No. 07-35865
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ______
BRANDON BIERI MAYFIELD, an individual; MONA MAYFIELD, guardian ad litem; SHANE MAYFIELD; SHARIA MAYFIELD; SAMIR MAYFIELD, individuals, by and through their guardian ad litem, Mona Mayfield,
Plaintiffs-Appellees,
v.
UNITED STATES OF AMERICA,
Defendant-Appellant. ______
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON ______
BRIEF FOR THE APPELLANT ______
JEFFREY S. BUCHOLTZ Acting Assistant Attorney General
KARIN J. IMMERGUT United States Attorney
DOUGLAS N. LETTER SCOTT R. McINTOSH Attorneys, Appellate Staff Civil Division Department of Justice 950 Pennsylvania Avenue NW, Room 7259 Washington, D.C. 20530 202-514-4052 TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES...... iii
STATEMENT OF JURISDICTION...... 1
STATEMENT OF ISSUES...... 1
STATEMENT OF THE CASE...... 2
STATEMENT OF FACTS...... 3
I. The Foreign Intelligence Surveillance Act...... 3
A. Electronic Surveillance under FISA...... 3
B. Physical Searches under FISA...... 1 0
II. The Present Litigation...... 1 1
SUMMARY OF ARGUMENT...... 1 7
ARGUMENT...... 2 2
I. The Plaintiffs Lack Standing to Seek a Declaratory Judgment that 50 U.S.C. §§ 1804 and 1823 Are Facially Unconstitutional...... 2 2
A. Neither Past Injuries Nor Speculation about Future Injuries Provides Standing to Seek a Declaratory Judgment...... 2 2
B. The Government’s Possession of the Derivative FISA Materials Does Not Support Standing...... 2 5 II. 50 U.S.C. §§ 1804 and 1823 Are Not Facially Unconstitutional...... 2 9
A. Sections 1804 and 1823 Satisfy the Requirements of the Fourth Amendment...... 2 9
1. FISA’s Probable Cause Standard Comports with the Fourth Amendment...... 2 9
2. FISA’s “Significant Purpose” Standard Does Not Render Sections 1804 and 1823 Unconstitutional...... 4 1
B. Sections 1804 and 1823 Are Not Facially Unconstitutional under Salerno...... 5 1
III. Other Constitutional Issues Are Outside the Scope of the Amended Complaint and Are Foreclosed by the Settlement Agreement...... 5 7
CONCLUSION...... 6 1
CERTIFICATE OF COMPLIANCE
STATEMENT OF RELATED CASES
EXTENSION LETTER
STATUTORY ADDENDUM
CERTIFICATE OF SERVICE
-ii- TABLE OF AUTHORITIES
Cases Page
Bernhardt v. County of Los Angeles, 279 F.3d 862 (9th Cir. 2002)...... 2 2
Camara v. Municipal Court, 387 U.S. 523 (1967)...... 4 9
Cassidy v. Chertoff, 471 F.3d 67 (2d Cir. 2006)...... 4 9
City of Los Angeles v. Lyons, 461 U.S. 95 (1983)...... 23, 24
Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000)...... 2 2
Gospel Missions of America v. City of Los Angeles, 328 F.3d 548 (9th Cir. 2003)...... 5 4
Grimes v. CIR, 82 F.3d 286 (9th Cir. 1996)...... 27, 28
Haig v. Agee, 453 U.S. 280 (1981)...... 3 5
Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999)...... 23, 25
Hotel & Motel Ass'n of Oakland v. City of Oakland, 344 F.3d 959 (9th Cir. 2003)...... 5 2
INS v. Lopez-Mendoza, 468 U.S. 1032 (1984)...... 2 7
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)...... 22, 29
MacWade v. Kelly, 460 F.3d 260 (2d Cir. 2006)...... 4 9
Marshall v. Barlow's, Inc., 436 U.S. 307 (1978)...... 4 9
Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990)...... 4 8
-iii- S.D. Myers, Inc. v. City and County of San Francisco, 253 F.3d 461 (9th Cir. 2001)...... 5 2
NTEU v. Von Raab, 489 U.S. 656 (1989)...... 4 9
Pennsylvania Board of Probation & Parole v. Scott, 524 U.S. 357 (1998). . . . . 2 7
Ramsden v. United States, 2 F.3d 322 (9th Cir. 1993), cert. denied, 511 U.S. 1058 (1994)...... 2 8
In re Sealed Case, 310 F.3d 717 (FISA Court of Review 2002)...... passim
See v. Seattle, 387 U.S. 541 (1967)...... 4 9
Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134 (9th Cir. 2000), cert. denied, 531 U.S. 1143 (2001)...... 2 5
United States v. Abu-Jihaad, __ F. Supp. 2d __, 2008 WL 219172 (D. Conn. Jan. 24, 2008)...... 30, 41, 42, 43
United States v. Brown, 484 F.2d 418 (5th Cir. 1973), cert. denied, 415 U.S. 960 (1974)...... 3 1
United States v. Buck, 548 F.2d 871 (9th Cir. 1977)...... 4, 31
United States v. Butenko, 494 F.2d 593 (3d Cir.), cert. denied, 419 U.S. 881 (1974)...... 3 1
United States v. Calandra, 414 U.S. 338 (1974)...... 2 7
United States v. Cavanagh, 807 F.2d 787 (9th Cir. 1987). . . . . 3, 29, 30, 34, 40, 42
United States v. Damrah, 412 F.3d 618 (6th Cir. 2005)...... 2 9
United States v. Duggan, 743 F.2d 59 (2d Cir. 1984)...... 30, 34, 38, 39, 40, 42
-iv- United States v. Holy Land Foundation for Relief & Dev., 2007 WL 2011319 (N.D.Tex. July 11, 2007)...... 30, 42
United States v. Lujan, 504 F.3d 1003 (9th Cir. 2007)...... 2 9
United States v. Martinez-Fuerte, 428 U.S. 543 (1976)...... 48, 53
United States v. Mubayyid, 521 F. Supp. 2d 125 (D. Mass. 2007)...... 30, 42
United States v. Pelton, 835 F.2d 1067 (4th Cir.1987), cert. denied, 486 U.S. 1010 (1988)...... 29, 34, 39, 40
United States v. Salerno, 481 U.S. 739 (1987)...... 17, 20, 51, 52
United States v. Sarkissian, 841 F.2d 959 (9th Cir. 1988)...... 9, 42, 46, 51
United States v. Truong, 629 F.2d 908 (4th Cir. 1980), cert. denied, 454 U.S. 1154 (1982)...... 31, 42, 43, 44, 45, 50
United States v. United States District Court, 407 U.S. 297 (1972). . 31, 32, 34, 38
United States v. Wen, 477 F.3d 896 (7th Cir. 2006)...... 29, 41, 49
Western States Paving Co., Inc. v. Washington State Dep't of Transportation, 407 F.3d 983 (9th Cir. 2004), cert. denied, 546 U.S. 1170 (2006)...... 5 2
Whren v. United States, 517 U.S. 806 (1996)...... 5 7
Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975), cert. denied, 425 U.S. 944 (1976)...... 3 1
-v- Constitution and Statutes
Fourth Amendment...... passim
Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. §§ 1801 et seq.. . passim
USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272 (2001)...... passim
18 U.S.C. § 2(a)...... 5 4 18 U.S.C. § 371...... 5 4 18 U.S.C. § 793...... 5 5 18 U.S.C. § 2332b...... 55, 56 18 U.S.C. § 2518...... 3 3 28 U.S.C. § 1291...... 1 28 U.S.C. § 1331...... 1 50 U.S.C. §§ 1801-1811...... 3 50 U.S.C. § 1801(a)(1)...... 6 50 U.S.C. § 1801(a)(2)...... 6 50 U.S.C. § 1801(a)(3)...... 4, 6 50 U.S.C. § 1801(a)(4)...... 6 50 U.S.C. § 1801(a)(5)...... 6 50 U.S.C. § 1801(a)(6)...... 4, 6 50 U.S.C. § 1801(b)(1)(A)-(C)...... 7 50 U.S.C. § 1801(b)(1)(A)...... 5 4 50 U.S.C. § 1801(b)(2)(A)-(D)...... 7 50 U.S.C. § 1801(b)(2)(A)...... 5 3 50 U.S.C. § 1801(b)(2)(B)...... 5 3 50 U.S.C. § 1801(b)(2)(C)...... 54, 56 50 U.S.C. § 1801(b)(2)(E)...... 7 50 U.S.C. § 1801(c)...... 54, 56 50 U.S.C. § 1801(c)(1)-(3)...... 7 50 U.S.C. § 1801(e)(1)...... 3 5 50 U.S.C. § 1801(e)(1)(A)-(C)...... 8 50 U.S.C. § 1801(e)(2)(A)-(B)...... 8 50 U.S.C. § 1802...... 3 5 50 U.S.C. § 1802(a)...... 4 50 U.S.C. § 1803(a)...... 3 5
-vi- 50 U.S.C. § 1803(a)-(b)...... 4 50 U.S.C. § 1804...... passim 50 U.S.C. § 1804(a)...... 4, 10, 36 50 U.S.C. § 1805(a)(3)...... 3 6 50 U.S.C. § 1804(a)(3)(A)-(B)...... 5 50 U.S.C. § 1804(a)(4)(A)-(B)...... 5 50 U.S.C. § 1804(a)(5)...... 5 50 U.S.C. § 1804(a)(7)...... 35, 37 50 U.S.C. § 1804(a)(7)(A)-(B)...... 5 50 U.S.C. § 1804(a)(7)(B)...... 3 7 50 U.S.C. § 1804(d)...... 6 50 U.S.C. § 1805...... 35, 36 50 U.S.C. § 1805(a)(1)-(5)...... 1 1 50 U.S.C. § 1805(a)(5)...... 6, 37 50 U.S.C. § 1805(c)(1)(B)-(E)...... 3 6 50 U.S.C. § 1805(c)(2)(A)...... 3 6 50 U.S.C. § 1805(e)(1)...... 36, 37 50 U.S.C. § 1805(e)(1)(B)...... 16, 21, 51, 58, 59, 60 50 U.S.C. §§ 1821-29...... 10, 11, 12, 13 50 U.S.C. § 1823...... passim 50 U.S.C. § 1823(a)...... 1 0 50 U.S.C. §§ 1823-24...... 3 6 50 U.S.C. § 1824(a)(1)-(5)...... 1 1
Legislative History
S. Rep. No. 95-701 (1978), reprinted in 1978 U.S.C.C.A.N. 3973...... 34, 37
147 Cong. Rec. S10591 (Oct. 11, 2001)...... 10, 50
Other
Final Report of the National Commission on Terrorist Attacks Upon the United States (2004)...... 46, 47
-vii- STATEMENT OF JURISDICTION
1. This case involves a claim arising under the Fourth Amendment and the
Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. §§ 1801 et seq. (“FISA”).
The jurisdiction of the district court was invoked under 28 U.S.C. §§ 1331 and
1343(a)(3). For reasons explained below, the plaintiffs lack standing under Article
III, and the case therefore was not within the jurisdiction of the district court.
2. The district court entered a final judgment on September 26, 2007. The
United States filed a notice of appeal on October 9, 2007, within the time allowed by
Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure. The appeal is within this Court’s jurisdiction under 28 U.S.C. § 1291.
STATEMENT OF ISSUES
1. Whether the plaintiffs’ claim for declaratory relief satisfies Article III and prudential requirements for standing and ripeness.
2. Whether 50 U.S.C. §§ 1804 and 1823 are facially unconstitutional under the
Fourth Amendment.
3. Whether the district court erred in deciding other Fourth Amendment claims that were released by the plaintiffs in an approved settlement agreement, were not presented in the plaintiffs’ complaint, and were not before the court. STATEMENT OF THE CASE
This case presents a challenge to the constitutionality of the Foreign
Intelligence Surveillance Act. The plaintiffs contend that two provisions of FISA,
50 U.S.C. §§ 1804 and 1823, are facially unconstitutional under the Fourth
Amendment. The provisions in question prescribe the standards and requirements for applications for court orders authorizing electronic surveillance and physical searches under FISA.
The constitutionality of FISA under the Fourth Amendment has been consistently and repeatedly sustained by the federal courts, including this Court. The plaintiffs nevertheless claim that Sections 1804 and 1823 are unconstitutional on their face because, as amended by the USA PATRIOT Act, they permit the government to carry out electronic surveillance and physical searches when the collection of foreign intelligence information is a “significant purpose” of the surveillance or search. The plaintiffs contend that FISA electronic surveillance and physical searches are permissible under the Fourth Amendment only if the collection of foreign intelligence information is the “primary purpose” of the search or surveillance, and that Congress crossed a constitutional line by making the existence of a “significant purpose” the prerequisite for a FISA application.
-2- This Fourth Amendment claim has been expressly rejected by numerous federal courts, including the Seventh Circuit and the special appellate court created by
Congress to oversee FISA. However, in the proceedings below, the district court agreed with the plaintiffs and declared that Sections 1804 and 1823 are unconstitutional on their face. That decision is the first ever to find a constitutional defect in FISA, and the constitutional rule that it adopts has damaging implications for national security. The United States now appeals.
STATEMENT OF FACTS
I. The Foreign Intelligence Surveillance Act
A. Electronic Surveillance under FISA
1. Congress enacted FISA in 1978 “to accommodate and advance both the government’s interest in pursuing legitimate intelligence activity and the individual’s interest in freedom from improper governmental intrusion.” United States v.
Cavanagh, 807 F.2d 787, 789 (9th Cir. 1987). In general terms, FISA establishes standards and procedures by which the federal government may use electronic surveillance to collect foreign intelligence information. 50 U.S.C. §§ 1801-1811. In most circumstances, FISA requires the Executive Branch to obtain prior judicial
-3- approval before engaging in such surveillance.1 Congress created two specialized federal courts, both composed of Article III judges, to perform the judicial functions prescribed by FISA: the Foreign Intelligence Surveillance Court (“FISA Court”), which entertains FISA applications in the first instance, and the Foreign Intelligence
Surveillance Court of Review (“FISA Court of Review”), which reviews appeals by the government from denials of applications. Id. § 1803(a)-(b).
