ORDER
The United States has moved to dismiss “all claims against the electronic communication service providers” in the cases in this multidistrict litigation (MDL) matter brought by individuals against telecommunications companies. Doc. # 469 at 28. The single ground for dismissal in the government’s motion is section 802 of FISA, part of the FISA Amendments Act of 2008, Pub. L. No. 110-261,122 Stat 2436 (FISAAA), enacted July 10, 2008 and codified at 50 U.S.C. § 1885a. In response to the government’s motion to dismiss, plaintiffs, alleged to be customers of the various telecommunications companies named as defendants in these actions, have advanced a variety of constitutional challenges to the provisions of FISAAA upon which the government relies in seeking dismissal. Doc. # 483. For the reasons presented herein, these challenges must be rejected and the government’s motion to dismiss GRANTED.
I
A
In December 2005, news agencies began reporting that President George W Bush had ordered the National Security Agency (NSA) to conduct eavesdropping of some portion of telecommunications in the United States without warrants and that the NSA had obtained the cooperation of telecommunications companies to tap into a significant portion of the companies’ telephone and e-mail traffic, both domestic and international. See, e.g., James Risen and Eric Lichtblau,
Bush Lets U.S. Spy on Callers Without Courts,
N.Y. Times (Dec. 16, 2005). In January 2006, the first of dozens of lawsuits by customers of telecommunications companies were filed alleging various causes of action related to such cooperation with the NSA in warrant-less wiretapping of customers’ communications. See, e.g.,
Hepting v. AT & T Corp.,
C 06-0672 VRW,
The course of the
Hepting
case before the establishment of the MDL for these cases is illustrative for purposes of summarizing the procedural history of these cases. The United States moved to intervene in the case and simultaneously to dismiss it, asserting the state secrets privilege (SSP) and arguing, in essence, that the SSP required immediate dismissal because no further progress in the litigation was possible without compromising national security. C 06-0672 VRW Doc. ## 122-125. The telecommunications
*956
company defendants in the case also moved to dismiss on other grounds. C 06-0672 VRW Doc. # 86. On July 20, 2006 the court denied the motions to dismiss and certified its order for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
Hepting v. AT & T Corp.,
On August 9, 2006, the Judicial Panel on Multidistrict Litigation ordered all cases arising from the alleged warrantless wiretapping program by the NS A transferred to the Northern District of California and consolidated before the undersigned judge.
On January 5, 2007, the court ordered the plaintiffs in the cases brought against telecommunications company defendants to prepare, serve and file master consolidated complaints for each telecommunications company defendant. See master consolidated complaints at Doc. # 123 (T-Mobile and related companies), Doc. # 124 (Sprint and related companies), Doc. # 125 (MCI & Verizon companies), Doc. # 126 (BellSouth) and Doc. #455 (Cingular & ATT Mobility companies). Unlike the remaining cases in this MDL matter, no government entities were named as defendants in these actions; rather, the United States made itself a party by intervening in these actions in order to obtain a posture from which to seek their dismissal.
On July 7, 2008, after months of election-year legislative exertion that received considerable press coverage, Congress enacted FISAAA. The new law included an immunity provision for the benefit of telecommunications companies that would be triggered if and when the Attorney General of the United States certified certain facts to the relevant United States district court.
On September 19, 2008, the United States filed its motion to dismiss all claims against telecommunications company defendants in these cases, including the pending master consolidated complaints. The two categories of cases not targeted for dismissal in the United States’ instant motion to dismiss are those brought against governmental entities (Al-Haramain Islamic Foundation, Inc v. Bush, No. C 07-0109; Center for Constitutional Rights v. Bush, No. C 07-1115; Guzzi v. Bush, No. C 06-6225; Shubert v. Bush, No. C 07-0693) and those brought by the United States against state attorneys general (United States v. Clayton, C 07-01242; United States v. Palermino, C 07-01326; United States v. Farber, C 07-01324; United States v. Reishus, C 07-01323; United States v. Volz, C07-01396; Clayton v. ATT, C 07-01187). The latter six actions by the United States against states are the subject of a separate motion for summary judgment brought under section 803 of FISAAA, 50 U.S.C. § 1885b (Doc. # 536) and a separate order by the court.
B
FISAAA contains four titles. The government’s motion rests on a provision of Title II, which bears the heading “Protections for Electronic Communication Service Providers” and contains section 802, concerning “procedures for implementing statutory defenses under [FISA].” 1
Section 802(a) contains the new immunity provision upon which the United States relies in seeking dismissal:
(a) REQUIREMENT FOR CERTIFICATION. — Notwithstanding any other provision of law, a civil action may not lie or be maintained in a Federal or State court against any person for pro *957 viding assistance to an element of the intelligence community, and shall be promptly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that—
(1) any assistance by that person was provided pursuant to an order of the court established under section 103(a)directing such assistance;
(2) any assistance by that person was provided pursuant to a certification in writing under section 2511 (2)(a)(ii)(B) or 2709(b) of title 18, United States Code;
(3) any assistance by that person was provided pursuant to a directive under section 102(a)(4), 105B(e), as added by section 2 of the Protect America Act of 2007 (Public Law 110-55), or 702(h) directing such assistance;
(4) in the case of a covered civil action, the assistance alleged to have been provided by the electronic communication service provider was—
(A) in connection with an intelligence activity involving communications that was—
(i) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007; and
(ii) designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States; and
(B) the subject of a written request or directive, or a series of written requests or directives, from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was—
(i) authorized by the President; and
(ii) determined to be lawful; or
(5)the person did not provide the alleged assistance.
