).
The “reasonable
grounds” formulation implies a standard under which
the FISC should credit the government’s reasonable
judgments about relevance. Second, unlike civil discovery rules, which limit discovery to matters “relevant to the subject matter involved in the action,” Fed.
R. Civ. P. 26(b)(1) (emphasis added), Section 1861 requires only that the records be relevant to an “authorized investigation.” 50 U.S.C. 1861(b)(2)(A). That
suggests that records that facilitate the government’s
use of investigative tools meet the relevance standard.
Section 1861, moreover, was enacted to combat terrorism and to facilitate foreign-intelligence gathering—
goals that often require the government to identify
potential threats before they materialize. A narrow
understanding of relevance would be antithetical to
those statutory objectives.
Furthermore, when Congress added the relevance
standard in 2006, it did not adopt proposals to limit
that standard so that it would encompass only records
pertaining to individuals suspected of terrorist activity. Compare S. 2369, 109th Cong., 2d Sess. § 3 (2006)
(requiring government to demonstrate that records
“pertain to a foreign power or an agent of a foreign
power,” “are relevant to the activities of a suspected
agent of a foreign power,” or “pertain to an individual
in contact with, or known to, a suspected agent of a
foreign power”), with 50 U.S.C. 1861(b)(2)(A). Congress was therefore well aware that it was establishing a broad standard.
31
b. The Telephony Records Program satisfies the
relevance requirement of Section 1861 because, in
light of the distinctive features of telephony metadata
records, there are “reasonable grounds to believe”
that the compilation and retention of the records will
lead investigators to information pertinent to the
FBI’s counterterrorism investigations. See CIA v.
Sims, 471 U.S. 159, 171 (1985) (“[F]oreign intelligence
[gathering] consists of securing all possible data pertaining to foreign governments or the national defense
and security of the United States.”) (second brackets
in original; citation omitted). The process that the
NSA employs to query the records—under which it
identifies connections between numbers associated
with terrorist organizations and numbers that are
currently unknown—draws upon its access to a broad
collection of telephony metadata created by multiple
telecommunications companies. See Shea Decl. ¶ 58.
Unless the records created by different companies are
aggregated, it may not be feasible for the NSA to
identify chains of communications that cross different
telecommunications networks. Id. ¶ 60.
The conclusion that the Telephony Records Program complies with Section 1861 does not suggest, as
petitioner contends (Pet. 22), that the “relevance”
standard has no meaning. The government does not
contend that Section 1861—which applies to all “tangible things,” not only telecommunications records—
may be used to collect in bulk records of any type.
Rather, telecommunications records have characteristics not common to other types of records—
specifically, their highly standardized and interconnected nature—that make them readily susceptible
to analysis in large datasets to bring previously un-
32
known connections between and among individuals to
light. The same cannot be said of myriad other types
of records that might be subject to a Section 1861
order. In the distinctive and particularly critical context of telecommunications, all of the records are
relevant to an authorized investigation, because it is
only with the full set that this investigative tool can be
used most effectively.
As of October 1, 2013, fourteen different judges of
the FISC, on thirty-four separate occasions, have
approved orders like the Secondary Order at issue
here. Shea Decl. ¶ 14. Congress extended the authorization in Section 1861 after being notified that
the Executive Branch and the FISC had interpreted
the law to permit the Telephony Records Program.
See Aug. 29 Op. 27 (“When Congress subsequently reauthorized Section [1861] without change, except as to
the expiration date, that re-authorization carried with
it the Court’s interpretation of the statute, which
permits the bulk collection of telephony metadata
under the restrictions that are in place.”); see also
Shell Oil, 466 U.S. at 69 (“Congress undoubtedly was
aware of the manner in which the courts were construing the concept of ‘relevance’ and implicitly endorsed
it by leaving intact the statutory definition of the
Commission’s investigative authority.”). Given these
circumstances, at minimum, petitioner has failed to
demonstrate that the Secondary Order “amount[s] to
a judicial usurpation of power or a clear abuse of discretion.” Cheney, 542 U.S. at 380 (internal quotation
marks and citations omitted).
