American Civil Liberties Union v. National Security Agency

The court further finds that 523(a)(4) embezzlement provision §of

does apply. “A proves creditor embez by showing

zlement that he entrusted his

property debtor, the debtor approp

riated property for a use other than entrusted, for which it was and the

circumstances indicate fraud.” Brady v. (In

McAllister Brady), re 101 F.3d (6th Cir.1996). argue Funds

that Bucci was entrusted with the employ

er contributions that he appropriated

them for another use failing pay

them. The bankruptcy court found no evi

dence that the Funds entrusted Bucci with

the unpaid employer contributions. On

appeal, the Funds fail point any

provision in the agreements trust

other authority demonstrating that the un

paid employer contributions were entrust

ed to Bucci. The agrees court with the

bankruptcy court contract, breach of more,

without is not embezzlement.

III. reasons,

For these we affirm.

AMERICAN CIVIL LIBERTIES UN

ION, al., et Plaintifs-Appel

lees/Cross-Appellants,

NATIONAL AGENCY, SECURITY et

al., Defendants-Appellants/Cross-

Appellees.

Nos. 06-2140.

United States Court Appeals,

Sixth Circuit.

Argued: Jan. 2007.

Decided Filed: July Garre, United Gregory G.

ARGUED: Justice, Washington, Department States D.C., Beeson, Appellants. for Ann Ameri- OPINION Foundation, can Civil Liberties Union New BATCHELDER, ALICE M. Circuit York, York, Appellees. New for ON Judge. Garre, Gregory BRIEF: G. Thomas M. The United Security States National Letter, Bondy, Douglas N. Anthony A. (“NSA”) Agency appeals from the decision Yang, Department United States of Jus- of the District Court for the Eastern Dis- tice, D.C., Washington, Appellants. for Michigan trict of granted summary Beeson, Jaffer, Ann Jameel Melissa Good- judgment against the NSA and imposed a man, American Civil Liberties Union permanent injunction. are a Foundation, York, York, New New Mi- collection of associations and individuals Steinberg, Kary Moss, J. L. chael Ameri- led Union, the American Civil Liberties can Civil Liberties Union Fund of Michi- cross-appeal. Because we cannot Detroit, gan, Gainer, Michigan, Randal L. find any have stand- LLP, Wright Seattle, Davis Tremaine claims, for of their we must vacate Washington, Appellees. Andrew district court’s G. order and remand for McBride, LLP, dismissal of Wiley Rein the entire action. Washington, D.C., Kamenar, Paul D. Washington Legal I. Foundation, D.C., Washington, Paul J. Or- 11, Sometime September after the fanedes, DiLiberto, Meredith L. Judicial attacks, terrorist President Bush author- Watch, Inc., D.C., Washington, John C. ized the begin NSA to a counter-terrorism Eastman, Chapman University School of operation that has come to be known as Law, Orange, California, Jay Sekulow, A. the Terrorist Surveillance Program Justice, American Center for Law and (“TSP”). Although specifics the remain D.C., Washington, Saylor, Larry J. Saul A. undisclosed, it has been publicly acknowl- Green, Miller, Canfield, Stone, Paddock & edged that the TSP includes the intercep- Detroit, Michigan, of the Bar Association (i.e., tion wiretapping), warrants, without City York, of New Donald B. Verrilli of telephone email and communications Jr., Block, D.C., Jenner & Washington, where party one to the communication is Sullivan, Kathleen M. Stanford Law located outside the United States and the School, Stanford, California, Lucy A. NSA has “a reasonable basis to conclude Dalglish, Reporters Committee for Free- that one party to the communication is a Press, dom of Arlington, Virginia, member Qaeda, of al affiliated Qae- with al Corn, York, Richard M. York, New New da, or a member an organization affiliat- for Amici Curiae. Qaeda, ed with al working in support of Qaeda.” al See Press Briefing by Att’y BATCHELDER, GILMAN, Before: Gen. Alberto Gonzales and Gen. Michael GIBBONS, Judges. Circuit Hayden, Principal Deputy Dir. for Nat’l (Dec. Intelligence BATCHELDER, J., 2005), delivered the available judgment http://www.whitehouse.gov/news/releases/ GIBBONS, of the court. (pp. J. (last 2005/12/print/20051219-l.html 688-93), visited a separate delivered opinion 2007).1 July concurring judgment only.

GILMAN, 693-720), (pp. J. delivered a in this action jour- include separate dissenting opinion. nalists, academics, lawyers regu- who 1. Hepting In Corp., information, v. AT & T District available provides some Court for the Northern District of California background and context for the case: collected and publicly documented certain of warrantless possibility TSP —and individuals located with larly communicate subjects them to conditions believe are overseas, who the surveillance — being suspects harm. irreparable the NSA types people that constitute affiliates, support- terrorists, Qaeda al Eastern filed suit moni- likely to be ers, therefore and are permanent Michigan, seeking District of suspicion, From this the TSP. under tored continuation against the NSA’s injunction in this foundation the limited factual two and a declaration of the TSP they have case, allege the TSP —warrantless aspects of particular their communi- founded belief’ “well mining and data (cid:127)wiretapping According being tapped. cations —violate Amendments, Sepa- Fourth of the First and operation the NSA’s plaintiffs, and In- including NSA's General Counsel on [TSP] disclosed New York Times "The (James Congress spector Leaders in Eric General. Risen and December Lichthlau, Spy With- times on on Callers more than dozen Bush Lets U.S. been briefed (Dec. Courts, Times The New York activities con- out this authorization George 2005)). following day, President Intelligence officials in- under it. ducted of a the existence ‘terrorist W confirmed activity Bush extensive receive in this also volved weekly radio ad- program’ in his surveillance perform training their duties ensure dress: the letter and intent with consistent [September following the 'In the weeks authorization.' Nation, our I terrorist attacks 2001] “Id. Agency, Security authorized National Gonzales subse- "Attorney General Alberto and the with law Constitu- consistent program inter- quently confirmed tion, commu- intercept international ... where cepts of communications 'contents to Al people known links with nications of is outside party to the communication one Qaeda organizations. terrorist and related government has 'a and the States’ United communications, intercept we these Before party that one to conclude basis reasonable have information the Government must Qaeda, a of al is member the communication link to these terrorist a clear establishes Qaeda, of an or a member with al affiliated networks.’ Qaeda, al organization affiliated with http://www. "[Transcript] at available Qaeda.' support [Press al working whitehouse.gov/news/releases/2005/12/prin1/ http://www.whitehouse. Briefing] available 19, 2006). (last July visited 20051217.html prin1/20051219— gov/news/releases/2005/12/ described mechanism President also The 19, 2005). (last July The Attor- visited l.html re- program is authorized and by which the noted, [program] is not ney also 'This General viewed: very a wiretapping everyone. This is about I authorized are reviewed 'The activities concentrated, very program focused limited every days. Each review 45 approximately enemy.’ Id. at our gaining information about intelligence assessment on a fresh is based public state- also made 5. The President continuity of our to the threats of terrorist notice, ment, judicial court takes which the catastrophic the threat of Government activities government's 'international During each as- damage to our homeland. Qaeda affili- their known strictly target al sessment, the au- previous activities under ates,’ to do- not listen government does 'the in- The review are thorization reviewed. approval’ court phone calls without mestic legal top Nation’s approval our cludes officials, trolling mining or government is 'not and the Attorney including the General millions of inno- personal lives through the to the President. I Counsel House, President The White cent Americans.’ 30 program more than reauthorized this Program NSA Surveillance attacks, Bush Discusses 11th September the since the times 11, 2006), http://www. at] (May [available long as our do so for and I intend to whitehouse.gov/news/releases/2006/05/ continuing Al threat from Nation faces 19, 2005).” (last July visited Qaeda 20060511-l.html groups. and related 974, F.Supp.2d Corp., T 439 Hepting v. AT & this authoriza- activities under ‘The NSA’s (certain (N.D.Cal.2006) forms citation 986-87 by the Justice thoroughly reviewed tion officials, altered). top legal Department and NSA’s 650 Doctrine,

ration of Powers the Administra- security, national should not be divulged.” (“APA”), See Reynolds, 1, tive Procedures Act United States v. Title III of 345 U.S. 10, (1953). 73 S.Ct. 97 L.Ed. 727 The Omnibus Crime Control and Safe that, NSA argued without privileged (“Title III”), Foreign Streets Act and the information, none of the named plaintiffs (“FISA”). Intelligence Act Surveillance could establish standing. The district summary Both sides moved for judgment. applied court the state privilege, secrets The district court dismissed the data min- rejected but argument, NSA’s holding claim, aspect of the ing but instead that publicly three acknowledged granted judgment regard- (1) (2) facts about the it eavesdrops, TSP — wiretapping. the warrantless See (3) warrants, without on international tele- v. F.Supp.2d ACLU 438 NSA phone and email communications (E.D.Mich.2006). at least one of parties is a suspected al The NSA had the State invoked Secrets Qaeda affiliate —were sufficient to estab- discovery Doctrine2 to bar the or admis- standing.3 Moreover, lish the district sion of evidence that “expose would [confi- court found these three facts sufficient to which, matters dential] the interest of grant summary judgment 2. The applica- State Secrets Doctrine has two in the record and there was no need to re- evidentiary privilege, tions: a rule of see Unit- hearing mand for a or admission of additional 1, 10, Reynolds, ed States v. 345 U.S. 73 S.Ct. sure, evidence on parties this issue. To be (1953), 97 L.Ed. 727 rule of non- dispute (i.e., implications privilege of the Doe, 1, 9, justiciability, see Tenet U.S. publicly whether the available information (2005). L.Ed.2d about the TSP is sufficient to establish their implicates only case the rule of state claims), appropriate but it would not be evidentiary privilege. secrets The rule of non- inquire, sponte, propriety sua into the of the justiciability applies subject when the matter privilege, NSA’s invocation of the the district secret, lawsuit is itself a state so the grant privilege, court's scope (espionage claim cannot survive. id. See con- privilege granted. tract); Weinbergerv. Catholic Action Haw./ Project, Peace government Educ. provided the district court (1981) (storage certain, L.Ed.2d 298 opportunity to review secret docu- States, weapons); of nuclear ments, Totten v. United seal, in camera and under as support (espio- L.Ed. 605 for the of the state privi- invocation secrets contract). nage litigation If would necessitate lege. provided each member admission or disclosure of even the existence panel of this opportunity an with to review secret, of the non-justiciable then the case documents, those same also in camera and and must be pleadings. dismissed the on Be- seal, provide under in complete order already cause the acknowl- district-court appeal. Finally, on record the edged the existence of the warrantless wire- government provided each member of this case, tapping in this there is no risk of such panel review, opportunity an in camera disclosure and the non-justiciability rule of seal, additional, and under privileged certain apply. does not mining, data support government’s documents as for the which has publicly acknowledged, not been appeal contention that had been rendered But, might fall within this rule. under the moot. See fn. At the behest of the infra. present analysis, a on this decision matter is government, I privileged reviewed these docu- unnecessary. ments, being but their privileged— contents — are excluded 3. from our consideration I challenged have and appeal on any not relied on of that grant either the invocation or the information of the state opinion. privilege privilege secrets The state and secrets that issue is not before granted by argument, the court. At Judge oral court district has been Gilman main- plaintiffs' appeal asked the tained opinion on counsel if the and this court is decided solely should remand fact-finding sup- publicly for further on the available information port standing. asserted that by Counsel that the was admitted the district court and plaintiffs' injuries undisputed part were clear and made a of its record. Terrorist claims, rectly utilizing Surveil- resulting of their the merits on ‘TSP’) (hereinafter lance Program imposition and the declaratory judgment to, any way, including, but not limited facts consti- These three injunction. of an conducting wiretaps warrantless tele- relating in the record tute all the evidence communications, in internet phone and under the TSP. conduct to the NSA’s Foreign Intelli- contravention of merits, court the district deciding In (hereinafter Act gence Surveillance as Fourth Amendment construed ‘FISA’) III; Title prior warrants “requires that rule absolute AND IT IS FURTHER ORDERED search,” v. ACLU any reasonable NSA violates the that the TSP DECLARED and announced F.Supp.2d at doctrine, the Ad- Separation of Powers prior approv- conducted without “searches Act, First Procedures ministrative per se magistrate were judge al or to the United Amendments Fourth unreasonable,” Having found id. at 771. Constitution, the FISA and Title States without war- operating was NSA III[.] without rants, concluded district court Court, Mich. Dist. No. E.D. ACLUv. NSA Bush that President explanation further 2:06-CV-10204, and Perma- “Judgment Fourth violated the “undisputedly had 2006). Injunction (Aug. nent Order” accordingly ha[d] ... [Amendment] injunc- stay of the for a The NSA moved Rights of Amendment the First violated district appeal, which the pending tion Pro- as well.” Id. these Plaintiffs Meanwhile, ap- the NSA court denied. conclusion, court ceeding from this arguing that the lacked pealed, and is- unconstitutional the TSP deemed Secrets Doc- standing and State opera- enjoining its further sued an order on the merits. adjudication prevented trine entirely: tion injunction pending stayed This court HEREBY ORDERED IT IS appeal. of this See ACLU the outcome [i.e., NSA], em- agents, its Defendants Cir.2006).4 (6th 590, 591 467 F.3d NSA other representatives, ployees, II. concert or entities in active persons or Defendants, per- a number of appeal This seri- presents with participation ad- issues,5 can be none of which directly or indi- ous enjoined from manently court, implication discussing Judge with this the For- January "a 4. On and con- intervening FISA Court order issued eign Intelligence Surveillance Court tending the case be dismissed should target authorizing government to orders disput- response, plaintiffs filed a moot. The communications for collection international ren- appeal had ing any that this been notion there is of the United States where into out Court order. Based moot the FISA dered probable cause to believe one herein, analysis presented it is unnec- agent al is a member communicants intervening essary issue of moot- reach Qaeda organiza- terrorist or an associated Earth, v. Laidlaw Inc. See ness. Friends of Att’y Gen. Gon- Letter from Alberto tion.” 167, 180, Inc., Servs., 120 U.S. 528 Envtl. Comm, Chair, Judiciary on the zales to of (2000). 693, L.Ed.2d 610 S.Ct. 145 17, 2007), (Jan. available at Leahy Patrick http://graphics8.nytimes.com/packages/pdP is appeal, this court of this 5. On merits (last vis- politics/20060117gonzales_Letter.pdf questions. presented a cascade of serious with 2, 2007). According writ- July to a letter ited Con- United States violated the Has NSA General, "any Amendment, electronic Attorney ten First Fourth stitution—-the occurring Amendment, part of the Separation that was of Powers or the surveillance Or, subject to the violated federal conduct has the NSA will now be Doctrine? [TSP] FISA, APA, Title III? If Intelligence Foreign Surveil- statute —the approval statute, is that a federal has NSA violated filed a lance Id. The NSA submission Court.” 652

dressed until a determination is made that tain particular whether plaintiff is standing these have litigate to entitled to an adjudication particu- of the them. v. See Steel Co. Citizens a Bet- lar claims asserted.” Allen v. Wright, 468 for 83, 101, 1003, 737, 752, 3315, ter 523 U.S. U.S. 118 S.Ct. 104 S.Ct. 82 L.Ed.2d Env% (1984) (1998) added). 140 L.Ed.2d 210 556 (stating (emphasis that there is no “doctrine of hypothetical jurisdic- “particular to plaintiffs” this tion”). “Every appellate federal court has action are a group diverse of associations special obligation satisfy itself not individuals, it would require a jurisdiction, of its own but also that of the rigorous undertaking to assure that each review, lower courts in a cause under even has standing litigate. However, for parties prepared [if] the to concede purposes of the declaratory asserted judg it.... When the lower federal court lacks though not necessarily for the re ment — jurisdiction, jurisdiction we have appeal, on quested injunction6 only necessary is—it not of the merely pur- merits but for the plaintiff one has standing. See pose correcting the error of the lower Synar, 714, Bowsher v. 721, 478 U.S. 106 court in entertaining 95, the suit.” Id. at 3181, (1986) S.Ct. 92 L.Ed.2d (deciding marks, (quotation 118 S.Ct. 1003 citations, challenge to the constitutionality of a omitted). and edits statute because at plaintiff least one had standing).7 injunction in this case is an

Standing aspect justiciabili predicated declaratory on the judgment ty, Seldin, 490, 498, Worth v. 422 U.S. (i.e., a determination that the NSA’s con 2197, (1975), 45 L.Ed.2d 343 and “a unlawful), duct is so it follows that if the plaintiff must demonstrate standing for plaintiffs lack standing litigate their de each claim he press,” seeks to Daimler- claratory claim, judgment they must also Chrysler Cuno, Corp. U.S.-, v. lack standing to pursue injunction. an 1854, 1867, 5.Ct. (2006); 164 L.Ed.2d 589 question any plaintiff is whether has accord Lac Vieux Desert Band Lake standing litigate the declaratory judg Superior Chippewa Indians Mich. v. ment claim. Bd., Gaming Control 172 F.3d (6th Cir.1999) (requiring proof standing As “particular claims,” for the plain- claim). for each individual standing “[T]he tiffs have separate asserted six claims or inquiry requires judicial careful examina- causes of action—three constitutional complaint’s (First tion of a allegations to Amendment, ascer- Amendment, Fourth statute applied constitutional when argument appeal, After NSA in this manner? If the NSA violated filed supplemental a citation to authority, urg- either the Constitution or a valid federal stat- rely Supreme tous on the Court's recent ute, And, injunction justified? is an if an EPA, decision v. Massachusetts injunction justified, proper what is its -, 167 L.Ed.2d 248 scope? The district court all of the answered (2007) (“Only petitioners one of the needs to questions in the imposed affirmative and standing permit us to consider the injunction possible scope. broadest petition review.”). case, however, That legal offers no support direct for the plaintiff 6. "[A] standing must demonstrate claim of because it "peti- involves a separately for sought.” each form of relief review,” particular tion for cause Laidlaw, of action (cit- U.S. 120 S.Ct. 693 7607(b)(1), § 42 U.S.C. under see id. at 1451 ing City Angeles Lyons, Los n. applicability pres- has no in the 75 L.Ed.2d 675 ent (notwithstanding case. plaintiff had stand- pursue damages, to standing he lacked to pursue relief)). injunctive Powers) plaintiffs three do not—and because the State and statu- Separation and produce any Secrets Doctrine evi- FISA)8 the (APA, III, and tory Title cannot— —and any dence that of their own communica- at least one must establish that plaintiffs by intercepted tions have ever been the standing for each. See has plaintiff TSP, NSA, under the or without warrants. 3181; Bowsher, at S.Ct. 478 U.S. Instead, belief, they assert a mere which Cuno, Because a cause they and which they contend is reasonable injury, intertwined with of action is belief,” label a “well founded that: described as injuries being alleged must be types people contacts are the overseas A unambiguously possible. as precisely and NSA; by plaintiffs targeted analysis therefore neces- particularized is subjected to consequently the NSA’s sary. eavesdropping; eavesdropping leads (and possibly the NSA to discover dis- giving The conduct rise to close) information; private privileged (1) injuries undisputed: the NSA eaves- is discovery possibility and the mere of such (3) (2) warrants, on interna- drops, without (or disclosure) injured them three and email communications telephone tional particular ways. parties one of the least Notably, allege do not as Qaeda reasonably suspected of al ties. they personally, either as indi- objection to this conduct plaintiffs’ associations, anticipate viduals or or fear they demand that the undisputed, also by reprisal govern- form of direct it. The do not NSA discontinue NSA, Depart- (e.g., ment the Justice they could the mere contend—nor —that ment, Department of Homeland Secu- (i.e., wiretapping eaves- practice etc.), rity, prosecution, such as criminal itself, unconstitutional, is, il- dropping) civil deportation, inquiry, administrative Rather, improper. legal, or even public exposure. or even litigation, object eaves- NSA’s injuries plaintiffs allege are not these warrants, specifically dropping without direct; they amorphous are more so limi- warrants with their associated pointed description. FISA necessitate a requirements. tations and minimization injury— primary alleged According §§ See 50 U.S.C. 1804-06. inability of three —is their to com- the first it is the absence of these plaintiffs, municate with their overseas contacts that renders the NSA’s conduct warrants self-gov- or email due to their telephone this erning obligations.9 But ethical Under illegal and unconstitutional. despite possible language litigate their case inartful- plaintiffs, plain in the of their 8. The pleading. complaint, actually statutory ness of their assert one APA, action, predicated on the cause of (2000). They § 702 claim that injury, alleged, actually appears U.S.C. 9. This Amendments, see, provisions” NSA violated the "substantive implicate the Fifth or Sixth III, Robel, and contend that this FISA and Title e.g., v. 389 U.S. United States (Bren- standing for an APA cause of ac- establishes 19 L.Ed.2d 508 standing nan, J., (quoting tion even if cannot establish concurring) Greene v. McEl- litigate a cause of action under either FISA's roy, (i.e., provisions (1959)) right Ill's suit under (stating or Title civil “the L.Ed.2d statutes). the APA itself specific private employment the relevant Because to hold applicability profession in the circum- has no free from unrea- follow chosen stances, IV.B.l, plaintiffs' ref- governmental See Section interference comes sonable 'liberty' ‘property’ concepts of to FISA and Title III are construed erences within the Schriber, Amendment”); opinion, liberally in as assertions of inde- Fifth Sinclair each, (6th Cir.1990) (de- pendent of action under to con- 916 F.2d 1112-13 causes scribing "a of the Sixth Amendment had violation sider whether the injury and claim, obligations). plaintiffs results direct- ties The al- the immediate injury own actions and deci- in ly plaintiffs’ leged complaint from the this their (1) sions, subjective their belief again appeal, though based on on it went even unad- might intercepting their that the NSA by dressed the district court. communications, and the ethical re- alleged injury The second —and circumstances, such quirements governing expressly by one addressed district by respective professional their as dictated “chilling court—is the effect” on the over- Relying affiliations. organizations or willingness seas contacts’ to communicate facts, plain- three the district court’s plaintiffs by telephone with the or email. allege their “well founded belief’ tiffs claim, injury this Under immediate intercepting is their communica- the NSA directly results from actions of the contacts, per- tions with overseas who, plaintiffs overseas contacts con- con- ceived detriment of those overseas tend, discovery fear that the NSA’s explain they plaintiffs tacts. The private privileged otherwise or information duty keep an their commu- ethical (being by telephone communicated or confidential, which, under the cir- nications email) by will lead to direct reprisal some cumstances, they requires refrain government, the United States their own communicating from with the overseas governments, or others. This fear causes email, by they lest telephone contacts or the overseas contacts to refuse to commu- duty.10 possibility The violate that plaintiffs by nicate with the telephone or may be private communications revealed email, and this refusal to communicate of their plaintiffs’ pursuit burdens the cho- burdens in plaintiffs performance objec- professions organizational sen or jobs objectives, of their lawful or other i.e., comply with order to tives — because, in pursue order to their chosen duties, plaintiffs ethical must refrain professions objectives, organizational or communicating telephone from must travel overseas to meet email, required and are instead either to person. injury with these contacts in This travel overseas to meet with these contacts expense manifests itself as both an added refrain person or else from communicat- an added burden. ing altogether. injury with them alleged injury third is the a quantifiable way manifests itself both (as legitimate expecta- NSA’s violation of their expense the added time and of travel- overseas) privacy tion of in their overseas non-quantifiable way telephone and a (as incomplete and email per- substandard communications. Under this professional responsibili- claim, formance of their the immediate directly comes right ensuing guendo, from counsel these are bound surveillance”); duties, description Berlin Democratic Club v. these this incorrect. 144; (D.D.C. Rumsfeld, F.Supp. 161-62 While these circumstances demand that the 1976) (considering violation of the comply obligations, with both "tenable”; Sixth Amendment due to "electronic compliance surveil- compliance dual attorney lance of conversations between his obligations simply with both will be more consultant”), and a but the have not costly, consuming, time and burdensome. asserted these causes of action. obligations conflicting are not or mutual- ly actually exclusive. The choice is between 10. Some paying plaintiffs appear compliance to describe this in- cost of this dual or not choice, therefore, jury completing job, "inju- as an untenable in which "professional ry” must decide completing job, between their is the added cost of (i.e., duties, duty” completing job) complying compliance with the ethical under the accepting, with their ethical Even ar- duties. circumstances. a showing privileged, NSA. The such is and therefore the actions of the from Amendment, discovery Title withheld from or disclosure. that the Fourth assert Simonini, III, limit and cir- See Tenenbaum v. 372 F.3d FISA the occasions (6th Cir.2004) which, (upholding dismissal and the manner be- cumstances which, lawfully can inter- cause the defendants “cannot defend their communications, revealing privi- conduct ... without cept overseas electronic leged that information the state legitimate expectation [so] rise to a secrets giving deprives in- doctrine thus [the communications will be their overseas defendants claims”). a [plaintiffls’ in accordance with these valid defense to the tercepted that, conclude be- This is not concrete or imminent limits. The circumstances, foreign opin- elec- under these and this cause the NSA has conducted plaintiffs’ ion obtaining tronic surveillance without FISA focuses on the two other (and injuries. presumably, warrants without strict require- minimization adherence FISA’s attention, One other issue demands ments), legiti- has breached their the NSA namely, plaintiffs’ failure to sub- privacy, thereby caus- expectation mate not, ject to actual harm themselves does injury. plaintiffs alleged a ing them itself, prevent finding they a privacy rights in their violation of their it not standing specifically, deprive does — district court did not complaint, but the declaratory right judg- them of the to seek it on pressed mention it and have not 2201(a) § (empower- ment. See 28 U.S.C. appeal.11 rights courts to “declare the and other injury, legal party third kind of unlike the oth- relations of interested This declaration, two, personal; seeking direct and under this such whether or not er is sought”). could Im- theory, directly the NSA has invaded the further relief is or be alleged inju- inva- plaintiffs’ proof plicit plaintiffs’ interest and of such each of the necessary underlying possibility sion is all that is to establish ries is the —which If, instance, could a “well founded belief’ standing. plaintiff for a label actually probability a or even a privacy demonstrate that her had and seek to treat as (i.e., certainty presently is inter- been breached that her communica- NSA —that eventually intercept, will com- actually wiretapped), cepting, tions had been then to or from one or more of standing she would have to assert munications and that such particular plaintiffs, Fourth Amendment cause of action for these case, detrimental privacy.12 interception In the would be breach sources, clients, plaintiffs’ no sin- or overseas con- concede there is premise upon tacts. is the which the gle plaintiff who can show that he or she This Moreover, theory is built. But even actually wiretapped. plaintiffs’ been entire Doctrine, though plaintiffs’ Secrets beliefs—based due to State knowledge of their contacts’ negate superior either to make or proof needed standing litigate a argument, plaintiffs' counsel io—establish First 11. At oral unprecedented that it would be for conceded action. See Laird v. Ta- Amendment cause of standing person litigate tum, a court to find Amendment cause of action without a Fourth (1972) (holding L.Ed.2d 154 (i.e., govern- any evidence that the defendant "by complainant alleges who satisfied ment) actually subjected particular had the exercise of his First Amendment person illegal search or seizure. The existence, rights being by the mere chilled contrary. are not to the briefs more, investigative governmental without of a data-gathering activity”). IV.A.l, will be discussed in Section As however, could not—under this scenar- she reasonable,13 evidence, may Reynolds, the alter- see activities— proof remains that no possibility intercep- native NSA S.Ct. there is that might might intercepting, not be never tion would be detrimental to the contacts, any by anticipated communication actually intercept, the harm is nei- any plaintiffs hypo- of the named this lawsuit. ther imminent nor concrete—it is thetical, conjectural, speculative. or plaintiffs engage poten- A refusal to Therefore, satisfy this harm cannot the typical tially harmful activities is the sub- “injury requirement standing. in fact” declaratory judgment of a stance action plaintiffs Because the cannot avoid this not, itself, preclude finding and does a shortcoming, propose do not plaintiff standing. Med- See harm that harm —the causes their refusal Immune, Genentech, Inc., Inc. v. “injury” to communicate—as an that war- (cid:127)-, 764, 772-73, S.Ct. L.Ed.2d Instead, they rants redress. propose the (2007). But it important is to distin- injuries that from result their refusal to guish the that a two harms surround de- injuries appear communicate and those do claratory judgment anticipat- action. The imminent and concrete. harm that ed causes one to refrain from Thus, may satisfy “injury-in- the activities crafting the their declaratory judg- sufficiently action, fact” element of if it plaintiffs is ment the have attempted imminent and concrete. For that (unsuccessfully) navigate reasons to the obstacles analysis, justiciable will be made clear in stating By claim. refrain- (i.e., other harm —the harm that results from from communications poten- refraining conduct), from harmful potentially tially plaintiffs ac- harmful have tivities—is another In negated any possibility matter. that the NSA will case, plaintiffs anticipate actually ever intercept their communica- NSA’s interception telephone thereby and email tions and anticipated avoided the might typical communications be detrimental harm —this of declaratory judg- is contacts, perceived their overseas perfectly permissible. and this ment and See Med- Immune, harm plaintiffs But, causes to refrain from 772-73. (i.e., potentially communication proposing only injuries harm- that result from ful activity). engage Because there is no evidence this refusal to in communications plaintiffs communications (e.g., inability have profes- conduct them ever intercepted, been and the state se- sions without added expense), burden and crets privilege prevents discovery they attempt supplant14 insufficient, of such an cost, burden, legal 13. objec- Note that a determination pro- ditional or diminution of require tive reasonableness would additional performance), fessional and none of their specific information about the mechanics of actually communications were ever inter- TSP, such as the number of communica- NSA, cepted by the then there would be no being percentage tions intercepted, the of the injury plaintiffs to these due to the NSA's represents, total that number actual selec- scenario, conduct. Under this even if the screening process, tion and tion, dissemination, the actual reten- NSA, plaintiffs, unbeknownst to the did in- policy, and disclosure etc. communication, tercept a there would be no This information is unavailable due to the tangible injury until the NSA disclosed the Reynolds, State Secrets Doctrine. See (presumably information in a dem- manner U.S. at 73 S.Ct. 528. onstrating injury plaintiffs a direct to the or Therefore, contacts). only by their it re- is clarify: To If the and their fraining from the proceed communications overseas contacts were to with the communications, telephone speculative can transmute a and email in dis- future regard (thereby incurring injury present injury. TSP no ad- into an actual injury ap- spade spade, To call a injury with speculative claim, concrete, only namely, privacy, one breach of imminent and sufficiently pears purported based on a violation of the alleged wrong but is incidental i.e., Fourth Amendment conduct) (i.e., atypical the NSA’s FISA — —this not want A listening do the NS discussed, and, impermissible. as will phone reading calls their emails. Therefore, support that would really That all there is to it. On a (i.e., the declaratory judgment action straightforward reading, this claim does communications anticipated interception of implicate the First Amendment.15 The contacts) in harm to the is too resulting only a problem asserting with breach-of- injury that immi- and the speculative, that, claim is privacy because the (i.e., pro- the burden on nent and concrete they cannot have or will be show been a support does not performance) fessional subjected personally, to surveillance general This declaratory judgment action. clearly standing cannot establish under the standing doctrine proposition —is —the plain Fourth Amendment or FISA.16 The fully in of the explained more the sections attempt concede as much.17 In an to tiffs each, individual cause analysis regarding problem, avoid this have re of action. injuries as a matter of free cast their association, their speech and characterized III. claim as a violation of the First Amend action, By claiming six causes ment, engaged the First Amendment’s actually engaged thinly in a standing.18 argu have on This relaxed rules novel, veiled, but neither is it frivo perfectly acceptable, ruse. ment is not though ofEduc., proposed support of the FISA bill and amend- 15. v. Warren Consol. Bd. See Gordon 778, (6th 1983) (ex- (”[T]he ments) [aggrieved person] Cir. term is in- 706 F.2d 781 n. 3 surveillance, [with], broad- plaining that which falls under tended to be coextensive but no Amendment, than, persons standing "does not violate er those who have to the Fourth though may rights, even it raise claims under the Fourth Amendment First Amendment surveillance.”)). respect associative to electronic be directed at communicative or with activities"). protects The First Amendment plaintiffs’ argument, counsel 17. At oral ideas, exchange public speech and the free unprecedented that it would be conceded Paul, v. St. 505 U.S. 112 S.Ct. R.A.V. standing person litigate a court to for a find 2538, (1992), while the 120 L.Ed.2d 305 without a Fourth Amendment cause of action protects un- Amendment citizens from Fourth (i.e., govern- any evidence that defendant personal wanted intrusion into lives ment) actually subjected particular had States, 347, effects, v. United 389 U.S. Katz illegal person search or seizure. The to an (1967). 19 L.Ed.2d 576 88 S.Ct. plaintiffs’ contrary. briefs are not to the stated, pro- Amendment Otherwise the First heard, right to and be tects one’s associate Baird, See, e.g., U.S. Eisenstadt v. protects while the Fourth Amendment 1029, 31 L.Ed.2d 349 445 n. 92 S.Ct. right to remain unheard. The First Amend- (1972) ("Indeed, Amendment cases in First posting sign protects one’s of a in her ment standing without we have relaxed our rules of pro- yard, while the Fourth Amendment front relationship litigant regard between hiding sign in her tects of the same base- her rights whose he seeks to assert and those ment. precisely application of those rules because intolerable, Illinois, inhibitory effect on (citing have an IV.A.2 Rakas v. would 16. See Section Metromedia, 128, 133-34, City speech.”); Inc. v. 99 S.Ct. freedom of 439 U.S. 546-47, (1978) ("Fourth Diego, Amendment San L.Ed.2d 387 of 2882, which, (1981) ("The im- rights 69 L.Ed.2d 800 most rights personal like some standing portant exception doctrine rights, may vicari- other constitutional not be asserted.”)) litigants challenge on First (citing permits some ously and Section IV.B.3 may validly grounds laws that H.R.Rep. (Report Amendment No. at 66 Comm, Intel., may, applied against them but which because on the Permanent Select statutory consideration, analysis, approach from the lous; differs it warrants Morton, by this court. claims. See Sierra Club explanation full and an a 727, 731-32, 1361, L.Ed.2d apparent it becomes point, At this (1972). analysis of whether my a a stake party Whether has sufficient level at a fundamental standing diverges controversy justiciable in an otherwise concurring dissenting from that judicial to obtain resolution of con- single, They employ each opinions. troversy traditionally been is what has analysis, with broad, all-encompassing question to as the referred to account for all of the they attempt rely party Where the does sue. injuries, requested reme- plaintiffs’ alleged any specific authorizing statute invo- I dies, claims. As much as legal judicial process, ques- cation of the ques- resolution of this prefer would upon whether standing depends tion of I the law simple, so believe tion were alleged personal party such analysis of the particularized demands controversy, stake the outcome of injuries, six assert- three dispute sought to ensure that the to claims, requested and two forms legal ed in an adjudicated presented will be (“[A] Cuno, at 1867 of relief. See adversary context and in a form histori- standing for plaintiff must demonstrate judicial cally capable viewed as reso- Laidlaw, press.”); each claim he seeks to Where, however, Congress has lution. (“[A] 185, plain- at 120 S.Ct. 693 public perform to authorized officials standing separately tiff must demonstrate law, according certain functions to and sought.”). There- for each form of relief provided by judicial re- statute fore, complexity I of this case believe the under certain cir- view of those actions specific compre- a far and calls for more cumstances, inquiry standing as to by my analysis hensive than that offered begin must with a determination of colleagues. question whether the statute in author- all six comprehensive analysis A plaintiff. izes review the behest of the however, opinion, invites single claims marks citations omit- (quotation Id. and doctrine, overlap legal precedent, some ted). The Court clarified: similarly in- reasoning. overlap Such jurisdiction Congress may not confer confusion, ambiguity, misapplica- vites Ill Art. federal courts to render adviso- I pitfall, tion. To avoid this define ry ‘friendly’ opinions, or to entertain injuries precisely, confine plaintiffs’ alleged suits, ‘political questions,’ or to resolve section, each cause of action its own because suits of this character are incon- I special take care to ensure that do not judicial sistent with the function under improperly carry precedent legal or doc- III. But a dispute Art. where is other- trine cause of to another. from one action justiciable, question wise whether will, I precision hope, The benefit of out- litigant ‘proper party request is weigh any annoyance created strict issue,’ adjudication particular of a is compartmentalization redundancy. Congress within power one IV. determine. (citations analytical Id. at n. 92 1361 approach to determi- 732 S.Ct. omitted).19 Therefore, analysis standing sep-