The government has submitted a public certification by former Attorney General Michael Mukasey which includes the following statement: “I hereby certify that the claims asserted in the civil actions pending in these consolidated proceedings brought against electronic communication service providers fall within at least one provision contained in Section 802(a).” Doc. # 469-3 at 2. In addition, the government has submitted classified certifications (Doc. # 470) in support of its motion.
Section 802(b)(1) sets out the standard for judicial review of a certification: “A certification under subsection (a) shall be given effect unless the court finds that such certification is not supported by substantial evidence provided to the court pursuant to this section.” The statute does not define “substantial evidence,” so courts presumably are to employ definitions of that standard articulated in other contexts. The United States, for example, cites a social security case,
McCarthy v. Apfel,
Section 802(c) specifies the manner in which the court is to deal with classified information. If the Attorney General files an unsworn statement under penalty of perjury that disclosure of the certification and related materials would harm the national security, the court is obligated under section 802(c) to do two things: (1) review the certification and any supplemental materials in camera and ex parte; and (2) limit public disclosure concerning such certification and the supplemental materials, including any public order following such in camera and ex parte review, to a statement whether the case is dismissed and a description of the legal standards that govern the order, without disclosing the specific subparagraph within subsection (a) that is the basis for the certification.
Section 802(d) provides, regarding the role of the parties, that any plaintiff or defendant in a civil action may submit to the court “any relevant court order, certification, written request, or directive” for review and “shall be permitted to participate in the briefing or argument of any legal issue in a judicial proceeding conducted pursuant to this section, but only to the extent that such participation does not require the disclosure of classified information to such party.” It also requires the- court to review any relevant classified information in camera and ex parte and to issue orders or parts of orders that “would reveal classified information” in camera and ex parte and maintain them under seal.
C
The United States and the telecommunications company defendants quote extensively from the October 26, 2007 report of the Senate Select Committee on Intelligence to accompany Senate Bill 2248 (SSCI Report), S.Rep. No. 110-209, 110th Cong., 1st Sess. (2007). Doc. # 469 & 508, passim; SSCI report docketed at # 469-2. Senate Bill 2248 was the original Senate bill that, together with the House bill (H 3773), resulted in the compromise legislation that ultimately passed both houses on July 8, 2008 (H 6304). See FISA Amendments of 2008, HR 6304, Section-by-section Analysis and Explanation by Senator John D Rockefeller IV, Chairman of the Select Committee on Intelligence. Doc. #469-2 at 51.
The SSCI Report included among the committee’s recommendations for legislation amending FISA that “narrowly circumscribed civil immunity should be afforded to companies that may have participated in the President’s program based on written requests or directives that asserted the program was determined to be lawful.” Doc. #469-2 at 4. The SSCI Report included a lengthy summary of the instant MDL cases, leaving no room for doubt that these cases were the intended target of the new immunity provision:
BACKGROUND ON PENDING LITIGATION
CIVIL SUITS AGAINST ELECTRONIC COMMUNICATION SERVICE PROVIDERS
After the media reported the existence of a surveillance program in December of 2005, lawsuits were filed against a variety of electronic communication service providers for their alleged participation in the program reported in the media. As of the date of this Committee report, more than forty lawsuits relating to that reported surveillance program had been transferred to a district court in the Northern District of Califor *959 nia by the Judicial Panel on Multidistrict Litigation.
The lawsuits allege that electronic communication service providers assisted the federal government in intercepting phone and internet communications of people within the United States, for the purpose of both analyzing the content of particular communications and searching millions of communications for patterns of interest. Some of the lawsuits against the providers seek to enjoin the providers from furnishing records to the intelligence community. Other suits seek damages for alleged statutory and constitutional violations from the alleged provision of records to the intelligence community. Collectively, these suits seek hundreds of billions of dollars in damages from electronic communication service providers.
The Government intervened in a number of these suits to assert the state secrets privilege over particular facts, including whether the companies being sued assisted the Government. The Government also sought to dismiss the suits on state secrets grounds, arguing that the very subject matter of the lawsuits is a state secret. Ultimately, this Government assertion of the state secrets privilege seeks to preclude judicial review of whether, and pursuant to what authorities, any particular provider assisted the Government.
Although the Government has sought to dismiss these suits, the future outcome of this litigation is uncertain. Even if these suits are ultimately dismissed on state secrets or other grounds, litigation is likely to be protracted, with any additional disclosures resulting in renewed applications to the court to allow litigation to proceed.
SUITS AGAINST THE GOVERNMENT
In addition to the lawsuits involving telecommunications providers, a small number of lawsuits were filed directly against the Government challenging the President’s surveillance program. These suits allege that the President’s program violated the Constitution and numerous statutory provisions, including the exclusivity provisions of the Foreign Intelligence Surveillance Act. These cases are at a variety of different stages of district court and appellate review. Nothing in this bill is intended to affect these suits against the Government or individual Government officials.
