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Amnesty International USA v. McConnell

August 20, 2009

AMNESTY INTERNATIONAL USA, ET AL., PLAINTIFFS,
v.
JOHN MCCONNELL, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John G. Koeltl, District Judge

OPINION AND ORDER

This is a facial challenge to the constitutionality of Section 702 of the Foreign Intelligence Surveillance Act of 1978 ("FISA"), 50 U.S.C. § 1881a, which was added to FISA by Section 101(a)(2) of the FISA Amendments Act of 2008 (the "FAA"). In relevant part, the FAA amended FISA by creating a new framework within which federal officials may seek approval from the Foreign Intelligence Surveillance Court (the "FISC") to authorize surveillance targeting non-United States persons located outside the United States to acquire foreign intelligence information.

The plaintiffs are attorneys and organizations in the United States whose work necessitates international communications with people and organizations they believe to be likely targets of surveillance under the FAA. The defendants are the Director of National Intelligence, the Director of the National Security Agency and Chief of the Central Security Service, and the Attorney General of the United States.*fn1

The plaintiffs fear that their international communications will be monitored under the FAA. They make no claim that their communications have yet been monitored, and they make no allegation or showing that the surveillance of their communications has been authorized or that the Government has sought approval for such surveillance. However, the plaintiffs assert that they have an "actual and well-founded fear" of surveillance under the FAA and claim already to have incurred significant costs in taking steps to protect their international communications from surveillance. The plaintiffs challenge the FAA as unconstitutional under the Fourth Amendment, the First Amendment, and Article III of the Constitution.

The Government contends as a threshold matter that the plaintiffs lack standing to challenge the FAA. The Government also contends that the lawsuit lacks merit in any event because the FAA is constitutional on its face.

The parties have filed cross-motions for summary judgment. For the reasons explained below, the plaintiffs have failed to show that they have standing to bring their facial challenge to the statute.

I.

A.

Prior to the passage of the FAA, FISA created a framework for federal officials to apply for and obtain orders authorizing electronic surveillance where a significant purpose of the surveillance was to obtain foreign intelligence information. See 50 U.S.C. § 1804; see also United States v. Duggan, 743 F.2d 59, 77 (2d Cir. 1984).*fn2 FISA established the FISC, comprised of judges appointed by the Chief Justice of the United States, with jurisdiction to hear applications for and to grant orders approving electronic surveillance "in aid of protecting the United States against attack by foreign governments or international terrorist groups." United States v. Rahman, 861 F. Supp. 247, 249 (S.D.N.Y. 1994), aff'd, 189 F.3d 88 (2d Cir. 1999); see also 50 U.S.C. §§ 1801(e), 1803.

FISA required that each application for an order approving electronic surveillance be made by a federal officer upon oath or affirmation after approval by the Attorney General. 50 U.S.C. § 1804(a). An application was required to set forth the identity of the federal officer making the application; the identity, if known, of the target of the electronic surveillance; the facts upon which the applicant relied in concluding that the target of the electronic surveillance was a foreign power or an agent of a foreign power and that each of the facilities or places at which the surveillance was directed was being used, or was about to be used, by a foreign power or agent thereof; a statement of proposed minimization procedures; the type of information sought and the means by which surveillance would be effected; a statement concerning the previous applications sought; and a statement of the period of time for which the surveillance was required to be maintained.

50 U.S.C. § 1804(a)(1)-(9).

The application had to be approved by the Attorney General upon the Attorney General's finding that it satisfied the criteria and requirements of such an application. 50 U.S.C. § 1804(a). The application had to include a certification from a high ranking executive officer employed in the area of national security or defense that the information sought was foreign intelligence information as defined by 50 U.S.C. § 1801(e). 50 U.S.C. § 1804(a)(6). Foreign intelligence information included information relating to the ability of the United States to protect against international terrorism, and "information with respect to a foreign power or foreign territory that relates to . . . the conduct of the foreign affairs of the United States," among other things. 50 U.S.C. § 1801(e). FISA required that the certification include a statement that the information sought could not reasonably be obtained by normal investigative techniques and designating the type of foreign intelligence information sought in accordance with § 1801(e). 50 U.S.C. § 1804(a)(6). Finally, after the passage of the Patriot Act, the executive officer was required to certify that "a significant purpose of the surveillance is to obtain foreign intelligence information." 50 U.S.C. § 1804(a)(6).

Prior to approving the requested electronic surveillance, a FISC judge had to find that: (1) the application was made by a federal officer and approved by the Attorney General; (2) there was probable cause on the basis of the application to believe that the target of the electronic surveillance was a foreign power or agent of a foreign power, and that each of the facilities or places at which the electronic surveillance was directed was being used, or was about to be used, by a foreign power or an agent of a foreign power; (3) the proposed minimization procedures met the definition of minimization procedures set forth in § 1801(h); and (4) the application contained all statements and certifications required under § 1804. 50 U.S.C. § 1805(a).

Pursuant to FISA, a FISC judge who was satisfied that an application met the statutory requirements was required to enter an ex parte order approving the requested electronic surveillance. 50 U.S.C. § 1805(a). Such an order was required to specify the identity of the target of the surveillance; the location of each of the facilities or places at which the surveillance would be directed; the type of information sought and communications or activities to be subjected to the surveillance; the means by which the surveillance would be effected; and the period of time for which the surveillance was approved; and to direct that the minimization procedures be followed. 50 U.S.C. § 1805(c).