nation of for constitutional claims is reach, unnecessarily acknowledges of their broad inhibit the 19. Sierra Club twice that courts analysis only it reach this where is deter- protected speech parties.”). of third controversy mined that the at issue is "other- 26, 41-42, Rights Org., 426 sections—constitutional U.S. arated into two Welfare (1976)). and, S.Ct. 48 L.Ed.2d 450 “Re- statutory by hap- claims and claims— dressability” “a likelihood that the re- action are the six causes of penstance, quested alleged inju- relief will redress the divided, with three in each section. equally Warth, ry.” (citing Id. U.S. at A. Claims Constitutional 2197). This “irreducible constitution- “The irreducible constitutional applies every sought- al minimum” claim contains, three re minimum litigated to be in federal court.

quirements”: “[1] injury in fact, ^[2] causa tion, ^[3] redressability.” Steel Co., 1. First Amendment (citations 118 S.Ct. 1003 U.S. has, plaintiffs allege that the NSA omitted). “Injury fact” is and footnotes by conducting wiretaps, the warrantless plaintiff a harm suffered speech violated the free and free associa- imminent, not con “concrete and actual or tion clauses the First Amendment. The jectural hypothetical.” Id. at district court assumed that omitted) (cit (quotation marks S.Ct. 1003 engaged “protected expres- had in certain Arkansas, ing Whitmore sion,” apparently referring to the tele- 155, 110 S.Ct. 109 L.Ed.2d 135 phone and email communications. Al- (1990)). fairly is “a “Causation” though plaintiffs’ painstaking traceable efforts connection between the keep these communications confidential of the de complained-of and the conduct belies the contention that this case involves (citing Ky. expression,201 Id. v. E. nonetheless assume this is a fendant.” Simon Club, justiciable.” begin standing analysis wise Sierra 405 U.S. at instruction to with the 731-32, Justiciability, statutory language perfect S.Ct. 1361. of makes sense in 92 course, doctrines, light legal principle includ- of the well-established includes numerous mootness, "Congress may creating standing, prohibition enact statutes legal rights, opinions, political question the invasion of which creates advisory and the Cohen, 83, 95, standing, though injury even no would exist 392 U.S. doctrine. SeeFlastv. 1942, (1968). without the Linda R.S. v. Richard statute.” 88 S.Ct. 20 L.Ed.2d 947 Sierra 614, 1146, D., 3, 410 U.S. 617 n. 93 S.Ct. 35 justiciable” term Club’s use of the "otherwise (1973); Ky. L.Ed.2d 536 see also Simon v. E. justiciability of thus refers to the doctrines 26, 22, Rights Org., 426 U.S. 41 n. 96 standing. Assuming that "other” than these Welfare 1917, (1976), (recogniz- L.Ed.2d 450 satisfied, S.Ct. 48 justiciability other doctrines are Si- ing "Congress’ power new to create interests standing distinguishes erra Club between standing”). the invasion of which will confer analysis statutory non-statutory for analysis of whether the claims, Thus non-statutory claims. For which in- standing bring statutory nec- a claim here, clude the constitutional claims at issue essarily requires of whether a determination requires to show that Sierra Club injured were under the relevant "personal they have a stake in the outcome of Club, statute. controversy.” Sierra 405 U.S. at 732, "per- used this 92 S.Ct. 1361. Court is, fact, language de- 20. There a certain view that this is sonal stake in the outcome” standing prior adoption Amendment issue at all. See Gor- fine Article to its not a First III Educ., Lujan 706 F.2d three-part test in don v. Warren Consol. Bd. of Defenders 778, 2130, (6th Cir.1983) Wildlife, (noting that sur- 781 n. 3 504 U.S. 112 S.Ct. veillance, (1992). standing falls under the Fourth But the L.Ed.2d Amendment, analysis statutory "does not violate First Amend- is different for claims. Sier- rights, though may at inquiry ment even it be directed ra Club instructs courts that "the as to activities”). begin or associative must with a determination of communicative however, Ultimately, a re- this distinction is mer- question whether the statute in authorizes cannot— plaintiff.” issue that I need not—and indeed view at the behest of the Sierra its Club, 732, stage. This address at this 405 U.S. at 92 S.Ct. 1361. in a years of action. In recent found [we have] Amendment cause First viable requires a litigate this claim of cases that constitutional vio- Standing to number (1) injury in deterrent, three elements: showing may arise from the or lations (3) (2) causation, redressability. fact, governmental regula- ‘chilling,’ effect of 102-03, Co., at 523 U.S. Steel prohibi- tions that fall short of a direct against tion the exercise of First In none of rights. Amendment these Injury in Fact cases, however, chilling did the effect party who invokes requires “Art. Ill merely arise from the individual’s knowl- authority per- that he to show the court’s edge governmental agency was actual or threat- sonally has suffered some in certain activities or from the engaged putatively injury as result ened that, fear individual’s concomitant armed Valley the defendant.” illegal conduct of activities, of those with the fruits Coll. v. Ams. United Forge Christian agency future might take some Inc., State, 464, Sep. & 454 U.S. Church other additional action detrimental 752, 472, 102 70 L.Ed.2d 700 S.Ct. Rather, to that individual. in each of omitted). “Allegations marks (quotation cases, challenged exercise of these adequate ‘chill’ are not an subjective governmental power regulatory, was specific present for a claim of substitute nature, compulsory or "proscriptive, fu- objective specific harm or a threat of complainant present- and the was either Tatum, 1, ture Laird v. 408 U.S. harm[.]” subject ly prospectively regula- 33 L.Ed.2d tions, proscriptions, compulsions (1972). Supreme prec- Court’s “clear challenging. that he was fu- requir[es] allegations edent (citations omitted; at Id. 92 S.Ct. 2318 particular and concrete.” ture Sinclair, added); emphasis accord Co., Steel 523 U.S. 118 S.Ct. 1003. (finding F.2d at 1114-15 surveillance alone question Supreme Court framed standing); insufficient for United Presb. Laird, Reagan, Church v. 738 F.2d jurisdiction a court “whether the of federal (D.C.Cir.1984) (finding injury no in fact by a may complainant be invoked who part challenged because “no [sur- the exercise of his First alleges any or even to imposes veillance] relates by rights[21] being Amendment chilled governmental direct constraint upon the existence, more, without of a the mere plaintiffs”). governmental investigative data-gath and I cannot subscribe to a view that ering activity.” The Court held that its injury reason the in Laird insufficient was plaintiffs, subjects of secret United States plaintiffs alleged “only” was because the surveillance, Army may have a suffered that, speech by something chilled chill,” “subjective allege but did not a suffi “more,” the Laird Court meant more sub- concrete, actual, ciently inju and imminent jective injuries injury or other that derive ry to to standing. entitle them Id. at speech. plaintiffs from the chilled Something 92 S.Ct. 2318. “more” was nec political and the Laird were activists essary, in a passage peculiarly that is case, speech being political speech. chilled was applicable present the Court Laird, explained: In 408 U.S. at 92 S.Ct. 2318. subjective rights, 21. Laird involved a First Amendment claim. chill on First Amendment imply holding, I do not assert Laird's extends of action. to other causes narrowly regarding which I construe as jurisprudence, political why court clarified subjective First Amendment mere chill speech. type is the most valued of speech deriving from government surveillance is Paul, City R.A.V. v. St. See insufficient to injury, establish concrete of 377, 422, 112 S.Ct. 120 L.Ed.2d 305 stating: (“Our (1992) (Stevens, J., concurring) First ‘chilling The harm of effect’ is to be decisions have created a Amendment distinguished from the immediate threat hierarchy in constitutional rough pro- concrete, of harmful action. The former speech. political speech tection of Core consists of deterrence [of occupies highest, protected posi- most plaintiff, by government,] from First ”). .... say tion To there could be Amendment conduct because the diffi- of injury more other circumstances is to culty plaintiff determining [that has in] suggest political speech is not valu- application [government of a prac- able in and of itself and that no conse- conduct, tice] to that and will not quences chilling political flow from the support itself standing. speech consequences easily such are not if “ ‘Chilling Id. effect’ is cited as the reason plaintiffs pres- articulable. Certain in the why governmental imposition is invalid “professional ent case contend that the First [under rather than Amendment] injuries” that flow from the chilling as the harm which entitles the to “professional” speech enough it.” challenge Id. at 1378. In an attempt satisfy requirement something Laird’s harm, establish the Reagan if reasoning, “more.” Under such they “especially likely claimed were chilling Laird had targets of the unlawful commercial speech, [surveillance] some would have order,” had because the lost sales would authorized but the court easily injuries constitute articulable result- explained: chilling, from the which would—under if it Even were conceded that ... something this view—constitute “more.” greater risk than [were] nonsense, effectively This is as it would public large, that would still fall far speech political

value commercial above short the ‘genuine required threat’ speech protect the former but not the support theory standing, op- latter. It is also at odds with the remain- posed ‘speculative’ It mere harm. opinion der of the Laird and First Amend- must be borne mind that this order ment in general. Consequently, doctrine intelligence-gathering does not direct ac- speech it is not the value of the that deter- all against persons tivities who could restraint, mines the the level of but conceivably come within scope, its but “chilling” is not sufficient restraint no merely them. authorizes matter how speech. valuable the (citations omitted). Id. at 1380 The Rea- Therefore, allege injury to a sufficient gan court plaintiffs therefore held that the Amendment, plaintiff under the First a satisfy injury-in-fact require- failed to the regulated, must establish that he or she is ment allege “any because did not that constrained, compelled directly by the governmental direct constraint” was actions, government’s instead of his or contemplated against “threatened or even Laird, subjective her own chill. present them.” Id. The case is no differ- 2318; Reagan, 738 F.2d at ent. 1378. The D.C. in Circuit’s decision Rea- that plaintiffs The here contend the gan, plaintiffs 738 F.2d at involved a injury NSA has inflicted First Amendment challenge First Amendment to alleged government Reagan ways, prevent surveillance. The in two both of which them plain- TSP, possibility but the the pursuing jobs or their performing from subjected to bewill injury, overseas contacts first tiffs’ The objectives. lawful other alleged the it, ultimately results by the district that unaddressed went im- are unwill- these fears assuming own plaintiffs’ harm. Even

court, the involves their over- is still with this speculative, than communicate minent rather to ingness or email. telephone and a concrete proving contacts for seas basis a tenuous intercept may that the NSA is, fear if it were plaintiffs That even injury. actual therefore, their communications, and their these intercept that the NSA would certain forgo to require them obligations ethical communica- plaintiffs’ overseas particular avoid inter- to in order the communications none- were tions, contacts if the overseas the consequence injurious ception. with willing to communicate theless contend, conduct, plaintiffs NSA’s spite email in by telephone or plaintiffs diminished either suffer they must it interception, then impending of com- jobs lack in their performance ac- (journalists, doubtful of travel- the cost munication, bear or else who ademics, organizations), lawyers, or contacts meet with these to ing overseas fear personal no alleged have themselves person. (or of our for fear basis of our as- good faith this as accepting Even unwilling or would still government), state- assuming factual sertion un- plaintiffs’ to communicate. unable injury true, first plaintiffs’ ments are anticipated not from willingness comes fears: speculative purely two still involves themselves, appre- from their harm to but intercept the (1) actually NSA will their overseas duty to hension for communications, and particular contacts.23 of those the fruit armed with allegations are Moreover, if even their action will take the NSA interceptions, sub- true, allege still If, on the the contacts. detrimental (self- a personal jective apprehension and be assured hand, could other communicate, unwillingness imposed) their intercept would the NSA Laird, 408 U.S. squarely within which fall occurs, communications, or, interception if fact, inju- In overseas befall the harm would that no actual, concrete, or immedi- less ry is even could continue contacts, the NSA then Laird, Laird. In ate than without harm wiretapping TSP conducting “massive Army was mere existence It is not plaintiffs.22 II, engaging knowingly such communications this scenario Section discussed in 22. As pri- duty keep com- those plaintiffs' their in a would breach result breach could Amendment, Therefore, they but the ar- vacy under Fourth confidential. munications only the First analysis concerns obli- imposed professionally ethical gue, their Fourth action. The cause Amendment Amendment, acute. effects more gations make to a de- attributable harms certainly of these lawyer, am mindful I As protections, necessitate its breach of fendant’s concerns, escape the fact that but I cannot analysis. IV.A.2. See Section a different plaintiffs' duties premised on the they are clients, personal harm to on a and not their lawyers take this who 23. The all, client, such can waive A after themselves. further, step alleging that argument one over- fully confidentiality, and if a informed communi- incapable concerns render them chooses fear the NSA who does seas not client others, which and cating their clients with awareness that with full to communicate representation to these duty of their zealous lawyer listening, might then the NSA they assume with Because demands. clients duty by engaging in any would not breach commu- belief” their "well founded their such communication. intercepted, they assert that will be nications comprehensive” civilians, surveillance of a present injury, namely, an inability to secretly and (apparently) without war- engage in the communication necessary to plaintiffs rants. The Laird alleged that perform professional their duties, whereas Army program surveillance a caused plaintiffs alleged Laird only specu- chilling effect on their First Amendment lative future harm. But injury alleged rights in that they and others were reluc- here is just as attenuated as the future tant to associate or communicate for fear Laird; harm in present injury derives reprisal, stemming from their fear that solely the fear from- government secret government discover or would had dis- surveillance, not from other some form of (and activities) covered them by way government direct regulation,.prescription, of the secret surveillance. The harm al- or compulsion. Id. at 92 S.Ct. 2318. leged present in the case is no more sub- Finally, plaintiffs argue that the Laird stantial; plaintiffs allege a similar plaintiffs’ reactions to the surveillance chilling effect on their First Amendment were unreasonable because there was no rights, in that they by are bound profes- illegal alleged conduct Laird, in that case. sional and obligations ethical to refrain however, did not discuss the reasonable- from communicating with their overseas ness of its response; it held that contacts due to their fear that the TSP subjective mere chill arising from the surveillance will lead discovery, expo- government’s investigative activity—rea- sure, ultimately reprisal against those sonable hot—is or insufficient to establish contacts or But others. unlike the Laird First standing. Amendment Id. at plaintiffs, plaintiffs here do not assert 2318; see Reagan, also 738 F.2d they personally anticipate any or fear (rejecting an identical attempt direct reprisal United gov- States Laird). distinguish I find these attempts ernment, or that the TSP data being is to distinguish unpersuasive. Laird widely Indeed, circulated or misused. plaintiffs have directed us to sever- that, district date, court stated no one al-other support decisions as for their as- exposed has been prosecuted or based sertion professional injuries that their con- information collected under the TSP. stitute NSA, something “more” subjective v. than ACLU 438 F.Supp.2d at 771. See, e.g., Keene, chill. Meese v. attempt to distinguish (1987); 95 L.Ed.2d 415 They Laird. first contend that they have Berzak, (1st F.2d 224 Cir. Ozonoff alleged chilling of their own communica- 1984); LaPrade, Patón v. 524 F.2d 862 tions, whereas Laird plaintiffs not. did (3d Cir.1975). I reiterate that the some- But the Laird plaintiffs alleged the same thing required “more” by Laird is not (or lack) amount personalized surveil- merely subjective injury, more but is the lance present claim, as the governmental exercise of power that both alleged chilling of their commu- own regulatory, proscriptive, compulsory or nications. Even if this were distinction nature, that directly regulates, pro- accurate, it would not alter holding Laird’s scribes, compels the plaintiffs. And that federal jurisdiction courts lack over these three cases involve who eases plaintiff “alleges that can direct show gov- because the the exercise of his First Amendment ernment directly regulate, order, did rights being chilled the mere exis- tence, more, constrain them. certainly without These do governmental of a cases investigative help data-gathering plaintiffs, activity.” who are not Laird, subject 408 U.S. at direct regula- argue next tion, order, Rather, or constraint. certain views. they organizations expressing are claim that plaintiffs the

extent requirement cre- compelled, or coerced The court held that this required, prevented, actions, inju- direct injury, satisfying it is due not to the in ated a concrete their by the regulation order 229. In con- ry-in-fact and immediate element. Id. at to circumstances stem- but government, trast, operation of the TSP does the NSA’s subjective plaintiffs’ own from the ming directly require order or the (1) their communica- that apprehension instead, plaintiffs’ it the anything; to do by and intercepted the NSA will tions (that subjective apprehension NSA interception will be detrimental that communication) that might intercept their This is not a con- contacts. their overseas coerces, compels, plain- or motivates actual, injury pur- for crete, and imminent As with tiffs to alter their behavior. Laird, standing. See establishing poses Meese, support offers no for the Ozonoff 2318; Reagan, at 408 U.S. present cir- position under F.2d at 1378-80. cumstances. Keene, at In Meese v. LaPrade, F.2d Finally, in Patón v. Keene, a law- plaintiff, Mr. S.Ct. challenged govern- Patón Ms. legislature, a member of the state yer and retention of an FBI file on her ment’s films that fed- to exhibit certain wanted with the Socialist alleged involvement “politi- be labeled as required eral statute Party because the existence of Workers 469-70, propaganda.” cal Id. future edu- “endanger[ed] file her that the harm to found 1862. The Court employment opportunities.” and cational profes- political, personal, Mr. Keene’s found a Id. at 868. The Third Circuit would result from reputation, sional sufficiently injury deriving concrete future “propaganda,” films labeled exhibiting his the existence of that file. Id. Ms. from Id. at constituted fact. only subject government Patón was not from even It is evident prove knew and could regulation, she however, case, cursory reading of the intercepted specif- had her government subject regulatory to a Mr. Keene was kind) (not just mail of a like ic mail directly expressly ordered statute that partic- an FBI file on her maintaining was in manner that the films labeling (not just a like ular activities activities of harm. Id. at would cause the kind). contrast, In stark present in the S.Ct. 1862. present allege only suspicion case their oper- regulated case are not the NSA’s belief’) (i.e., and fear their “well founded any way, nor are ation of the TSP likely targets their contacts to do or refrain from do- directly ordered TSP or that their communications are like- support Meese offers no for ing anything. ly intercepted. to be As documented plaintiffs’ position. record, plaintiffs have not Berzak, 744 F.2d at In Ozonoff and cannot demonstrate that demonstrated Ozonoff, sought employ- Dr. plaintiff, monitoring particular NSA Organization, Health ment with the World activities. personal ordered him to submit and the legal— no factual or I find basis—either a condition of loyalty investigation to a distinguish Laird from the upon which to job. Id. at 225. The First seeking the claim raised First Amendment requirement creat- Circuit found that this here, I conclude that Laird quali- ed a speech- and association-related reempha- claim. But let me controls this job, effectively fication for the WHO clear, size, that I do just perfectly to be punished joining certain Dr. Ozonoff NSA, (em- not contend that Laird controls this entire ACLU v. F.Supp.2d at 769 added). case—it does not. Laird phasis controls the view, Under this the plain- claim, First Amendment based on the first tiffs claim that their contacts have been type injury. plaintiffs’ chilled, The alleged first prevents them from commu- injury, arising from a personal subjective nicating with these contacts.25 chill, concrete, actual, is no more or immi- In Presbyterian Church v. United injury alleged nent than the in Laird. The States, (9th Cir.1989), F.2d injury in Laird was insufficient to estab- the Ninth Circuit considered a claim lish for a First Amendment cause plaintiff churches that agents “INS en- action; plaintiffs’ injury first is less tered the wearing churches ‘body bugs’ or, best, Laird; than equal to that in and surreptitiously recorded church ser- and the plaintiffs’ injury first is likewise vices” violation of the First and Fourth insufficient to establish standing. Amendments. The district court had dis- missed the claims for lack of plaintiffs’ standing, injury second is the un- plaintiffs’ based on the failure to show willingness contacts, of their overseas fact, injury in opining that clients, protections witnesses, and sources to communi- of the First Amendment extend not to email, by telephone cate due to their corporations individuals, but because fear that intercept will NSA the com- go “churches don’t to heaven.” Id. at 521. court, munications. The district in its appeal, On reversed, the Ninth Circuit standing analysis, framed the issue this finding that the plaintiff churches had pled way: injury: sufficient The Plaintiffs in this case are not claim- congregants When are chilled from par- ing simply that the [NSAJ’s surveillance ticipating in worship activities [and]'re- has ‘chilled’ them from making interna- fuse to attend church services because tional calls to sources and clients.1-24-1 they fear spying Rather, they claim that sur- Defendants’ them taping utterance, their every sources, veillance has chilled their all as alleged complaint, in the we think clients, potential witnesses from a church organizational .suffers injury communicating with them. alleged ability because its carry out its minis- concrete, effect on Plaintiffs is a actual tries has been impaired. inability witnesses, to communicate with added). Id. at 522 sources, (emphasis clients Ninth great and others without n distinguished Circuit then Laird: expense significantly which has crippled Plaintiffs, minimum, ability in their Although Laird establishes that a liti- report competently gant’s news and allegation that it has suffered a effectively represent subjective their clients. ‘chill’ does not necessarily fact, 24. claiming In eavesdropping NSA district court —the (coupled NSA's surveillance with their own relied on affidavits submitted several of the obligations) ethical has chilled them from plaintiffs. individual None of the overseas making international calls to sources and provided testimony contacts an affidavit or clients, throughout as has been discussed fear; theory solely is based opinion simply thus far. The district court plaintiffs’ testimony, on the own which is self- plaintiffs' misunderstood extent of the serving may hearsay. be inadmissible as claims. however, Ultimately, questionable charac- bearing ter this evidence has no on this finding In theory on this —the injuiy-in-fact analysis, because the outcome is unwillingness overseas con- the same even if I assume it to be true. tacts to communicate due to their fear that Laird, in the same plaintiffs with the does affiliated standing, III Article

confer with a parishioners as are intrinsic manner The churches case. not control al- have church.27 None of claiming simply are not this case injury” any “organizational leged them has ‘chilled’ INS surveillance Rather, context.28 present worship services. holding from the INS surveillance they claim these alternative acknowledged Having at- congregants from individual chilled Church, it Presbyterian interpretations of services, that this worship tending defini- unnecessary to resolve that issue has in turn congregants effect on Injury in fact is but record. tively on this ability to the churches’ with interfered necessary to establish the criteria one of ministries. carry out their ultimately, it not determi- standing, and is not a mere churches on the effect of the other of this case. Either native activi- worship their chill on subjective redressability— or two criteria —causation concrete, de- ties; demonstrable it is a claim ultimately plaintiffs’ defeat the might worship at those in attendance crease plaintiffs’ alleged if standing, even of churches is injury to the activities. inju- an adequate to state injury is deemed has no Laird palpable.’ ‘distinct ry in fact. application here. Causation omitted). (citations Id. allege some plaintiffs must sense, deci- “[F]ederal the Ninth Circuit’s