Id. at 8-9. 2
II
FISAAA’s section 802 appears to be mi generis among immunity laws: it creates a retroactive immunity for past, completed acts committed by private parties acting in concert with governmental entities that allegedly violated constitutional rights. The immunity can only be activated by the executive branch of government and may not be invoked by its beneficiaries. Section 802 also contains an unusual temporal limitation confining its immunity protections to suits arising from actions authorized by the president between September 11, 2001 and January 7, 2007. The government contends that section 802 is valid and enforceable and fully applicable to all the cases in the MDL brought by individuals against telecommunications companies. *960 The government now invokes section 802’s procedures in seeking dismissal of these actions.
In opposing the motion to dismiss, plaintiffs advance a number of challenges to the constitutionality of section 802, asserting that constitutional defects make the statute unenforceable. These challenges are properly presented and considered in the context of the instant motion to dismiss and are addressed on their merits in this order. ■ In the alternative, plaintiffs contend that section 802 is not applicable to, or does not require dismissal of, the cases against the telecommunications company defendants.
A
The court turns first to plaintiffs’ argument, for which they cite
Marburg v. Madison, 5
U.S. 137,
The court agrees with the United States and the telecommunications company defendants on this point: plaintiffs retain a means of redressing the harms alleged in their complaints by proceeding against governmental actors and entities who are, after all, the primary actors in the alleged wiretapping activities. Indeed, the same plaintiffs who brought the Hepting v. AT & T lawsuit (C 06-0672 VRW) are now actively prosecuting those claims in a separate suit filed in September 2008 against government defendants before the undersigned judge. Jewell v. United States, C 08-4373 VRW, filed September 18, 2008. Jewell thus joins several other cases in this MDL which seek relief only against government defendants. Al-Haramain Islamic Foundation, Inc v. Bush, No. C 070109; Center for Constitutional Rights v. Bush, No. C 07-1115; Guzzi v. Bush, No C 06-6225; Shubert v. Bush, No. C 07-0693. Plaintiffs’ argument that section 802 violates constitutional principles by leaving plaintiffs no recourse for alleged violations of their constitutional rights is therefore without merit.
B
Among their constitutional arguments, plaintiffs advance three based on the separation-of-powers principle. They argue that Congress has usurped the judicial function, has violated a principle of law prohibiting Congress from dictating to the judiciary specific outcomes in particular cases and has impermissibly delegated lawmaking power to the executive branch. The court addresses these three arguments in turn.
1
Plaintiffs assert that section 802(a) impermissibly attempts to “make [Congress] and the executive branch the final arbiters of what the First and Fourth Amendments require,” citing
United
*961
States v. United States District Court (Keith),
The court finds no merit in this argument. Congress has created in section 802 a “focused immunity” for private entities who assisted the government with activities that allegedly violated plaintiffs’ constitutional rights. In so doing, Congress has not interpreted the Constitution or affected plaintiffs’ underlying constitutional rights. Moreover, plaintiffs’ alarm about prospective disregard for the Constitution by private entities is largely misplaced given that the immunity for warrantless electronic surveillance under section 802(a)(4) is not available for actions authorized by the president after January 17, 2007, before FISAAA became law.
2
Plaintiffs argue that Congress, in enacting section 802, impermissibly directed the judiciary to adjudicate these pending cases in a particular way, thus running afoul of the doctrine first set forth in
United States v. Klein,
80 U.S. (13 Wall) 128,
In
Klein,
the executor of the estate of a person who had been sympathetic to the Confederate cause sought return of government-seized property under the Abandoned and Captured Property Act, a 1863 statute that provided for return of property or its proceeds to its original owner “on proof that he had never given aid or comfort to the rebellion.”
Id.
at 139. In December 1863, the President issued a proclamation granting a full pardon, including the restoration of property rights, to those who took an oath to support the Union.
Id.
at 131-32. In 1869, the Supreme Court affirmed a return of property under the Act because the proclamation had “cured [the claimant’s] participation in the rebellion.”
United States v. Padelford,
The Supreme Court refused in
Klein
to give effect to Congress’ requirement that the Court view pardons of evidence of disloyalty, as the requirement prevented the Court from giving “the effect to evidence which, in its own judgment, such evidence should have.”
Id.
at 147. The Court delicately noted: “We must think that Congress has inadvertently passed the limit which separates the legislative from the judicial power.”
Id.
The Supreme Court contrasted the circumstances presented in
Klein
with those in
Pennsylvania v. Wheeling Bridge Co.,
The rather oblique discussion in Klein has benefited from elaboration by twentieth-century court decisions, discussed below, to become of some practical use to courts. Subsequent decisions note that Klein contains two central ideas: legislation that creates new circumstances does not prescribe a rule of decision but legislation that prevents courts from determining the effects of evidence may do so. These concepts are easier to articulate than to apply. Two amici curiae have submitted briefs to the court on opposite sides of the question whether section 802 runs afoul of Klein. Doc. ## 501, 507.
More than a century later, a unanimous Supreme Court illuminated the scope of
Klein
to some degree in
Robertson v. Seattle Audubon Society,
management of areas according to subsections (b)(3) and (b)(5) of this section on the thirteen national forests in Oregon and Washington and Bureau of Land Management lands in western Oregon known to contain northern spotted owls is adequate consideration for the purpose of meeting the statutory requirements that are the basis for the consolidated cases captioned Seattle Audubon Society et al. v. F. Dale Robertson, Civil No 89-160 and Washington Contract Loggers Assoc et al. v. F Dale Robertson, Civil No 89-99 * * * and the case Portland Audubon Society et al. v. Manuel Lujan, Jr., Civil No 87-1160-FR.