To obtain judicial authorization for electronic surveillance under FISA, a federal officer must present the FISA Court with an application that has been approved by the Attorney General, the Deputy Attorney General, or the Assistant
Attorney General for National Security. Id. § 1804(a). The application must identify or describe the target of the surveillance and provide a detailed description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance. Id. § 1804(a)(3), (6). The applicant must determine, and must set forth the “facts and circumstances” relied on for the determination, that:
(1) the target of the surveillance is a “foreign power” or “an agent of a foreign power”; and (2) the foreign power or agent is using, or is about to use, each of the
1 In prescribed circumstances, the President may authorize electronic surveillance under FISA without a court order. 50 U.S.C. § 1802(a); see United States v. Buck, 548 F.2d 871, 875 (9th Cir. 1977). The constitutional claim in this case does not involve such surveillance.
-4- facilities or places at which the surveillance is directed. Id. § 1804(a)(4)(A)-(B). In addition, a senior national security or defense official must certify, inter alia, that:
(1) he deems the information being sought to be “foreign intelligence information”; and (2) “a significant purpose” of the surveillance is to obtain foreign intelligence information. Id. § 1804(a)(7)(A)-(B). The application must also set forth the means by which the surveillance will be effected and the measures that the government will take to comply with FISA’s minimization requirements. Id. § 1804(a)(5), (8).
In order to approve an application for electronic surveillance under FISA, a judge of the FISA Court must find “probable cause to believe” that: (1) the target of the surveillance is a foreign power or agent of a foreign power; and (2) that the foreign power or agent is using or is about to use each of the facilities or places at which the surveillance is directed. Id. § 1805(a)(3)(A)-(B). In addition, the judge must find that the application contains all of the certifications and statements required by Section 1804, and if the target of the surveillance is a United States person, the judge must find that the certifications “are not clearly erroneous.” Id. § 1805(a)(5).
Thus, the judge must find a factual basis for, inter alia, the certifications that the information to be collected is foreign intelligence information (id. § 1804(a)(7)(A)) and that obtaining such information is a significant purpose of the surveillance (id.
§ 1804(a)(7)(B)). See In re Sealed Case, 310 F.3d 717, 735 (FISA Court of Review
-5- 2002) (per curiam) (“Section 1805 must be interpreted as giving the FISA court the authority to review the government’s purpose in seeking the information”). In addition to relying on the information contained in the application itself, the judge may also require the applicant to furnish “such other information as may be necessary to make the determinations” required by Section 1805. Id. §§ 1804(d), 1805(a)(5).
2. The requirements of Sections 1804 and 1805 are designed to ensure that electronic surveillance under FISA focuses on gathering “foreign intelligence information” from “foreign powers” and “agents of foreign powers.” The definitions of those terms are thus central to the scope and operation of the statute. See Sealed
Case, 310 F.3d at 722. Moreover, as discussed further below, the definitions play a significant role in harmonizing the statutory probable cause standard of FISA with the Fourth Amendment standard of probable cause applicable to domestic law enforcement.
FISA defines “foreign power” to mean, inter alia, a foreign government; an entity directed and controlled by a foreign government; or “a group engaged in international terrorism.” 50 U.S.C. § 1801(a)(1), (4), (6); see also id. § 1801(a)(2)-
(3), (5) (other categories of foreign power). “International terrorism” means “violent acts or acts dangerous to human life” that “transcend national boundaries” or occur outside the United States; that are “a violation of the criminal laws of the United
-6- States or of any State,” or would be if committed within the jurisdiction of the United
States or a state; and that “appear to be intended” to intimidate or coerce a domestic population, intimidate or coerce changes in government policy, or affect government conduct by assassination or kidnaping. Id. § 1801(c)(1)-(3).
An “agent of a foreign power” includes any person who, “for or on behalf of” a foreign power, knowingly:
• engages in “clandestine intelligence gathering activities” that “involve or may involve” violations of federal criminal statutes;
• engages in “any other clandestine intelligence activities” that “involve or are about to involve” violation of federal criminal laws, pursuant to the direction of the foreign power’s intelligence service or network;
• engages or prepares to engage in “sabotage or international terrorism”; or
• enters the United States under a false or fraudulent identity or knowingly assumes a false or fraudulent identity in the United States.
Id. § 1801(b)(2)(A)-(D); see also id. § 1801(b)(2)(E) (aiding and abetting and conspiracy).2
2 Persons who are not “United States persons” are also subject to a supple- mental definition of “agent of a foreign power.” 50 U.S.C. § 1801(b)(1)(A)-(C). A “United States person” is an American citizen, an alien lawfully admitted for permanent residence, or a domestic corporation or an unincorporated association “a substantial number of [whose] members” are American citizens or permanent resident aliens. Id. § 1801(i). The plaintiffs in this case are United States persons, and provisions of FISA that apply only to non-United States persons, such as the supplemental definition of “agent of a foreign power,” do not affect them.
-7- Finally, “foreign intelligence information” is information that “relates to” – and, if it concerns a “United States person,” “is necessary to” – the ability of the
United States to protect against:
• “actual or potential attack or other grave hostile acts” of a foreign power or agent;
• “sabotage or international terrorism” by a foreign power or agent; or
• “clandestine intelligence activities” by an intelligence service or network or agent of a foreign power.
Id. § 1801(e)(1)(A)-(C). Foreign intelligence information also includes information with respect to a foreign power or foreign territory that “relates to” (and, if it concerns a United States person, “is necessary to”) the national defense or security of the
United States or the conduct of foreign affairs. Id. § 1801(e)(2)(A)-(B).
3. As noted above, obtaining foreign intelligence information must be a
“significant purpose” of electronic surveillance under FISA. FISA was modified to incorporate the “significant purpose” requirement in 2001 by the USA PATRIOT Act.
See Pub. L. No. 107-56, § 218, 115 Stat. 272, 291 (2001).
Prior to 2001, several courts had construed FISA to authorize electronic surveillance only when the government’s primary purpose in conducting electronic surveillance was the collection of foreign intelligence information, and had held as a statutory matter that judicial authorization for FISA surveillance was unavailable
-8- if the government’s primary purpose in conducting the surveillance was to pursue criminal prosecution of the target. See generally Sealed Case, 310 F.3d at 725-26
(summarizing pre-PATRIOT Act cases). The text of FISA itself did not explicitly impose a “primary purpose” test, and in United States v. Sarkissian, 841 F.2d 959,
964 (9th Cir. 1988), this Court declined to decide whether FISA did so implicitly. In so doing, the Court cautioned against “draw[ing] too fine a distinction between criminal and intelligence investigations.” Id. The Court pointed out that FISA’s definition of “international terrorism,” which is an integral part of its definitions of
“foreign power,” “agent of a foreign power,” and “foreign intelligence information,”
“requires the investigation of activities that constitute crimes.” Id. The Court further noted that “FISA contemplates prosecution based on evidence gathered through surveillance.” Id. (citing 50 U.S.C. § 1806)).
The PATRIOT Act established the “significant purpose” standard in response to the several judicial decisions construing FISA to embody a “primary purpose” requirement. See generally Sealed Case, 310 F.3d at 728-29, 732-33 (discussing legislative history of PATRIOT Act amendment). The adoption of the significant purpose standard “make[s] it easier for law enforcement to obtain a FISA search or surveillance warrant for those cases where the subject of the surveillance is both a potential source of valuable [foreign] intelligence and the potential target of a
-9- criminal prosecution.” 147 Cong. Reg. S10591 (Oct. 11, 2001) (Sen. Feinstein). The standard also relieves the government from the need to balance the various purposes behind particular surveillance in an effort to determine which is the “primary” one.
The significant purpose standard means that the government must “have a measurable foreign intelligence purpose, other than just criminal prosecution of even foreign intelligence crimes.” Sealed Case, 310 F.3d at 735. But “[s]o long as the government entertains a realistic option of dealing with the [targeted foreign] agent other than through criminal prosecution, it satisfies the significant purpose test.” Id.
B. Physical Searches under FISA
In 1994, Congress amended FISA to authorize physical searches for foreign intelligence information. See 50 U.S.C. §§ 1821-29. The procedures for obtaining authorization for physical searches under FISA closely resemble those for conducting electronic surveillance. Compare id. §§ 1804-1805 (applications and orders for electronic surveillance) with id. §§ 1823-24 (applications and orders for physical searches). The government must make substantially the same statements and certifications, including a certification that collecting foreign intelligence information is a “significant purpose” of the search. Compare id. § 1804(a) (electronic surveillance application) with id. § 1823(a) (search application). The FISA court, in turn, must make substantially the same findings, including the same basic findings of
-10- probable cause. Compare id. § 1805(a)(1)-(5) (surveillance order) with id. §
1824(a)(1)-(5) (search order). More specifically, the court must find probable cause to believe that: (1) the target of the search is a foreign power or an agent of a foreign power; (2) the premises or property to be searched are owned, used, possessed by, or in transit to or from a foreign power or agent. Id. § 1824(a)(3)(A)-(B).
II. The Present Litigation
1. In March 2004, terrorists detonated bombs in Madrid, Spain, killing nearly
200 people. Spanish investigators sent the FBI fingerprints found on items connected to the bombers. The FBI erroneously concluded that one of the fingerprints belonged to plaintiff Brandon Mayfield, an American citizen who lives in Oregon. In subsequent proceedings, an independent fingerprint expert selected by Mayfield and appointed by the district court handling the matter made the same erroneous identification. ER 4-8, 10-11.
The FBI sought and obtained FISA orders authorizing electronic surveillance and physical searches of Mayfield’s home and office. Mayfield was subsequently arrested and held in federal custody for two weeks as a material witness in a grand jury investigation. While Mayfield was being held, the Spanish investigators determined that the fingerprint in question belonged to an Algerian terrorist.
-11- Mayfield was thereupon released from custody and was never charged with a criminal offense. ER 8-12.
Mayfield and his family filed suit against the United States and several FBI officials in the District of Oregon. The Mayfields sought damages for unlawful arrest and imprisonment and unlawful searches and seizures. The Mayfields also sought declaratory and injunctive relief against the Department of Justice and the FBI regarding surveillance and physical searches under FISA.
2. The parties eventually negotiated a settlement agreement, which was approved by the district court and which resolved all but one of the issues in this case.
ER 49-54. The government agreed to: (1) pay the Mayfields two million dollars;
(2) apologize to the Mayfields; (3) return copies of “material-witness materials”; and
(4) destroy the “FISA take” – i.e., the intercepts and materials obtained by the FBI pursuant to the FISA surveillance and searches that targeted Brandon Mayfield. Id. at 49-50.3 The agreement does not require the government to destroy or otherwise dispose of any “derivative FISA materials” – i.e., materials derived directly or
3 For purposes of the settlement agreement, “FISA take” is specifically defined as: (1) “the communications intercepts that were acquired by the FBI pursuant to the FISA electronic surveillance authority targeting Brandon Mayfield”; and (2) “the materials that were seized or reproduced by the FBI pursuant to the FISA physical search authority targeting Brandon Mayfield.” Id. at 51. The “material-witness materials” related to non-FISA searches conducted in connection with the material witness proceeding. Id. at 52.
-12- indirectly from the FISA take. Id. at 49.4 The government has performed all of its obligations under the settlement agreement.
The settlement agreement left open a single claim for the Mayfields to pursue: the claim that “50 U.S.C. § 1804 (relating to electronic surveillance under the Foreign
Intelligence Surveillance Act) and 50 U.S.C. § 1823 (relating to physical searches under such Act) violate the Fourth Amendment on their face.” ER 52-53. The agreement provides that this is “the sole claim that is not released as part of this settlement and that is in issue in [the] Amended Complaint * * * .” Id. Pursuant to the agreement, the only relief that may be awarded on this claim is a declaratory judgment that one or both of the challenged provisions violate the Fourth
Amendment. Id. at 53. The agreement thus precludes the entry of any injunctive relief against the government. The government agreed that, if an adverse declaratory judgment were entered with respect to the constitutionality of Section 1804 or Section
1823, and the judgment became final and not subject to further judicial review, the government would not use such provision(s) with respect to the Mayfields. Id.
The settlement agreement provides that the surviving Fourth Amendment claim is to be litigated based only on the Amended Complaint (ER 67), the parties’
4 The agreement defines “derivative FISA materials” as “[a]ny materials, in whatever form or place, derived directly or indirectly from or related to the FISA take * * * that are not included within the * * * definition” of “FISA take.” Id. at 51.
-13- Recitation of Stipulated Facts (ER 64), and memoranda of law. ER 53. The parties agreed that no discovery, evidentiary hearing, or other factual proceedings of any kind would occur, and that the complaint would not be further amended. Id. Finally, the settlement agreement provided that the United States may raise any defenses and arguments in its opposition to the remaining Fourth Amendment claim, including but not limited to lack of jurisdiction, and that the United States does not necessarily agree with the allegations in the Amended Complaint, but only stipulates to the facts recited in the Recitation of Stipulated Facts and does so for purposes of the litigation only. Id.
3. After the district court approved the settlement agreement, the Mayfields filed their Amended Complaint in December 2006. In accordance with the settlement agreement, the Amended Complaint claims only that 50 U.S.C. §§ 1804 and 1823 are unconstitutional on their face under the Fourth Amendment. Id. at 68, 74-76. As required by the agreement, the Amended Complaint states that the constitutionality of those provisions is “not [being challenged] as applied in respect to Plaintiffs.” Id. at 68.
