In Re National SEC. Agency Telecommunications
671 F.3d 881
9th Cir.2011Background
- Consolidated appeals challenge constitutionality of § 802 of the FISA Amendments Act (2008) immunizing telecoms for cooperation with government surveillance after 9/11.
- Lawsuits allege telecoms aided the government’s Terrorist Surveillance Program (TSP) intercepting domestic/international traffic.
- Attorney General certified immunization under § 802(a); district court dismissed actions under § 802(b) and (a).
- The district court and court of appeals treat § 802 as constitutional; focus on facial challenges to § 802, not its application.
- Senate Report described § 802 as addressing private sector participation and protecting national security while preserving government suits against the government.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do bicameralism/presentment requirements apply to § 802? | Hepting claims § 802 amends law without process. | § 802 does not repeal but implements immunity; not a line-item veto. | Section 802 constitutional; does not violate bicameralism/presentment. |
| Does § 802 violate the nondelegation doctrine? | Text lacks intelligible principle guiding certification. | Text provides five definable categories; intelligible principle exists. | § 802 satisfies nondelegation requirement. |
| Does § 802 unlawfully interfere with adjudication by Congress? | Separation of powers compromised; review is meaningless. | Judicial review remains meaningful under substantial-evidence standard. | § 802 does not infringe Article III or delegitimate review. |
| Does § 802 deny due process to Hepting for lack of notice? | Certification process deprives notice of factual basis. | In camera review with limited notice suffices under national security constraints. | Procedures provide sufficient notice and process under due process. |
Key Cases Cited
- Clinton v. City of New York, 521 U.S. 837 (1998) (line-item veto unconstitutional; legislative process required)
- INS v. Chadha, 462 U.S. 919 (1983) (one-house veto invalid; need proper legislative process)
- Mistretta v. United States, 488 U.S. 361 (1989) (intelligible principle allows broad delegation in complex areas)
- Whitman v. American Trucking Ass'ns, 531 U.S. 457 (2001) (readiness to tolerate broad policy judgments in delegation)
- Yakus v. United States, 321 U.S. 414 (1944) (intelligible principle standard applied to delegations)
- Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (due process review with some evidence standard in national-security context)
- AADC v. Reno, 70 F.3d 1045 (9th Cir. 1995) (use of classified info; in camera review within due process)