In response to motions to dismiss based on the new statute, plaintiffs argued that the above-quoted provision violated Article III of the Constitution.
Id.
at 436,
The Supreme Court reversed, holding that “subsection (b)(6)(A) compelled changes in law, not findings or results under old law” because “under subsection (b)(6)(A), the agencies could satisfy their MBTA obligations in either of two ways: by managing their lands so as neither to ‘kill’ nor ‘take’ any northern spotted owl within the meaning of § 2, or by managing their lands so as not to violate the prohibitions of subsections (b)(3) and (b)(5).”
Id.
at 438,
The Supreme Court further developed the connection between
Robertson
and
Klein
in
Plaut v. Spendthrift Farm, Inc.,
In
Ecology Center v. Castaneda,
The court reads Klein, Plaut, Robertson and Ecology Center to mean that the court’s inquiry must be whether Congress has, in enacting section 802, directed certain findings of fact in pending litigation or, instead, changed the underlying law.
One amicus argues that Congress has not changed the underlying substantive law; the other argues that it has. The former contends that if the Attorney General were to decline to submit a certification under section 802, telecommunication companies would remain liable under old law and that this somehow means Congress has not changed the underlying law. Doc. # 501 at 6. The latter amicus argues that section 802 does not amend the substantive federal law that provides plaintiffs’ claim of right but rather creates an affirmative defense that changes applicable law in a detectable way by altering the overall substantive legal landscape pertinent to the subject matter at issue. Doc. # 507 at 10.
The court agrees with the view that section 802 amends substantive federal law. The Attorney General’s role is examined in detail in the next section; for the reasons stated therein, the Attorney General does not have the authority to “change the law” or legislate under section 802. The court does not agree, however, with the characterization of the substantive change in law as the creation of an affirmative defense; rather, as already noted, section 802 creates an immunity, albeit one that is activated in an unusual way.
Plaintiffs, meanwhile, contend that section 802 is unconstitutional under the principles articulated in
Klein
because “section 802 * * * forbids the Court from engaging in independent fact-finding,” Doc. # 483 at 30, and “section 802 violates the separation of powers because it permits the Executive to dictate that the Judiciary dismiss these actions without allowing the Judiciary to make an independent determination of the facts on which the dismissal is based.” Doc. # 483 at 29. The United States counters that “it is the Court that ‘finds’ whether the Attorney General’s certification is supported by substantial evidence provided under Section 802 and, thus, whether dismissal will be granted.” Doc. # 520 at 17. Plaintiffs nonetheless contend that a “substantial evidence” standard of review
*964
of the Attorney General’s certification, i.e., his fact-finding, is “an unconstitutional attempt to direct * * * particular findings of fact,” citing
Robertson,
One amicus also argues that Congress, in enacting section 802, acted in a self-interested manner by “hiding unconstitutional and unlawful conduct” and “hop[ing] for dismissal behind a facade of judicial process” because of “intensive lobbying,” “targeted fundraising efforts” and “contributions” and that this somehow makes section 802 unconstitutional. Doc. # 501 at 12-15. But the court’s role is limited to examining the product of the legislative process to determine whether it accords with Constitutional rules for the exercise of legislative power, not to second-guess that process.
In enacting section 802, Congress created a new, narrowly-drawn and “focused” immunity within FISA, thus changing the underlying law in a “detectable way.”
Gray,
3
Plaintiffs assert that section 802(a) violates the “nondelegation doctrine” under which Congress may not delegate lawmaking power to the executive branch, citing
Youngstown Sheet and Tube Co. v. Sawyer,
Plaintiffs specifically assert, somewhat confusingly, that Congress “has not changed the law governing plaintiffs’ causes of action,” but, rather, “[b]y the act of filing certifications in this Court, the Attorney General has purported to amend the statutes governing plaintiffs’ actions long after Congress enacted FISAAA and the President signed it.” Doc. #483 at 24-25. As the court understands plaintiffs’ contention, section 802(a) specifies a good many things that the Attorney General must do should he choose to seek dismissal of a “covered civil action,” but it does not actually direct the Attorney General to take any steps up to and including filing certifications, nor does it appear to establish any basis for his exercise of discretion in determining whether to do so in a particular case.
Notwithstanding the non-delegation doctrine’s sweeping prohibition on delegations of law-making power, congressional delegations of law-making authority to administrative agencies are commonplace and those agencies create enormous bodies of law including, but not limited to, the entire Code of Federal Regulations. One treatise comments thusly about the current status of the non-delegation doctrine: “The real law is pretty close to acceptance of any delegation of authority,” but “the doctrine’s theoretical foundation is very sound and scholars continue to argue about a more robust nondelegation doctrine.” 33 Charles A. Wright & Charles H. Koch, Jr., Federal Practice *965 and Procedure § 8365 at 264-65 (Thomson/West 2006). Id. at 265. There are, in short, limits to what Congress may permissibly delegate to the executive branch, although the courts are rarely called on to enforce those limits. In 1928, Chief Justice Taft wrote, in an opinion upholding the power of Congress to delegate to the executive the authority to adjust import tariffs:
If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power. If it is thought wise to vary the customs duties according to changing conditions of production at home and abroad, it may authorize the Chief Executive to carry out this purpose, with the advisory assistance of a Tariff Commission appointed under congressional authority.