In one injury resulting or actual concluding that the threatened read as sion could be from a feder illegal action before injury putatively on the ac- based churches suffered Simon, jurisdiction.” (i.e., may al court assume pa- individual parties tions of third (citations rishioners) 426 U.S. at reading supports —a added). omitted; “In emphasis footnotes standing.26 in favor of arguments words, [may] ... court act however, a federal sense, the Ninth Cir- other In another fairly can be injury to redress may confined to the be cuit’s decision of the de challenged action injury”; traced “organizational unique idea fendant, all, and not that results is, organization com- after church from party third independent action some parishioners, and the congregation prising a Id. at viewed as not the court.” properly are congregants these before added). Causation (emphasis rather organization, intrinsic to the church considerably upon whether the “depends parties. This read- separate than as third object of the action is himself an plaintiff would weaken Presbyterian Church ing of Lujan ... v. be- issue.” context application its Defenders of clients, Wildlife, 504 U.S. third-party con- cause the overseas (1992). causation L.Ed.2d 351 When tacts, in this case are not and sources presumably suspected the causation seas discussion of 26. But see the contacts — Qaeda being operatives or affili- analysis, NSA of al Amendment in this First element (or be) some obtaining desire to members of ates—are infra, regarding the difficulties of journalists, aca- third-party organization American on the conduct based demics, lawyers. or actors. (Ameri- organizations 28.Certain not claimed member- Union, Ameri- Council on overriding "organization” that can Civil Liberties ship Relations, Greenpeace) and it is can Islamic plaintiffs and the overseas would include the plaintiffs, on a possible that these suggestion that therefore been no contacts. There has record, academics, organizational might lawyers assert journalists, different plaintiff Qaeda, injury. that their over- are members of al independent parties, third tions with out of fear that hinges showing will plaintiff intercepted.” has the burden communications (foot- parties’ F.Supp.2d the third choices “have been or ACLU at 767 NSA omitted). this, note From pro- will be made such a manner as to the district court theorized: redressability of “Plaintiffs would be able permit duce causation and 562,112 to continue using telephone and email injury.” Id. at S.Ct. 2130. in the professional execution of their re- case, “putatively In the the ille- if sponsibilities the Defendants were not gal interception action” is the NSA’s undisputedly admittedly and conducting overseas communications without warrants wiretaps warrantless of conversations.” (specifically warrants), FISA and the Id. at In considering these causal injury” “threatened or actual is the added pathways, I question the step second in-person cost of communication with the (whether the “well founded belief’ actu- is (or correspondingly, overseas contacts the ally founded on the wiretap- warrantless performance resulting diminished from the (whether ping) and refute the third step communicate). Therefore, inability to unwillingness the to communicate is actu- causation, plaintiffs show show must ally by caused the warrantless character of (or that, but for the lack of warrants FISA wiretaps). compliance), they would not incur this add- underpinning The step the second is There pathways ed cost. are two causal questionable. plaintiffs allege types alleged injury. based the two they have a “well founded belief’ that their (1) In the first: the NSA’s warrantless likely targets overseas contacts are of the (2) wiretapping, plaintiffs creates in NSA and their conversations are be- “well founded belief’ that their overseas ing intercepted. plaintiffs have no telephone and email communications are evidence, however, that the NSA actu- (3) being intercepted, requires which (or ally intercepted actually intercept) will plaintiffs to refrain from these communica- any of their conversations. No matter (4) (i.e., communication), tions chills and plaintiffs might what the and others find compels to travel overseas to “reasonable,” the evidence establishes personally meet with these contacts or- possibility probability or certain- —not satisfy professional responsi- der to ty might these calls intercepted, be —that (5) bilities, thereby causing might that the information be disclosed (1) incur In additional costs. the second: disseminated, might or that this lead to (2) wiretapping NSA’s warrantless some harm to the overseas contacts. (3) belief,” causes the “well founded not, itself, this lack While of evidence is compels the overseas contacts to refuse to enough causation, disprove the absence (i.e., communicate telephone or email of this evidence makes the show- (4) communication), chills thereby requir- ing of causation less certain and the likeli- communication, ing in-person with its speculative. hood of causation more associated additional costs. The district attempted court to articulate this relation- step unsupportable. The third is ship: “All of the Plaintiffs contend that the In step, plaintiffs allege, and the clients, found, TSP has caused witnesses and district court that it absence (and it29) sources to discontinue their goes communica- a warrant all that with things 29. The well-known Fourth place Amendment war- to be seized or the to be States, requirement interjection rant involves of a searched. See Dalia v. United magistrate, neutral and detached demonstra- 60 L.Ed.2d 177 cause, (1979); (Keith), probable description tion of United States v. U.S. Dist. Ct. subjective willing- no more effect on and then- has chilled parties these unwillingness of communicating by- ness or from contacts overseas and corre- “freely engage in conversations ACLU v. See or email. telephone NSA email,” (“Plaintiffs via see ACLU spond be would at 769 F.Supp.2d NSA the secret than would F.Supp.2d telephone using to continue able of that warrant. professional absence of their in the execution email proven nor basis have neither asserted were not if the Defendants responsibilities conclude justifiably conducting upon which admittedly undisputedly conversations.”). than of a warrant —rather mere absence wiretaps of warrantless reason, prosecution other such as under some up not stand allegation does This Terror, general, of the War on however, it not clear scrutiny, involv- targeting of communications traced to NSA’s fairly chill can whether terrorists, Qaeda affili- warrant, suspected al ing if the chill of a or absence the ates, particular in the supporters, and without regard still exist would —is (and their overseas plaintiffs’ cause of the a The or absence of warrant. presence contacts’) by to communicate reluctance step to a break- insufficiency of this leads Simon, telephone or email. pathway. causal See the down Laird, 1917; 96 S.Ct. U.S. the argued have if plaintiffs The (“Not at 14 n. its were to conduct surveillance NSA un- only respondents have left somewhat FISA, long- they would no compliance with between the precise the connection clear their interna- compelled feel to cease er system challenged of the existence mere and email communica- telephone tional chill, they have alleged their own but if the had again, even NSA tions.30 But on whether considerable doubt also cast for each (secretly) FISA warrants obtained suffering from are in fact they themselves contacts, who the of the overseas chill.”). any such likely are to be moni- themselves assert tored, would still not the always “secret”—that is its wiretap A is being were known communications secrecy, of this their purpose because very —and of faced the same fear intercepted, still plaintiffs nor their overseas the neither contacts, still know, a harm to their incurred with or without would contacts (or contact-imposed) warrant, self-imposed same whether their communications and, therefore, Therefore, on communications the NSA’s burden being tapped. were injury. The the same a would have still suffered possession of warrant secret provisions to ensure the minimization of 32 L.Ed.2d retention, (1972). of acquisition, FISA warrant dissemination The more obscure information, 1804(a)(5), 1805(a)(4), §§ by petition a federal requirement involves a 1806, 1801(h). -(c)(2)(A), official, Attorney approval with the of General, 1804(a), special § a 50 U.S.C. (i.e., Court, 1803(a), plaintiffs’ applicability approv- § FISA’s for an order FISA standing bring a cause of action under foreign in- the electronic surveillance for FISA) separately in Section IV. telligence upon § is addressed purposes, based discussion, B.3, target "probable cause to believe that infra. power plaintiffs’ assertion foreign concerns electronic surveillance is injuries are caused agent foreign power,” their First Amendment (or comply 1805(a)(3)(A). with petition the NSA’s failure to FISA § FISA and order include, by imposing FISA’s re- things, provisions would be redressed among other must duration, 1805(a)(10), applicability and quirements), assumes FISA’s §§ to limit content, 1804(a)(6), -(c)(1)(E), -(e), vis a vis FISA §§ does not address surveillance, 1805(c)(1)(C), 1806(i), cause action. theory relies on their contention plaintiffs’ plaintiffs (especially Some those who are obligations require that their ethical them lawyers) assert imposition telephone to cease or email communica- FISA minimization—to limit the use and private tions time believe the dissemination of information ac- privileged information those communica- quired relieve their fears suffi- —would might tions be discovered or disclosed to ciently satisfy their ethical obligations clients, sources, the detriment of their or because it would ensure that those commu- Assuming contacts. that this contention is nications would remain confidential and true, it must also be true that this ethical privileged in the event of a subsequent whenever, obligation would arise and con- prosecution, criminal proceeding, removal as, long tinue so believe their tribunal, military Therefore, they etc. ar- types people likely contacts to be the to gue, imposition of requirements FISA be monitored the NSA. type would alter the and content of their imposition requirements of FISA however, theory, communications. This into this scenario not change would predicated on the assumption that likelihood these overseas contacts are apprehensions justi- current fears and types people who the be- fied—and there support is no for this as- lieve would be monitored. Nor would it First, sumption. there no evidence change “well founded belief’ the current record presume from which to that the is intercepting NSA their commu- by information collected the NSA individuals, nications with these plain- via wiretapping warrantless will be used or obligations, tiffs’ ethical or the overseas any purpose disclosed for other than na- subjective contacts’ fears. Even under Next, tional security. there is no evidence plaintiffs’ depiction, it merely would presume the record from which to assure the and their contacts with, the NSA is not complying .or even that —while their international telephone exceeding, FISA’s restrictions on the ac- Qaeda and email communications with al retention, use, quisition, or disclosure of just likely affiliates are still as to be inter- (i.e., this information minimization FISA’s cepted NSA will obtain FISA Court —the techniques). Finally, there is no basis to orders, presumably which will limit the presume post-hoc traditional reme- acquisition duration content of the dies, Exclusionary such as the Rule or and the use and dissemination of the ac- provision, FISA’s civil suit 50 U.S.C. quired plaintiffs, information. The howev- 1810, § adequately would not deter the use er, asserted, proven have not or explained, or dissemination of this information. Con- change how a in the duration or content of sequently, plaintiffs’ this disconnect in the interceptions purely the NSA’s hypothet- — unavoidable, theory plaintiffs’ is and the ical changes that are unknown and un- fairly is not traceable to the mere knowable based on the established record compliance. absence of FISA and the al- State Secrets Doctrine —would inju- second form of Under Specifically, plain- leviate their fears. (i.e., ry by the overseas con- refusal proffered any types topics tiffs have' not by telephone tacts to communicate communication, they from which email), step path- this third in the causal currently refraining, but about which— way disrupted by indepen- is further upon imposition of FISA’s limitations third-party dent decisions of the overseas protections would thereafter — Simon, Supreme contacts. In Court “freely engage in conversations and corre- that, independence held due to the spond[ence] via email.” See ACLU v. actors, at F.Supp.2d third-party its could NSA court; very that is the essence the de- federal between a causal connection prove Co., alleged inju- redressability requirement.” Steel misconduct fendant’s at 118 S.Ct. 1003. Redressa- ry: 523 U.S. bility requires prospective thus “that relief only that here complaint Worth, harm,” adoption of will remove the government], [the 69-545, ‘encour- Ruling plaintiff had and the must Revenue hospitals third-party] in a aged’ personally “that he would benefit [the show indigent plain- deny [the services to tangible way from the court’s interven- [But, speculative purely (footnote it] .... tiffs] tion,” id. at 95 S.Ct. 2197 [i.e., the of service whether the denials omitted). prototypical In redressabili- complaint in the specified alleged harm] D., case, 410 U.S. ty Linda R.S. v. Richard govern- fairly [the can be traced to L.Ed.2d 536 or instead re- ‘encouragement’ ment’s] (1973), sought compel single mother made the [third- sult from decisions a criminal statute to enforce State regard to the hospitals without party] illegitimate father of her child against the [i.e., government con- implications tax pay him for his failure to imprison duct]. Supreme ac- support. child Court Simon, 96 S.Ct. 1917. that the mother had “no doubt knowledged Simon, case, it is In injury stemming from the fail- suffered contacts’ refusal possible that the overseas sup- father to contribute ure of her child’s has no to communicate with Id. at 93 S.Ct. 1146. port payments.” illegal govern- putatively relation to the reasoned, however, if that even The Court wiretapping without FISA ment action of relief, it granted requested she “were fact that the compliance. The mere Unit- jailing result in the would aggressively pros- ed States father,” remedy and not the harm child’s on Terror —in ecuting worldwide War pay support. child caused his failure which, by plaintiffs’ own “well founded thus held that “the ‘direct’ Id. Court belief,” likely suspects— these contacts are injury relationship between chill would sufficient to these over- appear adjudicated, sought and the claim to be regardless seas contacts of the absence standing,” ... prerequisite is Notably, the record protections. FISA in that case. Id. was absent testimony, by affidavit or oth- contains no case, erwise, In the any of the overseas contacts from declaratory an requested judgment cause of their refusal and themselves as to the communicate; only plain- They injury it contains injunction. theorize their (i.e., and self-serving tiffs’ assertions affidavits. professional performance deficient in-person the additional cost of communi have not shown a suffi- cation) by a will be redressed declaration cient the com- causal connection between of warrantless practice the NSA’s (i.e., plained-of the absence of a conduct unlawful, because it natural wiretapping is protection) and the al- warrant or FISA ly follows that the unlawful conduct will be (i.e., leged inability harm to communi- cate). declaratory judgment prohibited. exempli- further inadequacy This injunction pro for an redressability. thus forms the basis analysis fied in the hibiting interception of communications Redressability compliance. The district without FISA declaring the NSA’s conduct agreed, court remedy not “Relief does injunction, an plaintiff illegal imposing into and bootstrap suffered cannot injunction redress the belief that its would reasonable to assume that the FISA Court plaintiffs’ injury by assuring them “that interception would authorize the of this freely engage in could conversations communication, type of See 50 U.S.C. concern, correspond via email without § keeping this likelihood in notice, at least without that such communi- mind, the issuance of FISA warrants being cations were monitored.” ACLU v. any would not relieve plaintiffs’ NSA, F.Supp.2d at 770-71. This theo- being overheard; fears it would relieve ry redressability on the premise rests only them of the fear that the information compliance the NSA’s with FISA’s might against be disseminated or used requirements plain- warrant will entice the 1804(a)(5); §§ them. See 50 U.S.C. “freely engage tiffs and their contacts to 1806(a) (h) (minimization 1801(b)(l)-(4); & correspond conversations and via email requirements).31 Recall, however, that the without concern.” The likelihood of this NSA has not disclosed or disseminated outcome, however, “can, best, be termed of the information obtained via this war- R.S., only speculative,” see Linda wiretapping. “remedy” rantless This (if 1146; just likely it would therefore not alter the that, likely) imposi- not more even with the and, current accordingly, situation would requirement, plain- tion of a warrant injuries alleged. redress the change— tiffs’ current situation will not requested injunctive Neither will the re- their fears will not be abated. lief increase the likelihood that the plain- designed operated The TSP is tiffs and their overseas contacts will re- terrorism, prevention and the NSA telephone sume or email communications. only telephone is interested and email previously, As discussed “warrantless” party communications which one to the things. “secret” are unrelated All wire- communication is located outside Unit- secret, taps are and the are not ed States and the NSA has a “reasonable nature, challenging the secret but basis to conclude that one party nature, warrantless of the TSP. Because Qaeda, communication is a member of al secret, wiretaps all plain- neither the Qaeda, affiliated with al or a member of organization Qaeda, affiliated with al tiffs nor overseas contacts would working Qaeda.” al support of It is know—with or without warrants —whether necessarily prohibit alleged, 31. FISA does not even have never nor is there evi- interception attorney-client the communi- present suggest, dence in the record to cations. Because FISA states that oth- "[n]o the information collected the NSA under privileged in erwise communication obtained anyone any the TSP has been disclosed to for privi- [FISA] accordance with shall lose its NSA, purpose. F.Supp.2d v. See ACLU character,” 1806(a), leged § 50 U.S.C. it ("the perceived secrecy ap- need for FISA, therefore follows that least some parently required person that no be notified instances, interception privi- the authorizes aggrieved by activity, that he is the and there communications, leged presumably which in- prosecutions, requests have been no no for attorney cludes communications between approvals extensions or retroactive of war- example, might prohibit client. For FISA not rants”). event, general In FISA’s re- interception attorney-client the communi- quirement may that electronic surveillance cations under circumstances where the NSA proceed only upon issuance of a FISA Court complete policy adheres to a non-disclo- absolute, provides warrant is not as FISA for Doctrine, sure. Due to the State Secrets the prior may which a instances in warrant (and cannot) plaintiffs do not know whether unnecessary, period at least a for short actually policy the NSA adheres to a of com- See, 1805(f) e.g., (emergen- § time. 50 U.S.C. non-disclosure, plete but based on the record situations). cy evidence, certainly possible. it The remains information), the mere semination being tapped, were communications their warrant, of a FISA or other- requirement a warrant possession of and the secret wise, subjec- guarantee prevention not the effect on the will no more would misconduct, sat- of these and therefore fails to unwillingness willingness or tive redressability in conversations element. In Leeke “freely engage isfy the to parties Timmerman, 83, 84-85, than would the via email” correspond v. Thus, (1981), as a of that warrant. L.Ed.2d 65 federal secret absence matter, inmates, of a the mere issuance had filed who criminal practical prison either not alleviate a prison guards would for beat- charges against warrant intercep- fears of contacts’ prison uprising, or the a plaintiffs’ during that occurred tion, consequently, would not redress court to facilitate the filed suit federal if wiretaps Even alleged injury. guards. of arrest warrants for issuance is, if the overseas review, were not secret —that Supreme Court found On actually and the contacts were “is sim- of an arrest warrant the issuance tap- that the NSA was beforehand notified prosecution,” to actual be- ply prelude knowledge ping communication—this solely to prosecute cause decision is “the injury. It is not redress would prosecutor discretion of the within the that those to think patently unreasonable of the arrest issuance warrant [and] speak they sus- to when who are reluctant necessarily lead to subse- case not would listening willing would be pect NSA of Id. at quent prosecution.” the NSA is listen- once know speak held that the inmates S.Ct. 69. Court ing. standing because there was “no lacked guarantee that issuance of the arrest war- injunction also court’s is district remedy past would claimed miscon- rants] fear of to relieve insufficient guards prevent future miscon- duct of contacts. A warrant reprisal against their Any duct.” Id. at 102 S.Ct. 69. such protect overseas requirement will (i.e., that the issuance of a FISA guarantee in all circum- prosecution from contacts future prevent warrant will FISA miscon- Case, stances, In re Sealed 310 F.3d see duct) similarly lacking (F.I.S.C.R.2002), which leaves case. allay their whether this will some doubt enough fears to entice them resume Consequently, the district decla- court’s plain- communications with unreserved in- against wiretaps warrantless ration Ironically, the absence of warrant tiffs. plaintiffs’ alleged redress the sufficient to likely prohibit gov- more

would be injury plaintiffs’ self-imposed because using intercepted infor- from ernment would survive burden on communications subsequent prosecution, mation in a due of FISA warrants. the issuance Exclusionary Rule probability way to would be redress admission of information would bar the enjoin wiretaps, even those all Mapp without a warrant. obtained See full are issued and for which warrants Ohio, given parties being prior notice (1961). The warrant re- L.Ed.2d 1081 be tapped. Only plaintiffs then would the not, many things; it does quirement does their fear that their contacts relieved of however, remedy injuries alleged by surveillance, likely under the contacts are plaintiffs in this case. surveillance, relieved of their fear of be “freely engage able to parties and the Similarly, plaintiffs to the extent the correspond via email by the conversations their contacts fear some misconduct (in disclosure, Because such broad dis- without concern.” discovery, NSA unavailable, remedy plaintiffs’ sarily re- arises whether it any serves useful relief, narrower, much quested which is analytical purpose prin- to consider this injury. not redress their would ciple standing, a matter of distinct from merits of defendant’s Fourth reasons, foregoing plaintiffs For the Rigorous Amendment claim.... applica- standing action have no Amendment claim. tion pursue principle their First that the rights se- injury, if Even could demonstrate by cured personal, this Amendment are causation, they cannot establish and their in place of a notion ‘standing,’ will alleged injury is not redressable produce no additional situations which remedy they seek. evidence must be excluded. The inquiry under approach either is the same. But 2. Fourth Amendment we think analysis the better forth-right- has, plaintiffs allege the NSA ly focuses on the particular extent of a by conducting wiretaps, the warrantless rights defendant’s under the Fourth “plaintiffs’ privacy rights violated Amendment, any rather than on theoret- by the Fourth guaranteed Amendment.” ically separate, invariably but inter- asserting The district a heretofore court — concept standing. twined unprecedented, absolute rule that Id. at 421 (quotation “requires prior Fourth Amendment war- search,” marks, citations, footnotes, any rants for reasonable v. ACLU and edits omit- NSA, F.Supp.2d ted; agreed added); emphasis Ellsberg see also 775— summary granted motion for Mitchell, (D.C.Cir.1983) 709 F.2d judgment theory, on this id. at 782. (“An essential element of each proof case is that he himself has been

However, Supreme Court has made injured. Membership group in a of people, that Fourth rights clear Amendment ‘one or more’ members of which which, were ex- “personal rights” unlike First surveillance, posed to rights, may Amendment not be asserted is insufficient to sat- Illinois, vicariously. isfy See Rakas v. requirement.”). 128, 133-34, 58 L.Ed.2d not, cannot,32 do (1978). explained The Court in Rakas: any assert of their own communica petitioners’ target theory, Under a court Instead, intercepted. tions have ever been could determine that a defendant had they allege only a belief that their commu having inquire [] without being intercepted, nications are based question into the substantive of whether their own assessment of their overseas challenged search or seizure violated people likely contacts as who are to fall rights the Fourth Amendment broad, public within the NSA’s description However, particular defendant. having targets. acknowledged by plain of its As rejected petitioners’ target theory and argument, tiffs’ counsel at oral it would be principle rights

reaffirmed the unprecedented for this court to find stand assured the Fourth Amendment are litigate a Fourth personal rights, which may be enforced Amendment cause of action without only at the [ ] instance one whose evidence that protection own was themselves infringed by seizure, subjected search and the question illegal neces- have been to an search or plaintiffs' prospective inability Reynolds, to as- Secrets Doctrine. See 345 U.S. at ' personal sert that of their communica- 73 S.Ct. 528. intercepted tions have been is due to the State 674 Sepa- violation of the The NSA’s Raleas, gress). 99 at See

seizure. Doctrine, plaintiffs the ration of Powers 421. S.Ct. the to fear that caused them say, has Powers Separation of communica- intercept their might NSA contacts, NSA allege pre- the plaintiffs their overseas tions with wire the warrantless has, conducting jobs their performing them from venting sepa of the principle the taps, “violated] with- objectives other lawful pursuing or con NSA’s [the because powers ration of and ex- burden incurring additional out Bush by President authorized was duct] pense. authority under his Executive of excess causation, plaintiffs must the To prove States II the United Constitu Article alleged separation-of-powers the connect imposed limits contrary to and is tion action”) (“the to putatively illegal violation two-part accusation-— This Congress.” of their performance on the the burden (1) presi exceeded his Bush that President (the inju- obligations alleged professional Constitution, the under authority dential Simon, 426 ry). See U.S. (2) imposed limit statutory violated putatively the steps separate 1917. Six by Congress presup authority upon that — (1) injury: the illegal conduct from Congress gives the Constitution poses that allot- his allegedly the President exceeded Presi limits on the authority impose the authorizing the NSA authority by ted circum the under powers dent’s wiretapping part warrantless with conduct agreed court stances. district toto, (i.e., security and de coun- national allegation its enhanced plaintiffs’ the terterrorism) conduct a violation the world- operations clared NSA’s See Powers Doctrine. (2) Separation Terror, causing the NSA on wide War NSA, F.Supp.2d at 779-79. ACLU v. practice its of warrantless to institute (3) TSP, causing under the wiretapping asserting a claim under A plaintiff must, belief’ that “well founded plaintiffs’ like Doctrine Separation of Powers telephone a claim seeking intercepting bring NSA is their all other court, (4) communications, demonstrate causing in federal either email causation, redressability. INS v. fact, overseas themselves Chadha, U.S. to refrain from these communica- contacts (1983) “inju- (requiring an L.Ed.2d 317 (5) tions, either to causing likelihood ry in fact and a substantial capaci- professional in them underperform requested prevent will judicial relief with personally to travel to ties or meet injury”); see also redress claimed (6) contacts, the additional causing these Valeo, Buckley v. performance burden (stating L.Ed.2d professional duties. concrete “litigants with interests sufficient permit does not simply This record standing to con- may raise stake have that is re- analysis particularized kind of pow- separation questions stitutional Ignoring causation. quired determine ers”). Here, plaintiffs contend steps two the first for moment (i.e., at the the NSA the executive branch third and analysis, it clear President) has, by institut- direction of problematic. fourth are practice of warrantless the TSP’s support no evidence presented consti- in excess of wiretapping, acted its belief’ that alleged “well founded limitations, thereby statutory tutional or being intercepted. their conversations expressly upon powers encroaching possibili- (i.e., The evidence establishes branch Con- reserved to another