The FISA framework governed applications for orders authorizing electronic surveillance to obtain foreign intelligence information, including surveillance of communications between persons located within the United States ("domestic communications") and surveillance of communications between persons located within the United States and persons located outside the United States ("international communications"). FISA defined "electronic surveillance" to include:

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of Title 18;

(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or

(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

50 U.S.C. § 1801(f). The FISA requirements thus applied to the surveillance of international wire communications (including telephone and email communications) provided that the surveillance occurred in the United States. 50 U.S.C. § 1801(f)(2). The FISA requirements did not apply to the surveillance of international radio communications, or to surveillance of international wire communications that did not take place in the United States,*fn3 unless such surveillance targeted a known United States person located in the United States. See 50 U.S.C. §§ 1801(f)(1-2).*fn4

B.

The FAA was signed into law on July 10, 2008. The FAA leaves much of the pre-existing FISA framework intact. However, new Section 702 of FISA, added by Section 101(a)(2) of the FAA and codified at 50 U.S.C. § 1881a, sets forth a new framework displacing the pre-existing FISA framework where the Government seeks approval from the FISC to authorize surveillance targeting non-United States persons located outside the United States to acquire foreign intelligence information. Under the FAA, "[n]otwithstanding any other provision of law, upon the issuance of an order in accordance with [50 U.S.C. § 1881a(i)(3)] or a determination under [50 U.S.C. § 1881a(c)(2)], the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information." 50 U.S.C. § 1881a(a).

In order to authorize surveillance under the FAA, the Attorney General and the Director of National Intelligence must apply for and obtain an order authorizing such surveillance from the FISC. 50 U.S.C. §§ 1881a(a) & (i)(3).*fn5 The application consists of providing a written certification and any supporting affidavit, under oath and under seal, to the FISC. The certification must attest, among other things, that a significant purpose of the requested surveillance is to obtain foreign intelligence information; that the surveillance involves obtaining such information from or with the assistance of an electronic communications service provider; and that the surveillance complies with certain limitations set forth in § 1881a(b). 50 U.S.C. § 1881a(g)(2)(A)(v-vii).

Pursuant to the limitations set forth in § 1881a(b), the requested surveillance may not intentionally target any person known at the time of the surveillance to be located in the United States; any person reasonably believed to be located outside the United States if the purpose of such surveillance is to target a particular, known person reasonably believed to be in the United States; or any United States person reasonably believed to be located outside the United States. 50 U.S.C. § 1881a(b)(1-3). Moreover, the requested surveillance may not intentionally acquire communications known at the time of the surveillance to be domestic communications, 50 U.S.C. § 1881a(b)(4), although it may intentionally acquire international communications.*fn6 Section 1881a(b) also provides that the requested surveillance must be conducted in a manner consistent with the Fourth Amendment. 50 U.S.C. § 1881a(b)(5).

The certification must attest that guidelines have been adopted in accordance with 50 U.S.C. § 1881a(f) to ensure compliance with the limitations in § 1881a(b) and to ensure that an application for a court order is filed as required by § 1881a. 50 U.S.C. § 1881a(g)(2)(A)(iii). In addition, such guidelines must be provided to the congressional intelligence committee and the Committees on the Judiciary of the Senate and the House of Representatives, as well as the FISC. 50 U.S.C. § 1881a(f)(2). The certification must attest that such guidelines are consistent with the Fourth Amendment. 50 U.S.C. § 1881a(g)(2)(A)(iv).

The certification must attest that the Government has targeting and minimization procedures in place that have been approved by the FISC or have been submitted to the FISC for approval or will be submitted with the certification. 50 U.S.C. § 1881a(g)(2)(A)(i-ii). The certification must also include the actual procedures and attest that they comply with the Fourth Amendment. 50 U.S.C. § 1881a(g)(2)(B) & (g)(2)(A)(iv). "Targeting procedures" are procedures reasonably designed to ensure that the requested surveillance is limited to targeting persons reasonably believed to be located outside the United States, and to prevent the intentional surveillance of communications known to be domestic communications at the time of the surveillance. 50 U.S.C. § 1881a(d)(1) & (g)(2)(A)(i). "Minimization procedures" for purposes of electronic surveillance under the FAA must meet the definition of minimization procedures for purposes of electronic surveillance under FISA. Minimization procedures are:

(1) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;

(2) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in [50 U.S.C. § 1801(e)(1)], shall not be disseminated in a manner that identifies any United States person, without such person's consent, unless such person's identity is necessary to understand foreign intelligence information or assess its importance; [and]

(3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes[.]

50 U.S.C. § 1801(h).*fn7

The certification required by the FAA must be supported, as appropriate, by the affidavit of any appropriate official in the area of national security who is appointed by the President, by and with the advice and consent of the Senate, or who is the head of an element of the intelligence community. 50 U.S.C. § 1881a(g)(2)(C). The certification must include an effective date for the authorization that is at least 30 days after the submission of the certification to the FISC; or, if the acquisition has begun or the effective date is less than 30 days after the submission of the certification to the FISC, the date the acquisition began or the effective date of the acquisition.

50 U.S.C. § 1881a(g)(2)(D).

The FISC has jurisdiction to review a certification for electronic surveillance under the FAA, including the targeting and minimization procedures that were adopted by the Attorney General in consultation with the Director of National Intelligence. 50 U.S.C. § 1881a(i)(1)(A). The FAA provides that the FISC shall review the certification, the targeting procedures and the minimization procedures to ensure that they comply with all of the requirements discussed above. 50 U.S.C. § 1881a(i)(2). If the FISC finds that the certification contains all the required elements and the targeting and minimization procedures are in compliance with the statute and with the Fourth Amendment, it must issue an order granting the Government approval to authorize the requested surveillance. 50 U.S.C. § 1881a(i)(3)(A). The FISC must complete its review and issue an order with respect ...


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