Hampton & Co. v. United States,
Congressional enactments during the 1930s and 1940s prompted a number of non-delegation challenges; in just two of them, the Supreme Court determined that Congress had delegated too much legislative authority.
Panama Refining Co. v. Ryan,
In reviewing a statute against a nondelegation challenge to an act of Congress, “the only concern of courts is to ascertain whether the will of Congress has been obeyed.”
Yakus v. United States,
The Court’s
Mistretta
opinion identified in the Sentencing Reform Act of 1984 three “goals,” four “purposes,” the prescription of a specific tool for the Sentencing Commission to use in carrying out its responsibilities- — the sentencing “ranges” later embodied in the Sentencing Guidelines — seven “factors” to be considered in the formulation of offense categories and “[i]n addition to these overarching constraints * * * even more detailed guidance to the Commission about categories of offenses and offender characteristics” such as recidivism, multiple offenses and other aggravating and mitigating factors.
In this century, the Supreme Court considered a non-delegation challenge in
Whitman v. American Trucking Assns.,
In considering the instant motion, the court regarded the nondelegation challenge to section 802 as substantial enough to warrant additional briefing. Doc. ## 559, 571-573. The nondelegation problem presented in the instant cases is different from that in the above-referenced authorities in that section 802 contains no charge or directive, timetable and/or criteria for the Attorney General’s exercise of discretion, a point the United States admits: “Congress left the issue of whether and when to file a certification to the discretion of the Attorney General.” Doc. # 466 at 22. The statute does not explicitly confine the Attorney General’s authority in any manner or, indeed, offer any direction to the Attorney General other than to prohibit him from delegating his “authority and duties” under section 802 to anyone other than the Deputy Attorney General (§ 802(g)). Rather, the statute’s commands are directed to the courts and to the parties. Yet the Attorney General’s action triggers the dramatic consequence of dismissal of a number of lawsuits seeking substantial damages against the telecommunications company defendants.
The United States’ primary argument in its supplemental brief is that section 802 does not delegate legislative power, but rather “permit[s], but do[es] not require, the Attorney General to certify facts to a court, triggering consequences determined by Congress.” Doc. # 572 at 7. Therefore, the United States asserts, “the non-delegation doctrine and its ‘intelligible principle’ standard are simply inapplicable.” Id. Like plaintiffs, they cite Marshall Field & Co v. Clark, but contend that section 802 is like the tariff law upheld in that case. *967 They point to that opinion’s emphasis on “factfinding” as a permissible delegation to the executive branch:
The proper distinction * * * was this: “The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known to the law-making power, and must therefore be a subject of inquiry and determination outside of the halls of legislation.”
The United States cites the following specific examples: 28 U.S.C. § 2679(d) (when Attorney General certifies that a defendant federal employee was acting within the scope of his office or employment in a civil action, ’United States “shall be substituted” as the party defendant); 18 U.S.C. § 5032 (unless the Attorney General “after investigation” certifies facts to the United States district court, juveniles may not be prosecuted in the United States courts); 28 U.S.C. § 1605(g)(1)(A) (upon request of the Attorney General together with certification that a discovery order would significantly interfere with a criminal case or national security operation, court “shall stay” discovery against the United States); Classified Information Procedures Act § 6(a), 18 U.S.C. App. 3 (authorizing the Attorney General to certify that a public hearing regarding use of classified information may result in disclosure of such information, automatically triggering an in camera hearing). Doc. # 572 at 7-8 n 2.
The telecommunications company defendants similarly contend that section 802 provides only for the certification of facts by the executive branch that then triggers consequences determined by Congress, and not delegated legislative or rulemak-ing activity. They contend that the Attorney General’s authority under section 802 is similar to that of the Secretary of State recently upheld by the DC Circuit in
Owens v. Republic of the Sudan,
The telecommunications company defendants also rely on a New Deal-era case,
Currin v. Wallace,
In these and other examples advanced in support of section 802, the statute at issue undeniably contains a charge to the executive branch which is challenged as insufficiently clear or restrictive; section 802 contains no such charge.
As a secondary argument, the United States asserts that an intelligible principle governing the Attorney General’s exercise of discretion can be discerned in section 802, pointing to the narrow scope of cases in which the Attorney General is authorized to act under section 802 as defined in the five conditions set forth in subsections (a)(1)-(a)(5). While there is no question that the criteria for certification are narrowly-drawn, the lack of a charge to the Attorney General remains a problem that the United States does not directly acknowledge. The United States contends, however, that legislative history may be used to supply an intelligible principle. This requires putting aside the usually applicable canon that statutory language alone controls a court’s interpretation absent ambiguity.
Lamie v. United States Trustee,
[The] legislative history, together with Congress’ directive that the Commission begin its consideration of the sentencing ranges by ascertaining the average sentence imposed in each category in the past, and Congress’ explicit requirement that the Commission consult with authorities in the field of criminal sentencing provide a factual background and statutory context that give content to the mandate of the Commission.
When we review statutes for an intelligible principle that limits the authority delegated to a branch outside the legislature, we do not confine ourselves to the isolated phrase in question, but utilize all the tools of statutory construction, including the statutory context and, when appropriate, the factual background of the statute to determine whether the statute provides the bounded discretion that the Constitution requires.