675 ty a probability certainty or counter-terrorist or military intelligence —not —that communications might intercept- these be surveillance. Those such as the present ed, disclosed, or disseminated. Further- plaintiffs, who choose to communicate with more, the possibility reasonableness individuals located overseas who indeterminable, due the limited rec- plaintiffs’ own reckoning individuals ord before us and the State Secrets Doc- reasonably suspected to be al Qaeda ter- trine. Unlike each of the cases which rorists, affiliates, or supporters, should ex- Supreme Court has found standing pect those communications will be Separation claim, of Powers the plaintiffs subject heightened monitoring and sur- not, in this cannot,33 do case assert veillance for national security or military they actually themselves have been purposes. Therefore, the plaintiffs have subjected the conduct to violate no evidence to support a conclusion that Separation See, e.g., Powers. Cha- the President’s authorization of the TSP dha, 923, 930, U.S. 103 S.Ct. would any more effect on parties’ 2764 (reviewing whether one “House of respective apprehensions than would the Congress” could order plaintiff deport- broader circumstances of the War on Ter- ed); Buckley, 424 U.S. at 96 S.Ct. 612 ror heightened security. national (reviewing whether the Federal Election Because cannot demon- could rulings Commission make regarding strate that the alleged violation Sep- plaintiff); States, Palmore v. United aration Powers has injury, caused their 389, 390, U.S. 93 S.Ct. standing lack to litigate separa- (1973) L.Ed.2d 342 (reviewing whether the tion-of-powers claim. It is therefore not plaintiff could be tried before non-Article necessary to redressability, address courts); III Zdanok, Glidden Co. v. third element of standing. 530, 532-33, U.S. 8 L.Ed.2d Finally, I note (reviewing plain- whether the district court that, tiffs’ adjudicated cases be stated could unless it by judges found standing for designated courts). from these plaintiffs, non-Article III the President’s action Supreme Court been would clear that be insulated judicial from review. must be idea, “distinct and palpable, however, This is neither novel nor and not conjectural,” abstract persuasive. so toas “The assumption if re- avoid “generalized grievances more appro- spondents sue, have no standing to no one priately representative addressed would have standing, is not a reason to branches” process. and the electoral Al- find standing.” Schlesinger v. Reservists len, (cita- Comm, 104 S.Ct. 3315 War, to Stop omitted). tions (1974). 41 L.Ed.2d 706 Nevertheless, the district court editorial-

It is also unclear from the record wheth- that, ized if it deny “were to er plaintiffs’ or their contacts’ refusal based on the unsubstantiated communicate can minor dis- fairly traced to the Defendants, tinctions drawn President’s Presi- authorization of an ambiguous dent’s warrantless actions in wiretapping warrantless program, wiretapping, if that same regardless FISA, III, refusal would contravention of exist Title the authorization of TSP. any Amendments, And First and Fourth would wiretap merely would be component one of be judicial immunized scrutiny. from It 33. The prospective inability as- Reynolds, Secrets Doctrine. See 345 U.S. at sert that personal of their communica- intercepted tions have been is due to the State 676 “there is noted Laird: noth- to The Court the Framers intent of never

was in this history or ing in our Nation’s unfettered con- such President give the cases, including our NSA, at hold- F.Supp.2d Court’s decided v. 438 trol. ...” ACLU properly be seen ing today, that can that actual or threat- any indication giving has confronted Court Supreme of unlawful activities injury by ened reason it, rejected ex- expressly suggestion go would unno- branch] [executive of the length: some reasoning at its plaining Laird, 408 U.S. at ticed or unremedied.” respondent if argued that It can be 16, 92 S.Ct. 2318. issue, no litigate this to permitted President, allege sense, the very In a real do so. one can system of tripartite as an actor our individual or any particular of absence au- his constitutional government, exceeds sup- gives claims these litigate class engage thority by authorizing the NSA to subject argument port to wiretaps of overseas com- in warrantless to the surveillance committed matter is court, the TSP. But this munications under ultimately politi- Congress, President, has constitutional not unlike the conclusion would Any other process. cal and, despite important limits of its own Founding Fathers intend- mean that stake, at cannot exceed national interests nature of something in the up toed set Co., authority. 523 allotted See Steel its democracy Eng- a New an Athenian (“[0]ur 20, at 125 n. 118 S.Ct. 1003 U.S. oversee the con- meeting to land town in separation- is rooted standing doctrine the National Government duct of Flast, concerns.”); of-powers U.S. in federal courts. The lawsuits means of that Article III (stating representative 88 S.Ct. created Constitution di- “confine federal courts representatives standing limitations with the Government system sepa- with a their constituents to a role consistent rectly responsible to two, four, ül and six would behoove powers”). rated It us periods at stated authority does not in order to condemn exceed our years; the Constitution not, exceeding remedy Congress for judicial does the President afford a the citizen course, completely disable theirs. ‘ground with the

who is not satisfied Statutory B. Claims Congress for rules’ established of the Executive reporting expenditures three constitutional In addition to their standing within the Lack of claims, statutory Branch. plaintiffs present jurisdiction Ill APA, III, confines of Art. narrow Title under the FISA claims thereof). to assert his impair right (or step does not first combination at the forum or political views any of these stat- is to consider whether Slow, cumbersome, unre- polls. at the behest of utes review “authorize[] the traditional electoral sponsive though whether these stat- plaintiff[s]” i.e., — times, thought at our process may (1) challenged NSA’s con- govern utes changing members system provides a means provide duct and when dissatis- political Club, branches judicial review. See Sierra num- a sufficient fied citizens convince availability 1361. The 92 S.Ct. that elected ber of their fellow electors claim, however, does not statutory a delinquent per- representatives plaintiffs of the need estab- relieve the to them. forming committed duties litigate lish constitutional Byrd, 521 U.S. Richardson, 166, claim. See Raines United States v. (1974). 138 L.Ed.2d n. 2940, 41 L.Ed.2d (1997) (“It Congress jurisdiction; cannot selves create exist is settled jurisdiction to remove where the Article standing requirements erase Article Ill’s standing requirements III are otherwise by statutorily granting right to sue A prudential standing principle satisfied. not otherwise have plaintiff a who would particular statutory relevance to causes standing.”).34 test, of action is the “zone-of-interest” standing analysis includes This ... which “limits the exercise of federal consideration of both constitutional and jurisdiction” where a claim falls prudential principles. Elk Grove Unified protected by outside “the zone of interest Newdow, 1, 11-12, Dist. v. 542 U.S. Sch. Allen, 751, the law invoked.” 468 U.S. at (2004). 2301, 124 159 L.Ed.2d 98 S.Ct. APA, III, 104 S.Ct. 3315.35 Title minimum of The irreducible constitutional separately, FISA are each addressed fol- (1) requirements: standing contains three by a lowed consideration of cause of action (3) causation, fact, injury in re which, theorize, arises from Co., 102-03, dressability. 523 U.S. at Steel the interaction of Title III and FISA. prudential standing 1003. The 118 S.Ct. 1. Administrative Procedures Act “judicially self-imposed

doctrine embodies jurisdic limits on the exercise of federal Act Administrative Procedures 161, 154, Spear, tion.” Bennett v. 520 U.S. (“APA”), 101-913, §§ governs 5 U.S.C. (1997). 1154, 117 L.Ed.2d S.Ct. 281 agencies, conduct of federal administrative NSA, prudential principles Because these which presumably includes the See 5 701(b)(1). they provides § do them- The APA standing, “limits” on not U.S.C. by proposition protected complainant argu- that Con- to be 34. Raines for the stands directly ably gress protect- a cannot enact statute that within zone interest be grants standing plaintiff regulated by a otherwise ed who or statute or constitution- satisfy requirements. guarantee question.” does not the Article III al Data Ass'n of Congress Processing Orgs., Camp, But Raines does not indicate that Serv. Inc. v. 397 U.S. 827, provide standing indirectly enact- cannot 90 S.Ct. 25 L.Ed.2d 184 interest, legal (1970). a statute that creates a new Although original formulation standing.” “the invasion of which will confer may implied that the test be zone-of-interest Simon, 22, See 426 U.S. at 41 n. 96 S.Ct. establishing standing, the Su- means of Analysis plaintiffs' statutory 1917. preme made it clear that the Court has since requires claims thus a detailed consideration prudential limita- zone-of-interest test is issue, of the statute at to discern whether tion, establishing not an affirmative means of statutory Congress right 751, or Allen, "create[d] enti- standing. See 468 U.S. at alleged deprivation tlement the of which can 3315; Valley Forge, S.Ct. 454 U.S. at Warth, standing confer to sue.” See 422 U.S. has distin- 102 S.Ct. 752. The Court also 514, Thus, my opinion, 95 S.Ct. 2197. guished in which the zone- various instances the mere fact that these cannot show applies. brought under of-interest test Suits subject were to surveillance under the prevalent cases em- the APA are the most test, TSP—while sufficient to demonstrate lack of ploying Camp, U.S. at see standing for their constitutional claims—does and in those cases the zone bringing them from their statu- not foreclose "generous is broader because of the interest tory APA, claims. Assessment of whether provisions” in the review enumerated standing litigate Bennett, their statu- tory requires analysis claims more—an of the among gen- The test also has been listed rights protected and interests therein. erally applicable prudential limitations Allen, standing, 468 U.S. at see interest, de- Supreme where the zone of 35. The Court first announced the issue, involving pending upon the statute at is often zone-of-interest test in a case APA, Bennett, APA, stating question narrower than under the see "[t]he sought ... ... 520 U.S. at 117 S.Ct. 1154. concerns whether interest 551(4), (6), (8), §§ wrong (quoting be- Id. 5 U.S.C. suffering legal person that “[a] added). action, (11)) adversely (10), (emphasis The second any agency cause of by such action with- aggrieved part “agency action” definition— affected statute, meaning of relevant in the thereof’ —must equivalent “the or denial judicial review thereof.” shall be entitled action or the denial of a be a discrete added). (emphasis § 5 U.S.C. action, it discrete otherwise would judicial “\_a\gen- APA authorizes review for equivalent categories. to the five listed cy made renewable statute action part Id. And the final of the definition—a no agency action for which there is “properly “failure to act”—is understood final remedy in a adequate court.” other an agency as a failure to take action.” Id. added).36 Thus, § (emphasis U.S.C. Supreme precedent, Under Court classic APA, the bring a cause of action under the examples “agency of action” include the foremost, first and must com- plaintiffs, Bennett, agency opinion, of an see issuance “agency of action.” plain 157,117 S.Ct. or a declar- APA “Agency atory ruling, action” is defined in the see Nat’l Cable & Telecomms. rule, Servs., an part agency as “the whole or of Ass’n v. Brand X Internet 545 U.S. sanction, relief, order, license, or 967, 977-78, L.Ed.2d thereof, equivalent or denial or failure to (2005).

with a list of five is divided into three made or outcomes tion[, marks derness act.” 5 agency agency All of statement of ... scribed, or definitions make clear: implement, interpret, policy’ or] 159 L.Ed.2d 137 omitted). — Alliance, U.S.C. those relief.” Norton v. Utah Wil- discrete (rule); categories § rule, order, license, 542 U.S. 551(13). agency categories future effect ^[2] implemented by parts “begin[ning] ‘a final actions, or involve 55, 62,124 ^[1] This definition prescribe S. of decisions ‘an disposition (quotation designed circum- as their agency sanc- law with thermore, the invocation of the finding. conduct. generalized ply This is communications, the NSA’s failure to com not NSA’s warrantless and the fined no evidence that would complaining with FISA’s warrant FISA’s conduct, NSA’s Here, however, there APA, presumed minimization not plaintiffs challenge of and the record contains no interception “agency “agency authority APA failure to support action” as de requirements, action.” Fur plaintiffs procedures. of overseas challenge support such a comply are Looking categories” at the “five of enu- ... making’ a matter other than rule (order); ^[3] a ‘permit ... or other form merated “agency action,” the NSA’s sur- of permission’ (license); ^[4] a ‘prohibi- veillance activities, as described by record, constitute, three facts of do not nor ... taking compulsory tion or other [of] to, any pursuant agen- conducted (sanction); or restrictive action’ or [5] rule, order, license, cy sanction, or relief. assistance, license, ‘grant money, au- Although plaintiffs labeled the NSA’s etc., claim, thority,’ ‘recognition or Program,” surveillance activities as “the right, etc., immunity,’ ‘taking or of other “TSP,” of, and the district court labeled it the application petition action on the to, (relief). person’ wiretapping actually just gen- and beneficial the NSA’s Admittedly, seeking money provision is con- in actions relief other than seldom Church, present viewpoint, sidered Presbyterian from the and is damages. See 870 F.2d by generally merely the considered as means at 524. Congress sovereign immunity waived actions, procedures purposes agency those are re- given a label for eral conduct considerations, plaintiffs discretionary do plete reference. with see abbreviated order, 1801(h), rule or any § NSA complain disqualifying not thus U.S.C. generalized practice, merely the but agency them from this definition of action far has been admitted which—so under the APA. formally pur- enacted not disclosed—was No matter how the claims are APA, but to the strictures suant characterized, they challenge agen- do not (albeit authorized the President

merely cy action as it is defined in the APA. informally). Nor repeatedly, possibly Accordingly, have not assert- license, any challenge do the ed a viable cause of action under sanction, by the NSA. or relief issued APA.37 complain any- do action, which agency thing equivalent 2. Title III failed When 2373. The practice programmatic rial or invalidate perform, the NSA. See also communications without discrete on the compel sort requires 124 S.Ct. 2373 part challenging non-discretionary act.” agency perform of have not Norton, or alter the NSA’s “circumscribed, of wiretapping APA agency some attack”). action a discrete NSA, “empowers an discrete action are not (“[t]he precludes agency’s perform a ministe- but warrants. See id. certain overseas discrete” Similarly, agency are limitation to a court generalized challenging seeking failure to the NSA [a] Id. The action. action broad is whether and Safe Streets Act of 1968 ed States limitations: and electronic communications. See Unit- U.S.C. surveillance 18 U.S.C. Title III of the Omnibus Crime Control Title Nothing contained ^[1] Government government’s TSP, considering § III) 2516. The first relevant acquisition by the United States §§ Title III ] Ojeda conducted ... of 109 L.Ed.2d shall be deemed to affect foreign intelligence interception of Rios, applies in generally regulates Title Ill’s by 495 this [statute (“Title III”), NSA wire, oral, (1990); 257, 259, question express type under infor- (i.e., of foreign mation from international or ad- plaintiffs contest the NSA’s failure to here FISA’s warrant requirement and communications, or ^[2] foreign intelli- in gence activities conducted accordance assuming, Even procedures. minimization law applicable with otherwise Federal requirement the warrant arguendo, foreign minimization electronic communi- procedures involving are discrete by rights noteworthy plaintiffs' action must be one which or obli- It is that the APA determined, gations have been or from which claim fails for an additional reason. To the legal consequences plaintiffs rely provision will flow.” Id. at on the APA extent omitted). (quotation allowing judicial agency ac- 117 S.Ct. 1154 marks review for “final activities do adequate Because the NSA's surveillance tion for which there is no other action,” court,” (em- analysis "agency remedy § 704 not constitute in a See 5 U.S.C. added), agency they final action is phasis whether must demonstrate gener- It alleged agency strained and awkward. nevertheless action is "final.” "As matter, wiretapping the NSA's does not be satisfied clear that al two conditions must for " Bennett, agency any sort of decisionmak- agency consummate action to be 'final.' "First, purport ing process nor does it to determine U.S. at S.Ct. 1154. the ac- rights obligations this of others. For mark tion must the 'consummation' reason, assert agency’s decisionmaking additional cannot process.” Id. at second, judicial the APA. a claim review under 117 S.Ct. 1154. "And shall “procedures III] [FISA] a means other system, utilizing [Title cations which electronic surveillance as defined be the exclusive means than electronic Intelligence Foreign surveillance, 101 of 101 of as defined section section proce- and [3] Act of interception Surveillance and the of domestic [FISA] III) (i.e., Title ... oral, ] wire, [statute dures this and electronic communications Intelligence Foreign Surveil- may be conducted.”38 of 1978 shall be the exclusive lance Act 2511(2)(f)— § The first clause of surveillance, electronic means which stating govern that Title III does not Act, section 101 of such as defined in intelligence informa acquisition “foreign wire, of domestic interception and the foreign from international or commu tion oral, may electronic communications expressly application disclaims nications” — conducted. Title III to surveillance activities of the 2511(2)(f). § When this statuto- 18 U.S.C. type at issue in the case. The into its three individ- ry language parsed A communica NS monitors international clauses, limitations become clear. ual its purpose acquiring foreign tions for the III applica- disclaims Title The first clause intelligence organizations; about terrorist bility generally acknowledging Title — type squarely of surveillance falls un acquisition by III not to “the apply does found in the first clause der disclaimer foreign States Government United 2511(2)(f). terms, then, By § its own from international intelligence information apply Title III to the conduct of does The second foreign communications.” complain.39 the plaintiffs United Cf. applicability spe- Title III clause disclaims (Keith), States v. U.S. Dist. Ct. that Title III does cifically recognizing — L.Ed.2d govern “foreign intelligence not activities (1972) inescap “the conclusion (finding in with otherwise conducted accordance able,” pre-FISA as to the version of Title involving foreign a applicable Federal law III, only “that intended to make Congress system, utilizing electronic communications did not simply legis clear that [Title III] than electronic a means other surveillance security respect late with to national sur clause, in The final as defined [FISA].” veillances”). “exclusivity provi- which is known as the 2511(2)(f) sion,” § Because the clause of respective first recognizes roles FISA, by stating expressly application III and disclaims Title Ill’s Title 2511(5)). § plaintiffs 38. third clause is discussed in further Because the are not This IV.B.4, infra, titled "The representatives detail in Section of or otherwise with affiliated Exclusivity Provision." government, pro- the federal neither of these permits injunctive visions relief in this case. assuming, arguendo, Even that Title III provision "any Another Title III authorizes internationally applies to the NSA's focused wire, oral, person whose or electronic com- activities, surveillance cannot disclosed, intercepted, munication is or inten- brought maintain the action for relief in this tionally [Title III]” used in violation of prescribes equitable in case. Title III relief ‘ declaratory equitable recover relief from instances, applies none of which few States, "person entity, other than the United provisions here. III authorize Two Title engaged violation.” U.S.C. in that injunctive brought by relief for claims 2520(a) added). (emphasis provision § This See, ("the § government. e.g., 18 U.S.C. 2521 help does not because under may Attorney initiate a civil action General declaratory provisions in- these neither nor III); enjoin” ... a violation of Title junctive against l(5)(a)(ii)(A) ("the relief is available the United § Federal Government injunctive States and the cannot appropriate entitled to re- shall be prove interception. “person” lief” violates 18 U.S.C. when case, unnecessary to this it is 2511(2)(f) construe Because the § first clause of But, the second and third clauses. it is states that III Title does not apply to the acknowledging worth that these two claus- internationally focused surveillance activi- raise complex legal es issues which cannot challenged case, ties in this present be resolved on the record. The have not asserted a viable cause of action explains second clause that Title III does under Title III. apply if four factors are all satisfied:

(1) engaged the defendant is in “foreign 3. FISA (2) activities”; intelligence the defendant is The Foreign Intelligence Surveillance acting “in accordance appli- with otherwise (“FISA”), Act of 1978 § 50 U.S.C. 1801 et (3) law”; cable Federal the defendant’s seq., separate and distinct counter- —as “foreign surveillance involves a electronic part to governs Title interception III — system”; communications the de- of electronic involving communications for- fendant utilizes “a means other than elec- eign intelligence information. See 50 tronic surveillance” as defined FISA. 1802(a)(1). § U.S.C. FISA is fraught with These factors raise a host of intricate is- statutory detailed definitions and is ex- sues, such as whether the wiretap- NSA’s limited, pressly terms, its own to situa- ping actually involves “electronic surveil- tions in which the President has authorized FISA, lance” as defined in and whether surveillance,” “electronic as defined in 50 acting NSA accordance with fed- 1801(f), § U.S.C. purposes of ac- law, eral such as the Authorization for Use quiring “foreign intelligence information,” (“AUMF”), Military Force Pub.L. 107- 1801(e). § defined 50 U.S.C. (2001). 2,§ 115 Stat. Some of First, the in question surveillance sophisticated these issues involve must legal acquire “foreign intelligence information,” questions or complex questions. factual But, resolving which includes unnecessary these issues is “information that relates to 2511(2)(f) § because the first ... ability clause of con- the United States to clusively protect disclaims Title Ill’s application. against ... international terror- 1801(e)(1)(B). § ism.” 50 U.S.C. In the It is likewise unnecessary, point, at this case, intercepts NSA commu- to delve into by the numerous issues raised nications in which it has a “reasonable clause, i.e., the third the exclusivity provi- basis to conclude party that one to the exclusivity sion. The provision differs Qaeda, communication is a member of al 2511(2)(f), from § the first two clauses Qaeda, affiliated with al or a member of an merely in that it does not disclaim Title organization Qaeda, affiliated with al or Instead, application. Ill’s it states that working in support Qaeda.” of al See III Title shall FISA be the “exclusive Briefing by Press Att’y Gen. Aberto Gon- by means” which particular types of sur- zales and Hayden, Principal Gen. Michael occur, may veillance prescribing thus (Dec. Deputy Dir. Intelligence for Nat’l separate FISA, roles of Title III and rath- 2005), http://www.whitehouse. available at application er than the of Title III alone. statutory gov/news/releases/2005/12/print/20051219- assert a cause of (last 2007) l.html July (emphasis action for the NSA’s visited violation of added). exclusivity provision, proclaimed purpose pre- which I is to address separately IV.B.4, is, attacks, vent Section It future terrorist see id. infra. therefore, (“This unnecessary concentrated, very very dissect the ex- is a limited clusivity provision point at this in the program gaining anal- focused at information ysis. enemy.”), about our and thus the NSA’s satisfy that the sort of conduct would statutory require- satisfies

conduct definition of “electronic surveil- FISA’s ment. lance,” record does not Next, interception must occur demonstrate that the NSA’s conduct falls According to surveillance.” by “electronic within FISA’s definitions. government’s admission plaintiffs, Finally, arguendo, assuming, even intercepts telephone and email it applies that FISA to the NSA’s warrant- involve electronic communications—which wiretapping, cannot sus less considered, generally and are media a claim under civil suit tain FISA. FISA’s forms of electronic parlance, common person” an provision permits “aggrieved tantamount to admit communications—is action for a violation of bring cause of in “electronic engaged NSA ting that statute: purposes of FISA. This for surveillance” An than a for- aggrieved person, other upon recognition fails argument eign power agent foreign or an of a very par surveillance” has “electronic power, as defined U.S.C. ticular, meaning [50 under FISA —a detailed 1801(a) (b)(1)(A)], respectively, § con or requires careful legal definition subjected who has been to an electronic numerous factors such as sideration of or whom information surveillance about acquired, communications types by obtained electronic surveillance acquired parties location of the person such has been disclosed or used communications, the location where the § in violation of shall occurred, [50 1809] U.S.C. any the location of acquisition any per- against have a cause of action device, surveillance, and the reasonable son who committed such violation and expectation privacy. parties’ ness of the shall be entitled to 1801(f).40 recover— § See U.S.C. (a) show, shown, than damages, and cannot actual but not less 1,000 liquidated damages include surveillance activities $ $ NSA’s (3) acquisition by an elec- "electronic surveillance” in the intentional 40. FISA defines tronic, mechanical, or other surveillance exactly ways: four any device of the contents of radio commu- electronic, by acquisition me- nication, under circumstances in which a chanical, device of the or other surveillance person expectation pri- has a reasonable contents of wire or radio communica- vacy required and a warrant would be tion sent or intended to be received purposes, if law enforcement both person particular, known United States recipients and all sender intended are locat- States, if the contents who is in the United States; ed within the United acquired by intentionally targeting electronic, (4) the installation or use of an person, States under circumstances United mechanical, or other surveillance device in person expecta- has a reasonable in which monitoring acquire the United States for privacy and a warrant would be tion of information, ra- other than from wire or purposes; required enforcement for law communication, dio under circumstances electronic, (2) acquisition by an me- person expecta- which has a reasonable chanical, device or other surveillance privacy tion of and a warrant would be any contents of wire communication to or required purposes. for law enforcement States, person record, 1801(f). from a in the United without § present 50 U.S.C. The thereto, any TSP, party if such regarding consent of which contains three facts States, acquisition occurs in the United but intercep- offers no indication as to where the acquisition may any does not include the of those tion occur or where surveillance computer trespassers any communications of device is located. Nor does it offer basis permissible particular people that would be under section that located in to conclude Code; (2)(i) being targeted. of title United States the United States are characterized, violation, plaintiffs have not day of which- as- day for each per greater; ever is serted a viable FISA cause of action. (b) and punitive damages; Exclusivity 4. The Provision (c) attorney’s fees and other reasonable plaintiffs attempt bring an am- litigation and costs reason- investigation biguous statutory cause of action under ably incurred. jointly, Title III and FISA on their based added). § (emphasis 50 U.S.C. allegation that the violates the “exclu- TSP why the are at least three reasons There 2511(2)(f). sivity §of provision” The ex- un- maintain their claims plaintiffs cannot clusivity that III provision states Title First, statutory FISA’s authorization. der by FISA “shall be the exclusive means alleged, have not surveillance, which electronic as defined in facts record does not contain sufficient [FISA], interception section 101 of and the conclude, they “ag- are from which oral, wire, of domestic and electronic com- “ag- grieved persons.” FISA defines may be conducted.” munications person as “a who is the grieved person” 2511(2)(f). § provision U.S.C. This con- target of an electronic surveillance separate independent, tains two albeit ac- whose communications or person other (1) Title III parallel, statements: “shall be subject to surveil- tivities were electronic ... in- the exclusive means (k). § term lance.” 50 U.S.C. “[T]he wire, oral, terception of domestic and elec- person] is intended to be coex- [aggrieved conducted,” may tronic communications be than, [with], no broader those tensive but FISA “shall be the exclusive means have to raise claims persons who surveillance, as defined which electronic Amendment with re- under the Fourth may ... con- section 101 of [FISA] spect electronic surveillance.” provision ducted.” This does not foreclose (1978), re- H.R.Rep. No. at 66 may possibility (citing printed at 1978 U.S.C.C.A.N. States, 165, engage in certain surveillance activities Alderman v. United (1969)) (Re- 961, 22 of the strictures of both L.Ed.2d 176 are outside port by the Permanent Select Committee Title III and FISA. proposed Intelligence, support a viable cannot assert amendments). plain- bill and FISA provision. It is cause of action under this actual- they have not shown that were