The Mayfields’ challenge to the constitutionality of Sections 1804 and 1823 rests on the interaction between FISA’s statutory probable cause requirement and the
“significant purpose” standard. The Mayfields assert that, in ordinary criminal cases,
-14- the warrant requirement of the Fourth Amendment requires a judge to find probable cause to believe that the target of the search or surveillance has committed or is about to commit a criminal offense. The Mayfields characterize FISA’s statutory probable cause standard as less demanding because it requires only a showing that the target is a foreign power or an agent of a foreign power. The Mayfields argue that this statutory probable cause standard is permissible under the Fourth Amendment only if collection of foreign intelligence information is the primary purpose of the search or surveillance. Because Sections 1804 and 1823, as amended by the PATRIOT Act, allow the government to conduct FISA electronic surveillance and physical searches when the collection of foreign intelligence information is a significant purpose, rather than the primary purpose, the Mayfields contend that those sections are facially unconstitutional. As discussed further below, the identical Fourth Amendment challenge was exhaustively considered and rejected by the FISA Court of Review in
Sealed Case, 310 F.3d at 736-46.
4 . The parties filed cross-motions for summary judgment, and the United
States also moved to dismiss the amended complaint on standing and ripeness grounds. On September 26, 2007, the district court issued an opinion and order denying the government’s motion to dismiss, granting summary judgment to the
Mayfields, and declaring that 50 U.S.C. §§ 1804 and 1823 are facially
-15- unconstitutional under the Fourth Amendment. ER 1-44. In accordance with the terms of the approved settlement agreement, the district court did not enter any injunctive relief.
As a threshold matter, the district court held that the Mayfields have Article III standing and that their Fourth Amendment claim is ripe. The court held that the possession of derivative FISA materials by the government, without more,
“constitutes a real and continuing [Article III] injury-in-fact to plaintiffs.” ER 23.
The court further held that the claim for declaratory relief satisfies Article III’s redressability requirement because “it is reasonable to assume that the Executive
Branch of the government will act lawfully and make all reasonable efforts to destroy the derivative materials when a final declaration of the unconstitutionality of the challenged provisions is issued.” Id. at 24. The court also held that the Mayfields’ facial challenge was ripe for review. Id. at 25-26.
On the merits, the district court agreed with the Mayfields that unless obtaining foreign intelligence information is the primary purpose of a search or surveillance, rather than a “significant purpose,” the Fourth Amendment requires the government to show probable cause to believe that the target of the search or surveillance is engaged in criminal activity. ER 28-44. The court acknowledged that the same
-16- Fourth Amendment claim had been rejected by the FISA Court of Review in Sealed
Case, but declined to follow the reasoning of that decision.
The United States argued that, even if Sections 1804 and 1823 are assumed to violate the Fourth Amendment in particular circumstances, the provisions cannot be declared facially unconstitutional unless the Mayfields show that the provisions are unconstitutional in every case – i.e., that “no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). The government pointed out that the statutory definitions of “foreign power” and “agent of a foreign power” are predicated largely on the existence of criminal conduct, particularly when the target of the surveillance is a United States person, and showing that the target is an agent of a foreign power will often be tantamount to a showing that the target is engaged in criminal activity. The district court nevertheless held that
Sections 1804 and 1823 are unconstitutional in all possible circumstances and therefore may be declared facially unconstitutional under Salerno. ER 28.
As noted above, the only issue before the Court was the facial constitutionality of Sections 1804 and 1823. Nevertheless, the Court opined on several other constitutional issues. In particular, the court declared that 50 U.S.C. § 1805(e)(1)(B), which prescribes time limits for electronic surveillance of non-United States persons, violates the Fourth Amendment. ER 38.
-17- SUMMARY OF ARGUMENT
1. The plaintiffs lack standing under Article III to seek a declaratory judgment regarding the facial constitutionality of 50 U.S.C. §§ 1804 and 1823. The plaintiffs’ past injuries do not provide standing to seek a prospective remedy such as a declaratory judgment. The plaintiffs cannot predicate standing on future injuries either, for they have not alleged that they are likely to be subjected to FISA surveillance again or that the government is likely to use any “derivative FISA materials” against them in the future. And even if the government’s mere possession of derivative FISA materials is assumed to constitute a cognizable Article III injury, the plaintiffs cannot satisfy the redressability component of Article III standing, because the district court’s declaratory judgment does not render the government’s continued possession of the derivative materials unlawful. To the contrary, it is settled that the government may retain and use unlawfully obtained evidence for numerous purposes, and the government therefore is not under any legal obligation to return or destroy such evidence. Accordingly, the district court’s assumption that a declaratory judgment will lead the government to dispose of the derivative materials in order to “act lawfully,” which formed the basis for the court’s standing ruling, is a groundless one.
-18- 2. The federal courts have uniformly rejected Fourth Amendment challenges to the constitutionality of FISA. This Court and other courts have repeatedly held that foreign intelligence surveillance is subject to more flexible standards under the
Fourth Amendment than is domestic law enforcement surveillance. In particular, the courts have consistently sustained the constitutionality of FISA’s statutory standard of probable cause, pursuant to which the FISA court must find probable cause to believe that the target of the surveillance is a foreign power or an agent of a foreign power. The courts have held that FISA’s probable cause standard strikes a reasonable balance between the compelling interest of the government in protecting against hostile foreign powers and their agents and the countervailing privacy interests of individual Americans. The courts have also recognized that FISA itself contains numerous safeguards that ensure that surveillance satisfies the Fourth
Amendment’s ultimate standard of reasonableness.
The district court held that, while FISA’s probable cause standard was constitutional prior to 2001, the PATRIOT Act’s adoption of a significant-purpose standard now renders Sections 1804 and 1823 facially unconstitutional. But every other federal court to consider the issue, including the FISA Court of Review, has held that FISA remains constitutional under the Fourth Amendment even after the
PATRIOT Act’s addition of the significant-purpose standard. As the FISA Court of
-19- Review explained at length in Sealed Case, the difference between the primary- purpose standard relied on by the district court and the significant-purpose standard adopted by Congress has no constitutional significance. Moreover, the primary- purpose standard presupposes a clear distinction between the use of criminal prosecutions and the pursuit of foreign intelligence goals that simply does not exist and that would have pernicious consequences for national security if it were imposed as a constitutional mandate. By requiring the collection of foreign intelligence information to be a significant purpose of FISA surveillance, rather than the primary purpose, Congress has safeguarded the government’s ability to detect and pursue hostile foreign powers and their agents while simultaneously ensuring that FISA is not used when the government’s sole purpose is to enforce the criminal laws. That outcome is fully consistent with the Fourth Amendment.
3. Even if it were assumed that the Fourth Amendment required the government to show probable cause to believe that the intended target of foreign intelligence surveillance had committed or was committing a crime, it does not follow that Sections 1804 and 1823 are unconstitutional on their face. Under the Supreme
Court’s decision in Salerno and this Court’s decisions following Salerno, Acts of
Congress may not be declared facially unconstitutional unless there are no circumstances in which they may be constitutionally applied. Here, FISA’s definition
-20- of “agent of a foreign power” is closely intertwined with, and in many respects is predicated on, the existence of criminal conduct by the target, such as acts of international terrorism and sabotage. Accordingly, probable cause to believe that the target is an agent of a foreign power will often be indistinguishable from probable cause to believe that the target has committed or is committing a crime. Since there are at least some (indeed, many) instances in which FISA’s probable cause standard and the Fourth Amendment standard relied on by the district court are one and the same, the plaintiffs’ facial constitutional challenge must fail.
4. The settlement agreement approved by the district court and the amended complaint expressly confined the parties and the court to the facial constitutionality of Sections 1804 and 1823. The court nevertheless went on to opine on other issues, including the constitutionality of 50 U.S.C. § 1805(e)(1)(B), which establishes a 120- day time limit for FISA surveillance involving non-United States persons. Because the plaintiffs released all claims other than their facial challenge to Sections 1804 and
1823 in exchange for the relief provided by the government under the settlement agreement, and because their amended complaint was not subject to further amendment, the district court had no authority to decide the constitutionality of
Section 1805(e)(1)(B) or any other constitutional issue apart from the specified facial challenge. To the extent that the court’s opinion was intended to amount to a
-21- declaratory judgment regarding other issues, the judgment should be reversed on that ground as well.
-22- ARGUMENT
I. The Plaintiffs Lack Standing to Seek a Declaratory Judgment that 50 U.S.C. §§ 1804 and 1823 Are Facially Unconstitutional5
A. Neither Past Injuries Nor Speculation about Future Injuries Provides Standing to Seek a Declaratory Judgment
In order to establish standing under Article III, a plaintiff bears the burden of showing that: (1) he has suffered a “concrete and particularized” injury; (2) there is
“a causal connection between the injury” and the defendant’s conduct; and (3) the injury will be redressed by the relief being sought. Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992). Mere speculation about the possibility of future injury will not suffice; the injury must be “actual or imminent, not conjectural or hypothetical.” Id. at 560. And speculation about redressability is equally insufficient: “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. at 561.
Because “‘standing is not dispensed in gross,’” a plaintiff “must demonstrate standing separately for each form of relief sought.” Friends of the Earth, Inc. v.
Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 185 (2000). This principle has particular salience when a plaintiff who has suffered an injury in the
5 Standing is a question of law that is subject to de novo review. Bernhardt v. County of Los Angeles, 279 F.3d 862, 867 (9th Cir. 2002). This issue was raised in the government’s motion to dismiss.
-23- past seeks prospective relief such as an injunction or a declaratory judgment. The existence of a past injury may give the plaintiff standing to seek damages, but it does not follow that he therefore has standing to seek prospective relief as well. See City of Los Angeles v. Lyons, 461 U.S. 95, 102-105, 109 (1983); Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1041 n.1 (9th Cir. 1999) (en banc). Instead, he bears the burden of demonstrating a “real and immediate threat” that he will suffer an additional injury in the future. Lyons, 461 U.S. at 105. Thus, in Lyons, the Supreme
Court held that a plaintiff who had been subjected to a police chokehold in the past
“presumably [had] standing to seek damages” for his past injury, but could not seek an injunction or a declaratory judgment regarding the legality of the chokehold practice without making a separate showing that he was likely to be subjected to the same kind of chokehold in the future. Id. at 104-105.
Under these well-settled principles, neither the government’s past physical searches and electronic surveillance of Brandon Mayfield’s home and office nor the theoretical possibility of future searches and surveillance is sufficient to give the
Mayfields standing to seek a declaration regarding the facial constitutionality of 50
U.S.C. §§ 1804 and 1823. The past searches and surveillance constitute a past Article
III injury, but under cases like Lyons and Hodgers-Durgin, the existence of that past injury does not give the Mayfields standing to seek prospective declaratory relief.
-24- And as for the prospect of future injury, it is purely speculative (to put it mildly) whether the Mayfields will ever be subject to FISA surveillance in the future. The surveillance that occurred in the past was the product of a highly unusual set of circumstances, including the erroneous identification of a latent fingerprint found on items connected to the Madrid terrorists as belonging to Brandon Mayfield. The likelihood that similar circumstances will arise in the future, or that other events in the future will lead the government to conclude that any of the Mayfields is an “agent of a foreign power” under FISA, is obviously remote at best, and neither the
Amended Complaint nor the Recitation of Stipulated Facts makes any contrary allegations.
For similar reasons, standing cannot be predicated on the possibility that the government will use any derivative FISA materials that it retains in its possession against the Mayfields in the future. The Amended Complaint and the stipulated facts do not allege that the government is currently using derivative materials against them or that it will do so in the future. The possibility that any derivative materials will be used to the Mayfields’ detriment in the future is wholly speculative, and Lyons and its progeny foreclose standing on that basis.
The purely speculative nature of any future injury also means that the
Mayfields’ facial claim is not ripe. “A claim is not ripe for adjudication if it rests
-25- upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Hodgers-Durgin, 199 F.3d at 1044 (internal quotation marks and citation omitted); see also Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d
1134, 1138-39 (9th Cir. 2000) (en banc), cert. denied, 531 U.S. 1143 (2001) (“in many cases, ripeness coincides squarely with standing’s injury in fact prong”). Lack of ripeness is a particular concern when a plaintiff presses a facial challenge under the
Fourth Amendment, for the touchstone of Fourth Amendment analysis is reasonableness, an inherently fact-specific inquiry that does not lend itself to premature resolution on the basis of abstract claims.
B. The Government’s Possession of the Derivative FISA Materials Does Not Support Standing
The district court acknowledged that “past injuries do not support standing to seek prospective relief such as a declaratory judgment of facial unconstitutionality.”
ER 22. And the court did not find that the Mayfields were likely to be subjected to future electronic surveillance or physical searches under FISA or that the derivative
FISA materials were likely to be used against the Mayfields in the future (nor did the
Mayfields themselves so contend). Instead, the court predicated the Mayfields' standing on the government's possession of the derivative materials simpliciter. Id. at 22-24.
-26- The court first held that retention of the derivative materials constitutes an ongoing Article III injury. Id. at 22-23. The court then held that a declaratory judgment, unaccompanied by any injunctive relief, would redress that injury by causing the government to dispose of the derivative materials. Id. at 24. The court reasoned that if it entered a declaratory judgment that Sections 1804 and 1823 are unconstitutional, “it is reasonable to assume that the Executive Branch of the government will act lawfully and make all reasonable efforts to destroy the derivative material * * * .” Id.
The district court's holding that mere possession of the derivative materials by the government constitutes an Article III injury, without any showing of a likelihood that the materials are being or will be used against the Mayfields, is open to question.
But even if it is assumed that possession simpliciter constitutes an injury, the district court was fundamentally mistaken to think that a declaratory judgment of facial invalidity will redress that injury. The court appears to have assumed that if the measures used by the government to obtain evidence are determined to violate the
Fourth Amendment, it is unlawful for the government to retain the evidence, and the government therefore must destroy the evidence in order to (in the district court’s words) “act lawfully.” That assumption, however, is demonstrably incorrect.
-27- When a search violates the Fourth Amendment, the exclusionary rule ordinarily precludes the government from introducing the fruits of the search as part of its case in chief in a criminal proceeding against the subject of the search. But the exclusionary rule does not foreclose the government from making other uses of such evidence. To the contrary, outside of the context of criminal trials, the government is generally free to use – and hence necessarily free to retain possession of – the fruits of illegal searches. See, e.g., Pennsylvania Board of Probation & Parole v. Scott,
524 U.S. 357, 362 (1998) (noting that the Supreme Court has continually declined to extend the exclusionary rule to proceedings other than criminal trials); INS v. Lopez-
Mendoza, 468 U.S. 1032, 1034, 1050 (1984) (unlawfully obtained materials generally may be used against an alien in civil immigration proceedings); United States v.