The United States does not contend that the legislative history should be read to confer a mandatory duty on the Attorney General to prepare certifications for all telecommunications company defendants for which it is possible to do so. (Indeed, while the telecommunications company defendants urge such an interpretation, the United States specifically declines to join in or endorse that argument. Doc. # 572 at 17 n 9.) Rather, the United States contends that a discretionary authorization to act, as opposed to a mandate to do so, “to protect intelligence gathering ability and national security information,” Doc. # 572 at 11, can be found in the legislative history of section 802 and that this is sufficient to withstand plaintiffs’ nondelegation challenge.
*969
The United States describes section 802 as “strikingly similar to the grant of authority to the Attorney General” upheld by the Supreme Court in
Touby v. United States,
The telecommunications company defendants argue that the court can and should construe section 802 to contain a tacit mandate requiring the Attorney General to file certifications in all possible cases (e.g., “Congress * * * imposed on the Attorney General the responsibility to determine when evidence exists that would satisfy the statutory standards and to submit that evidence to the a court,” Doc. # 508 at 2). The court is not aware of any precedent for such a reading and, on the contrary, finds the absence of such a charge striking in the context of FISAAA as a whole.
Congress could have made the authorization for the executive branch to certify facts pursuant to an explicit charge to the agency in question. An example of this type of statute is 50 U.S.C. App. § 2405(i), which provides that special licensing requirements come into play for exports to countries for which the Secretary of State has made specific determinations of a factual nature (e.g., “The government of such country has repeatedly provided support for acts of international terrorism”); but the authority is in furtherance of'a charge from Congress spelled out elsewhere in the same act:
In order to carry out [enumerated policies], the President may prohibit or curtail the exportation of [ ] goods, technology or other information * * * to the extent necessary to further significantly the foreign policy of the United States or to fulfill its declared international obligations
and the subsection lists the specific executive branch agencies authorized to carry out the charge. 50 U.S.C. App. § 2405(a)(1).
Congress could in this manner have included language in section 802 specifically directing the Attorney General to undertake review and to submit to the court the specified certifications. The absence of a congressional charge to the Attorney General in section 802 is all the more surprising for the fact that numerous other provisions of FISAAA contain directives to the Attorney General and other agency heads: section 702(a) authorizes the Attorney General and the Director of National Intelligence to target “persons reasonably believed to be located outside the United States”; section 702(g) requires the Attorney General and the Director of National Intelligence to complete written certifications prior to implementing a § 702(a) authorization; section 702(i)(3) requires the *970 “head of each element of the intelligence community” to complete specified annual reviews; section 707(a) requires the Attorney General to provide a semiannual report to congressional committees; section 105(a) authorizes the Attorney General to authorize emergency employment of electronic surveillance under specified circumstances; section 301 requires Inspectors General of Department of Justice, Office of Director of National Intelligence, National Security Agency, Department of Defense and other inspectors general to provide interim reports to Congress within sixty days. The court agrees with plaintiffs (Doc. # 573 at 22) that in light of the many other provisions in FISAAA requiring the Attorney General to perform a range of tasks, construing section 802 to contain a mandate to the Attorney General would be especially inappropriate.
Finally, the telecommunications company defendants argue essentially “no harm, no foul” regarding the statute’s lack of standards governing the Attorney General’s discretion to submit or not submit a certification: “That the Attorney General might exercise discretion as to whether to tender a certification is * * * purely conjectural — he has done so here — and not a matter of constitutional significance.” Doc. # 508 at 22. The court is not persuaded that a constitutional defect in a statute can be cured by the executive’s zealous execution of that statute. See
Whitman,
After carefully considering all the briefing, the court concludes that while the nondelegation challenge presents a close question, section 802, properly construed, does not violate the constitutional separation of powers. From the foregoing discussion, the court now distills the following salient points in determining that section 802 is not an unconstitutional delegation by the legislative branch to the executive branch.
Section 802 is not a broad delegation of authority to an administrative agency like the Clean Air Act or the Sentencing Reform Act; rather, its subject matter is intentionally narrow or “focused” in scope. “[T]he degree of agency discretion that is acceptable varies according to the scope of the power eongressionally conferred.”
Whitman,
*971 Accordingly, the court concludes that section 802 does not suffer from the constitutional infirmity of excessive delegation to the Attorney General.
C
Plaintiffs next advance arguments under the Due Process Clause of the Fifth Amendment, specifically: (1) their causes of action for violations of the First and Fourth Amendments are property interests protected by the Due Process Clause and that section 802 deprives them of their right to notice and an opportunity to be heard before a “neutral and detached judge in the first instance” (Doc. # 483 at 32-36); and (2) the secrecy provisions allowing for certifications and supporting documentation to be submitted in camera and ex parte violates due process by depriving them of “meaningful notice” of the government’s basis for seeking dismissal and a “meaningful opportunity to oppose the government’s arguments and evidence” (Doc. # 483 at 36-39). The court addresses these two arguments in turn.