tiffs intercepts that the inter- undisputed NSA of, to, subject ly target the NSA’s domestic, national, rather than communica- surveillance; the same reason thus —for tions, so, III already explained, as Title maintain their Fourth they could not Moreover, apply. not because the does they Amendment cannot establish claim— shown, not and cannot plaintiffs have persons” under “aggrieved show, engages in activities NSA Second, statutory pre- scheme. FISA’s of “elec- satisfying statutory definition discussed, viously surveillance,” cannot tronic wiretapping that the NSA’s demonstrated apply. does Con- demonstrate FISA of “elec- statutory satisfies the definition inappli- sequently, provision this entire surveillance,” required tronic which is also circumstances. cable Third, liability provision. FISA by FISA’s however, read this plaintiffs, declaratory or in- does not authorize the Title III and stating that provision junctive sought by plaintiffs, relief but together the “exclusive means” FISA only recovery money of allows for the any com- intercept can these claims are which the NSA damages. No matter how all munieation, types foreign that these two statutes FISA does not cover (i.e., every interception surveillance, collectively govern very partic- but instead has a III, if Title if then Title not not FISA plaintiffs ular and detailed definition. The op- are no other III FISA, III, then FISA —there in point provision to no Title or tions). plaintiffs Specifically, contend any other that that the statute states four any lawfully cannot conduct that the NSA definitions “electronic surveillance” listed otherwise) (under the wiretapping TSP in FISA are the kind of “electronic in a manner that is outside both the Title surveillance” that could ever be conducted. frameworks; III and the FISA NSA’s “exclusivity provi- And the fact that governance fall within the conduct must expressly sion” is limited to electronic sur- statute or the other. Based on this one veillance “as defined section 101 of they reading, plaintiffs believe leaves room to infer that other [FISA]” specific applica- need not demonstrate possible. electronic surveillance is There- is, bility statute —that need of either fore, plaintiffs prove cannot that FISA not either that the NSA is demonstrate applies. importantly, inability More this surveillance,” in or- engaging “electronic prove interceptions that the are “elec- FISA,41 place der to it under not, plain- tronic surveillance” does as the surveillance, in domestic engaging NSA is theorize, inescapable tiffs lead to an con- it under III. place order to Title III applies. simply clusion Title It theory premised on the apply. means that FISA does not theOn III, assertion that FISA and Title collec- hand, other it is irrefutable under the first tively, require legal warrants for the in- 2511(2)(f) § clause of that Title III does communications, all terception of apply to this case because the NSA’s appears to be that because the NSA wiretapping activities are focused on inter- publicly intercepting admitted to cer- national, domestic, rather than communi- tain communications without overseas To cations. read this entire statute in the warrants, one must infer that the NSA way that plaintiffs suggest is to create has violated one or other of these two contradiction, an internal which courts are consequence statutes. The of this infer- Rather, loath to do. the unavailability of plaintiffs ence—the would have us find— (or necessary the evidence to prove dis- 2511(2)(f), § is a violation of which is not prove) that the engaging NSA “elec- a violation of either Title III or in- FISA tronic compels surveillance” a conclusion dividually, instead a but violation of the cannot demonstrate that Thus, application collective of the two. applies. either statute according plaintiffs, the NSA has “exclusivity provision” assuming, arguendo, violated the But even 2511(2)(f), § (presumed) and based on posited proper reading have violation, exclusivity provision, and that bring a cause of action under this statuto- wiretapping NSA’s warrantless violates ry provision. that provision, “the fact that a federal statute has person been violated and some “logic” intended inferential automatically give harmed does not rise to plaintiffs’ theory apart upon recogni- falls private cause of action in faulty premise. previously tion of their As favor of explained, “electronic surveillance” person.” Chicago, under Cannon v. Univ. of This, course, contend, begs question why a demonstration that the Congress interception would define "electronic surveil- is "electronic surveillance” is explicit ways if, unnecessary. lance”—in four as the — 732, asserted plaintiffs 1361. The 1946, L.Ed.2d 92 S.Ct. 688, 677, APA, III, a (1979). statutory whether Title three bases—the question of action a cause three stat- creates none of these implicitly and FISA —and statute statutory con- matter of basically utes, collectively, individually provides “is Advisors, Mortgage Transam. struction.” action that implied cause of express Lewis, 100 S.Ct. 444 U.S. v. Inc. plaintiffs claims. “authorizes review” (1979). “The ultimate 242, 62 L.Ed.2d Therefore, cannot id. See intent, not congressional is one of question standing litigate their statuto- establish it thinks that this [e]ourt whether one of claims, un- explanation further is ry statutory scheme improve upon can have, however, necessary. Touche into law.” Congress enacted arguments other that war- raised certain 442 U.S. Redington, Ross & Co. rant mention. (1979). L.Ed.2d 82 ap- not Additional Considerations exclusivity provision does C. implied cause of such an to create pear methodically through Having proceeded implies a court In cases where action. plain- I standing analysis, address at action, question in “the statute cause of only remaining arguments, which tiffs’ cre- conduct or certain' prohibit[s] least compartmental- under a defy classification private in favor of rights federal ate[s] these the first of approach. ized Under 2479. This at Id. parties.” plaintiffs rely heavily arguments, however, does not “exclusivity provision,” decision Friends Supreme Court’s unlawful or confer conduct as proscribe Earth, Environmental Inc. v. Laidlaw Moreover, the private parties. rights on Services, Inc., 167, 120 S.Ct. 528 U.S. III —the statute which of Title structure (2000), support for L.Ed.2d 610 sug- exclusivity provision is found — injury in fact. In Laid- allegation of to cre- did not intend Congress gests law, considered whether the Court III action. Title cause of private ate a standing bring III had Article the “remedies states expressly provision the citizen-suit a claim under ... are chapter in this sanctions described 1365(a). Act, § 33 U.S.C. Water Clean and sanctions only judicial remedies Therefore, immediately distin- is Laidlaw of [Title violations for nonconstitutional to the constitutional regard with guishable 2518(10)(c). Thus, § Title 18 U.S.C. III].” Club, 405 U.S. claims. See Sierra reme- only explicitly III lists the available in the (noting the difference 92 S.Ct. 1361 statutory relief. Be- means of dies and analysis, as between constitution- standing it unreasonable to assume cause is claims). is to statutory If Laidlaw al and (i.e., silently) intended implicitly Congress all, it any support at offer the statutory relief a third avenue of to create claims. statutory respect with to their (in exclusivity addition provision with of action contained express causes involving particular is a case Laidlaw themselves), provi- Title III and FISA environ- statutory claims and well-defined for a cause provide basis sion does however, sig- and differs injuries, mental of action. context, which nificantly from statutory dramatically different involves claims, “the considering statutory

When inju- palpable and far less claims begin must with as to inquiry sense, noteworthy that it In this ries. the statute of whether determination confined its explicitly the Laidlaw Court at the behest question authorizes review to environmental Club, reasoning injury-in-fact plaintiff.” Sierra 686

cases, plaintiffs jective apprehensions’ that stating: “environmental such a recur in allege injury they place fact when rence would even take were not adequately Laidlaw, enough support the affected area and to standing.” aver that use 184, at (quoting for whom the aesthetic and 528 U.S. 120 S.Ct. 693 persons 8, Lyons, values of the area will be less- 461 U.S. at 108 n. recreational S.Ct. 1660). contrast, challenged activity.” In ened Laid- the Laidlaw Court law, 183, concrete, (quota- 528 U.S. at 120 S.Ct. 693 found a actual based on added). omitted; emphasis plaintiffs’ showing tion marks that the defendant’s injuries in discharge pollutants par Because the and claims Laidlaw unlawful into a significant way in a al- ongoing may differ from those ticular river was reason case, plaintiffs ably nearby in leged by present have caused residents to cur only minimal tail support waterway. Laidlaw offers for their use of that The facts plaintiffs’ position. of the present analogous case are more to Lyons than Laidlaw. Unlike the Setting fact aside the that Laidlaw is Laidlaw, present plaintiffs in cur have involving particular, environmental case despite tailed communications the ab .their statutorily-created claim, the Court’s anal any government sence of evidence that the ysis unpersuasive in Laidlaw remains intercepted particular their communi present context. The Laidlaw Court Laidlaw, by analogy cations—or with standing found that the had any out evidence that the defendant has challenge discharge pollutants Laidlaw’s Rather, polluted particular river. discharge into river because the “cur Lyons, present like the their recreational use of that wa tail[ed] plaintiffs claim a threat from the govern terway subject and would them to other policy ment’s and are chilled their sub economic and harms.” aesthetic Id. jective apprehension that the standing analy 120 S.Ct. 693. In its intercepting their communications. This sis, distinguished City the Court Los conclusion is therefore consistent with the 95,107 7,103 Angeles Lyons, n. holding reasoning of Laidlaw.42 (1983), S.Ct. 75 L.Ed.2d 675 had held that a plaintiff standing lacked assertion that numerous injunction against seek an the enforcement other district courts standing have found of a choke-hold police policy challenge because he the TSP is unpersuasive. also credibly could not allege that he faced a Other cases involving non-similarly situat- realistic threat from policy. ed are typically irrelevant to the “ Lyons Court had noted that standing rea issue of because ‘[t]he reflects Lyons’ dependent particular sonableness fear is whether “a person proper is a upon Flast, the likelihood of a party recurrence of the to maintain the action.” conduct,’ allegedly 1942; Raines, unlawful and his ‘sub U.S. at see also assuming, arguendo, 42. Even penalties sought by that Laidlaw as- mined that “the civil [the establishing cognizable plaintiffs] sists and concrete carried with them a deterrent effect injury, likely, merely the obstacles to opposed causation redress- that made it as ability present speculative, penalties here were absent there. More- would redress over, redressability analysis plaintiffs’] injuries by abating Laidlaw’s is en- [the current vio- tirely inapplicable present preventing to the case. The lations and future ones.” Id. at redressability analysis analysis, in Laidlaw considered 120 S.Ct. 693. This as to penalties paid govern- damages, whether civil deterrent effect of civil does not ment, case, plaintiffs, apply rather than the could redress which does not Laidlaw, plaintiffs’ alleged injuries. damages involve claims for but injunctive declaratory U.S. at 120 S.Ct. 693. The Court deter- relief. record, (“We in the Based on evidence plaintiffs analysis, a com none of consistently foregoing that in the applied stressed a ‘person that he has must establish plaint present is able to plaintiffs the the case and that alleged dispute, in the al stake’ any the standing establish for asserted injury particular suffered argument, At oral we asked the claims. him.”). event, the exist In ized as to we remand for plaintiffs’ counsel if should regarding this court decisions ing district on the of stand- proceedings further issue from wholly picture different reveal TSP ing. plaintiffs’ Counsel asserted that the Neither plaintiffs. presented undisputed clear and in the injuries were courts to address claims the two district no need to remand record and there was of the TSP operation the NSA’s against hearing for a or admission of additional standing. had plaintiffs their found But even to the evidence on this issue. Foundation, Islamic In Alr-Hammain exist, may evidence extent that additional Bush, 1215, 1226 F.Supp.2d Inc. v. one or might standing establish case, (D.Or.2006), present unlike the more of plaintiffs more of the on one or prov to have evidence plaintiffs purported claims, discovery of such evidence their had own communications ing that would, under the circumstances of this part Based in actually intercepted. been case, by the State Secrets prevented evidence, found the district court on that See, Reynolds, 345 U.S. at e.g., Doctrine. opportu have an “plaintiffs should Tenenbaum, 528; 372 F.3d standing pri and make nity to establish Helms, 977, 777; Halkin v. 690 F.2d case, they must do so in even if ma facie (D.C.Cir.1982). not, however, court did Id. The camera.” standing issue at definitively decide the V. Tooley In v. proceeding. its stage

Bush, 06-306, 2006 Dist. Lexis No. U.S. the data The district court dismissed (D.D.C. 3783142, at *24 2006 WL claim, plaintiffs’ find- mining aspect of the Dec.21, 2006), court found that the district could not establish plaintiffs that the standing because he lacked plaintiff resorting privi- case without prima facie “any factual basis for his provide did NSA, v. leged information. ACLU subject that he been ha[d] conclusion plaintiffs press F.Supp.2d at 765. chal wiretaps.” Two other cases illegal cross-appeal. as a issue provider’s a telecommunications lenged NSA’s) (rather participation than the the com thorough A review of Corp., T In Terkel v. AT & the TSP. opinion, and the court plaint, district (N.D.Ill.2006), F.Supp.2d 919-20 it appeal, makes presented arguments were court found that district allege separate no that the clear standing against AT & to establish unable alleged data- with the injury in connection that AT & they could not show T because Therefore, this the TSP. mining aspect of gov their records to T had disclosed equally, and standing analysis applies Corp., AT T Hepting In v. & ernment. be dismissed cross-appeal must plaintiffs’ (N.D.Cal. F.Supp.2d 999-1000 Co., 523 jurisdiction. See Steel for lack of 2006), court found the district 109-10,118 S.Ct. 1003. T, AT & but standing against had ac government’s refused to consider VI. inquiry. Consequent tions in its do not holdWe support no for the ly, provide these cases in federal their claims standing to assert case. position plaintiffs’ Accordingly, (1975); Littleton, we VACATE the or- court. L.Ed.2d 343 O’Shea 493 n. the district court and REMAND der of (1974). L.Ed.2d 674 The Constitution “re- to the district court with this case instruc- quires party who invokes the court’s jurisdiction. lack tions to DISMISS for

authority to show that personally he GIBBONS, SMITH Circuit suffered some actual JULIA or threatened as a result of Judge, concurring. putatively illegal conduct Valley Forge defendant.” Christian disposition of all of the Coll. v. Ams. Separation United for depends upon single claims fact that State, Inc., 464, 472, Church & 454 U.S. provide have failed to evi- (1982) 752, 102 S.Ct. 70 L.Ed.2d 700 (quo- they personally subject dence that to omitted) added). tation marks (emphasis evidence, the TSP. Without this on a mo- personal injury This must be “an invasion summary tion for judgment, (a) legally protected of a interest which is standing any cannot establish of their (b) particularized concrete and and actual claims, constitutional statutory.1 For imminent, conjectural hypothet- reason, I myriad do not reach the ical.” Wildlife, 504 U.S. at Defenders of issues, standing other and merits the com- 560, (citations 112 S.Ct. 2130 quotation plexity ably which is demonstrated omitted); marks see also Friends Judge Judge Batchelder’s and Gilman’s Earth, Inc. v. Laidlaw Envtl. Servs. very thoughtful opinions, I therefore (TOC), Inc., 167, 181, 528 U.S. 120 S.Ct. judgment only. concur 693, 145 L.Ed.2d 610 (noting that The case or controversy requirement in the relevant showing injury is the to the III Article of the Constitution determines environment). plaintiff, not the In order power of the federal courts to enter- plaintiff for a to show that the from suit, tain a establishing an “irreducible a government policy is actual and immi- constitutional standing” minimum of that is nent, plaintiff must demonstrate that he required for both constitutional and statu- personally subject would be to the future tory Lujan claims. See v. application policy. of that City Los Defenders of Wildlife, 2130, 504 U.S. 112 S.Ct. Angeles 95,106 7,103 v. Lyons, 461 U.S. n. (1992); Seldin, 119 L.Ed.2d 351 1660, Warth v. (1983); S.Ct. 75 L.Ed.2d 675 see 490, 498, 2197, Laidlaw, 184, 693; 528 U.S. at 120 S.Ct. Although Judge 1. clearly disagrees Batchelder respect first with to all the claims. See Steel depth about required, of treatment at least Env’t, 83, Co. v. a Better 523 U.S. Citizens for respect with to the constitutional 89, 92-93, 1003, 118 S.Ct. 140 L.Ed.2d 210 claim, appears claims and agree FISA she (1998) (warning that a court must determine plaintiffs' that the failure to demonstrate that standing addressing constitutional before subject have been to the TSP is fatal to action’’); “existence of a cause of see also (See standing. their constitutional Batchelder Morton, 727, Sierra Club 405 U.S. 732 & n. Op. (discussing 658-59 general- all the claims (1972) (not- 92 S.Ct. 31 L.Ed.2d 636 ly specifically); FISA id. at inquiry as to "whether the statute (First Amendment); (Fourth id. at 673 question authorizes review at the behest of Amendment); (Separation id. at 674 of Pow- plaintiff” dispute occurs where a is “oth- ers).) differ, however, mayWe respect with justiciable” erwise juris- because Article III plaintiffs' to the statutory other be- claims present). my diction is Because in view the Judge cause Batchelder determines that the standing have no constitutional apply reaching statutes do not without claims, unnecessary raise of their I find it standing. issue of My reading constitutional Supreme precedent applicability suggests Court discuss the of the other that we stat- must standing reach the constitutional issue utes. policy was insufficient Scherer, n. the chokehold 468 U.S. Davis v. (1984). Supreme A standing. L.Ed.2d 139 Court support 104 S.Ct. subject to the pres- that he will was explained fear further insufficient; reality is the contrast, “[i]t policy “in it is ent in Laidlaw because injury that is rele- repeated the threat of that Laidlaw’s unlawful con- undisputed plain- standing inquiry, not vant [T]hen, occurring.... ... was duct Lyons, subjective apprehensions.”2 tiffs only ‘subjective’ issue here is ‘the reason- 1660; 8,n. see at 107 461 U.S. of the fear’ that led the affiants ableness Laidlaw, concededly ongoing con- respond to that pollut- at the opinion by refraining arrives duct” from use Judge Gilman’s omitted). conclusion, exclusively (brackets relying opposite ed areas. Id. Laidlaw. It concludes reading of its that it differed from the dis- Court noted “ need not show attorney-plaintiffs seeing nothing ‘improbable’ about sent actual or will ever be they have ever been company’s continu- proposition that a but rather subjects of surveillance illegal discharges pol- pervasive ous and they that of their fear” “reasonableness nearby into a river would cause lutants (Gilman subjects be of surveillance. will recreational use to curtail their residents 704.) so, 697, Judge Gilman doing In Op. subject would them waterway of that Laidlaw, holding in under transforms and aesthetic harms.” to other economic sub- who were in plaintiffs which the fact Laidlaw, Thus, plaintiffs in Id. fear of had conduct ject to defendant’s undisputed the defendant’s harm from harm from reasonably feared they because undis- that would also conduct—conduct conduct, proposi- into a much broader that they if plaintiffs personally affect putably tion, plaintiffs may establish under which activities—was undertook their desired merely they pos- that standing by showing at standing. to Id. 184- support sufficient to being subject a reasonable sess fear of 85, summary, I read In 120 S.Ct. conduct. allegedly harmful defendant’s that demon- require plaintiffs Laidlaw to relevant is critical to “[t]he This distinction (1) subject in they that are fact strate III purposes of Article stand- showing for conduct, past in the defendant’s Laidlaw, plaintiff,” ... to the ing, future, at least a reasonable have 693, 181, as the at 528 U.S. harm from conduct. fear of distinguish- in made clear Supreme Court majority’s discussion The Laidlaw Laidlaw, the Lyons. In ing Laidlaio from about and its observations Lyons policy in Lyons, noted that Court exactly why plaintiffs explain Laidlaw existed, plaintiffs but the chokehold use “ plaintiff like the here are plaintiffs that such a re- ‘subjective apprehensions’ and unlike standing, lacked Lyons, who would unlawful conduct] currence [of Laidlaw, standing. Like who had those enough sup- place were not even take Lyons, in Laidlaw Laidlaw, 184, at standing.” port may have a case present in the being fear of 120 S.Ct. 693. the defen- of harm from reasonable fear the defendant under subject to conduct of plaintiff cannot establish which a plaintiff from one in say that a lacks stand- 2. This is not to merely subject policy but to the "genuine that he is has acted. A until a defendant may policy subject against he is policy fears that of a threat” of enforcement enforced, standing. support cannot demonstrably subject to that be plaintiff who is See, Presbyterian in the Church e.g., United standing. v. policy supports See Steffel Reagan, 738 F.2d U.S.A. Thompson, 415 U.S. (D.C.Cir.1984). (1974). that case differs But 39 L.Ed.2d 505 kind, id. at Lyons dants’ conduct. See 120 law and was one of not de- Laidlaw, (finding gree. .184, S.Ct. 693 fear of “eco- See 528 U.S. at “illegal nomic and aesthetic harms” from 693 (distinguishing between the “sub- jective discharges pollutants” “entirely apprehensions to be that such a recur- reasonable”); Lyons, 461 U.S. 103 rence would even place” Lyons take (describing “subjective S.Ct. 1660 the deaths of those and the issue [of] reason- chokeholds). subject who were But pollutants ableness of the fear” that would Lyons Laidlaw and differ in outcome cause “economic and aesthetic harms” in Laidlaw) (internal based on whether the have estab- quotation marks and omitted). they subject Here, lished that are in fact brackets attorney- Here, conduct of plaintiffs plaintiffs the defendants. lack standing they because being subject fear to a policy failed they evidence are of surveillance they subject and have personally to the warrantless sur- they is, and those with whom communicate policy; veillance attorney-plain- have ceased their normal communication. tiffs have failed to present evidence as to they whether, If continued instead their normal ac- government’s view, “there tivities, fearful, they would still be but grounds reasonable to believe that a actually whether subject would to party to the [attorney-plaintiffs’] communi- purely speculative. surveillance is They Qaeda.” is affiliated with al cation[s] Lyons plaintiff are like the who can show Judge attempts Gilman to distinguish nothing more than fear of the use of a Presbyterian United Church its facts Laidlaw, chokehold. See by confounding injuries the different al- “ (discussing ‘subjective S.Ct. 693 leged in that plaintiffs case. The in that apprehensions’ such a recurrence case inju- three different kinds of would even take in place” Lyons). By (1) ries: ‘chilling’ “the of constitutionally contrast, if plaintiffs the Laidlaw had re- protected activities,” Presbyterian United activities, sumed their they abandoned Church, (2) 1377; 738 F.2d at “the immedi- definitely would subject have been to the ate being targeted threat of for surveil- illegal discharges defendant’s conduct— lance,” id.; and injury direct from sur- into the river. See id. (contrasting Laid- them, veillance taken against id. at 1380 & “coneededly law’s ongoing conduct” of n. 2. plaintiffs As the in this case have no pervasive illegal “continuous and discharg- they evidence that subject have ever been pollutants es of into a ... nearby”). river TSP, to the Judge correctly Gilman distin- Judge attempt distinguish Gilman’s to guishes the D.C. reasoning Circuit’s on the Lyons (Gilman directly from the case at bar is (dis- third alleged injury. Op. 699 contrary Supreme to the Court’s own read- cussing injury” the “direct quoting ing of that case. It is immaterial part that the Church, United Presbyterian Lyons (“The likelihood that subject would be to F.2d at 1380-81 third kind of harm policy may chokehold be far more re- plaintiffs] allege [the ... generalized too mote than the likelihood attorney- nonspecific support to a complaint.... plaintiffs may subject in this case be allegation There is no suggestion or even (See warrantless policy. surveillance any Gil- unlawful action to which the 698-99.) Op. man As Laidlaw [plaintiffs] makes subjected have been past clear, plaintiff subject must be actually consequence was the presidential of the conduct, to the defendant’s not simply they action seek challenge.”)).) Judge to it, afraid being subject of regardless of ignores Gilman the D.C. Circuit’s reason- how reasonable that may fear be. The ing on the second alleged injury, for which Supreme Court’s distinction between Laid- it found that the plaintiffs lacked standing immediately in dan- by have or be made sustained distinction upon the same based as re- ger sustaining of direct The D.C. in Laidlaw. Court Supreme FBI investigation of the directed have sult” plaintiffs would noted that Circuit her, mail against which resulted from the “imme- subject standing they if were cover). concrete, action.” harmful of diate threat Church, F.2d at Presbyterian United any understanding of consti- In applying However, it concluded recog- standing, important tutional it is “their activities allegations proof required. “The nize burden likely to especially are are such invoking jurisdiction bears party federal authorized targets of the [surveillance] establishing elements” the[ ] the burden of support order” were insufficient by the Wildlife, 504 standing. Defenders of allegations those standing because 561, ele- “[E]ach S.Ct. 2130. greater risk” “place[d] the way in the same supported ment must be There subject to surveillance. Id. being plaintiff any other matter on which between factual difference no relevant i.e., with the proof, bears burden plaintiffs, Presbyterian Church United required at degree manner and of evidence conceded the D.C. Circuit whose activities litigation.” of the Id. stages the successive subject to likely to be more made them govern- this case was decided on As id., surveillance, attorney-plaintiffs and the summary judgment, the ment’s motion for “ex- case, representation whose in this by plaintiffs “must ‘set forth’ affidavit targeted by the of clients” actly types facts,’ ‘specific other evidence target- likely to be them more TSP makes summary judgment purposes of the motion (Gilman 700). TSP, Op. ed (quoting to be true.” Id. will be taken 56(e)). Applying my formula- Presbyte- Fed.R.Civ.P. United