Calandra, 414 U.S. 338, 347-452 (1974) (noting that exclusionary rule “has never been interpreted to proscribe the use of illegally seized evidence in all proceedings against all persons” and refusing to extend exclusionary rule to grand jury proceedings).
In Grimes v. CIR, 82 F.3d 286 (9th Cir. 1996), this Court relied on this principle to hold that the Internal Revenue Service was entitled to retain copies of illegally seized tax records. See id. at 291. The Court reasoned that, “[b]ecause the government may now use illegally obtained evidence in a variety of situations, it
-28- should be permitted to retain copies of such evidence absent extreme circumstances not apparent from this record.” Id. (emphasis added). See also Ramsden v. United
States, 2 F.3d 322, 327 (9th Cir. 1993), cert. denied, 511 U.S. 1058 (1994) (allowing government to retain copies of illegally obtained materials even after finding that the government had “display[ed] callous disregard for Ramsden’s constitutional rights”).
Because the government lawfully may use unconstitutionally obtained evidence for a variety of purposes other than criminal prosecution, a determination that the government obtained the evidence through an unconstitutional search in no way means that the government’s retention of the evidence is itself unlawful. For that reason, while the district court was correct that the government “will act lawfully”
(ER 24), the court’s conclusion that the government will therefore “destroy the derivative materials” (id.) is a legal non sequitur.
We are not suggesting that the government is unwilling to honor the terms of the declaratory judgment itself. But as the foregoing discussion shows, because the declaratory judgment does not mean that use (and hence possession) of the derivative materials is unlawful, compliance with the declaratory judgment does not require the government to quarantine or destroy those materials. Accordingly, it is not “likely, as opposed to merely speculative, that the [plaintiffs’] injury will be redressed” by the
-29- declaratory judgment of the district court, Lujan, 504 U.S. at 560, and the Mayfields therefore lack standing under Article III.
II. 50 U.S.C. §§ 1804 and 1823 Are Not Facially Unconstitutional6
A. Sections 1804 and 1823 Satisfy the Requirements of the Fourth Amendment
1. FISA’s Probable Cause Standard Comports with the Fourth Amendment
In enacting FISA, Congress “sought to accommodate and advance both the government’s interest in pursuing legitimate intelligence activity and the individual’s interest in freedom from improper government intrusion.” Cavanagh, 807 F.2d at
789. The district court’s ruling that Congress struck an unconstitutional balance between these interests is, quite literally, unprecedented. No other court has ever held that FISA violates the Fourth Amendment. To the contrary, every federal court that has addressed the issue, including this one, has sustained the constitutionality of FISA under the Fourth Amendment, both before and after the statute was amended by the
PATRIOT Act. See United States v. Wen, 477 F.3d 896, 898-99 (7th Cir. 2006);
Sealed Case, 310 F.3d at 737-47; United States v. Damrah, 412 F.3d 618, 625 (6th
Cir. 2005); United States v. Pelton, 835 F.2d 1067, 1075 (4th Cir.1987), cert. denied,
6 The constitutionality of a federal statute is a question of law that is subject to de novo view by this Court. United States v. Lujan, 504 F.3d 1003, 1006 (9th Cir. 2007). This issue was raised in the government’s motion for summary judgment.
-30- 486 U.S. 1010 (1988); Cavanagh, 807 F.2d at 790-92; United States v. Duggan, 743
F.2d 59, 71-74 (2d Cir. 1984); United States v. Abu-Jihaad, __ F. Supp. 2d __, 2008
WL 219172 (D. Conn. Jan. 24, 2008); United States v. Mubayyid, 521 F. Supp. 2d
125, 139-41 (D. Mass. 2007); United States v. Holy Land Foundation for Relief &
Dev., 2007 WL 2011319 (N.D.Tex. July 11, 2007).
This unanimous body of precedent rests on two basic propositions. The first is that surveillance of foreign powers and their agents is subject to more flexible standards under the Fourth Amendment than is surveillance of ordinary domestic criminal activity. The second is that FISA's standards and procedures represent a reasonable accommodation between the government’s interest in conducting foreign intelligence surveillance and the privacy interests of the American people. The courts have emphasized that FISA’s requirements are similar in many respects to those that apply to domestic law enforcement surveillance under Title III of the Omnibus Crime
Control Act, and to the extent that FISA’s criteria depart from those applicable under
Title III, FISA contains its own statutory safeguards that protect against unjustifiable surveillance and ensure that surveillance of foreign powers and their agents satisfies the underlying reasonableness requirement of the Fourth Amendment. These considerations apply with full force to the Fourth Amendment claim in this case.
-31- a. It has long been settled that the government is not subject to the probable cause and warrant requirements of the Fourth Amendment when it is engaged in the collection of foreign intelligence. Indeed, every court of appeals to have decided the issue, including this one, has held that the President has the power under Article II to conduct surveillance to collect foreign intelligence, and that such surveillance is not subject to the warrant requirement. See, e.g., United States v. Buck, 548 F.2d 871,
875 (9th Cir.), cert. denied, 434 U.S. 890 (1977); United States v. Truong, 629 F.2d
908 (4th Cir. 1980), cert. denied, 454 U.S. 1154 (1982); United States v. Butenko, 494
F.2d 593, 605 (3d Cir.) (en banc), cert. denied, 419 U.S. 881 (1974); United States v. Brown, 484 F.2d 418, 426 (5th Cir. 1973), cert. denied, 415 U.S. 960 (1974); but see Zweibon v. Mitchell, 516 F.2d 594, 633-51 (D.C. Cir. 1975) (dictum), cert. denied, 425 U.S. 944 (1976). This Court held squarely in Buck that “[f]oreign security wiretaps are a recognized exception to the general warrant requirement.” 548
F.2d at 875; see also Sealed Case, 310 F.3d at 742.
The Supreme Court has never decided the applicability of the warrant requirement to foreign intelligence surveillance. But the Court's decision in United
States v. United States District Court, 407 U.S. 297 (1972) (Keith), confirms that the requirements of the Fourth Amendment, including the requirement of probable cause,
-32- are more flexible when the government is investigating dangers presented by the activities of foreign powers and their agents.
In Keith, the Court held that the Fourth Amendment requires the government to obtain a warrant before conducting surveillance of domestic security threats. 407
U.S. at 315-21. In so holding, however, the Court took care to stress that its opinion should not be read as subjecting foreign intelligence surveillance to the same requirement. Id. at 308. The Court noted “the view that warrantless surveillance, though impermissible in domestic security cases, may be constitutional where foreign powers are involved,” and “express[ed] no opinion as to the issues which may be involved with respect to activities of foreign powers or their agents.” Id. at 322 & n.20.
In addition, and of equal importance for the constitutional issue in this case, the
Court stressed that the existence of a warrant requirement for domestic security surveillance did not mean that “the same type of standards and procedures prescribed by Title III” for conventional law enforcement surveillance “are necessarily applicable to this case.” Id. at 322. The Court explained:
-33- We recognize that domestic security surveillance may involve different policy and practical considerations from the surveillance of “ordinary crime.” The gathering of security intelligence is often long range and involves the interrelation of various sources and types of information. The exact targets of such surveillance may be more difficult to identify than in surveillance operations against many types of crime specified in Title III. Often, too, the emphasis of domestic intelligence gathering is on the prevention of unlawful activity or the enhancement of the Government's preparedness for some possible future crisis or emergency. Thus, the focus of domestic surveillance may be less precise than that directed against more conventional types of crime.
Id. at 322. “Given those potential distinctions,” the Court invited Congress “to consider protective standards for [domestic security surveillance] which differ from those already prescribed for specified crimes in Title III.” Id. The Court explained that “[d]ifferent standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens.” Id. at 322-23. In particular,
“the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection,” and “[i]t may be that
Congress * * * would judge that the application and affidavit showing probable cause need not follow the exact requirements of [18 U.S.C.] § 2518 but should allege other circumstances more appropriate to domestic security cases.” Id. at 323.
The considerations relied on by the Supreme Court in Keith are present in even greater measure in foreign intelligence surveillance. As Congress emphasized in
-34- enacting FISA, “[f]ar more than in domestic security matters, foreign intelligence investigations are ‘long range’ and involve the interrelation of various sources and types of information.’” S. Rep. No. 95-701, p. 16 (1978), reprinted in 1978
U.S.C.C.A.N. 3973, 3985 (quoting Keith). So too, “[t]he exact targets of such surveillance may be more difficult to identify than in surveillance operations against many types of crime specified in Title III.” Keith, 407 U.S. at 322. And the emphasis of foreign intelligence surveillance is often, although not always, on “the prevention of unlawful activity or the enhancement of the Government's preparedness for some possible future crisis or emergency.” Id. Accordingly, the focus of foreign intelligence surveillance, like that of domestic security surveillance, “may be less precise than that directed against more conventional types of crime.” Id. For all of these reasons, Keith’s endorsement of greater Fourth Amendment flexibility in domestic security cases, including “more appropriate” probable cause standards, has consistently been held to apply to foreign intelligence surveillance as well. See, e.g.,
Cavanagh, 807 F.2d at 790; Pelton, 835 F.2d at 1075; Duggan, 743 F.2d at 72-73.
b. FISA represents Congress’s considered effort to develop standards for foreign intelligence surveillance that “are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens.” Keith, 407 U.S. at 322-23. Until this case, the federal courts have been
-35- unanimous in holding that the balance struck by Congress in FISA meets that constitutional test.
On the one hand, the domain of FISA is one in which the “legitimate need of
Government for intelligence information” is at its absolute zenith. FISA is directed at the collection of information concerning, inter alia, “actual or potential attack[s] or other grave hostile acts,” clandestine intelligence activities, and acts of sabotage and international terrorism. 50 U.S.C. § 1801(e)(1). The national interest in detecting and disrupting these activities is a transcendent one. See, e.g., Haig v.
Agee, 453 U.S. 280, 305 (1981) (“It is obvious and unarguable that no governmental interest is more compelling than the security of the Nation”) (internal quotation marks omitted). If the government is unable to monitor the clandestine activities of foreign powers and their agents who may be pursuing such activities, the result may be catastrophic to the national security of the United States and the lives of its citizens.
At the same time, Congress has taken considerable care to ensure that the government’s compelling need to collect foreign intelligence information does not trench unnecessarily on the rights of individuals. Except in narrow circumstances, electronic surveillance under FISA requires prior review and approval by a neutral and independent Article III judge. 50 U.S.C. §§ 1802, 1803(a), 1805. Every FISA application must be approved by the Attorney General or other senior officials of the
-36- Department of Justice. Id. § 1804(a). A senior national security official, such as the
Director of the FBI or the Assistant to the President for National Security Affairs, must personally certify that the information being sought is foreign intelligence information; that obtaining foreign intelligence information is a significant purpose of the surveillance; and that the information cannot reasonably be obtained by normal investigative techniques. Id. § 1804(a)(7). The FISA court must satisfy itself that there is probable cause to believe that the targets are indeed foreign powers or agents of foreign powers and that they are using or are about to use the facilities or places at which the surveillance is directed. Id. § 1805(a)(3). If the court approves the application, the court’s order must specify where and how the surveillance will be carried out, must limit the duration of the surveillance, and must require compliance with FISA’s minimization procedures. Id. § 1805(c)(1)(B)-(E), (c)(2)(A), (e)(1). In short, the availability and the scope of electronic surveillance under FISA are subject to careful control both by the judiciary and by the Executive Branch itself.7
FISA is particularly protective when the target of the surveillance is an
American citizen or other “United States person.” As noted above, and discussed at greater length below, the definition of “agent of a foreign power” that applies to
7 The same protections apply to FISA physical searches carried out under 50 U.S.C. §§ 1823-24.
-37- United States persons is closely linked to criminal activity. Indeed, in many cases, a showing that a United States person is an agent of a foreign power under FISA will be tantamount to a showing that he has committed or is about to commit crimes – the very standard that the district court faulted FISA for failing to employ. See pp. 54-57 infra. Moreover, when a United States person is the target of the surveillance, the information being sought must be “necessary to” the ability of the United States to protect against threats from foreign powers and their agents, or “necessary to” the national defense or security or the conduct of foreign policy, rather than simply
“relat[ing] to” those goals. 50 U.S.C. § 1801(e)(1)-(2); see S. Rep. No. 95-701, p. 31
(1978), reprinted in 1978 U.S.C.C.A.N. at 4000 (“necessary” means “both important and required,” not merely “useful or convenient”). In addition, when the target is a
United States person, the certifications required by 50 U.S.C. § 1804(a)(7), including the certification that a significant purpose of the surveillance is to obtain foreign intelligence information, are subject to judicial review. Id. § 1805(a)(5).8 In sum,
Congress went out of its way to reduce the tension between the legitimate foreign
8 When the target is not a United States person, the certification of significant purpose is not subject to clearly-erroneous review, but it remains a substantive precondition for the filing of applications for electronic surveillance and physical searches in such cases. See id. §§ 1804(a)(7)(B), 1805(a)(5).
-38- intelligence needs of the government and “the protected rights of our citizens.” Keith,
407 U.S. at 323.
In Sealed Case, the FISA Court of Review made a detailed comparison between the foregoing standards and procedures and those employed under Title III.
See Sealed Case, 310 F.3d at 737-42. The court concluded that, “[w]hile Title III contains some protections that are not in FISA, in many significant respects the two statutes are equivalent, and in some [respects], FISA contains additional protections.”
Id. at 741. As the court recognized, “to the extent [that] a FISA order comes close to meeting Title III, that certainly bears on its reasonableness under the Fourth
Amendment.” Id. at 742.