1
Plaintiffs contend that the Fifth Amendment’s Due Process Clause entitles them to notice and an opportunity to be heard before a “neutral and detached judge in the first instance” in a proceeding under section 802 seeking dismissal of their claims against the telecommunications company defendants. They argue further that the Attorney General’s role makes section 802 constitutionally defective. Doc. # 483 at 32. Relying primarily on
Concrete Pipe & Products v. Construction Laborers Pension Trust,
Plaintiffs acknowledge that Congress “is free to create defenses or immunities to statutory causes of action” because the legislative process satisfies Due Process requirements. Doc. # 524 at 27 n 16. They contend, however, that the Attorney General, not Congress, has “changed the law governing plaintiffs’ lawsuits.” Id.
As previously discussed in this order, Congress has manifested its unequivocal intention to create an immunity that will shield the telecommunications company defendants from liability in these actions. The Attorney General, in submitting the certifications, is acting pursuant to and in accordance with that congressional grant of authority, in effect, to administer the newly-created immunity provision. Plaintiffs acknowledge that “Congress * * * is free to create defenses or immunities to statutory causes of action because it is ‘the legislative determination [that] provides all the process that is due.’ ” Doc. # 524 at 27 n 16, quoting
Logan v. Zimmerman Brush Co.,
2
Plaintiffs argue as a second Due Process challenge that the secrecy provisions allowing for certifications and sup
*972
porting documentation to be submitted in camera and ex parte violates due process. They cite
Brock v. Roadway Express, Inc.,
The United States responds that courts have “uniformly” upheld laws and procedures providing for ex parte use of classified evidence because of the compelling state interest in protecting national security, citing recent cases from the Seventh and DC Circuits.
The parties’ contrasting positions highlight the tension between the government’s concern for national security and the civil litigant’s due process rights. While both interests are of great importance, the United States’ argument prevails here. Other statutes providing for ex parte, in camera procedures have withstood due process challenges in other contexts having national security implications. For example, in
Holy Land Foundation for Relief & Development v. Ashcroft,
Section 802(d) provides for parties to submit documents and briefs to the court in connection with a proceeding under section 802. Section 802 is not, therefore, a fully ex parte procedure in the sense that the process for securing a FISA warrant under 50 U.S.C. § 1804 or an arrest warrant in the criminal context is ex parte. Section 802 evinces a clear congressional intent that parties not have access to classified information. Given the special balancing that must take place when classified information is involved in a proceeding, the court is not prepared to hold that the Constitution requires more process than section 802 provides in the circumstances of this case.
D
Plaintiffs also contend that Congress’ enactment of the secret filing and evidence provisions of section 802 violates a First Amendment right of access to documents in a civil proceeding because “only a court, and not the Attorney General or Congress,” can apply strict scrutiny to a proposed ban on public access to court records (Doc. # 483 at 40^15), and thereby also trenches on the authority of federal courts under Article III. Several news or
*973
ganizations (Associated Press,
Los Angeles Times, San Jose Mercury News, USA Today)
that have intervened in this lawsuit have joined in this part of plaintiffs’ motion (Doc. # 523). Plaintiffs cite
Globe Newspaper Co. v. Superior Court,
The United States asserts, as it has throughout this litigation, that the executive branch is responsible for the protection and control of national security information, citing
Department of the Navy v. Egan,
The United States further posits that the applicable Supreme Court rule is not
Globe Newspaper,
but that set forth in
Press-Enterprise Co. v. Superior Court,
The court agrees with the United States that
Globe Newspaper
gives plaintiffs little ground to stand on in the instant context. The majority opinion in
Globe Newspaper
mapped the contours of the constitutional right of access to
criminal trials
on the part of the press and general public announced in
Richmond Newspapers, Inc. v. Virginia,
The court also agrees with the United States’ reading of
Egan
in this context. While
“Egan
recognizes that the authority to protect national security information is neither exclusive nor absolute in the executive branch,”
In Re National Security Agency Telecommunications Litigation,
The idea that there is a presumptive right of public and press access to court proceedings as discussed in some of the cases plaintiffs cite (e.g.,
Grove Fresh Distributors, Inc. v. Everfresh Juice Co.,
Plaintiffs raise two other, related, objections to subsections 802(c) and (d) based on the First Amendment in this part of their brief. Subsection (d) requires the court to use ex parte, in camera procedures to prevent the disclosure of classified information. Subsection (c) restricts public access to the certifications and/or supplemental materials filed pursuant to section 802 if the Attorney General files a sworn affidavit asserting that disclosure “would harm the national security of the United States.” This provision appears consistent with the principles set forth in Egan; the court, accordingly, sees no basis for finding them constitutionally defective on First Amendment grounds.
E
Plaintiffs contend that the Attorney General’s filing of a certification under section 802(a) is “a final agency action” that requires adherence to the rules for final agency actions under the Administrative Procedures Act (APA), 5 U.S.C. § 551 et seq, and that this in effect grafts additional standards of review onto the review procedures set forth in section 802 itself— standards allegedly not met here. Doc. # 483 at 58-59. Specifically, plaintiffs assert that the court must review the “whole record” and determine whether the agency action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” “in excess of statutory ... authorityf ] or limitations,” or “contrary to constitutional right, power, privilege, or immunity.” Id., citing 5 U.S.C. § 706.
The United States does not argue that the Department of Justice is not an agency or that the filing of the certifications is not an action; rather, the United States counters that “section 802 and its express terms, including the procedures applicable to these proceedings, govern these cases,” but cites no authority in support of the notion that section 802’s procedures automatically displace those required by the APA. Doc. # 520 at 35. But because “the APA applies even if the enabling act does not mention it and the applicable procedural law is determined by the APA whether or not the enabling act incorporates that law” and “[e]ven if the enabling act provides procedures, the APA affects those requirements,” 32 Charles A. Wright & Charles H. Koch, Federal Practice and Procedure: Judicial Review § 8135 at 94, more examination of this question is required.