3. Petitioner argues that its petition presents “exceptional circumstance[s]” because the Secondary
Order allows the government to obtain information
33
about petitioner’s “confidential attorney-client relationships and other privileged information,” Pet. 3132; “chills [its] ability to advocate” under the First
Amendment, Pet. 34; and “threatens the autonomy of
the Legislative and Judicial branches,” Pet. 36. Petitioner, however, does not show that the records—
which include no content—have been queried in a
manner that implicates any of these issues, and the
relevant FISC orders impose strict limitations on
querying. The questions presented in the petition,
moreover, do not encompass any constitutional issues.11
Nor do the cases on which petitioner relies (Pet.
19) provide a basis for issuing an extraordinary writ
here. One of them held that a writ of mandamus may
be appropriate where a district court refuses to execute a nondiscretionary duty implicating “the proper
conduct of our foreign relations.” Ex parte Peru, 318
U.S. at 589. The other cases concern gross abuses of
judicial power. See, e.g., Mallard v. United States
Dist. Ct., 490 U.S. 296, 309 (1989) (district court ordered statutorily unauthorized “coercive appointment[] of counsel”); Schlagenhauf v. Holder, 379 U.S.
104, 121 (1964) (district court ordered four “sweeping
[medical] examinations” of petitioner only “by disregarding plainly expressed limitations” on district
court’s authority); see also De Beers Consol. Mines,
Ltd. v. United States, 325 U.S. 212 (1945) (preliminary
11
One amicus argues that the Telephony Records Program violates the Fourth Amendment. See Cato Inst. Amicus Br. 10-24.
That argument lacks merit, see Smith v. Maryland, 442 U.S. 735,
739-746 (1979), but in any event it is not advanced in the petition.
The constitutionality of the program is being litigated in pending
district-court actions.
34
order would cause injury that could not be subsequently redressed). The judicial conduct at issue in
those cases bears no resemblance to petitioner’s objection to the proper interpretation and application of
a non-jurisdictional statutory term in the particular
context of telephony records.
II. THIS COURT LACKS JURISDICTION TO ISSUE A
WRIT OF CERTIORARI
As an alternative to mandamus, petitioner seeks a
writ of certiorari under 50 U.S.C. 1803 and 1861(f )(3).
See Pet. 2. This Court, however, lacks jurisdiction to
issue a writ to the FISC under those provisions. Accordingly, the alternative request should be denied as
well.
Section 1861(f )(3) authorizes this Court to grant a
petition for a “writ of certiorari” to the FISA Court of
Review filed “by the Government or any person receiving [a FISC] order.” 50 U.S.C. 1861(f )(3). The
petition does not satisfy that provision’s prerequisites
both because petitioner requests a petition for certiorari to the FISC, not the FISA Court of Review, and
because petitioner is not a “person receiving [a FISC]
order.” Likewise, Section 1803 authorizes this Court
to consider a “petition of the United States for a writ
of certiorari” from a FISA Court of Review “determin[ation] that [a FISA] application was properly
denied.” 50 U.S.C. 1803(b) (emphasis added). Section
1803 does not authorize challenges to granted applications or petitions by parties other than the government. And, as with Section 1861(f ), it authorizes peti-
35
tions only from decisions by the FISA Court of Review, not the FISC.12
CONCLUSION
The petition for a writ of mandamus and prohibition, or a writ of certiorari, should be denied.
Respectfully submitted.
DONALD B. VERRILLI, JR.
Solicitor General
JOHN P. CARLIN
Acting Assistant Attorney
General
JEFFREY M. SMITH
ADITYA BAMZAI
Attorneys
OCTOBER 2013
12
Petitioner does not rely on this Court’s general certiorari jurisdiction under 28 U.S.C. 1254, nor could it. Section 1254 authorizes this Court to review “[c]ases in the courts of appeals” at the
request of “any party.” Petitioner was not a party to the proceedings below, and neither the FISC nor the FISA Court of Review is
a “court[] of appeals” within the meaning of Section 1254, see 28
U.S.C. 41, 43(a).
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