For these reasons, it is unsurprising that the federal courts have consistently sustained the constitutionality of FISA under the Fourth Amendment. In Duggan, for example, the Second Circuit held that FISA's procedures and standards for obtaining surveillance orders represent “a constitutionally adequate balancing of the individual's Fourth Amendment rights against the nation's need to obtain foreign intelligence information.” 743 F.2d at 73. The Second Circuit explained that the multiple prerequisites for judicial approval of a FISA surveillance application, including the requirement of probable cause to believe that the target is a foreign power or an agent of a foreign power, “make it reasonable to dispose with a
-39- requirement that the FISA Judge find probable cause to believe that surveillance will in fact lead to the gathering of foreign intelligence information.” Id. “A fortiori,” the
Second Circuit “reject[ed] defendants' argument that a FISA order may not be issued consistent with the requirements of the Fourth Amendment unless there is a showing of probable cause to believe the target has committed a crime.” Id. at 73 n.5
(emphasis omitted).
The Fourth Circuit relied on similar reasoning in Pelton to reject the argument that “allowing electronic surveillance on anything less than the traditional probable cause standard for the issuance of a warrant violates the Fourth Amendment.” 835
F.2d at 1075. The court observed that “[t]he governmental interests in gathering foreign intelligence are of paramount importance to national security, and may differ substantially from those presented in the normal criminal investigation.” Id. The court pointed out that FISA contains “numerous safeguards” against unjustified surveillance, including the requirement of pre-surveillance judicial review; the need to demonstrate probable cause that the target is a foreign power or agent; and “careful limitations on [the] exercise” of foreign intelligence surveillance, including the mandatory use of minimization procedures and limits on the duration of surveillance.
Id. The court concluded that these safeguards “provide sufficient protection for the
-40- rights guaranteed by the Fourth Amendment within the context of foreign intelligence activities.” Id.
In Cavanagh, this Court likewise held that “FISA satisfies the constraints the
Fourth Amendment places on foreign intelligence surveillance conducted by the government.” 807 F.2d at 790. In particular, the Court found that “the probable cause showing required by FISA is reasonable.” Id. at 790. The Court faulted the defendant for “ignor[ing] the Supreme Court's admonition [in Keith] that the showing necessary under the Fourth Amendment to justify a surveillance conducted for national security purposes is not necessarily analogous to the standard of probable cause applicable to criminal investigations.” Id.
The target of the surveillance in Cavanagh was a foreign power, and the Court therefore found it unnecessary to pass on the constitutionality of FISA's probable cause standard as applied to agents of foreign powers. Id. at 791. But as cases like
Duggan and Pelton show, the same Fourth Amendment reasoning applies when agents of foreign powers are involved. Indeed, because FISA's definition of “agent of a foreign power” is more closely tied to criminal activity than is the definition of
“foreign power,” the conclusion that FISA's probable cause standard passes constitutional muster follows a fortiori when agents are the targets.
-41- 2. FISA’s “Significant Purpose” Standard Does Not Render Sections 1804 and 1823 Unconstitutional
The district court acknowledged that federal courts have uniformly rejected
Fourth Amendment challenges to the constitutionality of FISA’s standards and procedures in general and its probable cause standard in particular. Nevertheless, the district court held that when Congress adopted the “significant purpose” standard as part of the PATRIOT Act amendments to FISA in 2001, it thereby rendered Sections
1804 and 1823 unconstitutional. In the district court’s view, FISA’s probable cause standard is constitutionally permissible only as long as the collection of foreign intelligence information is the “primary purpose” of the surveillance. Accordingly, the “seemingly minor change” (ER 29) effected by Congress’s adoption of the significant purpose standard was deemed by the district court to require a drastic revision of the Fourth Amendment calculus.
The district court suggested that the prior decisions sustaining the constitutionality of FISA under the Fourth Amendment were predicated on the judicially created “primary purpose” standard. But as noted above, the courts have rejected Fourth Amendment challenges to FISA not only before the PATRIOT Act amendments, but since then as well. See Wen, 477 F.3d at 898-99; Sealed Case, 310
F.3d at 637-47; Abu-Jihaad, 2008 WL 219172, at *4-9 (expressly rejecting district
-42- court’s reasoning in this case); Mubayyid, 521 F. Supp. 2d at 140 (same); Holy Land
Foundation, 2007 WL 2011319, at *5-6. As these post-PATRIOT Act decisions recognize, whether the collection of foreign intelligence information is the “primary” purpose or a “significant purpose” has no bearing on the constitutional sufficiency of
FISA’s probable cause standard.9
As shown above, what makes FISA's probable cause standard reasonable, and therefore constitutional under Keith, is the careful balance struck by Congress between the government's interests in monitoring foreign powers and their agents on the one hand and the privacy interests of individual Americans on the other. FISA continues to strike a careful balance following the adoption of the significant purpose standard. The government's interests in detecting and deterring hostile acts by foreign powers and their agents remain the same. And FISA’s principal substantive and
9 With the exception of the Fourth Circuit’s decision in Truong, discussed further below, pre-PATRIOT Act precedents did not tie their constitutional holdings to the “primary purpose” standard either. For example, the Second Circuit in Duggan placed no reliance on that standard in sustaining the constitutionality of FISA’s probable cause standard. See Duggan, 743 F.2d at 71-74; Abu-Jihaad, 2008 WL 219172, at *8 (noting absence of primary purpose standard in Duggan’s constitutional analysis); Mubayyid, 521 F. Supp. 2d at 140-41 (discussing reasoning of United States v. Johnson, 952 F.2d 565 (1st Cir. 1991), cert. denied, 506 U.S. 816 (1992)). This Court’s constitutional holding in Cavanagh likewise was not predicated on the existence of a primary purpose standard. If it had been, the Court could not have treated the existence of that standard as an open question in its subsequent decision in Sarkissian. See 841 F.2d at 964.
-43- procedural protections (see pp. 36-38 supra) continue to ensure that the government intrudes on individual privacy only when serious national security interests support the intrusion. Because the fundamental balance of interests remains intact, the constitutional outcome is unchanged. See, e.g., Abu-Jihaad, 2008 WL 219172 at
*7-8.
Just as important, the “primary purpose” standard is a wholly unsuitable device for placing limits – particularly constitutional limits – on foreign intelligence surveillance. The opinion of the FISA Court of Review in Sealed Case presents a particularly comprehensive analysis of the primary purpose standard and its irrelevance to the constitutionality of FISA. See 310 F.2d at 725-27, 742-47. As that analysis demonstrates, the district court’s attempt to turn the primary purpose standard into a constitutional floor is misconceived at multiple levels.
The primary purpose standard originated with the Fourth Circuit’s decision in
Truong. See Sealed Case, 310 F.2d at 725-26. Truong addressed the constitutionality of electronic surveillance carried out prior to the enactment of FISA on the basis of the President’s constitutional authority under Article II. See 629 F.2d
912-16. The Fourth Amendment question before the Fourth Circuit in Truong was whether the Executive Branch could engage in such surveillance without obtaining a warrant. Id. The Fourth Circuit held that warrantless surveillance was
-44- constitutionally permissible only if, inter alia, “the surveillance is conducted
‘primarily’ for foreign intelligence purposes.” Id. at 915. The court reasoned that,
“once surveillance becomes primarily a criminal investigation, the courts are entirely competent to make the usual probable cause determination, and * * * individual privacy interests come to the fore and government foreign policy concerns recede when the government is primarily attempting to form the basis for a criminal prosecution.” Id.
As a threshold matter, it is important to recognize the fundamental difference between the kind of surveillance at issue in Truong and the kind of surveillance at issue here. In Truong, the Fourth Circuit was presented with wholly warrantless surveillance, carried out by the Executive Branch unilaterally and without any judicial involvement at all. The Fourth Circuit crafted the primary purpose test to identify the circumstances in which the Executive Branch may constitutionally dispense with judicial oversight altogether. This case, in contrast, involves the constitutional prerequisites for surveillance conducted pursuant to the detailed statutory scheme created by FISA. As explained above, FISA establishes an elaborate set of procedures and rules to subject foreign intelligence surveillance to judicial oversight and approval. Whether or not a surveillance order under FISA amounts to a warrant
(see Sealed Case, 310 F.3d at 741), it is the end product of a vastly more elaborate
-45- and protective process than the unilateral warrantless surveillance at issue in Truong.
Nothing in Truong’s reasoning suggests that the judicially safeguarded process created by FISA requires the kind of alternative safeguard of a “primary purpose” limitation that the Fourth Circuit found to be in order when the judiciary is excluded from the process altogether.
Moreover, even when taken on its own terms, Truong’s reliance on the primary purpose test is misconceived. See Sealed Case, 310 F.3d at 743-45. As the FISA
Court of Review pointed out, Truong’s analysis “rested on a false premise[,] and the line the court sought to draw was inherently unstable, unrealistic, and confusing.” Id. at 743.
The false premise underlying Truong is “the assertion that once the government moves to criminal prosecution, its ‘foreign policy concerns’ recede.” Id. In the field of counterintelligence, “the government’s primary purpose is to halt the espionage or terrorism efforts, and criminal prosecutions can be, and usually are, interrelated with other techniques used to frustrate a foreign power’s efforts.” Id. As the court noted,
“arresting and prosecuting terrorist agents of, or spies for, a foreign power may well be the best technique to prevent them from successfully continuing their terrorist or espionage activity.” Id. at 724. Moreover, criminal prosecution and the prospect of incarceration can elicit further foreign intelligence by providing the target with a
-46- powerful incentive to cooperate with the government. Id. at 717. In short, resort to criminal prosecution does not mean that the government’s foreign policy and national security concerns have fallen out of the equation; it simply means that the government has chosen prosecution as the (or a) means of pursuing those concerns.
Similarly, asking whether the government’s “primary purpose” is to collect foreign intelligence information or pursue criminal prosecution presupposes a rigid distinction between those purposes that simply does not exist. See Sealed Case, 310
F.3d at 743-44. As this Court itself pointed out in Sarkissian, “FISA contemplates prosecution based on evidence gathered through surveillance,” and the statutory definitions that establish the prerequisites and scope of FISA surveillance are closely intertwined with criminal offenses. 841 F.2d at 965. For that reason, Sarkissian warned against “draw[ing] too fine a distinction between criminal and intelligence investigations.” Id. Yet that is precisely the line that the district court insisted on trying to draw by constitutionalizing the “primary purpose” standard.
Prior to 9/11, the capacity of the United States to anticipate and prevent terrorist attacks was seriously impaired by the existence of a “wall” between the government’s law enforcement and foreign intelligence efforts in national security cases. See, e.g., Final Report of the National Commission on Terrorist Attacks Upon the United States 78-80 (2004) (9/11 Commission Report). The judicial imposition
-47- of the “primary purpose” test on electronic surveillance and physical searches under
FISA played a major role in the creation of that wall. Sealed Case, 310 F.3d at
725-28; 9/11 Commission Report at 78. Congress’s adoption of the “significant purpose” standard was an important part of the PATRIOT Act’s effort to break down the wall and undo the serious harms to national security that the wall had created.10
To reinstate the “primary purpose” test, and to adopt it as a constitutional rule beyond the power of Congress to change, would be to take a dramatic and dangerous step toward recreating the artificial wall between law enforcement and foreign intelligence that jeopardized national security prior to 9/11.
As the FISA Court of Review concluded in Sealed Case, the relevant constitutional line under Keith is not the “primary purpose” line, but rather “the line drawn in the original FISA statute itself between ordinary crimes and foreign intelligence crimes.” 310 F.3d at 744. When the government engages in surveillance to protect against hostile acts by foreign powers and their agents, the legitimate interests underlying the surveillance are not limited to (although they certainly
10 That effort by Congress was supplemented by a significant restructuring of the Department of Justice and the FBI to recognize the complementary nature of foreign intelligence collection and criminal prosecution in national security matters.See http://www.usdoj.gov/opa/pr/2006/March/06_opa_136.html (announcing creation of National Security Division).
-48- encompass) the enforcement of criminal laws. If the activities under surveillance are foreign intelligence crimes, the government may decide that prosecution is the most effective way of protecting national security. But the fact that the government decides to pursue prosecution rather than (or in addition to) other counter-measures does not mean that the government is merely engaged in law enforcement. The government has multiple objectives in counterintelligence and counterterrorism cases, and the ultimate goal remains protecting the national security and foreign policy interests of the United States. Where criminal prosecution is simply a means to that end, the probable cause standard and other procedural protections of FISA are sufficient to make electronic surveillance constitutionally reasonable under the Fourth
Amendment. Id. at 746.
As Sealed Case points out, the Supreme Court has held in a variety of other contexts that conventional Fourth Amendment requirements do not apply to searches
“that are designed to serve the government’s ‘special needs, beyond the normal need for law enforcement.’” 310 F.2d at 745 (quoting Vernonia School District 47J v.
Acton, 515 U.S. 646, 653 (1995)). Thus, for example, the Supreme Court has sustained the constitutionality of warrantless, and even suspicionless, searches to secure the Nation’s borders and to detect drunk drivers. Michigan Department of
State Police v. Sitz, 496 U.S. 444 (1990); United States v. Martinez-Fuerte, 428 U.S.
-49- 543 (1976). And the Court has allowed administrative searches to be carried out without particularized suspicion of misconduct. Marshall v. Barlow’s, Inc., 436 U.S.
307 (1978); Camara v. Municipal Court, 387 U.S. 523 (1967); See v. Seattle, 387
U.S. 541 (1967). As the Seventh Circuit pointed out in Wen, these cases demonstrate that “the ‘probable cause’ of which the Fourth Amendment speaks is not necessarily probable cause to believe that any law is being violated.” 477 F.3d at 898. More generally, FISA comes squarely within the logic of the “special needs” cases because its overarching purpose is “to protect the nation against terrorists and espionage threats directed by foreign powers,” and that purpose “has from its outset been distinguishable from ordinary crime control.” Sealed Case, 310 F.3d at 746; Cassidy v. Chertoff, 471 F.3d 67, 82 (2d Cir. 2006) (“Preventing or deterring large-scale terrorist attacks presents problems that are distinct from standard law enforcement needs and indeed go well beyond them”); MacWade v. Kelly, 460 F.3d 260, 272 (2d
Cir. 2006) (“preventing a terrorist from bombing the subways constitutes a special need that is distinct from ordinary post hoc criminal investigation”); see also NTEU v. Von Raab, 489 U.S. 656, 675 n.3 (1989) (approving of suspicionless searches of airline passengers to prevent hijacking or destruction of airplanes).