Specific statutory procedures providing for judicial review of agency action apply in context, and the APA’s general provisions fill in the interstices. 5 U.S.C. § 704 provides: “Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” In
Bowen v. Massachusetts,
487
*975
U.S. 879, 903,
§ 704 * * * makes it clear that Congress did not intend the general grant of review in the APA to duplicate existing procedures for review of agency action. As Attorney General Clark put it the following year, § 704 “does not provide additional judicial remedies where the Congress has provided special and adequate review procedures.”
Accord,
Edmonds Institute v. United States Department of the Interior,
Regarding the scope of judicial review, 5 U.S.C. § 706 provides that the reviewing court “shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” The reviewing court must set aside “agency action, findings, and conclusions” it finds to meet one of six criteria: arbitrary, capricious, an abuse of discretion; contrary to constitutional right; in excess of statutory jurisdiction; without observance of procedure required by law; “unsupported by substantial evidence in a case subject to section 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute”; or unwarranted by the facts as determined pursuant to de novo review. Section 802, in providing for review under the substantial evidence standard, appears consistent with section 706 of the APA and therefore may be understood to take the place of APA review.
In summary, plaintiffs’ contention that the APA imposes requirements additional to section 802 is without merit.
F
Finally, plaintiffs make a series of arguments to the effect that, on the merits and putting alleged infirmities in section 802 aside, the Attorney General’s certifications are inadequate under section 802’s own terms to support dismissal of these actions.
Specifically, plaintiffs contend that: (1) substantial evidence cannot support dismissal under Section 802(a)(5) in that, whereas the Attorney General’s public certifications state,
inter alia,
“because there was no content-dragnet, no provider participated in that alleged activity” (Doc. # 469-3 at 5), plaintiffs’ evidence establishes that there was, in fact, dragnet-type surveillance by one or more of the defendant telecommunications service providers (Doc. # 483 at 48-52); (2) substantial evidence cannot support dismissal under section 802(a)(4) in that the alleged dragnet surveillance program could not have been “designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States,” because its “objective features * * * were not designed for the specific function of detecting or preventing a terrorist attack but for the broader purpose of acquiring as many communications and communications records as possible, regardless of whether [they] bear any connection to terrorism at all,”
id.
at 54; and (3) substantial evidence cannot support dismissal under any of the first three subsections of section 802 because the constraints imposed by the Fourth Amendment as interpreted by
Keith,
While plaintiffs have made a valiant effort to challenge the sufficiency of certifications they are barred by statute from reviewing, their contentions under section 802 are not sufficiently substantial to persuade the court that the intent of Congress in enacting the statute should be frustrated in this proceeding in which the court is required to apply the statute. The court has examined the Attorney General’s submissions and has determined that he has met his burden under section 802(a). The court is prohibited by section 802(c)(2) from opining further. The United States’ motion to dismiss must therefore be, and hereby is, GRANTED.
Because, however, section 802’s immunity provision may only be invoked with regard to suits arising from actions authorized by the president between September 11, 2001 and January 7, 2007, the dismissal is without prejudice. On May 15, 2009, plaintiffs submitted a “notice of new factual authorities in support of plaintiffs’ opposition to motion of the United States” to dismiss. Doc. # 627. In the notice, plaintiffs cite news articles published in 2009 reporting post-FISAAA war-rantless electronic surveillance activities by the NSA. Plaintiffs argue that these articles constitute “proof that the certification of former Attorney General Michael Mukasey that is the sole basis for the government’s pending motion to dismiss is not supported by ‘substantial evidence.’ ” Doc. # 627 at 3. The court disagrees. The court believes that the Attorney General has adequately and properly invoked section 802’s immunity to the extent that the allegations of the master consolidated complaints turn on actions authorized by the president between September 11, 2001 and January 7, 2007. The court also believes, however, that plaintiffs are entitled to an opportunity to amend their complaints if they are able, under the ever-more-stringent pleading standards applicable in federal courts (see, e.g.,
Ashcroft v. Iqbal,
— U.S.-,
Ill
For the aforestated reasons, the United States’ motion to dismiss (Doc. #469) is GRANTED. Also for the reasons set forth herein, plaintiffs’ hearsay objections to the SSCI report and to the public and classified declarations submitted by the United States (Doc. # 477) are OVERRULED; these documents are admissible for the purposes discussed herein.
Plaintiffs may amend the master consolidated complaints in a manner consistent with this order within thirty (30) days of the date of this order.
IT IS SO ORDERED.
Notes
. This provision is codified at 50 U.S.C. § 1885 (definitions), 50 U.S.C. § 1885a (procedures for implementing statutory defenses), 50 U.S.C. § 1885b (preemption) and 50 U.S.C. § 1885c (reporting).
. The SSCI report also contained (at 8-9) several paragraphs describing the suits by the United States seeking to enjoin investigations by state attorneys general into alleged war-rantless wiretapping activities conducted with the cooperation of telecommunications companies. These suits, referred to in Part I A above, are part of this MDL and are addressed separately.