Unlike ease, standing requirements, tion of the every case and this rian Church failed to meet this burden in which Judge Gilman cited in the record subject there is no evidence found, clearly because plaintiff was was personally which that the defendant about conduct fre- Judge Gilman subject v. TSP. See Meese the plaintiff complained. the 1862, attorney-plaintiffs’ 473, to the Keene, 465, quently refers 107 481 U.S. S.Ct. 700, 702), (Gilman 696, Op. and allegations, (noting that the 415 95 L.Ed.2d “attorney-plaintiffs the to show concludes that plaintiff sought the three films particularized ... concrete and alleged a[ ] “political propaganda”); were as identified 702). (Gilman (not- summary Op. On 459, injury,” 94 S.Ct. 1209 Steffel, 415 U.S. however, mere al- plaintiffs’ the judgment, prosecution fear of plaintiffs insufficient, although the and legations are he had been speculative because was not the about information prosecution); publicly admitted threatened with personally (Gilman 701), (1st it them, Op. 224, Berzak, “supports” TSP 744 F.2d 228 v. Ozonoff In plaintiffs’ the burden. Cir.1984) satisfy who has does (noting that one “[a]s standing formulation of the applying who his past in the for the WHO worked plain- the reasonableness again requirement, employment application an has filed fear, Judge Gilman concludes work,” con- tiffs’ plaintiff the felt seeking plaintiff standards); [the Patón likelihood by loyalty “[t]he the strained 870-71, again find himself in Prade, 862, 865, Lyons would ] 873 La 524 F.2d v. Angeles police (3d Cir.1975) by the Los seems name chokehold (noting that “Paton’s the ongoing remote than to me far more result were ascertained as address here that attorney-plaintiffs concern of the concluding the mail cover” email communications may telephone “she standing had because plaintiff (Gilman by intercepted Reynolds, be TSP.” 345 U.S. will 699.) Unfortunately (1953); for the Op. L.Ed. 727 Ellsberg see also v. Judge subjective Gilman’s position, Mitchell, (D.C.Cir.1983). besides 709 F.2d assessment, no there is evidence as to privilege prevents plaintiff Where the will surveilled plaintiffs likelihood the producing from sufficient evidence to es- summary to consider on for this court case, tablish his or her prima facie judgment. court must dismiss the claim. Kasza v. Browner, (9th 133 F.3d Cir. any understanding of constitu- Under 1998). way, In this privi- the state secrets standing, plaintiffs afe ultimate- tional lege prevented plaintiffs from con- establishing standing ly prevented from ducting discovery might allow them to privilege.3 because of the state secrets As they subject establish that personally are notes, Judge plaintiffs Batchelder have not TSP, to the as I believe constitutional challenged government’s invocation of However, standing requires. where the privilege application. or its All three privilege deprives government of a val- panel members of the have reviewed the claim, id plaintiffs defense to the government court documents filed under must also dismiss the claim. arguably protected by seal that are Tenenbaum Simonini, (6th 372 F.3d privilege. privilege op- The state secrets Cir. 2004); Kasza, erates 133 F.3d at bar admission of evi- 1166. Even attaches, applying Judge privilege dence to which the Gilman’sformulation of the plaintiff proceed standing requirement, must without the ben- the court cannot efit of such evidence. See United States v. avoid the state privilege.4 secrets Evi- Furthermore, Judge speech. Batchelder's decision does not dis- because the implications privi- of the state alleged only cuss the secrets speech, Laird chilled Laird because, lege reading under her of Laird v. directly inju- does not address whether other Tatum, 92 S.Ct 33 L.Ed.2d speech ries that derive from the chilled must (1972), can establish stand- be discounted. See id. at constrained, ing only they “regulated, if ambiguity, 2318. Given this I see no need to compelled directly by government’s express opinion as to the extent of Laird’s actions,” (Batchelder 661), Op. at not if their holding and whether the could es- personal subjective from a "aris[es] they provide tablish were evi- (cid:127)chill” caused the existence of they personally subject dence that were surveillance, (Batchelder 665; Op. Bat- see surveillance. 662-63). Op. implication chelder of this event, Judge In even under Batchel- reasoning is that even if the had reasoning, privilege der’s the state secrets personally subject evidence that were prominent plays a role that must be acknowl- TSP, they standing the would not have if the edged. privilege, Because of the state secrets government only conducting was surveil- discovery the are unable to conduct lance. to determine if information from the TSP is way satisfy used in a require- such as to the It that is not clear to me Laird must be read Judge ments that Batchelder finds in Laird. way. language regu- this in Laird about lation, proscription, compulsion me Judge opinion dispute Gilman's does not the merely descriptive prior the seems facts in majority opinion’s plain- contention that the Supreme cases in which the Court had found standing tiffs' would be undermined if the standing. holding Laird could be read as hypothetically policy NSA to a only adhered speech, when the harm is chilled nondisclosure, complete governmental power then the but rather criticizes exercise of must (Gilman analysis regulatory, proscriptive, speculation. Op. the as compulsory or in Laird, 11, 13-14, 705.) correctly nature. See 408 U.S. at It notes that we cannot know Here, “[ajbsent plaintiffs’ professional policy S.Ct. 2318. pub- whether such a exists a injuries (Gilman arguably beyond are Op. harm chilled lic revelation from NSA.” by undisputed support se- facts in of that motion. protected the state arguably dence relevant to the may government well be then filed its own motion privilege crets plaintiffs’ or, alternative, fear. reasonableness to dismiss a motion is favorable to that evidence motion, Whether summary judgment. In this for defendants, unavailability its plaintiffs or asserted that the government may That it be unsa- requires dismissal. standing could not establish and that the standing tisfying pertinent that facts privilege state-secrets barred their claims. are unavailable can have no bear- inquiry government But the did not contest the case. If the disposition on the of this or plaintiffs’ undisputed statement of facts privilege prevents plain- state secrets undisputed provide its own statement evidence of presenting adequate tiffs from was therefore facts. The district court must dismiss their standing, their we 56(e) requirements of Rule bound privilege pre- If the state secrets claims. Procedure, Rules of Civil Federal presenting evi- vents the from provides as follows: might plaintiffs’ refute the alle- dence summary judgment When a motion for they likely to be surveilled gations supported provided is made and as the reasonableness of their and undercut rule, may party adverse rest fear, we must also dismiss asserted allegations mere upon the denials claims. plaintiffs’ party’s pleading, the adverse but party’s response, adverse affidavits GILMAN, LEE RONALD Circuit rule, provided in this as otherwise dissenting. Judge, specific showing must set forth facts My plain- colleagues conclude for trial. If genuine that there is issue bring standing not established tiffs have party respond, does not so adverse challenge to the Bush Administra- appropriate, if shall summary judgment, Pro- tion’s so-called Terrorist Surveillance against party. be entered the adverse (TSP). disagreement A gram fundamental reviewing After the affidavits and relat- myself them and exists between the two of supporting sup- ed material submitted show required on what is motion, the port plaintiffs’ of the district have met that whether forth the court found that had set disagree- requirement. Because of prerequisites necessary facts to meet Moreover, ment, I respectfully I dissent. The court then considered standing. judgment of the district would affirm the merits and claims on the persuaded I am court because as to all but their granted their motion originally implemented violated TSP datamining claim. Act of Foreign Intelligence Surveillance (FISA). lead procedural posture, the Despite this opinion presently that the record asserts I. ANALYSIS ac- publicly us “three before contains posture A. Procedural (1) it knowledged facts about TSP — (3) warrants, without eavesdrops, relatively to us This case comes and email commu- telephone international posture. In the district unique procedural par- one of the in which at least court, nications partial moved for sum- affiliate.” suspected Qaeda a al They filed a statement of ties is mary judgment. However, 705.) because the misapprehends impact policy exists but rather it such privilege precludes NSA from plaintiffs' claims fail state secrets of this observation. The disclosing majority's speculation whether it exists. not because of 694 (2007) 1438, 1453, For Op.

Lead at 650. the reasons both (“Only 167 L.Ed.2d 248 below, and set forth I believe stated above petitioners one of the needs have stand- description significantly under- permit us to petition consider the in the presently states the material record review.”); for see Synar, also Bowsher v. before us. 714, 721, 3181, 478 U.S. 106 S.Ct. 92 (1986) L.Ed.2d 583 (finding the Article III Standing B. requirement satisfied where at least one Injury 1. in fact plaintiff standing). could establish po- sition of attorney-plaintiffs, my opin- Article III of the U.S. Constitution “re- ion, strongest is the purpose for the of the quires party who invokes the court’s standing analysis. say This not to authority personally to show that he journalists and the scholars do not suffered some actual or threatened have standing. They might. But because putatively illegal result of the conduct only one Valley plaintiff standing, of the defendant.” need establish I Forge Christian my Coll. v. Ams. will Separation attorney- United focus discussion on the for State, Inc., 464, 472, Church & plaintiffs. 454 U.S. (1982) 752, 102 (quo- S.Ct. 70 L.Ed.2d 700 opinion The lead attorney- criticizes the omitted). tation marks This is sometimes asserting multiple causes of referred to injury” as the “direct or the claim,” action despite “hav[ing] one but “distinct and palpable injury” requirement. “ruse,” hardly this is “perfectly whether Tatum, 1, 13, Laird v. 408 U.S. 92 S.Ct. acceptable” or not opinion as the lead 2318, (1972); 33 L.Ed.2d Valley Forge, 154 would have it. Lead Op. at 657. The U.S. 102 S.Ct. 752. The Su- Supreme Court’s recent decision Daim preme Court has “injury defined in fact” —Cuno, lerChrysler Corp. U.S.-, as “an legally protected invasion of a inter- 126 S.Ct. n. 164 L.Ed.2d 589 (a) est which is concrete particularized (2006), indeed reiterates that a litigant (b) imminent, actual and conjectur- “by cannot virtue standing of his to chal al hypothetical.” Lujan v. Defenders of lenge action, one challenge Wildlife, 555, 560, governmental other actions that did not (citations 119 L.Ed.2d quo- injure case, however, him.” In omitted). tation marks An association has seek challenge standing to sue on behalf of its members injured action that has them —the NSA’s when “its members would otherwise implementation of the TSP —and do standing to sue in their right, own byso “identifying grounds” all against that interests at germane stake are to the or- Thus, action. Id. at n. I do not ganization’s purpose, and neither claim believe that this case requires particu “a asserted nor the requested relief requires analysis larized three al the participation of individual members leged injuries, legal claims, six asserted Earth, lawsuit.” Friends Inc. v. requested and two forms of relief.” Lead (TOC), Inc., Laidlaw Envtl. Seros. Op. at 658. U.S. 145 L.Ed.2d (2000)(citation omitted). I now return to the first element of the Moreover, standing analysis. Despite the opinion willingness as the lead acknowl- edges, only opinion of the lead plaintiff one need to assume that establish satisfy attorney-plaintiffs’ injuries Article Ill’s ease-or- asserted could controversy requirement. adequate Mass. v. Envtl. “deemed an injury state — -, Prot. Agency, fact,” Op. analysis Lead sug- its because, injury in an fact having suffered accordingly set I have opposite. the gests opinion, the by the lead I conclude characterized why so reasons the below forth com- effectively have demon- value “would attorney-plaintiffs consequence the that is needed assumption speech.” speech political no such above that strated mercial injury an actually stated they legal no But there is Op. because at 661. Lead in fact. con- opinion’s the lead offered for support inability per- to plaintiffs’ that tention the claim for a assert attorney-plaintiffs than the jobs nothing is more form their the the failure of flowing from injuries the speech. chill on commercial of a equivalent requirements FISA’s comply to with TSP addition, lead In the Op. at 661. utilized Lead procedures” “minimization that value commentary on the relative opinion’s communications— privileged protect to point and their not a attorneys speech forms of is of different as between such or, or, intercept- my if interception parties of the by clients—from raised either Contrary ed, subsequent disclosure. resolution mind, any way from relevant to the reason, characterization opinion’s the lead I find the this case. For of this assertions, harm al- the attorney-plaintiffs’ ranking the value opinion’s lead discussion “causes the plaintiffs in fact here leged speech over commercial political speech conduct. harmful potentially from” refrain that is believe Laird I puzzling. instead distinc- find that the I Op. at 656. Lead attorney-plain- the distinguishable because attempts to draw opinion the lead tion concrete, immi- alleged a have in tiffs fact injury an and that causes a harm between from nent, flowing harm particularized and is ulti- injury an that from a results harm the TSP. mind, the my To mately unpersuasive. government contends the appeal, On ac- have articulated attorney-plaintiffs must be any litigation about TSP that from the harm flowing imminent or tual facts that general three on the premised TSP. (1) publicly disclosed: government contrary view is opinion’s The lead (2) exists, without operates it TSP reading the D.C. its largely based on “only com- warrants, intercepts it Laird; namely, interpretation Circuit's conclude originate or that munications that he or must establish plaintiff “a that rea- country, and if there foreign constrained, compelled regulated, is she party that to believe grounds sonable actions, in- government’s directly Qae- al affiliated with communication chill.” subjective her own byof his or stead government, to the According da.” (citing Op. at 661 Lead Laird demonstrate cannot Presbyterian 2818, and United thus- actually targets of the TSP were 1375, 1378 F.2d Reagan, 738 Church chill” “subjective than show more cannot fact, (D.C.Cir.1984)). opinion In lead as- government their activities. on controls, inju- that Laird says establish plaintiffs cannot serts concrete at best no more alleged here ry privi- the state-secrets standing because Op. at 664-65. Lead Laird. than testing from lege prevents us analogizes opinion lead then likely they have been allegations that ability per- attorney-plaintiffs’ under subject to surveillance bewill a chill professional duties as their form Moreover, argues government TSP. Drawing on speech.” “commercial to as- seek improperly analogy argument commercial-speech —an such as parties, third rights of lead sert raised never —the contacts, clients, overseas plaintiffs’ contention rejects the opinion sources, presently are not who before the dures that will be protect privi- utilized to leged court. communications. 50 U.S.C. 1804(a)(5). § procedures” “Minimization attorney-plaintiffs respond that “specific procedures ... that are rea- concrete, they particularized have suffered sonably ... designed to minimize the ac- injuries Specifically, as a result TSP. retention, quisition prohibit they puts them in contend TSP dissemination, nonpublicly in- available position abrogating their duties un- concerning formation unconsenting United applicable professional-responsibility der persons.” 1801(h)(1); § States 50 U.S.C. they if communicate with rules clients and 1801(h)(2)-(4) §§ see also 50 (pro- U.S.C. TSP, telephone via or email. The contacts term). viding a further definition of the short, prevents allegedly them from do- Privileged communications remain such jobs. Specifically, attorney- their 1806(a) (“No § under FISA. 50 U.S.C. they contend that have had to privileged otherwise communication ob- internationally travel for face-to-face meet- with, tained in accordance or in violation ings significant expense at a in terms of of, provisions of this subchapter shall money. They time and claim that then- character.”); privileged lose its id. ability to factfinding conduct research and 1806(h). § limited, thwarted, if entirely has been not as a result. above, As noted opinion lead finds that Laird controls this Op. case. Lead attorney-plaintiffs, part as of then- Although 664-65. opinion the lead representation of clients accused of then being asserts it enemy application combatants or of limits its providing aid to organizations Laird to designated attorney-plaintiffs’ as terrorist First claim, groups, they analysis declare that Amendment suggests have conducted its terrorism, religion, internet research on otherwise. Laird question addressed the politics, human-rights parts jurisdiction issues in of “whether the of a federal of the Middle East and They may South Asia. court properly be invoked a com- further state that plainant reviewed web who alleges that the exercise of topics including jihad, sites where kidnap- his First rights Amendment is being ping, and other terrorist acts are existence, dis- chilled the mere without part cussed. As of their work more, on behalf of governmental of a investigative and clients, attorneys these have commu- data-gathering activity that is to be witnesses, potential experts, nicated with scope broader in than reasonably neces- lawyers, and other individuals who live and sary accomplishment for the of a valid work outside the United States about sub- governmental purpose.” 408 U.S. at jects terrorism, jihad, such al-Qae- added). (emphasis S.Ct. 2318 The case da. attorney-plaintiffs contend that stands for the proposition that “[allega- TSP, they because of the have ceased tele- subjective tions of a ‘chill’are ade- phone or email communications about sub- quate substitute for a claim specific stantive issues with their overseas con- present objective harm or a spe- threat of TSP, tacts. This because the unlike cific future harm.” Id. at FISA, provides no proce- minimization Laird, 2318. In the Court found that the protect attorney-client dures to communi- Army, capacity its as a domestic cations. peacekeeping body, had collected informa- FISA,

Under an application “public for an or- tion on thought activities that were der authorizing surveillance must include to have at least potential some for civil a description proce- of the minimization disorder.” Id. at 92 S.Ct. 2318. “The in fact been inter- communications have by a vari- was collected itself information Laidlaw, for exam- that the the TSP. In means, significant cepted it is but ety of the envi- were found that Supreme of information the Court ple, sources principal general in publications to sue a groups standing media news ronmental had Id. circulation.” members declared where their polluter nearby the North “that would use attorney-plaintiffs the that I believe if Laidlaw Tyger River recreation that is of facts a distinct set allege here into it.” pollutants not discharging forth those set were distinguishable from legally case, the 693. The Court present in the at 528 U.S. S.Ct. in Unlike Laird. “specu- articulated simply plaintiffs the to show that plaintiffs require Laird not did Army that apprehensiveness actually lative harmed the en- had pollutants infor- future date misuse may some vironment, at finding that their instead cause di- way that would in some mation about the concerns “reasonable members’ at to [them].” rect harm directly discharges of [Laidlaw’s] effects that the The stated 2318. Court 92 S.Ct. recreational, aesth- those affiants’ affected they complain “freely admit that interests,” and etic, and economic Army against action specific of no dispositively “presented] these concerns illegal or There is no evidence them.... general mere averments than the more Id. at activities.” unlawful surveillance found conclusory inade- allegations 183-84, 120 Id. at prior in cases. quate” Laird, attorney-plain- In contrast (citation quotation marks specific present complain of tiffs here omitted). fear harms, generalized simply of some not was reached A conclusion similar commu- intercepted the future misuse Earth, in Friends Circuit Fourth to decide forces them The TSP nications. Corp., Copper Recycling v. Inc. Gaston duty of confiden- breaching their between Cir.2000). (4th Cop- In Gaston breaching their F.3d tiality to their clients and plaintiff had representation. court found per, zealous duty provide attorney- The that he assertion position tenable. based his Neither person in travel to meet must than he would lake less the affected used to avoid in order and sources with clients ongoing as a result otherwise surveillance. Unlike of TSP risk lack evidence despite the pollution, Laird, attorney-plaintiffs in situation objective environmental showing govern- allege that the case 156,159. Id. change the lake. private person-to- in on listening ment Cop- the Gaston Laidlaw and Both the open communications that person “a mere more than asserted per are communications public. These interest,” Gaston philosophical academic under- would person reasonable ingenious or “an Copper, 204 F.3d attorney-plain- private. to be stand in the conceivable.” concrete harms exercise thus identified academic tiffs have Challenging reasonable flowing from their States Students themselves United (SCRAP), intercept privileged will fear that the TSP Agency Procedures Regulatory themselves communications between (1973).

their clients. attorney-plain- 254- L.Ed.2d us likewise have case before in the tiffs standing- government’s To survive the the academic beyond far a harm do attorney-plaintiffs challenge, the to-sue challenge to TSP. past their their to demonstrate not have 69 conclusion, reaching opposite

In concurring opinion then argues, attempts distinguish opinion lead Laid- plaintiffs, reference to the Laidlaw by noting law there harm from the defendant’s “fear of complaint under brought their the citizen- undisputed conduct—conduct that would Act, provision suit of the Clean Water undisputably plaintiffs personal- also affect opinion fact that lead the asserts “offers ly if they undertook their desired activi- only support” plaintiffs minimal for the in ties—was sufficient to support standing.” present Op. the case. Lead Al- 686. Concurring Op. (emphasis in origi- in though plaintiffs the that case did in- nal). Similarly, concurring opinion the ac- deed base cause of action on envi- knowledges plaintiffs that “the in pres- the statute, Supreme ronmental the Court still may ent case have a reasonable fear of analyzed they whether satisfied the consti- harm from the defendants’ conduct.” Id. standing requirements tutional of Article state, goes however, It on to that the Laidlaw, III. See 528 U.S. at 120 attorney-plaintiffs standing lack because S.Ct. 693. The fact that the Clean Water they actually subject “must be to the de- Act a provision contained citizen-suit did conduct, fendant’s simply afraid of be- not absolve the courts of examining the ing subject to it.” Id. I Because believe standing particular constitutional of the plaintiffs in present the case are plaintiffs them. I before therefore find “actually subject to the defendant’s con- opinion’s the lead treatment of Laidlaw Laidlaw, duct” within meaning the I Laidlaw, unpersuasive. As in I have ana- respectfully disagree my with colleague’s lyzed attorney-plaintiffs’ the assertions of conclusion. III standing Article and have concluded my mind, To concurring opinion de- they satisfy that requirements. those scribes, rather than distinguishes, the sit- concurring opinion also my criticizes uation of the attorney-plaintiffs. Laidlaw, interpretation of describing it as concurring opinion would hold that “transforming] holding” that case. attorney-plaintiffs must demonstrate that Concurring Op. at I do not believe they personally subject been to sur- that this characterization up holds under veillance under the TSP order to have scrutiny. case, In discussing the the con- standing to sue. This is akin to Laid- curring opinion describes the Laidlaw argument law’s should subject “in fact to defendant’s have been required to demonstrate that pollutants conduct” of discharging in ex- Laidlaw’s mercury discharge violations permitted cess of amounts into the North caused them to “sustain[] ] facet omitted). Tyger (emphasis River. Id. threat of ‘injury in fact’ from Laid- Court, sure, The Supreme to be noted that Laidlaw, law’s activities.” 528 U.S. at “it undisputed that Laidlaw’s unlawful 181, 120 S.Ct. 693. But Supreme conduct ... occurring,” was but nonethe- rejected Court argument, such an stating less nothing “improbable found about the need show “the proposition that a company’s continuous reasonableness of the fear that led the pervasive illegal discharges pollu- respond affiants to to that concededly on- tants into a nearby river would cause resi- going conduct....” Id. at dents to curtail their recreational use of (brackets quotation marks omit- that waterway subject and would them to ted). other economic and aesthetic harms.” Laidlaw, 528 U.S. at 120 S.Ct. 693 Both the concurring lead and opinions (citation omitted). quotation marks proceed analogize present case to they plaintiffs demonstrate that were all distinguishable. I find One two cases that equally likely to be affected Angeles Lyons, pollu- is Los (1983), tants, pollutants evenly L.Ed.2d 675 where were dis- waterway, Supreme persed through Court denied that a Angeles a Los motorist injunctive plaintiff swimming relief to in the river more was subjected a chokehold likely plaintiff canoeing had been who than the river stop. traffic police during routine All injured. required to be that was was The Court that, Id. at 103 S.Ct. 1660. given they demonstrate Paid- “sub- part conduct, reasoned undisputed possessed law’s “a recurrence jective apprehensions” that fear of This reasonable harm. holds unlawful would allegedly conduct” equally attorney-plaintiffs true for support stand- were insufficient to occur case. The existence of the 1660. But Id. at 107 n. ing. is undisputed plaintiffs TSP and these are Lyons again find that would the likelihood personally by affected the TSP whether Angeles in a Los himself chokehold the they targeted engage communications far remote than seems to me more police sum, not. I the In believe that distinc- attorney-plain- ongoing the concern the Lyons tion Laidlaw and in fact between or email telephone tiffs here that one of and degree, attorney-plain- intercepted the communications will a far occupy position tiffs here closer set forth upon principles Based the TSP. the former than to latter. the Laidlaw, the “reasonableness the opinion case to the lead other pres- in the attorney-plaintiffs of the fear” analogizes present the suit United Pres- beyond being ease me as well ent strikes byterian Reagan, Church 738 F.2d 1375 standing to what is needed to establish (D.C.Cir.1984). In Presbyterian United Laidlaw, See sue. Church, and group religious political a S.Ct. academics, organizations, journalists, Pushing opinion’s reasoning the lead still Congress challenged member of the consti- further, concurring opinion argues that the tutionality of Executive Order nothing attorney-plaintiffs the “can show organization, procedures “specified] subject “being more than a fear” of the. applicable foreign and limitations policy of surveillance.” Con- counterintelligence intelligence and activi- contrast, “By if curring Op. at 690. Id. ties of Executive Branch.” at 1377. plaintiffs Laidlaw had resumed their aban- Presbyterian The United Church activities, they definitely would doned declaratory this sought judgment to the defendant’s conduct— n subject been First, Executive Order violated the river.” Id. The illegal discharge into Fourth, Amendments Fifth concurring then asserts that opinion “[t]he Constitution, separation-of-powers doc- Supreme Court’s distinction between Laid- trine, Security the National Act of kind, Lyons one not de- law and was attorney-plaintiffs 1947. Id. Unlike no support Id. But I find gree.” case, however, present United assertion, my colleague’s reliance on a Presbyterian Church “fail[ed] point for this quotation from Laidlaw allege any plaintiff has suffered unpersuasive. me strikes (dis- under Id. in fact the Order.” cussing opinion). The fact, the district court plaintiffs were per-

In the Laidlaw affirmed district D.C. Circuit therefore sonally by the affected defendant’s conduct complaint for lack court’s dismissal waterway not. they whether used sue, standing to but that fact-driven Nothing in required Laidlaw bearing present result has no on the case the attorney-plaintiffs represent. dramatically with its different facts. TSP therefore a “genuine constitutes threat” of harm to attorney-plaintiffs, In dismissing complaint, the D.C. see v. Thompson, 415 U.S. followed Laird in concluding Circuit Steffel (1974), 39 L.Ed.2d 505 had no more than a absence of which doomed the United Pres- subjective chill. Id. at 1378-81. The facts byterian Church action. substantially in the case are differ- ent, however, concurring with even the A number of distinguished cases have opinion acknowledging that “[h]ere the Laird in situations such as this where the plaintiffs’ professional injuries argu- professional have suffered inju- ably beyond speech.” a harm chilled Con- Keene, ries. In Mee se v. curring Op. sure, at 692 n. 3. To be several (1987), 95 L.Ed.2d 415 for ex- groups Presbyterian United ample, a state legislator to publicly wished experienced Church claimed that had screen three Canadian-made films about injury, direct interception such as of their the effects of acid rain and nuclear winter. mail, events, disruption of their and infil- statute, Under a federal the films would tration of their meetings. Presby- United have had to be designated as “political Church, terian 738 F.2d 1381 n. 2. But propaganda” in order to be shown in this allegations these gener- were deemed “too country. injunctive relief, Keene sued for “[tjhere alized” and insufficient because contending that the statute violated his no allegation suggestion or even First rights. Amendment Supreme unlawful appellants action to which the Court held that Keene standing had to subjected have in past been was the raise a First Amendment claim on the consequence presidential they action ground that identifying “politi- the films as seek challenge to here.” Id. at 1380-81. propaganda” cal threatened to cause him that, The D.C. Circuit thus concluded cognizable professional injury. Id. at “[wjithout connection, such standing to 107 S.Ct. 1862. Keene had not in fact pursue present suit does not exist.” films, shown the alleged but that he had Id. at 1381. standing based on anticipated his harm. Here, contrast, the attorney-plaintiffs agreed, The Court convinced that voters provided have a connection between their likely would be less support a candidate injury and the Specifically, TSP. officials associated propaganda. with Id. at the Bush Administration publicly have 107 S.Ct. 1862. stated that the TSP involves “intercepts” Berzak, Another example Ozonojf of “international calls” and “communica- (1st Cir.1984), F.2d where the tions” where the “ha[s] rea- (cid:127) First Circuit found standing physi- for a sonable basis to party conclude that one cian who wished to work for the World the communication is a Qae- member of al (WHO). Health Organization da, An Execu- Qaeda, affiliated al or a with member tive required Order that a U.S. citizen organization an Qaeda, affiliated with al undergo loyalty or check before working support Qaeda.” of al WHO Press could extend an Briefing by Gonzales, offer of Att’y Gen., employment Alberto person, and Hayden, notwithstanding Gen. Michael Principal the fact that Depu- ty (Dec. Dir. for Nat’l the WHO Intelligence entity was an of the U.S. 2005), http://www.whitehouse.gov/news/ government. The First Circuit distin- releases/2005/12/print/20051219-l.html. guished Laird because Ozonoff alleg- was These are exactly the types of clients that ing more than “the mere existence” of a profes- or future educational and data-gath- and investigative governmental at 871-73. a result. Id. Instead, activities sional 229-30. Id. at activity. ering loyal- was that alleged s Ozonoff distinguish attempts opinion The lead joining him from deter check would ty them on others and like these cases expressing certain or organizations certain “regulatory, challenged the basis Order, the Executive Because of views. exercise compulsory” proscriptive, organiza- limit his had chosen Ozonoff the com- to which power governmental the existence affiliations, much as tional prospectively presently were plainants attorney-plaintiffs has caused the TSP United (quoting at 660 Op. Lead subject. email commu- and telephone their to limit 1378). Church, F.2d at Presbyterian however, Ozonoff, Unlike nications. is pre- government power type of But that their ef- stymied attorney-plaintiffs here. being challenged cisely what is to limit by the need jobs do their forts to credible alle- have made attorney-plaintiffs I thus believe their communications. the TSP operation of gations attorney-plaintiffs and telephone to cease them compelled in- particularized concrete even more topics sensitive about communication email alleged. Ozonoff jury than Publicly and contacts. clients with their Third from the comes example sup- A final the TSP about information admitted LaPrade, F.2d Patón v. case of Circuit them. ports found (3d Cir.1975), court where the Meese, distinguishes Ozo- I believe What Lori Pa- student high-school is that Patón, Laird the like from noff, anof the existence ton, alleged that who suc- cases first-named in the could im- her file about investigative FBI connection “precise cessfully explained profession- future educational pair her of the chal- existence the mere between of a part As at 868. Id. opportunities. al alleged chill.” system lenged on “the class studies social high school 13, 7, 2318. n. Laird, at 408 U.S. Patón spectrum,” political contemporary who conceded the Laird Unlike from the Social- had information requested suffering not were they themselves (SWP). Id. at 865. Party ist Workers here attorney-plaintiffs chill, the any from received and monitoring mail was The FBI has fear that a reasonable have established in Paton’s SWP, resulting by the sent “imminent,” “con- “actual,” generated being recorded and address name resulting harm crete,” “particularized” This file. investigative in an FBI placed TSP, program a of the operation the from at the in fact directed was “mail cover” to procedures any minimization that lacks TSP, cover did not the mail SWP. Like communications. privileged protect regulate Pa- or compel, proscribe, directly 560, 2130. S.Ct. Lujan, 504 U.S. See TSP, effect, of the like that its ton. But would opinion concurring Finally, Patón learned injure her. was to pre- privilege the state-secrets find that high her agent visited an FBI file after from estab- attorney-plaintiffs vents On these about her. inquire to school Concurring Op. fact. injury in an lishing she had facts, found Third Circuit (“[T]he privilege secrets state at 692 regulation postal challenge standing to conducting from prevented recording information authorizing to them estab- allow might discovery that organiza- from to or going mail about subject to they personally lish that may “she because as the SWP tion such TSP, constitutional I believe as immediately in dan- be or have sustained reading expands But requires.”). injury” her sustaining a direct ger of privilege ways the attorney-plaintiffs reach of the to bar from mak- support. showing. Because the a caselaw does not such “operates to fore- privilege state-secrets short, In question critical this case rights may close relief for violations attorney-plaintiffs whether the not have by foreclosing well the dis- have occurred because, actually been as the surveilled — occur, covery did it is evidence notes, aptly opinion wiretap by lead its privilege lightly to be invoked.” not is meant nature to be unknown to its tar- Helms, 977, Halkin v. 690 F.2d 990 gets whether the “reasonableness of —but (citation (D.C.Cir.1982) and quotation of such the fear” surveillance is sufficient omitted); Ellsberg marks see also v. actual, that they establish have suffered (D.C.Cir.1983) Mitchell, 51, 57 709 F.2d imminent, concrete, particularized harm (“[T]he may not be used to shield privilege government’s alleged from the unlawful strictly necessary pre- material not Laidlaw, action. See and, injury security; vent national S.Ct. For the reasons discussed possible, whenever sensitive information above, I believe that disentangled must be from nonsensitive injury established such an fact. I there- information to allow for the release of the remaining turn to the fore factors in the latter.”). III Article constitutional-standing analysis. The privilege typically invoked with 2. Causation respect specific requests discovery.