The district court dismissed the Supreme Court’s special-needs precedents as irrelevant because, “[a]fter the PATRIOT Act,” FISA surveillance “may have as its
-50- ‘programmatic purpose’ the generation of evidence for law enforcement purposes.”
ER 42. That reasoning rests on the same false dichotomy between foreign intelligence gathering and criminal prosecution that underlies Truong. When the government conducts electronic surveillance under FISA, the fact that it uses the fruits of the surveillance to prosecute the target or his associates does not mean that the government is engaged in ordinary law enforcement, or that prosecution and conviction are ends in themselves. Instead, the criminal process remains “part of an integrated effort to counter the malign efforts of a foreign power.” Sealed Case, 310
F.3d at 744. That overarching effort removes FISA surveillance from the realm of
“ordinary crime control” and the conventional Fourth Amendment requirements that govern domestic law enforcement.
FISA surveillance often “will have two key goals – the gathering of foreign intelligence, and the gathering of evidence for a criminal prosecution,” and
“[d]etermining which purpose is the ‘primary’ purpose of the investigation can be difficult, [all the] more so as we coordinate our intelligence and law enforcement efforts in the war on terror.” 147 Cong. Rec. S10591 (Oct. 11, 2001) (Sen. Feinstein)
(emphasis added). By adopting a significant-purpose standard, Congress gave due recognition to the inherent difficulties of identifying the “primary” purpose of FISA surveillance. At the same time, Congress required the Executive Branch to look to
-51- other sources of authority, such as Title III, if the government does not “have a measurable foreign intelligence purpose, other than just criminal prosecution of even foreign intelligence crimes.” Sealed Case, 310 F.3d at 735. Congress thereby ensured that FISA will not become, as the district court feared, a means to “bypass the Fourth Amendment in gathering evidence for a criminal prosecution.” E.R 30.11
B. Sections 1804 and 1823 Are Not Facially Unconstitutional Under Salerno
As the foregoing discussion shows, the Fourth Amendment does not require the government to show probable cause to believe that the targeted foreign power or agent has committed or is committing a federal crime when the collection of foreign intelligence information is a “significant purpose” of the surveillance. But even if the
Fourth Amendment did require such a showing in the foreign intelligence context, the
11 The district court asserted that, “for the first time in our Nation’s history, the government can conduct surveillance to gather evidence for use in a criminal case without a traditional warrant, as long as it presents a non-reviewable assertion that it also has a significant interest in the target person for foreign intelligence purposes.” ER 29-30. That assertion is wrong several times over. First, when the target of the surveillance is a United States person, the significant-purpose certification is not “non-reviewable.” See 50 U.S.C. § 1805(a)(5). Second, it is not true that the government can engage in FISA surveillance “as long as” it makes (and the district court sustains) that certification. The government must also demonstrate, among other things, that there is probable cause to believe that the target of the surveillance is a foreign power or an agent of a foreign power. And third, far from being a novel development, the use of surveillance to “gather evidence for use in a criminal case” has been a feature of FISA from its inception in 1978. See, e.g., Sarkissian, 841 F.2d at 965 (“FISA contemplates prosecution based on evidence gathered through surveillance”).
-52- district court’s holding that Sections 1804 and 1823 are facially unconstitutional would still be reversible error.
Under the Supreme Court’s decision in Salerno, an Act of Congress may be declared facially unconstitutional only if “no set of circumstances exists under which the Act would be valid.” Salerno, 481 U.S. at 745. Although the district court questioned whether Salerno governs this case, ER 26-28, this Court itself has held squarely and repeatedly that Salerno’s “no set of circumstances” rule governs in every context other than facial challenges to abortion laws. In S.D. Myers, Inc. v. City and
County of San Francisco, 253 F.3d 461 (9th Cir. 2001), the Court declared: “While we have held that [Planned Parenthood v.] Casey[, 505 U.S. 833 (1992),] ‘overruled
Salerno in the context of facial challenges to abortion statutes,’ we will not reject
Salerno in other contexts until a majority of the Supreme Court clearly directs us to do so.” Id. at 467 (emphasis added and citation omitted). In Hotel & Motel Ass'n of
Oakland v. City of Oakland, 344 F.3d 959, 971-72 (9th Cir. 2003), the Court reaffirmed that “[w]e stand by our [Salerno] holding in S.D. Myers.” See also
Western States Paving Co., Inc. v. Washington State Dep’t of Transportation, 407
F.3d 983, 991 (9th Cir. 2004), cert. denied, 546 U.S. 1170 (2006) (following Salerno).
Salerno therefore governs this case.
-53- Under Salerno, the Mayfields have the burden of demonstrating that there is
“no set of circumstances” in which Sections 1804 and 1823 are constitutional. That they simply cannot do. The reason is simply stated: in many cases, the standard of probable cause prescribed by FISA is indistinguishable from the standard of probable cause that obtains in ordinary criminal investigations under the Fourth Amendment.
In those cases, FISA would pass constitutional muster even if (contrary to the
Supreme Court’s decision in Keith and the decisions of this Court and other courts of appeals) the Fourth Amendment made no allowance for the special requirements of foreign intelligence surveillance.
As already noted, FISA’s definition of “agent of a foreign power” is predicated in large part on the target’s participation in specific crimes. For example, the definition includes persons who knowingly engage in “clandestine intelligence gathering activities” for or on behalf of the foreign power that “involve or may involve a violation of the criminal statutes of the United States.” 50 U.S.C.
§ 1801(b)(2)(A) (emphasis added). It includes persons who, at the direction of a foreign power’s intelligence service or network, knowingly engage in “any other clandestine intelligence activities” for or on behalf of the foreign power that “involve or are about to involve a violation of the criminal statutes of the United States.” Id.
§ 1801(b)(2)(B) (emphasis added). It includes persons who knowingly engage in
-54- “sabotage,” which is defined as “activities that involve a violation of chapter 105 of
Title 18" or would if committed within the United States, and “international terrorism,” which is defined in terms of acts that “are a violation of the criminal law of the United States or of any state” or would be if committed within federal or state jurisdiction. Id. § 1801(b)(2)(C), 1801(c)(1), 1801(d) (emphasis added). And it includes persons who “knowingly aid and abet” or “knowingly conspire” with persons engaged in these criminal activities – conduct that itself constitutes a federal criminal offense. Id. § 1801(b)(2)(E); see 18 U.S.C. § 2(a) (aiding and abetting); id. § 371
(conspiracy). In all of the underscored circumstances, probable cause to believe that the target is an “agent of a foreign power” (the showing required by FISA) necessarily entails probable cause to believe that the target is engaged in federal (or, in some instances, state) crimes.12
For example, a FISA application might present evidence that the target of intended surveillance is surreptitiously spying on a military base and delivering the
12 The supplemental definition of “agent of a foreign power” that applies to non-United States persons is less closely tied to criminal activity in some respects. See, e.g., 50 U.S.C. 1801(b)(1)(A) (non-United States person is agent of foreign power if, inter alia, he acts in the United States as an officer or employee of the foreign power). However, the Mayfields are United States citizens, see ER 69, and they lack standing to challenge the constitutionality of FISA’s probable cause standards for surveillance of foreigners. See, e.g., Gospel Missions of America v. City of Los Angeles, 328 F.3d 548, 555 (9th Cir. 2003) (plaintiff lacks standing to challenge statutory provisions that do not apply to it).
-55- intelligence to a foreign country. That showing would establish probable cause to believe that the target is violating 18 U.S.C. § 793, which makes it a federal crime, inter alia, to “obtain[] information concerning any * * * place [that is] connected with the national defense,” and that is owned or under the control of the United States,
“with intent or reason to believe that the information is to be used to the injury of the
United States, or to the advantage of any foreign nation.” The same showing would provide probable cause to believe that the target is an “agent of a foreign power” under 50 U.S.C. § 1801(b)(2)(A), for it would show that the target is knowingly engaging in “clandestine intelligence gathering activities” for or on behalf of the foreign power that “involve * * * a violation of the criminal statutes of the United
States.” Thus, the government’s showing of probable cause under FISA would amount to (and would be predicated on) a conventional showing of probable cause under the Fourth Amendment.
The same thing would be true if, for example, the government presented the
FISA court with evidence that a member of a foreign terrorist organization was participating in a plot to hijack multiple aircraft in the United States and crash them into major government buildings such as the Pentagon, the White House, and the
Capitol. Such evidence would establish probable cause to believe that the target was violating, inter alia, 18 U.S.C. § 2332b, which prohibits transnational attempts to
-56- “kill[] * * * any person within the United States” or “create[] a substantial risk of serious bodily injury * * * by destroying or damaging any structure * * * within the
United States” if, among other things, “ the victim, or intended victim, is * * * any official, officer, employee, or agent of the legislative, executive, or judicial branches, or of any department or agency, of the United States,” or “the structure * * * is * * * owned [by] * * * the United States.” Id. § 2332b(a)(1)(A)-(B), (b)(1)(C)-(D). The same evidence would provide probable cause to believe that the target was an “agent of a foreign power” under 50 U.S.C. § 1801(b)(2)(C) and 1801(c), for the evidence would show that the target was “knowingly engaging,” “for or on behalf of a foreign power,” in “activities that involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States” and that satisfy the other elements of FISA’s definition of “international terrorism.” Here again, probable cause under FISA would be indistinguishable from probable cause in a conventional criminal investigation.
We do not mean to suggest, of course, that FISA requires probable cause to believe that the target is engaged in criminal conduct in every case. For entirely legitimate reasons, it does not, and the government’s ability to protect the United
States from hostile foreign powers and their agents would be seriously compromised if the government were categorically foreclosed from conducting electronic
-57- surveillance in the absence of such a showing. But as the foregoing discussion shows, there are many instances in which the showing of probable cause required by
FISA amounts to, and indeed is predicated on, a showing of probable cause to believe that the target has committed or is about to commit a crime. And when probable cause is present, the government’s purpose in conducting the surveillance is immaterial under the Fourth Amendment. See, e.g., Whren v. United States, 517 U.S.
806, 813 (1996) (“Subjective intentions play no role in ordinary, probable-cause
Fourth Amendment analysis”). Thus, under Salerno and under this Court’s decisions following Salerno, Sections 1804 and 1823 are not facially unconstitutional under the
Fourth Amendment, and the district court’s contrary declaration must be reversed.13
III. Other Constitutional Issues Are Outside the Scope of the Amended Complaint and Are Foreclosed by the Settlement Agreement
In addition to holding that the interaction between FISA’s probable cause standard and the significant purpose standard renders 50 U.S.C. §§ 1804 and 1823 facially unconstitutional, the district court also criticized several other features of
13 At various points in its opinion, the district court appears to have lost sight of the fact that the claim before it was exclusively a facial challenge, not an as- applied challenge. For example, the court declared it “[n]otabl[e]” that “the primary purpose of the electronic surveillance and physical searching of Mayfield’s home was to gather evidence to prosecute him for crimes.” ER 34. Contrary to the court’s belief, the record before the court does not support that factual assertion. But even if it did, it would be irrelevant to whether Sections 1804 and 1823 are unconstitutional on their face, which was the only issue before the court.
-58- FISA. ER 35-38. In particular, the court questioned the constitutionality of
50 U.S.C. § 1805(e)(1)(B), which allows the FISA court to authorize electronic surveillance of non-United States persons for up to 120 days. The district court stated that “FISA’s provisions relating to the duration of surveillance orders violate[] the
Fourth Amendment requirements for criminal investigations.” Id. at 38.
It is unclear whether the quoted language was meant as a formal declaration that the 120-day time limit in Section 1805(e)(1)(B) is unconstitutional. What is clear is that the constitutionality of that provision was not before the district court, and the court had no authority to resolve it.
As explained above, the settlement agreement between the parties disposed of all the Mayfields’ claims save one – the claim that Section 1804 and 1823 are facially unconstitutional under the Fourth Amendment. That is the only claim that was presented – and the only claim that could be presented – in the Amended Complaint.
See ER 73-76. The Mayfields expressly released all other claims “of whatsoever kind and nature for monetary, injunctive, declaratory, or any other form of relief arising directly or indirectly from or by reason of any and all injury or damage of any kind
* * * resulting or to result from, or relating to, the subject matter” of this case. Id. at
49-51. That release was the primary consideration received by the United States in
-59- return for the monetary and other relief that it agreed to provide the Mayfields under the settlement agreement.
The Amended Complaint does not refer to FISA’s 120-day time limit at all, much less challenge the constitutionality of that provision. Moreover, the parties expressly agreed that the Amended Complaint could not itself be amended. See id. at 53. Thus, even if the Mayfields had sought leave to to amend their complaint to include a claim directed at the 120-day time limit, which they did not, the district court would have been obliged to deny it.
In short, the constitutionality of FISA’s 120-day limit was not before the district court, and any claim that the Mayfields might otherwise have had regarding that provision was released in the settlement agreement.14 The district court had no authority to decide a non-jurisdictional issue that was outside the scope of the complaint, nor could it grant relief on a claim that had been released by a settlement agreement that the court itself had approved. Accordingly, to the extent that the district court meant for its opinion to be a declaration of the constitutionality of the
14 Because the Mayfields are citizens of the United States, they would not have had standing to challenge the 120-day limit, which applies only to surveillance “directed against an agent of a foreign power who is not a United States person.” 50 U.S.C. § 1805(e)(1)(B).
-60- 120-day limit, the court patently exceeded the scope of its authority, and the judgment must be reversed in that respect as well.
In addition to opining on the constitutionality of FISA’s 120-day time limit, the district court also criticized other features of FISA. ER 35-38. For example, the court asserted that FISA does not provide “any meaningful opportunity for the target of the surveillance to challenge its legality” and “does not require particularity” regarding the places to be searched and things to be seized. Id. at 36, 37. The court does not appear to have declared FISA to be unconstitutional on any of these additional grounds. But to the extent that its opinion can be read as passing judgment on the constitutionality of these other features of FISA, the decision once again goes beyond the limits of the case before the district court and must be reversed.