See, e.g., Kelley, 75 F.R.D. Jabata must next demonstrate (E.D.Mich.1977). If, however, 478-79 causal connection the injury between as- “deprives privilege state-secrets the [d]e- government’s alleged serted con- [plain- fendants of a valid defense to the duct. This means that “a federal court claims,” summary judgment tiffs’] then act to redress that fairly [can] may be granted defendant. Ten- can traced to challenged action of Simonini, enbaum v. defendant, F.3d 777-78 the ... that results (6th Cir.2004). independent from the action some third party not before the court.” Simon v. E. Tenenbaum, But unlike Jabata Ky. Rights Org., 426 U.S. 41- Welfare here attorney-plaintiffs seek no additional (1976). 48 L.Ed.2d 450 Instead, discovery from the defendants. “fairly standard, however, traceable” the attorney-plaintiffs argue they that require does not that the defendant’s con- have established based the duct be the sole of cause the facts in record. public high- the This issue See, Ass’n, injury. e.g., Am. Canoe Inc. v. lights what I to key believe be the differ- Comm’n, City Louisa Sewer Water & of ence concurring between the lead and (6th Cir.2004) 389 F.3d (finding opinions on hand my opinion the one the prong despite causation satisfied the My on the colleagues other. believe that of proving absence evidence “to a scientific the attorney-plaintiffs must that establish certainty” that pollution the defendant’s actually subject were to surveillance the plaintiffs injury). caused TSP, under the I that whereas conclude a reasonable, a case, demonstration of well-found- In the the opinion lead ed fear that has resulted actual and that attorney-plaintiffs finds the particularized injury suffices. My reading to failed establish due causation to its of the caselaw me leads to conclude that characterization of their “two causal path- the privilege state-secrets is not broad ways types so based on the alleged two of with, complying that is not at These two sume the NSA Op. Lead 667. injury.” (1) the exceeding, are then described pathways or even FISA’s restrictions on commu- decision to cease certain plaintiffs’ retention, use, acquisition, or the disclo- TSP, and as a of the nications result (i.e., acquired] information [the sure by contacts of the decision overseas minimization techniques).” FISA’s Lead communications plaintiffs to cease certain Op. at 669. opinion Id. The lead as a result of the TSP. unsupported This assertion is belied “have no evi- concludes public on the record from Ex- statements actually inter- that the NSA has dence ... Branch officials. With respect ecutive to (or intercept) any of actually will cepted acquisition information, the TSP has Rather, Id. the lead their conversations.” a having trigger” been described as “softer the evidence in opinion characterizes FISA, Briefing by than Press Alberto establishing “only possibility— a record as Gonzales, Gen., Att’y Michael Gen. probability certainty these not or —that Hayden, Principal Dep’y Dir. for Nat’l In- intercepted, infor- might calls be (Dec. 2005), http://www.whitehouse. tel. disseminated, be might mation disclosed or gov/news/releases/2005/12/print/20051219- might lead some harm or l.html, one uses a “reasonable [plaintiffs’] contacts.” Id. overseas proba- than This belief’ standard rather FISA’s (emphasis original). “possibility” indeterminate, lead according too is ble cause standard for surveillance. See plaintiffs’ “the opinion, and thus renders Hayden, Gen. Michael Remarks V. showing of causation less certain and Intel., Principal Dep’y Dir. of Nat’l Ad- speculative.” more likelihood of causation Club, dress the Nat’l Press Jan. opinion also Id. lead concludes http://www.dni.gov/speeches/ for the the absence a warrant A senior official 20060123_speech.htm. to establish cau- surveillance insufficient Department further in- of Justice sation because “it is clear whether that, “[although in 2006 Congress formed fairly chill can be traced to the absence target specifically does not [TSP] warrant, if chill still exist would attorneys physicians, communications presence or regard without absence involving persons such would not be calls Op. of warrant.” Lead intercep- categorically excluded from my reading upon complaint Based ...” E. Moschel- tion. Letter from William subsequent partial and the motion la, Att’y Gen., Assistant to the Honorable judgment, I that the lead summary believe (Mar. Sensenbrenner, F. James Jr. attorney- opinion has miseharacterized 2006), 55, http://www.fas.org/irp/agency/ allegations. attorney- What doj/fisa/doj032406.pdf. fact, allege, in plaintiffs themselves sure, Administration has To Bush TSP outside of FISA’s the existence place are in “procedures asserted that also procedures prevented minimization privacy rights, including protect communicating by telephone them from required by Execu- applicable procedures clients, contacts, by their and email with by approved 12333 and the tive Order sources, compelling them thus either General, acquisition, Attorney govern that obligations, their or re- to violate ethical retention, and dissemination of information costly quiring them undertake overseas of relating persons.” Id. A review to U.S. short, prevented trips; the TSP has however, Order, reveals this Executive jobs. In doing response, them their from protecting it no mention of that makes is no opinion the lead asserts “there Exec. See Or- pre- privileged from communications. evidence the record which to (Dec. 12,333, Fed.Rég. contend that have ceased communi- der No. Furthermore, 4,1981). the by Administration cating telephone or email about sensi- collecting for- subjects “[b]ecause has claimed that tive with their clients and con- information without a eign intelligence potential the tacts. Whether surveillance not Fourth warrant does violate the pursuant conducted to warrant is not the [TSP] Amendment and because law- complaint. gravamen the of their Their ful, no appears legal there to be barrier of impact concern is directed at the the introducing a crim- against this evidence in ability jobs. their to perform TSP on their prosecution.” inal Letter from E. William requirement The causation does not de- Gen., Moschella, Att’y Assistant government’s mand conduct be Sensenbrenner, F. James Jr. Honorable of attorney-plaintiffs’ “sole cause” (Mar. 24, 2006), at http://www.fas.org/ injury, only injury “fairly be irp/ageney/doj/fisa/doj032406.pdf. Simon, traceable” to that conduct. See 1917; one ac- 426 U.S. 96 S.Ct. Canoe injury Which characterization Am. Ass’n, cepts largely will determine the causation 389 F.3d at 543. If the did not TSP (as redressability exist, as prong prong attorney-plaintiffs pro- well would below) standing analysis. by discussed minimization procedures tected FISA’s As one has distinguished commentator not- no and would have reason to cease tele- ed, phone or email communication with their problem central the causation

[t]he international clients and contacts. I there- is not whether there is a causal cases fore conclude that attorney-plaintiffs injury, remedy, among illegal- nexus demonstrated causal connection be- it ity; is how to characterize the rele- injury gov- tween their asserted and the injury. injury vant Whether is due ernment’s actions. conduct, likely

to the defendant’s Redressability 3. favor, be remedied in his decree depends injury on how the is described. This leaves the issue whether Sunstein, Standing attorney-plaintiffs’ R. injury Cass Priva- “will be re- Law, tization Public 88 Colum. L.Rev. dressed a favorable decision.” Laid- (1988). 1432, 1464 law, 528 U.S. at redressability opinion’s analysis ap- lead opinion primarily The lead focuses First, pears points. to make two basic the lack of that “the NSA evidence 1806(a) § (or opinion lead cites 50 U.S.C. actually intercepted actually will inter- proposition cept) any plaintiffs’] conversations,” “the issuance of FISA of [the (and warrants not and on the “the absence of a warrant would relieve it).” overheard; goes all that Op. being with Lead fears it (footnote omitted). emphasis But I only would relieve them of the fear that I.A.I., discussed earlier Part the attor- might the information be disseminated or ney-plaintiffs need show the reason- against used them.” Op. Lead at 671. fear, ableness of not their fear opinion The lead also asserts that See, has in fact been e.g., realized. Laid- might prohibit intercep- FISA law, 693; Meese, 528 U.S. at attorney-client tion of communications 481 U.S. at I S.Ct. 1862. thus under circumstances where the ad- NSA find the attorney-plaintiffs’ characteriza- policy complete to a heres non-disclo- tion of their more persuasive. sure. Due to the State Secrets Doc- (and cannot) trine, Since of the learning oper- the existence and do TSP, ation of the the attorney-plaintiffs actually know whether the NSA adheres (dis- (D.Or.2006) non-disclosure, 1223-25, 1228-30 complete policy to a of evidence, it cussing government’s the the effect of the in- but on record based possible. certainly remains of a sealed document advertent disclosure of arguably described surveillance the proposition, at n. 31. That Op. Lead TSP). plaintiffs under the Notwithstand- however, speculation, as the lead is itself contention, plain the lead a opinion’s revela- public Absent a opinion concedes. NSA, FISA no attorney-plaintiffs reading provides the the of the statute tion from matter) (or else, sim- anyone support for that will a speculative for the assertion that a whether nondisclosure ply never know “policy complete of non-disclosure” exists in fact policy exists. explicit within the NSA. FISA’s provisions regarding procedures and minimization uncertainty, the attor- In face of this the in privileged strongly communications fact the of ney-plaintiffs presume must absence obligations support Their policy. opposite a ethical conclusion. such so, they run the require them to do lest opinion’s point prem- The lead second is possibly revealing risk of confidential 1805(f), § ised which sets on U.S.C. incriminating directly to the information forth emergency-based exceptions concern government. The reasonable cites procedures. the normal FISA It this of possibility about the disclosure—not proposition for the that “FISA’s subsection obli- triggers those- disclosure itself — general requirement sur- that electronic simple Similarly, the assertion gations. upon may only veillance issuance proceed absolute, of a warrant is not FISA Court operated is for designed TSP [t]he a provides for instances which FISA terrorism, and the prevention at prior may unnecessary, warrant be least only telephone NSA is interested period Op. for a short time.” Lead par- email communications in which one agree 671 n. 31. I that FISA’s warrant out- ty the communication is located absolute)” But requirement is “not side the United States the NSA has is requirement” “warrant besides that one ‘reasonable basis conclude Instead, pro- minimization point. FISA’s is to the communication a member party regarding wiretapped cedures the use with,] of[, working sup- affiliated protections information FISA are port Qaeda/ alof redressability ultimately bear mean Op. Lead does not standing analysis pres- in the prong facili- TSP is not and could not be used to mini- point ent is that these ease. The investigation. In tate criminal re Cf. procedures “absolute” even mization (For.In- Case, 310 F.3d Sealed requirement not. though warrant tel.Surv.Ct.Rev.2002) FISA (stating that (“If 1805(f) Attorney § See 50 U.S.C. “preclude govern- or limit the does not emergency such em- General authorizes foreign in- proposed ment’s use use surveillance, he ployment electronic telligence information ... a criminal proce- require shall minimization prosecution.”). for the required subchapter dures opinion The lead contends there followed.”) judicial of a issuance order in the present lack of “evidence record to added). (emphasis suggestf that the information collected ] Admittedly, Supreme Court has fur- been dis- NSA under TSP scope guidance regarding little nished anyone any purpose.” Lead closed to redressability beyond re- inquiry But Op. at 671 n. see AL-Haramain Found, Bush, relationship between F.Supp.2d quiring “‘direct’ Islamic 706 injury sought Deterrence, short, the claim in alleged especially

the is an R.S. adjudicated.” where, be Linda v. Richard here, appropriate as consideration D., 93 S.Ct. 35 alleged past” but, the harm is not “wholly (1973). But I believe that the L.Ed.2d publicly acknowledged by govern- as the clearly case such a present demonstrates ment, “ongoing instead at the time of the the attorney-plaintiffs’ direct link between complaint and ... could continue into the attorney- claim. injury and their The Laidlaw, future.” at U.S. redressability arguments plaintiffs’ revolve S.Ct. 693 (distinguishing holding the in very ongoing real ethical obli- around their Env’t, Co. v. Steel Citizens a Better clients, to their gations profession, 140 L.Ed.2d These obligations, and to themselves. as (1998)). holding Court’s in The Laid- above, independently noted exist of wheth- law could not be more than applicable it is attorney-plaintiffs’ er the communications “It scarcely case: can actually with their clients have been wire- that, plaintiff injured doubted for a iswho TSP, tapped through independently or faces the injury threat future due to actually A whether NS adheres to a illegal ongoing suit, conduct at the time of “policy complete non-disclosure” for all effectively a sanction that abates that con- information, TSP-wiretapped indepen- prevents duct and its provides recurrence dently judicially of whether a authorized 185-86, a form of Id. redress.” at procured in actually warrant been ad- S.Ct. 693. the alleged wiretapping. vance of This is Supreme where the Court’s 2000 decision alleged by facts the attorney-plain- again directly play. comes Laidlaw into here fit language tiffs “T.” to a Each found Court Laidlaw of them “faces the threat” TSP plaintiffs had redressability satisfied the future, will harm them in the the TSP was defendant, prong though during even undisputedly ongoing at time appeal, voluntarily the course had lawsuit, attorney-plaintiffs filed their given ceased the conduct that had initially injunction the district “effectively court’s rise to the lawsuit. 528 U.S. at abates” the and “prevents TSP its recur- too, Here, 693. S.Ct. A has NS opinion’s rence.” The lead parting asser- allegedly conducting ceased the TSP inde- only tion way “[t]he to redress the court, pendently of the FISA as discussed enjoin would be to wiretaps, all in greater depth I.D. Part below. But even those for which warrants are issued as the government’s counsel at conceded prior and for which given full notice oral argument, the Executive Branch parties being tapped,” Op. Lead views unilaterally itself free to out” “opt 672, provides rhetorical signif- flourish but oversight the FISA court’s time. icantly the attorney-plaintiffs’ overstates penalties imposed civil on the defen- allegations. Simply requiring that the Ex- Laidlaw, Supreme held, dant in Court ecutive Branch conform its surveillance- injuries redressed gathering law, to governing activities in- from prior unauthorized pollutant dis- cluding FISA, the requirements of will charges injuries ongo- because those were attorney-plaintiffs’ redress injury. penalties generally and the would de- is not More needed. I defendant, ter therefore conclude particular but similarly it, attorney-plaintiffs also others situated to from have satisfied in similar engaging redressability prong conduct the future. 187,120

See id. at analysis.

707 shared, concrete, widely the Court requirements though 4. Prudential ”) ‘injury (quoting in fact.’ has found Fed. satisfy must attorney-plaintiffs The Akins, 11, 24, v. 524 Election Comm’n U.S. in ad- standing requirements prudential of (1998)). 1777, 141 118 L.Ed.2d 10 S.Ct. the Article III constitu- satisfying dition to they requirements. Specifically, tional case, attorney-plain- In the they asserting that are must demonstrate specific tiffs and concrete in- of than those a interests rather their own juries ability and to their to themselves to Wright, v. 468 U.S. see Allen party, third professional in their due engage work to 3315, 737, 751, L.Ed.2d 556 104 82 S.Ct. They allege operation of the TSP. (1984), they asserting per- a are and in they engage telephone are unable to and generalized a claim rather than sonalized email communications with clients and con- v. Fed. Election Comm’n grievance. See identity tacts of those clients because the Akins, 1777, 11, 23-25, 118 S.Ct. 524 U.S.' contacts, of whom have some been (1998). prudential- 141 10 Other L.Ed.2d to charged with links terrorism or terrorist that are not requirements exist organizations, fall within the ambit of the such applied in all cases. One universally has admit- TSP. Because is so-called zone-of-inter- requirement has operated ted that the TSP outside of Ass’n, v. See Sec. Indus. ests test. Clarke distinguish attorneys FISA and does 750, 388, 16, S.Ct. 400 n. 107 93 479 U.S. telephone other whose person from that the zone- (noting 757 L.Ed.2d might under email communications usefully under- “is most of-interests test surveillance, attorney-plain- electronic § meaning 702” gloss on the of stood as unable, with tiffs have been consistent Act). Procedures of the Administrative responsibilities their clients ethical requires plaintiffs This show test bar, in engage privileged pro- of they the zone interests are “within They statutory provi- must instead incur regulated by the communications. tected or guarantee invoked professional sion or constitutional financial and significant 520 U.S. Spear, the suit.” Bennett traveling person to meet with burden of L.Ed.2d 281 clients and contacts. (1997). injured attorney- The TSP has thus professional- personally both grievance a. Generalized and for the reasons ly. For these reasons personal interest my analysis inju- of previously discussed Prudential-standing requirements pre- above, in Part I.B.1. I conclude ry in fact in federal court “when litigation clude asserting attorney-plaintiffs are ‘generalized grievance’ harm a asserted is harms than individual rather personalized, substantially equal measure shared grievances rights or the of a generalized citizens,” large class of or where all party. third claim to relief on seeks to “rest his plaintiff par- of third rights or interests legal b. Zone interests Seldin, 490, 499, ties.” Worth v. test the other zone-of-interests (1975). 45 L.Ed.2d S.Ct. standing requirement prudential shared, however, widely harm fact that a They satisfy. attorney-plaintiffs must standing if the preclude will not itself arguably within must show particularized. harm is also concrete and — “a stat- relevant the zone interests Agency, Mass. v. Envtl. Protection Clarke, 702; § 479 U.S. at ute.” 5 U.S.C. -, (2007) (“[Wjhere Supreme Court S.Ct. 750. The a'harm is L.Ed.2d 248 Bennett, complaint.” “that the breadth the zone clarified 520 U.S. at according provi- interests varies attorney-plaintiffs issue, sions of law at so that what comes here maintain that the TSP violates FISA within the zone of interests of a statute for III by Title an functioning as elec- obtaining judicial of purposes review of program tronic surveillance outside the generous administrative action under the “exclusive means” of those statutes. provisions may review of the APA not do provision, a civil-liability FISA includes purposes.” so for other Id. at 117 which states that omitted). (quotation S.Ct. 1154 marks aggrieved person, [a]n other than a for- case, attorney-plain- In the eign power agent or an a foreign of tiffs do raise a cause of action under 1801(a) power, as defined section or III; instead, FISA or under Title (b)(1)(A) title, of respectively, this who action cause of arises under the APA. Un- subjected been an electronic sur- APA, § der of the person 702 suffer- “[a] veillance or about whom information ob- ing wrong action, legal agency because of tained electronic surveillance of such adversely or or aggrieved by affected person has been or disclosed used in agency meaning action within the of a violation of section 1809 of this title shall statute, judicial relevant is entitled to re- have a cause of action against any per- § A plaintiff view thereof.” 5 702. U.S.C. son who committed such violation and “identify agency must therefore some ac- shall be entitled to recover [actual tion that affects him in the specified fash- punitive damages and reasonable attor- Lujan Fed’n, ion.” v. Nat’l 497 Wildlife ney fees costs]. L.Ed.2d § opinion U.S.C. The lead as- omitted). (quotation marks Sec- attorney-plaintiffs serts that the cannot es- ond, plaintiff must show that he has they tablish that right have a to sue be- a “legal wrong” suffered because of that they “aggrieved persons” cause are not agency “adversely action or that he is af- under FISA. An “aggrieved person” is de- aggrieved by fected or that action within person fined “a target as who is of meaning of a relevant statute.” Id. at electronic or any person surveillance other (quotation 110 S.Ct. 3177 marks omit- whose communications or activities were ted). subject to electronic surveillance.” Supreme Lujan Court said in “that 1801(k). § U.S.C. According to the lead adversely be affected or aggrieved ... opinion, because the “have not statute, within the meaning the plain- shown that actually were the target tiff must establish that the he com- of, subject to, surveillance,” the NSA’s plains ... falls within the zone of in- they cannot establish a cause action sought protected by terests to be Op. under FISA. Lead at 683. provision statutory whose violation forms attorney-plaintiffs’ challenge, how- the legal basis for his complaint.” Id. ever, precisely omitted). operat- TSP has (quotation marks “In determin- ed despite outside FISA fact petitioners whether the standing Congress has declared FISA to be under the zone-of-interests to bring test “exclusive means” claims, their APA for the we look not engage terms in electronic surveillance for for- [relevant statute’s] citizen- eign suit provision, intelligence but pro- purposes country. substantive 2511(2)(f). [statute], § visions of the They rely viola- U.S.C. on pro- tions of which gravamen serve of visions of FISA III of Title clear that FISA quite section makes “shall Control and Safe Streets Crime Omnibus Act, interception criminalizes means which be the exclusive electronic oral, wire, electron- disclosure foreign intelligence pur- surveillance [for and/or pursuant than other ic communications (em- may ... Id. poses] be conducted.” 1809(a); § statutes. See 50 U.S.C. those added). phasis 2511(2)(0. § 18 U.S.C. contends, however, The lead opinion III that Title opinion The lead contends provision means” of Title III the “exclusive because the stat- cannot support two separate and FISA should read “as “[n]othing contained provides that ute independent, parallel, albeit state- and this chapter 121 or 206 of chapter this or atOp. Accordingly, ments.” Lead 683. title, or 705 of the Communications section asserts, opinion provision the lead “[t]his 1934, to affect Act of shall be deemed possibility that the does foreclose by the United States Govern- acquisition may engage in certain surveil- government foreign intelligence of information ment lance that are outside of the activities foreign or communica- from international Id. of both Title III and FISA.” strictures 2511(2)(f). Op. § Lead tions.” 18 U.S.C. legal no opinion provides But the lead reading this of the statute at 679. But statutory for support interpreta- this novel In the sentence. ignores the remainder of This, in apparent tion and none is to me. (2)(f) full, states as follows: section directly in the face my opinion, flies of or chapter in this Nothing contained legislative language of FISA and its plain title, this or sec- chapter 121 or 206 of note, moreover, history. gov- I ofAct tion of the Communications 705 January year in of announced this ernment 1934, the ac- be deemed affect shall the TSP be conduct- would henceforth by the States Govern- quisition United of of aegis under the the FISA Court foreign intelligence information ed ment of foreign communi- from international or Review. cations, foreign intelligence activities language of both the FISA statute in accordance with otherwise conducted legislative history explicit: FISA and its for- involving Federal law applicable prac- “to curb the specifically drafted was communications system, eign electronic may Executive [B]ranch tice which the than a means other electronic

utilizing conduct warrantless electronic surveillance in 101 of as defined section surveillance own unilateral determination on its Surveillance Foreign Intelligence justifies S.Rep. it.” No. security national 1978, in this procedures Act of 8, I, pt. reprinted at Foreign chapter chapter 121 and the 3904, 3910; also id. at see U.S.C.C.A.N. Act Intelligence Surveillance FISA, debating Congress When means shall the exclusive prevent it made clear that intended surveillance, as electronic defined engaging from in elec- Executive Branch Act, and the inter- section 101 such in the United States oral, tronic surveillance wire, elec- ception domestic during judicial oversight, even may without tronic be conduct- communications 95-701, at S.Rep. No. times of war. See ed. reprinted U.S.C.C.A.N. added.) fact light In (Emphasis (“This the exclusive will establish bill only with domestic III deals Title governing electronic States law United wiretaps intelligence information to obtain for- United States for offenses, surveillance See relating specified to certain intelligence purposes.”). above-quoted eign sub- § 18 U.S.C. refuted

Congress explicitly (emphasis the “inherent 1978 U.S.C.C.A.N. added). authority” govern- on which the argument justify existence:

ment seeks TSP’s point, More has spells out that the Finally, S. 1566 Exec- publicly operat- admitted that TSP has surveil- engage utive cannot electronic ed outside III statu- FISA Title within United without framework, lance States tory engages and that the TSP judicial This is accom- prior warrant. in “electronic surveillance.” Press Brief- by repealing Gonzales, Gen., the so-called execu- plished ing by Att’y Alberto disclaimer pówer” tive “inherent clause Hayden, Principal Deputy Gen. Michael 2511(3) (Dec. currently in section of Ti- 2005), found Dir. Intelligence for Nat’l pro- tle United Code. S. 1566 http://www.whitehouse.gov/news/releases/ States statutory (General proce- instead that its vides 2005/12/print/20051219-l.html (and chapter found in Hayden: dures those “I say unequivocally can that we 18) title “shall be the exclusive means” program used lieu [the surveillance, conducting electronic processes] program FISA and this successful.”). legislation,- in in the 2007, defined the United January been In of highly fact, States. The controversial dis- the Bush Administration announced claimer has been as often cited evidence that it had reached a agreement secret congressional of a ratification of the Foreign with Intelligence the Surveillance (FISC) pow- President’s inherent constitutional whereby Court the would TSP engage er to in electronic surveillance in comply FISA, with a further acknowledg- foreign intelligence order to obtain infor- ment that the TSP had previously been to security. mation essential the national operating without approval. FISA See Supreme the admonition of the Despite Gonzales, Gen., Letter from Att’y Alberto language that Court the of the disclaim- Leahy Honorable Patrick & the (Jan. and did er was “neutral” not reflect 17, 2007), Specter Honorable Arlen congressional recognition of such inher- (“[A]ny at 1 electronic surveillance that power, major ent the section been occurring part was of the Terrorist controversy. By of repealing source Program Surveillance will now be conduct- 2511(3) and expressly stating section subject ed to approval the of Foreign the statutory warrant procedures Intelligence Court.”), http:// Surveillance spelled out in law must be followed leahy.senate.gov/press/200701/1-17-07% 20 conducting electronic surveillance in AG% 20to% 20PJL% 20Re% 20 20FISA% States, the United this legislation ends Court.pdf; see also Dan Eggen, Spy eight-year debate over the meaning Hill, Court’s Orders Stir on Debate Wash. scope Post, 19, power 2007, of the inherent dis- Jan. (reporting at A06 claimer clause. reaction the Bush administration’s announcement “that it will dismantle the I, 95-604, 6-7, S.Rep. pt. reprinted No. at controversial counterterrorism surveillance 3904, fact, at 1978 In U.S.C.C.A.N. program run by Security the National Congress rejected language that would Agency and instead conduct the eaves- have made Title FISA and III the “exclu- dropping authority under the secret sive statutory means” under which elec- Foreign Court, Intelligence Surveillance conducted, tronic could be in- surveillance spy issues warrants and terrorism stead adopting language that made those ” cases”). simply statutes the “exclusive means governing however, such surveillance. See opinion, repeats H.R.- The lead Rep. reprinted government’s Conf. No. assertion none requirements dential for to sue. “that the NSA’s sur- have shown attorney- the sort of con- activities include I therefore conclude that veillance definition of satisfy would FISA’s proceed duct that with their plaintiffs are entitled ” surveillance,’ and declares that ‘electronic the in- claims against record does not demonstrate “the juries flowing operation allegedly from within conduct falls FISA’s that the NSA’s TSP. As an ini- Op. Lead at 682.

definitions.” matter, argument has been waived tial C. Mootness government failed to raise it because procedural The last hurdle See, e.g., United the district court. before question must overcome is the (6th Abdi, F.3d States v. Article III the Constitution mootness. Cir.2006) (“It fundamental, firmly jurisdiction limits of the federal courts precedent, by Supreme Court established “actual, ongoing Honig controversies.” generally courts not appellate Doe, v. for the first time brought an issue consider (1988). L.Ed.2d courts have Federal on appeal.”). advisory power “neither render Moreover, government’s contention questions can- opinions nor to decide Attorney General has merit. lacks rights in the case litigants affect the FISA acknowledged that “re- publicly Newkirk, 422 Preiser before them.” before, engaging quires a court order L.Ed.2d ... unless surveillance other- this kind of omitted). (1975) (quotation marks by Congress.” Press wise authorized in an issue in this case Mootness became Gonzales, Gen., Att’y Briefing Alberto 2007, January government when the of Principal Dep’y Hayden, Michael and Gen. the publicly judge that a of announced (Dec. 2005), 19, http:// Intel. Dir. for Nat’l Foreign Intelligence Surveillance Court www.whitehouse.gov/news/releases/2005/ authorizing govern- had orders the issued (Emphasis add- 12/print/20051219-l.html. ment to conduct electronic surveillance ed.) officials Other Administration have out communications into or “international being the TSP as similarly characterized proba- of the United States where there “in lieu of’ Id. These state- used FISA. party that ble cause to believe” one in cap- indicate that the TSP fact ments al agent “a communication is member or as defined tures electronic surveillance organiza- Qaeda or an associated terrorist FISA, despite the effort of Execu- belated Gonzales, Att’y tion.” Letter from Alberto Branch to disavow this ac- tive officials Gen., 56, previously p. cited on at 1. knowledgment. orders, As a of these electronic result my no mind that the There is doubt under occurring that had been surveillance that attorney-plaintiffs have established subject to the TSP “will now be conducted complained falls within the the FISC, the “the Presi- approval” the protected by sought zone of interests be not to reauthorize” dent has determined I Accordingly, these statutes. conclude government, 1-2. the TSP. Id. at The prudential- that have satisfied the short, voluntarily cease elec- decided standing requirements. of international commu- tronic surveillance Standing summary country of FISA. in this outside nications ground On the that such surveillance above, the I For all of reasons discussed FISA-compliant, the would henceforth be attorney-plaintiffs the believe that that should dismiss pru- government argues we satisfied both constitutional and 712 Instead, judgment January FISC case as moot vacate orders. it sure, To be if we could be satisfied contends independent judicial

below. -that “[a]n reinstituted, be body that' the TSP would never FISA court—has now acted to —the argument government’s provide then the would wholly additional and le- sufficient must therefore gal have merit. We determine authority activity for the in question.” situation fits into whether government accordingly it argues that voluntary-cessation exception to the moot- “has in no sense terminated its conduct doctrine. ness response suit,” but rather “provide[ legal authority the FISC ] orders Supreme well-established Court Under that plaintiffs claimed was Both absent.” “voluntary cessation of al- precedent, at its briefs oral argument, illegal deprive conduct does not legedly government insisted the FISC orders power tribunal to hear determine represent independent “intervening act case, i.e., make the does not case of a government” coordinate branch moot,” Co., United States v. W.T. Grant voluntary-cessation suffices to render U.S. L.Ed. exception inapplicable. (1953), because “courts would be com- ... pelled to leave the defendant free to government But acknowledged ways.” to his old United return States v. oral argument main- President Ass’n, Phosphate Export Concentrated 393 tains that he the authority “opt out” U.S. L.Ed.2d 344 of the FISA framework at time and to omitted). (quotation marks reauthorize or a program. the TSP similar is demanding: might test “A case become also conceded that if subsequent moot events made it abso- FISC actively sought by orders were lutely allegedly clear that wrongful Branch, Executive and that the President reasonably expected behavior could not decided comply that he would with the recur,” Phosphate, Concentrated orders determining “after and if “interim provide[d] necessary [FISC] order[s] completely relief events have and irre- speed and agility” TSP-style surveil- vocably eradicated the effects of the al- recently, lance. Most the Director of Na- leged Angeles violation.” County Los v. tional Intelligence stated during a con- Davis, 631, 625, 1379, 440 99 U.S. S.Ct. 59 gressional hearing that government the (1979). Moreover, L.Ed.2d 642 the “heavy continued to that believe the President has of the court persuading burden that the authority the II under Article of Con- the challenged conduct reasonably cannot be stitution to order the NSA to conduct war- expected up to start with again lies the rantless electronic surveillance. James Laidlaw, party asserting mootness.” 528 Risen, Administration Pulls Back on Sur- (brackets 189, U.S. 693 S.Ct. and Agreement, Times, May 2, veillance N.Y. omitted). quotation govern- marks 2007, at facts support A18. These do not urges ment us that to find there is “no is “absolutely conclusion that it that clear longer any live genuine controversy to ad- allegedly wrongful the behavior not could judicate” because the TSP ceased to exist reasonably expected be to recur.” Con- when the President’s last authorization for 203, centrated Phosphate, 393 U.S. at it expired, resolving mooting thus the Indeed, S.Ct. 361. government’s the insis- plaintiffs’ claims. tence that perfectly was TSP lawful But and the ability continues to assert reservation its out opt the TSP did any not violate the Constitu- FISC orders time lend cre- prior tion federal position. statute dence to the opposite indicates, analysis no govern- following predi- I conclude therefore heavy its burden findings has failed meet ment cate from district court challenged conduct showing that plaintiffs’ statutory needed resolve reasonably expected up to start cannot argument. Accordingly, I this again. conclude Title expressly pro- Both FISA and III may this case is moot and that court hibit electronic surveillance outside of their jurisdiction to exercise

properly continue frameworks, statutory set forth in Part it. over used un- language I.B.4.b. above. is FISA, enacting equivocal. Congress In D. Merits directed that electronic surveillance con- opinion concern- expressing Without for foreign ducted inside the United States court, I district analysis intelligence to be purposes was undertaken I con- judgment its because would affirm by specific only as authorized federal stat- FISA Title clude that the TSP violates § utory authority. See 50 U.S.C. does not have III and that the President criminalizes interception III Title authority disregard to act the inherent wire, oral, and disclosure of electronic ground for of those The clearest statutes. except spec- communications under certain appeal is the deciding the merits of ified exceptions. See U.S.C. claim, just as clear- statutory plaintiffs’ 2511(2)(f). clearly § The statute states presented by argument est chapter 119 and FISA “shall be the say is not to attorney-plaintiffs. This by which electronic sur- exclusive means other causes of action can, merit, interception ... and the of do- simply that this case veillance lack but should, wire, oral, on the and therefore be decided and electronic communi- mestic See, e.g., grounds possible. may narrowest (emphasis be conducted.” Id. cations Ctr., City Living added). Cleburne Cleburne 3249, 473 U.S. statutory language, as- construing In we (1985) (“When a court L.Ed.2d 313 lower it said what meant.” “Congress sume case, correctly albeit what decides LaBonte, 520 States v. United unnecessary con- this Court concludes are L.Ed.2d 1001 grounds, stitutional our usual custom (1997). the text of statute is Where narrower, affirm dispositive ... on the clear, legislative “we not assess need available.”) marks omit- ground (quotation history provision.” City ... Circuit ted). Adams, Stores, Inc. v. (2001). I 149 L.Ed.2d 234 FISA Title 1. The TSP violated legislative reiterate that nonetheless III clearly history of reinforces the con- FISA government contends “it would III and Title constitute clusion FISA imprudent ... address be by which electronic the sole means surveil- deci- claim without a district court FISA During may lawfully be conducted. lance addressing questions the predicate sion legisla- session on the FISA a conference in necessary to the resolution of that claim tion, rejected lan- Congress of members argument This over- the first instance.” FISA guage that would have described appellate pos- that an court looks the fact statutory Title as the “exclusive and III jurisdiction can of affirm proper sessed by surveillance which electronic means” by any ground fairly the record. supported instead the Tankers, Inc., permitted, preferring was 67 F.3d See In re Cleveland Cir.1995). construction, (6th Moreover, means.” as “exclusive broader 95-1720, (1978), attacks, Rep. Congress H.R. Conf. No. at 35 has shown itself both 4048, 4064. reprinted willing in 1978 U.S.C.C.A.N. and able to consider appropriate Congress amendments to FISA. has in fact unequivocally thus de- Congress has multiple amended FISA times Sep- since clared that Title III FISA 11, 2001, increasing tember the President’s by which exclusive electronic sur- means authority by “roving” permitting wiretaps authori- permitted. veillance is No other expanding permissible pen- use of Congress with comply zation can the law. register devices. See PATRIOT Act USA emphasized point by further this criminal- 206, 214, §§ of Pub.L. No. 107-56 izing undertaking of electronic surveil- 109-177, by §§ amended Pub.L. No. by sep- lance not authorized in two statute (codified as amended at 50 U.S.C. places arate U.S.C. the U.S.Code. See 50 1842). § § 18 U.S.C. 2511(1) (2)(e). 1809; § § 18 U.S.C. & however, Congress that Con- government, contends But never suspended has gress application 15-day authorized the TSP the aftermath FISA’s nor altered the September by attacks en- limit on warrantless electronic surveil- acting Attorney the Authorization for Mili- Id. Use lance. General has (AUMF), tary 107-40, Force Pub.L. acknowledged No. fact Bush Adminis- 2001). addition, 115 Stat. 224 (Sept. In sought tration never amendment to that “foreign might 4048, Gonzales, Gen., 4063. Att’y http://www. Alberto whitehouse.gov/news/releases/2005/12/ sure, To Congress likely be in did print/20051219-l.html. not contemplate a situation such as the one that arose with the of September arguing attacks In that the TSP did not violate 11, 2001. FISA, But in the government aftermath of those the contends that Con- by The AUMF is neither warrantless elec- thorized FISA. gress authorized such chapter” designated it the an passed when “in this nor as surveillance tronic in pertinent states In give AUMF amendment to FISA. order to the AUMF. part then, effect government’s argument repeal authorized to use must “exclusive the President is AUMF either

[t]hat necessary appropriate force original leg- and provision all means” FISA nations, organizations, or those against in Title in as codified III or work islation planned, author- he determines persons conjunction with FISA. ized, committed, terrorist or aided the by fa- implication are not “Repeals 11, September on attacks occurred Wall.) (8 vored,” parte Yerger, Ex organizations or such or harbored (1868), are ap- 19 L.Ed. 332 and any future prevent persons, order by propriate established “over- when against international terrorism acts of whelming Congress evidence” that intend- nations, or- by States such the United repeal “when the earlier and ed the ganizations persons. J.E.M. later statutes are irreconcilable.” 107-40, (Sept. 115 Stat. 224 Pub.L. No. Int’l, Supply, Inc. v. Pioneer Hi-Bred Ag.

2001). Inc., 137, 141-42, government, According (2001). pres- In the 151 L.Ed.2d 508 authorization neces- provides the AUMF situation, easily recon- ent the statutes satisfy prohibition on elec- sary to FISA’s places by limits on means ciled: FISA as “except authorized tronic surveillance may fulfill duties the President his which 1809(a). § No by statute.” See 50 U.S.C. the AUMF. The President is free under surveillance, however, reference without a warrant engage surveillance Instead, govern- in the found AUMF. it by Congress when up to the limits set general infer- argument ment’s rests FISA, is in with keeping which enacted AUMF; from ence to be drawn curb the Congress’s purpose stated “to words, necessary phrase “all other that the Branch the Executive practice encompasses elec- appropriate force” sur- may conduct warrantless electronic implication. But tronic surveillance on its unilateral determina- veillance own directly interpretation of AUMF this security justifies it.” that national tion statutory lan- specific with the conflicts I, S.Rep. pt. reprinted No. Title III. guage of both FISA 3904, 1978 U.S.C.C.A.N. government’s argu- particular, In FISA, includes ex- previously, as noted requires accept the AUMF ment us to usage. The provisions for wartime plicit the “exclusive implicitly repealed has if the AUMF argues Title III. See 18 provision of means” the exclusive-means implicitly repealed 2511(2)(f). problem § with U.S.C. must then and FISA provision, the AUMF nor is that neither caselaw position conflict, should AUMF support statutory rules of construction disregards the fact trump FISA. This Certainly government’s argument. AUMF, enacting the Con- shortly after cannot express language AUMF provisions of FISA amended certain gress because, as interpretation sustain such PATRI- USA through its enactment above, says nothing it about elec- noted Act, Congress as above. 2511, OT described § In 18 U.S.C. tronic surveillance. and the FISA saw no conflict between thus undertaking Congress criminalized F.3d Wright, Al-Marri except “specifi- AUMF. surveillance electronic Cf. (4th Cir.2007) (concluding that au- chapter” or as 188-89 cally provided in this Elsea, of the USA PATRI- Congress’s enactment Elizabeth B. Bazan & Jennifer K. Act, provisions Serv., specific relating with to Cong. Research Presidential Au- OT “terrorist aliens” such detention of as thority to Conduct Warrantless Electronic still plaintiff, “provides another reason Foreign Surveillance to Gather Intelli- why Congress we cannot assume si- (Jan. gence Information, 5, 2006), at 40 lently empowered the President in the http://www.fas.org/sgp/crs/intel/m010506. military indefinite AUMF order the de- pdf (noting “the legislative history tention criminal process without appears to reflect an intention that ‘enemy civilian as ‘terrorist aliens’ combat- phrase by statute’ ‘authorized was a refer- ”). ants’ ence chapter 119 of Title 18 of the (Title III) itself, U.S.Code and to FISA addition, government’s argument In rather than having meaning”). broader completely ignores prin- two fundamental I accordingly legislative believe ciples of statutory construction. The first history support government’s does not relevant when principle interpreting is that reading. statutes, conflicting potentially “a more specific given precedence statute will be government also contends that the one, general regardless over a more of AUMF can specific be read as a more their temporal sequence.” Busic v. Unit- statute than FISA based on recent Su- States, 398, 406, ed 446 U.S. 100 S.Ct. preme In jurisprudence. Court Hamdi v. (1980); 64 L.Ed.2d 381 see also Mor- Rumsfeld, 507, 519, 542 U.S. TWA, Inc., 374, 384-85, ales v. (2004), 159 L.Ed.2d 578 a plurality of 119 L.Ed.2d 157 “[bjecause the Court concluded deten- (noting that a specific “carefully tion prevent a combatant’s return to the drawn” over a prevails gener- statute more battlefield is a fundamental incident of one). al provisions FISA’s regarding war- war, waging permitting the use of ‘nec- time electronic surveillance are detailed essary force,’ appropriate Congress AUMF, specific. contrast, clearly unmistakably authorized sweeps broadly, making no reference at all detention the narrow circumstances con-

to electronic surveillance. sidered plurality here.” The then reached

To read the statutes as the government the conclusion that “the explicit AUMF is suggests provisions would render FISA’s congressional authorization for the deten- relating usage surplus- wartime mere tion of individuals in the narrow category age. Such a run reading'would counter to describe,” we namely individuals who were principle second relevant of statutory “part supporting of or forces hostile to the construction that requires “give courts to United States or partners coalition in Af- effect, every if possible, to clause and word ghanistan engaged and who an armed Ramsdell, of a statute.” Montclair v. against conflict the United States there.” U.S. L.Ed. 431 Hamdi, U.S. at S.Ct. 2633 (1883); see Perry, also United States v. omitted). (plurality) (quotation marks De- (6th Cir.2004) (discuss- 360 F.3d spite the stated narrowness of this holding, against surplusage the rule in statuto- argues Hamdi allows construction). Thus, ry prevails FISA us to authorizing read the AUMF as “sig- respect over the AUMF with to electronic nals intelligence” al-Qaeda gathering surveillance in context of this case. terrorists, and other suspected and to con- addition, signals intelligence

In strue government’s including such reading of phrase “except targeting as authorized electronic per- stat- surveillance ute” legislative country. strains the record. sons See inside this

717 quite TSP or provision pro- distin- clear that the a similar But FISA’s wartime from that can present gram through situation be authorized those guishes had not enact- Congress in Hamdi plainly raised two statutes. The TSP violated the Hamdi decision and, a law at time of ed FISA and Title III exists unless there the unlimited specifically authorized that authority for the super- some President to during citizens war- of American detention this statutory authority, sede was there- time, legislative and the effect of fore unlawful. analysis of the in subject was the

omission authority 2. Inherent Hamdi 542 U.S. decision. contrast, Congress has 124 2633. In S.Ct. government’s final is that defense (FISA) specifically au- a law enacted grants Constitution President within the thorizes electronic surveillance authority” “inherent to in- “intercept the foreign purposes, and intelligence for U.S. ternational communications of those affili- provision a specifically included deal- has Qaeda.” contrary ated with A position al § 50 U.S.C. ing with times of war. would, government, according “pres- thus was found to be reasonable What grave of the question ent constitutional Congress had authority where exercise reason, highest gov- order.” For unreasonable exer- silent becomes an been ernment that we should follow contends plainly spoken. Congress cise where the canon constitutional avoidance Youngstown & Tube v. also Sheet Co. See to construe FISA and AUMF avoid 579, 635-38, 72 Sawyer, 343 U.S. S.Ct. any constitutional conflict. See Edward J. (1952) (Jackson, J., L.Ed. 1153 concur- 96 Bldg. Fla. & Corp. DeBartolo v. Coast Gulf authority of Pres- ring) (discussing the Council, Constr. Trades U.S. congressional how ident and it relates (dis- 1392, L.Ed.2d enactments). cussing avoid- the canon constitutional Finally, the Court’s more re- Supreme ance). — Rumsfeld, in decision Hamdan cent But canon of constitutional avoid- U.S.-, 165 L.Ed.2d 723 S.Ct. adjudicating ance “is a method of con- (2006), clearly government’s rejected stitutional other means.” questions in Ham- theory of Court AUMF. Martinez, 371, 381, 125 Clark v. as implic- dan declined read the AUMF (2005) (discuss- L.Ed.2d 734 itly authorizing the President override ing the the canon of consti- played role of Military in the Code provision Uniform statutory interpreta- tutional avoidance (UCMJ) that sets forth the condi- Justice tion). Instead, allow purpose its is to convening military commissions tions a statute to avoid courts construe so as “[Tjhere is noth- lieu courts-martial. problems, serious “unless constitutional history legislative in the text or plainly contrary such construction Congress intend- hinting AUMF even DeBartolo, 485 Congress.” the intent expand or the authorization set ed to alter add- (emphasis 108 S.Ct. 1392 in Article 21 of the UCMJ.” Ham- forth ed). dan, 126 S.Ct. at 2775. the nation’s divides Constitution The same observation holds true and the powers war the Executive between Nothing sug- case. in the AUMF Const, art. Legislative Branches. See U.S. to “expand intended gests Congress I, powers § forth the of Con- (setting set forth or alter authorization” II, 2 (setting § forth the gress) & art. Moreover, and the legisla- FISA. the text President); Youngs- powers Title III make see also history tive of FISA and (Jack- town, 72 S.Ct. 863 duction during 343 U.S. facilities the Korean war. son, J., concurring) (noting that powers In concurring opinion, his famous Justice “depend[ upon their dis- ] of the President tripartite system Jackson described our as junction conjunction with or those of Con- one of “separateness interdependence, but In gress”). government’s contrast autonomy reciprocity.” Youngstown, but suggestion, the President does not have (Jackson, J., 343 U.S. at 72 S.Ct. 863 Const, I, powers. exclusive war art. concurring). “Presidential powers are not (setting § powers forth the affirmative fluctuate, depending upon fixed but Congress, including the power “[t]o disjunction conjunction or with those of necessary make all Laws- which shall be Congress.” Id He then laid out the three proper carrying for into Execution the presidential power so-called zones of Powers”). foregoing follows: expressly grants The Constitution Con- pursuant When the President acts gress power to make laws in the con- express or implied authorization Moreover, text of national defense. Id of Congress, authority his is at its requires the Constitution the President to maximum, for it includes all that he Const, duly conform to enacted laws. U.S. possesses in right plus his own all II, (“[H]e § art. shall take Care that the Congress can delegate.... executed.”). faithfully Laws be This re- 2. When the President acts in absence quirement endures even in times of war. congressional grant either a Bárreme, (2 Cranch) In Little v. 6 U.S. authority, denial of he only rely can 170, 177-78, (1804), 2 L.Ed. 243 for exam- upon independent powers, his own ple, the Supreme held that during Court but there is a twilight zone of “Quasi France, with War” the Presi- Congress may he and dent give could not instructions that ran authority, concurrent inor which its statute, counter validly to a enacted de- distribution is uncertain.... spite the fact that the President’s con- 3. When the President takes measures struction seemed give the law better incompatible expressed with the effect. Supreme Court reiterated this implied Congress, will of power his (4 principle in Milligan, Ex Parte ebb, is at its lowest for then he can Wall) 2, (1866), 18 L.Ed. 281 holding rely only his own constitutional upon Corpus Habeas Act of 1863 barred the powers minus constitutional denying President from corpus habeas powers Congress over the matter. rights to a who captured detainee was 635-37, Id at 72 S.Ct. 863. outside the area of recently, battle. More When the President acts in Zone the Court held in Hamdan that the Presi- “[cjourts can sustain exclusive Presidential dent “may -not disregard limitations only by control such a disabling case has, Congress in proper exercise of its own Congress from acting upon subject. powers, war placed on powers.” his Ham- power Presidential claim to a dan, at once so 126 S.Ct. at 2774 n. (citing Youngs- town, preclusive conclusive and must (Jack- be scruti- 343 U.S. at 72 S.Ct. 863 caution, son, J., nized with what is at stake is concurring)). equilibrium established our consti- The Supreme fully Court addressed the system.” tutional Id question authority of the inherent (footnote omitted). President in Youngstown. There, Court struck down President Truman’s ex- We must thus determine into which zone ecutive order to seize domestic steel-pro- determination, the TSP fits. From that sum, 742. In challenge. fall. ment Id. at gov- stand or program will the TSP into fits argues ernment overcome dicta Sealed Case cannot authority is the President’s Zone where unequivocally that Congress fact acted argument ignores But this at its zenith. its to limit power within constitutional Congress’s directive FISA clear authority President’s over warrantless for Title the exclusive means III constitute this country. electronic surveillance within within electronic surveillance undertaking Finally, all to have of the courts consid- foreign intelligence the for United States question ered the of whether FISA was might not be what purposes. The result prefer, but that does the President would constitutional statute before was give “disregard limita- him license amended PATRIOT Act of USA Congress “placed tions” on his that in upheld 2001 have fact the statute. See Hamdan, 126 S.Ct. at 2774 n. powers.” Nicholson, F.Supp. United v. 955 States III, and Title I have light 23. In of FISA (E.D.Va.1997) n. (collecting 590 3 falls Zone no doubt that TSP into against cases FISA various con- upholding authority is at its where the President’s courts challenges). stitutional Those lowest ebb. constitutionality have considered the however, a turns to government, since FISA it was amended USA Intelligence Foreign case Surveil- from upheld likewise PATRIOT Act have support its lance of Review Court against challenges. statute constitutional argument that the President has “inherent Wen, Ning United v. 477 F.3d See States authority to war- constitutional conduct Cir.2007) (7th (finding 898-99 no con- intelligence surveillance.” foreign rantless flict with Amendment the Fourth where Case, See 310 F.3d In re Sealed to a pursuant evidence obtained FISA curiam). (For.Intel.Surv.Ct.Rev.2002) (per prose- criminal court order used was sure, To be Case court stated Sealed Damrah, cution); v. United States granted dicta take for “[w]e Cir.2005) (6th (noting that F.3d have” the “inherent author- President does to be uniformly “FISA has been held con- ity to searches to ob- conduct warrantless Amendment”); In sistent with the Fourth foreign intelligence tain information.” Id. Case, In light re F.3d at 746. Sealed however, dicta, unpersua- 742. This authorities, I persuasive of these find no sive the Sealed Case court relied because “inherent au- government’s merit decision on Fourth Circuit from 1980 thority” argument. challenge to pre-FISA with a dealt (discussing surveillance. Id. United States 629 F.2d n. Truong Hung,

v. Dink cross-appeal datamining E. Plaintiffs’ (4th Cir.1980)). cross-appeal raise a from Truong Case court discussed Sealed summary judg- grant the district court’s purpose determining for the whether on the ment to had articulated the Fourth Circuit datamining After a careful review claim. proper standard for evaluat- constitutional record, that the district I conclude challenge Amendment Fourth analysis and of the court’s of this issue Finding Truong 742-44. FISA. Id. at privi- of the state-secrets preclusive effect standard, proper did forth the set I would therefore not lege persuasive. applied court same stan- Sealed Case judgment court’s disturb district Act post-PATRIOT dard uphold claim. plaintiffs’ datamining against a Fourth Amend- version of FISA

II. CONCLUSION Aundrey MEALS, Individually and as case, question my The closest Harvey wife and next friend of James opinion, is whether have the Meals, deceased, par and as natural hurdle, past Once to sue. ent, guardian and next friend of Wil

however, gets progressively the rest easi- Meals, child, liam a minor Plaintiff- problem er. Mootness is not a because of Appellee, the government’s position that it retains right opt regime out of the FISA MEMPHIS, CITY OF TENNESSEE it whenever chooses. Its AUMF and in- (05-5974) (05- Bridgette King herent-authority arguments are' weak in 5953), Defendants-Appellants. light of existing precedent and the rules of statutory Finally, construction. when Nos. 05-5974. wording faced with the clear of FISA and United Appeals, States Court of provide Title III that these statutes Sixth Circuit. “exclusive means” for engage in electronic surveillance within the Argued: July 21, 2006. foreign United intelligence pur- States July 11, Decided and Filed: poses, the conclusion becomes inescapable I TSP was unlawful. would there- judgment fore affirm the of the district

court.

JUDGMENT

THIS CAUSE was heard on the record

from the court argued by district and was

counsel.

IN WHEREOF, CONSIDERATION it

is ORDERED that the order of the dis-

trict court is VACATED and the case is

REMANDED with instructions to DIS- jurisdiction.

MISS the case for lack of notes intelli- provided FISA authoriza- ... gence gathering vital to the success- tion for TSP or a similar program prosecution ful of war.” because certain of Congress members al- legedly informed the Administration that expressly specifical- But FISA itself “difficult, such an if amendment would be ly authority President’s restricts the even impossible” not Briefing obtain. Press in times of war. The provides statute Gonzales, Gen., Att’y Alberto http:// any law, “[n]otwithstanding other www.whitehouse.gov/news/releases/2005/ President, General, through Attorney 12/20051219-l.html. may authorize electronic surveillance with- subchapter out a court under order this precisely Yet TSP is type acquire foreign intelligence for program information that FISA was enacted to over- period exceed fifteen calendar A senior Department see. of Justice offi- days following a declaration of war cial has conceded that the TSP involved Congress.” § U.S.C. FISA thus warrantless electronic surveillance of com- limits electronic warrantless surveillance munications into and out the United days following Mosehella, first 15 a declaration States. Letter from William war, a Gen., more formal action Att’y than even the Assistant to the Honorable Pat Roberts, enactment of an authorization for the use John Honorable D. Rockefel- 15-day period ler, IV, of force. Hoekstra, This of warrant- the Honorable Peter & permit (Dec. less was surveillance enacted to the Honorable Jane Harman 2005), “consideration amendment at http://www.nationalreview. Act that may a war- appropriate during com/pdi/12% 2022%2005%20NSA% 201et- TSP, time emergency.” Rep. addition, H.R. Conf. 95- ter.pdf. The operated reprinted a court Briefing by U.S.C.C.A.N. without order. Press

Case Details

Case Name: American Civil Liberties Union v. National Security Agency

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jul 6, 2007

Citation: 493 F.3d 644

Docket Number: 06-2095, 06-2140

Court Abbreviation: 6th Cir.