-61- CONCLUSION
For the foregoing reasons, the judgment of the district court should be reversed.
Respectfully submitted,
JEFFREY S. BUCHOLTZ Acting Assistant Attorney General
KARIN J. IMMERGUT United States Attorney
DOUGLAS N. LETTER SCOTT R. McINTOSH Attorneys, Appellate Staff Civil Division Department of Justice 950 Pennsylvania Avenue NW, Room 7259 Washington, D.C. 20530
Counsel for the United States
-62- CERTIFICATE OF COMPLIANCE
I certify, pursuant to Fed. R. App. P. 32 (a)(7)(C) and Ninth Circuit Rule 32-1, that the attached opening brief is proportionately spaced, has a typeface of 14 points or more, and contains 13,951 words.
______Date Scott R. McIntosh Counsel for Appellant STATEMENT OF RELATED CASES
No known related cases are pending in this Court.
STATUTORY ADDENDUM
50 U.S.C. § 1801...... 1
50 U.S.C. § 1804...... 6
50 U.S.C. § 1805...... 1 0
50 U.S.C. § 1821...... 1 7
50 U.S.C. § 1823...... 1 9
50 U.S.C. § 1824...... 2 2 United States Code, Title 50
§ 1801. Definitions
As used in this subchapter:
(a) “Foreign power” means--
(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
(4) a group engaged in international terrorism or activities in preparation therefor;
(5) a foreign-based political organization, not substantially composed of United States persons; or
(6) an entity that is directed and controlled by a foreign government or governments.
(b) “Agent of a foreign power” means--
(1) any person other than a United States person, who--
(A) acts in the United States as an officer or employee of a foreign power, or as a member of a foreign power as defined in subsection (a)(4) of this section;
(B) acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States, when the circumstances of such person's presence in the United States indicate that such person may engage in such activities in the United States, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage in such activities; or
(C) engages in international terrorism or activities in preparation therefore; or
(2) any person who--
1 (A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;
(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;
(C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;
(D) knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power; or
(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).
(c) “International terrorism” means activities that--
(1) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or any State;
(2) appear to be intended--
(A) to intimidate or coerce a civilian population;
(B) to influence the policy of a government by intimidation or coercion; or
(C) to affect the conduct of a government by assassination or kidnapping; and
(3) occur totally outside the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum.
(d) “Sabotage” means activities that involve a violation of chapter 105 of Title 18, or that would involve such a violation if committed against the United States.
(e) “Foreign intelligence information” means--
2 (1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against--
(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
(B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or
(2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to--
(A) the national defense or the security of the United States; or
(B) the conduct of the foreign affairs of the United States.
(f) “Electronic surveillance” means--
(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
3 expectation of privacy and a warrant would be required for law enforcement purposes.
(g) “Attorney General” means the Attorney General of the United States (or Acting Attorney General), the Deputy Attorney General, or, upon the designation of the Attorney General, the Assistant Attorney General designated as the Assistant Attorney General for National Security under section 507A of title 28, United States Code.
(h) “Minimization procedures”, with respect to electronic surveillance, means--
(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 subsection (e)(1) of this section, 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;
(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; and
(4) notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 1802(a) of this title, procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.
(i) “United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101(a)(20) of Title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a
4 corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.
(j) “United States”, when used in a geographic sense, means all areas under the territorial sovereignty of the United States and the Trust Territory of the Pacific Islands.
(k) “Aggrieved person” means a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance.
(l) “Wire communication” means any communication while it is being carried by a wire, cable, or other like connection furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign communications.
(m) “Person” means any individual, including any officer or employee of the Federal Government, or any group, entity, association, corporation, or foreign power.
(n) “Contents”, when used with respect to a communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication.
(o) “State” means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Trust Territory of the Pacific Islands, and any territory or possession of the United States.
5 § 1804. Applications for court orders
(a) Submission by Federal officer; approval of Attorney General; contents
Each application for an order approving electronic surveillance under this subchapter shall be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdiction under section 1803 of this title. Each application shall require the approval of the Attorney General based upon his finding that it satisfies the criteria and requirements of such application as set forth in this subchapter. It shall include--
(1) the identity of the Federal officer making the application;
(2) the authority conferred on the Attorney General by the President of the United States and the approval of the Attorney General to make the application;
(3) the identity, if known, or a description of the specific target of the electronic surveillance;
(4) a statement of the facts and circumstances relied upon by the applicant to justify his belief that--
(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and
(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;
(5) a statement of the proposed minimization procedures;
(6) a detailed description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance;
(7) a certification or certifications by the Assistant to the President for National Security Affairs or an executive branch official or officials designated by the President from among those executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate--
(A) that the certifying official deems the information sought to be foreign intelligence information;
6 (B) that a significant purpose of the surveillance is to obtain foreign intelligence information;
(C) that such information cannot reasonably be obtained by normal investigative techniques;
(D) that designates the type of foreign intelligence information being sought according to the categories described in section 1801(e) of this title; and
(E) including a statement of the basis for the certification that--
(i) the information sought is the type of foreign intelligence information designated; and
(ii) such information cannot reasonably be obtained by normal investigative techniques;
(8) a statement of the means by which the surveillance will be effected and a statement whether physical entry is required to effect the surveillance;
(9) a statement of the facts concerning all previous applications that have been made to any judge under this subchapter involving any of the persons, facilities, or places specified in the application, and the action taken on each previous application;
(10) a statement of the period of time for which the electronic surveillance is required to be maintained, and if the nature of the intelligence gathering is such that the approval of the use of electronic surveillance under this subchapter should not automatically terminate when the described type of information has first been obtained, a description of facts supporting the belief that additional information of the same type will be obtained thereafter; and
(11) whenever more than one electronic, mechanical or other surveillance device is to be used with respect to a particular proposed electronic surveillance, the coverage of the devices involved and what minimization procedures apply to information acquired by each device.
(b) Exclusion of certain information respecting foreign power targets
Whenever the target of the electronic surveillance is a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title, and each of the facilities or places at which the surveillance is directed is owned, leased, or exclusively used by that
7 foreign power, the application need not contain the information required by paragraphs (6), (7)(E), (8), and (11) of subsection (a) of this section, but shall state whether physical entry is required to effect the surveillance and shall contain such information about the surveillance techniques and communications or other information concerning United States persons likely to be obtained as may be necessary to assess the proposed minimization procedures.
(c) Additional affidavits or certifications
The Attorney General may require any other affidavit or certification from any other officer in connection with the application.
(d) Additional information
The judge may require the applicant to furnish such other information as may be necessary to make the determinations required by section 1805 of this title.
(e) Personal review by Attorney General
(1)(A) Upon written request of the Director of the Federal Bureau of Investigation, the Secretary of Defense, the Secretary of State, or the Director of National Intelligence, the Attorney General shall personally review under subsection (a) of this section an application under that subsection for a target described in section 1801(b)(2) of this title.
(B) Except when disabled or otherwise unavailable to make a request referred to in subparagraph (A), an official referred to in that subparagraph may not delegate the authority to make a request referred to in that subparagraph.
(C) Each official referred to in subparagraph (A) with authority to make a request under that subparagraph shall take appropriate actions in advance to ensure that delegation of such authority is clearly established in the event such official is disabled or otherwise unavailable to make such request.
(2)(A) If as a result of a request under paragraph (1) the Attorney General determines not to approve an application under the second sentence of subsection (a) of this section for purposes of making the application under this section, the Attorney General shall provide written notice of the determination to the official making the request for the review of the application under that paragraph. Except when disabled or otherwise unavailable to make a determination under the
8 preceding sentence, the Attorney General may not delegate the responsibility to make a determination under that sentence. The Attorney General shall take appropriate actions in advance to ensure that delegation of such responsibility is clearly established in the event the Attorney General is disabled or otherwise unavailable to make such determination.
(B) Notice with respect to an application under subparagraph (A) shall set forth the modifications, if any, of the application that are necessary in order for the Attorney General to approve the application under the second sentence of subsection (a) of this section for purposes of making the application under this section.
(C) Upon review of any modifications of an application set forth under subparagraph (B), the official notified of the modifications under this paragraph shall modify the application if such official determines that such modification is warranted. Such official shall supervise the making of any modification under this subparagraph. Except when disabled or otherwise unavailable to supervise the making of any modification under the preceding sentence, such official may not delegate the responsibility to supervise the making of any modification under that preceding sentence. Each such official shall take appropriate actions in advance to ensure that delegation of such responsibility is clearly established in the event such official is disabled or otherwise unavailable to supervise the making of such modification.
9 § 1805. Issuance of order
(a) Necessary findings
Upon an application made pursuant to section 1804 of this title, the judge shall enter an ex parte order as requested or as modified approving the electronic surveillance if he finds that--
(1) the President has authorized the Attorney General to approve applications for electronic surveillance for foreign intelligence information;
(2) the application has been made by a Federal officer and approved by the Attorney General;
(3) on the basis of the facts submitted by the applicant there is probable cause to believe that--
(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power: Provided, That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States; and
(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;
(4) the proposed minimization procedures meet the definition of minimization procedures under section 1801(h) of this title; and
(5) the application which has been filed contains all statements and certifications required by section 1804 of this title and, if the target is a United States person, the certification or certifications are not clearly erroneous on the basis of the statement made under section 1804(a)(7)(E) of this title and any other information furnished under section 1804(d) of this title.
(b) Determination of probable cause
In determining whether or not probable cause exists for purposes of an order under subsection (a)(3) of this section, a judge may consider past activities of the target, as well as facts and circumstances relating to current or future activities of the target.
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(c) Specifications and directions of orders
(1) Specifications
An order approving an electronic surveillance under this section shall specify--
(A) the identity, if known, or a description of the specific target of the electronic surveillance identified or described in the application pursuant to section 1804(a)(3) of this title;
(B) the nature and location of each of the facilities or places at which the electronic surveillance will be directed, if known;
(C) the type of information sought to be acquired and the type of communications or activities to be subjected to the surveillance;
(D) the means by which the electronic surveillance will be effected and whether physical entry will be used to effect the surveillance;
(E) the period of time during which the electronic surveillance is approved; and
(F) whenever more than one electronic, mechanical, or other surveillance device is to be used under the order, the authorized coverage of the devices involved and what minimization procedures shall apply to information subject to acquisition by each device.
(2) Directions
An order approving an electronic surveillance under this section shall direct--
(A) that the minimization procedures be followed;
(B) that, upon the request of the applicant, a specified communication or other common carrier, landlord, custodian, or other specified person, or in circumstances where the Court finds, based upon specific facts provided in the application, that the actions of the target of the application may have the effect of thwarting the identification of a specified person, such other persons, furnish the applicant forthwith all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier, landlord, custodian, or other person is providing that target of electronic surveillance;
11 (C) that such carrier, landlord, custodian, or other person maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the surveillance or the aid furnished that such person wishes to retain; and
(D) that the applicant compensate, at the prevailing rate, such carrier, landlord, custodian, or other person for furnishing such aid.
(3) Special directions for certain orders
An order approving an electronic surveillance under this section in circumstances where the nature and location of each of the facilities or places at which the surveillance will be directed is unknown shall direct the applicant to provide notice to the court within ten days after the date on which surveillance begins to be directed at any new facility or place, unless the court finds good cause to justify a longer period of up to 60 days, of--
(A) the nature and location of each new facility or place at which the electronic surveillance is directed;
(B) the facts and circumstances relied upon by the applicant to justify the applicant's belief that each new facility or place at which the electronic surveillance is directed is or was being used, or is about to be used, by the target of the surveillance;
(C) a statement of any proposed minimization procedures that differ from those contained in the original application or order, that may be necessitated by a change in the facility or place at which the electronic surveillance is directed; and
(D) the total number of electronic surveillances that have been or are being conducted under the authority of the order.
(d) Exclusion of certain information respecting foreign power targets
Whenever the target of the electronic surveillance is a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title, and each of the facilities or places at which the surveillance is directed is owned, leased, or exclusively used by that foreign power, the order need not contain the information required by subparagraphs (C), (D), and (F) of subsection (c)(1) of this section, but shall generally describe the information sought, the communications or activities to be subjected to the surveillance, and the type of electronic surveillance involved, including whether physical entry is required.
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(e) Duration of order; extensions; review of circumstances under which information was acquired, retained or disseminated
(1) An order issued under this section may approve an electronic surveillance for the period necessary to achieve its purpose, or for ninety days, whichever is less, except that (A) an order under this section shall approve an electronic surveillance targeted against a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title, for the period specified in the application or for one year, whichever is less, and (B) an order under this chapter for a surveillance targeted against an agent of a foreign power who is not a United States person may be for the period specified in the application or for 120 days, whichever is less.
(2) Extensions of an order issued under this subchapter may be granted on the same basis as an original order upon an application for an extension and new findings made in the same manner as required for an original order, except that (A) an extension of an order under this chapter for a surveillance targeted against a foreign power, as defined in section 1801(a)(5) or (6) of this title, or against a foreign power as defined in section 1801(a)(4) of this title that is not a United States person, may be for a period not to exceed one year if the judge finds probable cause to believe that no communication of any individual United States person will be acquired during the period, and (B) an extension of an order under this chapter for a surveillance targeted against an agent of a foreign power who is not a United States person may be for a period not to exceed 1 year.
(3) At or before the end of the period of time for which electronic surveillance is approved by an order or an extension, the judge may assess compliance with the minimization procedures by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated.
(f) Emergency orders
Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that--
(1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and
13 (2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists;
he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance. If the Attorney General authorizes such emergency employment of electronic surveillance, he shall require that the minimization procedures required by this subchapter for the issuance of a judicial order be followed. In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 72 hours from the time of authorization by the Attorney General, whichever is earliest. In the event that such application for approval is denied, or in any other case where the electronic surveillance is terminated and no order is issued approving the surveillance, no information obtained or evidence derived from such surveillance shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such surveillance shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person. A denial of the application made under this subsection may be reviewed as provided in section 1803 of this title.
(g) Testing of electronic equipment; discovering unauthorized electronic surveillance; training of intelligence personnel
Notwithstanding any other provision of this subchapter, officers, employees, or agents of the United States are authorized in the normal course of their official duties to conduct electronic surveillance not targeted against the communications of any particular person or persons, under procedures approved by the Attorney General, solely to--
(1) test the capability of electronic equipment, if--
14 (A) it is not reasonable to obtain the consent of the persons incidentally subjected to the surveillance;
(B) the test is limited in extent and duration to that necessary to determine the capability of the equipment;
(C) the contents of any communication acquired are retained and used only for the purpose of determining the capability of the equipment, are disclosed only to test personnel, and are destroyed before or immediately upon completion of the test; and:
(D) Provided, That the test may exceed ninety days only with the prior approval of the Attorney General;
(2) determine the existence and capability of electronic surveillance equipment being used by persons not authorized to conduct electronic surveillance, if--
(A) it is not reasonable to obtain the consent of persons incidentally subjected to the surveillance;
(B) such electronic surveillance is limited in extent and duration to that necessary to determine the existence and capability of such equipment; and
(C) any information acquired by such surveillance is used only to enforce chapter 119 of Title 18, or section 605 of Title 47, or to protect information from unauthorized surveillance; or
(3) train intelligence personnel in the use of electronic surveillance equipment, if--
(A) it is not reasonable to--
(i) obtain the consent of the persons incidentally subjected to the surveillance;
(ii) train persons in the course of surveillances otherwise authorized by this subchapter; or
(iii) train persons in the use of such equipment without engaging in electronic surveillance;
(B) such electronic surveillance is limited in extent and duration to that necessary to train the personnel in the use of the equipment; and
15 (C) no contents of any communication acquired are retained or disseminated for any purpose, but are destroyed as soon as reasonably possible.
(h) Retention of certifications, applications and orders
Certifications made by the Attorney General pursuant to section 1802(a) of this title and applications made and orders granted under this subchapter shall be retained for a period of at least ten years from the date of the certification or application.
(i) Release from liability
No cause of action shall lie in any court against any provider of a wire or electronic communication service, landlord, custodian, or other person (including any officer, employee, agent, or other specified person thereof) that furnishes any information, facilities, or technical assistance in accordance with a court order or request for emergency assistance under this chapter for electronic surveillance or physical search.
16
§ 1821. Definitions
As used in this subchapter:
(1) The terms “foreign power”, “agent of a foreign power”, “‘international terrorism”, “sabotage”, “foreign intelligence information”, “Attorney General”, “United States person”, “United States”, “person”, and “State” shall have the same meanings as in section 1801 of this title, except as specifically provided by this subchapter.
(2) “Aggrieved person” means a person whose premises, property, information, or material is the target of physical search or any other person whose premises, property, information, or material was subject to physical search.
(3) “Foreign Intelligence Surveillance Court” means the court established by section 1803(a) of this title.
(4) “Minimization procedures” with respect to physical search, means--
(A) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purposes and technique of the particular physical search, 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;
(B) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in section 1801(e)(1) of this title, 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 such foreign intelligence information or assess its importance;
(C) notwithstanding subparagraphs (A) and (B), 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; and
(D) notwithstanding subparagraphs (A), (B), and (C), with respect to any physical search approved pursuant to section 1822(a) of this title, procedures that require that no information, material, or property of a United States person shall be disclosed, disseminated, or used for any purpose or retained for longer than 72
17 hours unless a court order under section 1824 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.
(5) “Physical search” means any physical intrusion within the United States into premises or property (including examination of the interior of property by technical means) that is intended to result in a seizure, reproduction, inspection, or alteration of information, material, or property, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, but does not include (A) “electronic surveillance”, as defined in section 1801(f) of this title, or (B) the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 1801(f) of this title.
18 § 1823. Application for order
(a) Submission by Federal officer; approval of Attorney General; contents
Each application for an order approving a physical search under this subchapter shall be made by a Federal officer in writing upon oath or affirmation to a judge of the Foreign Intelligence Surveillance Court. Each application shall require the approval of the Attorney General based upon the Attorney General's finding that it satisfies the criteria and requirements for such application as set forth in this subchapter. Each application shall include--
(1) the identity of the Federal officer making the application;
(2) the authority conferred on the Attorney General by the President and the approval of the Attorney General to make the application;
(3) the identity, if known, or a description of the target of the search, and a detailed description of the premises or property to be searched and of the information, material, or property to be seized, reproduced, or altered;
(4) a statement of the facts and circumstances relied upon by the applicant to justify the applicant's belief that--
(A) the target of the physical search is a foreign power or an agent of a foreign power;
(B) the premises or property to be searched contains foreign intelligence information; and
(C) the premises or property to be searched is owned, used, possessed by, or is in transit to or from a foreign power or an agent of a foreign power;
(5) a statement of the proposed minimization procedures;
(6) a statement of the nature of the foreign intelligence sought and the manner in which the physical search is to be conducted;
(7) a certification or certifications by the Assistant to the President for National Security Affairs or an executive branch official or officials designated by the President from among those executive branch officers employed in the area of national security or defense and appointed by the President, by and with the advice and consent of the Senate--
19 (A) that the certifying official deems the information sought to be foreign intelligence information;
(B) that a significant purpose of the search is to obtain foreign intelligence information;
(C) that such information cannot reasonably be obtained by normal investigative techniques;
(D) that designates the type of foreign intelligence information being sought according to the categories described in section 1801(e) of this title; and
(E) includes a statement explaining the basis for the certifications required by subparagraphs (C) and (D);
(8) where the physical search involves a search of the residence of a United States person, the Attorney General shall state what investigative techniques have previously been utilized to obtain the foreign intelligence information concerned and the degree to which these techniques resulted in acquiring such information; and
(9) a statement of the facts concerning all previous applications that have been made to any judge under this subchapter involving any of the persons, premises, or property specified in the application, and the action taken on each previous application.
(b) Additional affidavits or certifications
The Attorney General may require any other affidavit or certification from any other officer in connection with the application.
(c) Additional information
The judge may require the applicant to furnish such other information as may be necessary to make the determinations required by section 1824 of this title.
(d) Personal review by Attorney General
(1)(A) Upon written request of the Director of the Federal Bureau of Investigation, the Secretary of Defense, the Secretary of State, or the Director of National Intelligence, the Attorney General shall personally review under subsection (a) of this section an application under that subsection for a target described in section
20 1801(b)(2) of this title.
(B) Except when disabled or otherwise unavailable to make a request referred to in subparagraph (A), an official referred to in that subparagraph may not delegate the authority to make a request referred to in that subparagraph.
(C) Each official referred to in subparagraph (A) with authority to make a request under that subparagraph shall take appropriate actions in advance to ensure that delegation of such authority is clearly established in the event such official is disabled or otherwise unavailable to make such request.
(2)(A) If as a result of a request under paragraph (1) the Attorney General determines not to approve an application under the second sentence of subsection (a) of this section for purposes of making the application under this section, the Attorney General shall provide written notice of the determination to the official making the request for the review of the application under that paragraph. Except when disabled or otherwise unavailable to make a determination under the preceding sentence, the Attorney General may not delegate the responsibility to make a determination under that sentence. The Attorney General shall take appropriate actions in advance to ensure that delegation of such responsibility is clearly established in the event the Attorney General is disabled or otherwise unavailable to make such determination.
(B) Notice with respect to an application under subparagraph (A) shall set forth the modifications, if any, of the application that are necessary in order for the Attorney General to approve the application under the second sentence of subsection (a) of this section for purposes of making the application under this section.
(C) Upon review of any modifications of an application set forth under subparagraph (B), the official notified of the modifications under this paragraph shall modify the application if such official determines that such modification is warranted. Such official shall supervise the making of any modification under this subparagraph. Except when disabled or otherwise unavailable to supervise the making of any modification under the preceding sentence, such official may not delegate the responsibility to supervise the making of any modification under that preceding sentence. Each such official shall take appropriate actions in advance to ensure that delegation of such responsibility is clearly established in the event such official is disabled or otherwise unavailable to supervise the making of such modification.
21 § 1824. Issuance of order
(a) Necessary findings
Upon an application made pursuant to section 1823 of this title, the judge shall enter an ex parte order as requested or as modified approving the physical search if the judge finds that--
(1) the President has authorized the Attorney General to approve applications for physical searches for foreign intelligence purposes;
(2) the application has been made by a Federal officer and approved by the Attorney General;
(3) on the basis of the facts submitted by the applicant there is probable cause to believe that--
(A) the target of the physical search is a foreign power or an agent of a foreign power, except that no United States person may be considered an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States; and
(B) the premises or property to be searched is owned, used, possessed by, or is in transit to or from an agent of a foreign power or a foreign power;
(4) the proposed minimization procedures meet the definition of minimization contained in this subchapter; and
(5) the application which has been filed contains all statements and certifications required by section 1823 of this title, and, if the target is a United States person, the certification or certifications are not clearly erroneous on the basis of the statement made under section 1823(a)(7)(E) of this title and any other information furnished under section 1823(c) of this title.
(b) Determination of probable cause
In determining whether or not probable cause exists for purposes of an order under subsection (a)(3) of this section, a judge may consider past activities of the target, as well as facts and circumstances relating to current or future activities of the target.
(c) Specifications and directions of orders
22
An order approving a physical search under this section shall--
(1) specify--
(A) the identity, if known, or a description of the target of the physical search;
(B) the nature and location of each of the premises or property to be searched;
(C) the type of information, material, or property to be seized, altered, or reproduced;
(D) a statement of the manner in which the physical search is to be conducted and, whenever more than one physical search is authorized under the order, the authorized scope of each search and what minimization procedures shall apply to the information acquired by each search; and
(E) the period of time during which physical searches are approved; and
(2) direct--
(A) that the minimization procedures be followed;
(B) that, upon the request of the applicant, a specified landlord, custodian, or other specified person furnish the applicant forthwith all information, facilities, or assistance necessary to accomplish the physical search in such a manner as will protect its secrecy and produce a minimum of interference with the services that such landlord, custodian, or other person is providing the target of the physical search;
(C) that such landlord, custodian, or other person maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the search or the aid furnished that such person wishes to retain;
(D) that the applicant compensate, at the prevailing rate, such landlord, custodian, or other person for furnishing such aid; and
(E) that the Federal officer conducting the physical search promptly report to the court the circumstances and results of the physical search.
(d) Duration of order; extensions; assessment of compliance
23 (1) An order issued under this section may approve a physical search for the period necessary to achieve its purpose, or for 90 days, whichever is less, except that (A) an order under this section shall approve a physical search targeted against a foreign power, as defined in paragraph (1), (2), or (3) of section 1801(a) of this title, for the period specified in the application or for one year, whichever is less, and (B) an order under this section for a physical search targeted against an agent of a foreign power who is not a United States person may be for the period specified in the application or for 120 days, whichever is less.
(2) Extensions of an order issued under this subchapter may be granted on the same basis as the original order upon an application for an extension and new findings made in the same manner as required for the original order, except that an extension of an order under this chapter for a physical search targeted against a foreign power, as defined in section 1801(a)(5) or (6) of this title, or against a foreign power, as defined in section 1801(a)(4) of this title, that is not a United States person, or against an agent of a foreign power who is not a United States person, may be for a period not to exceed one year if the judge finds probable cause to believe that no property of any individual United States person will be acquired during the period.
(3) At or before the end of the period of time for which a physical search is approved by an order or an extension, or at any time after a physical search is carried out, the judge may assess compliance with the minimization procedures by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated.
(e) Emergency orders
(1)(A) Notwithstanding any other provision of this subchapter, whenever the Attorney General reasonably makes the determination specified in subparagraph (B), the Attorney General may authorize the execution of an emergency physical search if--
(i) a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or the Attorney General's designee at the time of such authorization that the decision has been made to execute an emergency search, and
(ii) an application in accordance with this subchapter is made to that judge as soon as practicable but not more than 72 hours after the Attorney General authorizes such search.
24 (B) The determination referred to in subparagraph (A) is a determination that--
(i) an emergency situation exists with respect to the execution of a physical search to obtain foreign intelligence information before an order authorizing such search can with due diligence be obtained, and
(ii) the factual basis for issuance of an order under this subchapter to approve such a search exists.
(2) If the Attorney General authorizes an emergency search under paragraph (1), the Attorney General shall require that the minimization procedures required by this subchapter for the issuance of a judicial order be followed.
(3) In the absence of a judicial order approving such a physical search, the search shall terminate the earlier of--
(A) the date on which the information sought is obtained;
(B) the date on which the application for the order is denied; or
(C) the expiration of 72 hours from the time of authorization by the Attorney General.
(4) In the event that such application for approval is denied, or in any other case where the physical search is terminated and no order is issued approving the search, no information obtained or evidence derived from such search shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such search shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General, if the information indicates a threat of death or serious bodily harm to any person. A denial of the application made under this subsection may be reviewed as provided in section 1822 of this title.
(f) Retention of applications and orders
Applications made and orders granted under this subchapter shall be retained for a period of at least 10 years from the date of the application.
25 CERTIFICATE OF SERVICE
I hereby certify that on February 8, 2008, I filed and served the foregoing
BRIEF FOR THE APPELLANT by causing an original and fifteen copies to be sent to the Clerk of the Court by first-class mail and by causing two copies to be sent by first-class mail to each of the following counsel:
Elden M. Rosenthal Rosenthal & Greene, PC 1001 SW Fifth Avenue Suite 1907 Portland, OR 97204 (503) 228-3015
Gerry Spence The Spence Law Firm, LLC 15 South Jackson Street P.O. Box 548 Jackson, WY 83001 (800) 967-2117
Michele Longo Eder Michele Longo Eder, Attorney at Law, LLC 4 SW High Street P.O. Box 1530 Newport, OR 97365 (541) 265-3337
______Scott R. McIntosh