Brown v. Mukasey
PRELIMINARY STATEMENT
1. This lawsuit challenges the constitutionality of a secret government program to intercept vast quantities of the international AND Domestic telephone and Internet communications of innocent Americans without court approval (hereinafter “the Program”) and the executive order authorizing it. The National Security Agency / Central Security Service (“NSA”) launched the Program on December 3rd, 2007 under authorization from the President of the United States in an Executive Order issued on December 2nd, 2007.
2. Plaintiff is the elected Attorney General of the State of California, Jerry Brown, on behalf of Morgan Johnson, director of the Los Angeles chapter of the group International ANSWER (hereinafter “ANSWER”) and any other individuals or organizations in the state of California that are currently objects of the warrantless surveillance illegally authorized by the president’s Executive Order. Because ANSWER was specifically referred to in a confidential NSA memo leaked to the news media, plaintiff has a well-founded belief that Californians’ telephone and email communications are being intercepted under the Program. The Program is disrupting the ability of these citizens to talk with sources, locate witnesses, conduct scholarship, and engage in advocacy.
3. By seriously compromising the free speech and privacy rights of the citizens of California, the Program and the executive order authorizing it violate the First and Fourth Amendments of the United States Constitution. They also violate constitutional separation of powers principles, because the Program was authorized by President George W. Bush in excess of his Executive authority and contrary to limits imposed by Congress. In response to widespread domestic surveillance abuses committed by the Executive Branch and exposed in the 1960s and 1970s, Congress enacted legislation that provides “the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.” 18 U.S.C. § 2511(2)(f) (emphasis added). Plaintiff respectfully seeks a declaration that the Program is unlawful, a permanent injunction against its use, and a further declaration that the president’s executive order was unconstitutional.
JURISDICTION AND VENUE
4. This case arises under the United States Constitution and the laws of the United States and presents a federal question within this Court’s jurisdiction under Article III of the United States Constitution and 28 U.S.C. § 1331. The Court also has jurisdiction under the Administrative Procedures Act, 5 U.S.C. § 702. The Court has authority to grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. The Court has authority to award costs and attorneys’ fees under 28 U.S.C. § 2412. Venue is proper in this district under 28 U.S.C. § 1391(e).
PARTIES
5. Plaintiff Jerry Brown, Attorney General of the State of California.
6. Morgan Johnson, Director, ANSWER LA is a private person, and a United States citizen residing in Los Angeles, CA.
7. International ANSWER and the ANSWER Coalition is an umbrella organization coordinating and promoting the antiwar and anti-US imperialism activities of tens of thousands of Americans and others.
8. The Union for American Civil Liberties (“UACL”) is a 501(c)(4) nonprofit, non-partisan organization that engages in public education and lobbying about the constitutional principles of liberty and equality. The UACL has more than 500,000 members and has members in every state, including Michigan. The UACL sues on its own behalf and on behalf of its staff and members.
9. Defendant National Security Agency / Central Security Service (“NSA”) is the agency of the United States government responsible for administering the warrantless surveillance program challenged in this case.
10. Defendant Lieutenant General Keith B. Alexander is the Director of the NSA. Defendant Lieutenant General Alexander has ultimate authority for supervising and implementing all operations and functions of the NSA.
11. Defendant President George W. Bush is the author of an Executive Order dated December 2, 2007 which authorized the secret NSA surveillance program.
12. Defendant Attorney General Michael Mukasey granted illegal surveillance authorities to the NSA by authorizing the secret NSA surveillance program.
LEGAL FRAMEWORK
13. The First Amendment provides in relevant part that “Congress shall make no law . . . abridging the freedom of speech, or of the press.”
14. The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fourth Amendment does not allow for categorical orders of surveillance targeted at groups rather than at specified individuals.
15. Congress has enacted two statutes that together supply “the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.” 18 U.S.C. § 2511(2)(f) (emphasis added). The first is Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (“Title III”), 18 U.S.C. § 2510 et seq., and the second is the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801 et seq. (“FISA”).
Title III
16. Congress enacted Title III in response to the U.S. Supreme Court’s recognition, in Katz v. United States, 389 U.S. 347 (1967), that individuals have a constitutionally protected privacy interest in the content of their telephone calls. Through Title III, Congress created a statutory framework to govern the surveillance of wire and oral communications in law enforcement investigations.
17. In its current form, Title III authorizes the government to intercept wire, oral, or electronic communications in investigations of certain enumerated criminal offenses, see 18 U.S.C. § 2516, with prior judicial approval, see id. § 2518. In order to obtain a court order authorizing the interception of a wire, oral, or electronic communication, the government must demonstrate “probable cause for belief that an individual is committing, has committed, or is about to commit” one of the enumerated criminal offenses. Id. § 2518(3)(a). It must also demonstrate, among other things, “probable cause for belief that particular communications concerning [the enumerated] offense will be obtained through [the] interception,” id. § 2518(3)(b), and that “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous,” id. § 2518(3)(c).
18. Every court order authorizing surveillance under Title III must include a provision requiring that the interception be “conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter.” Id. § 2518(5).
19. While Title III generally permits surveillance only with prior judicial authorization, the statute includes a provision that allows for warrantless surveillance in “emergency situation[s]” – where, for example, a “situation exists that involves . . . immediate danger of death or serious physical injury to any person.” Id. § 2518(7)(a). Where an emergency situation exists and “there are grounds upon which an order could be entered . . . to authorize . . . interception,” the statute permits specified executive officials to authorize warrantless surveillance “if an application for an order approving the interception is made in accordance with this section within forty-eight hours after the interception has occurred, or begins to occur.” Id. § 2518(7)(b).
20. Title III specifies civil and criminal penalties for surveillance that is not authorized. See id. §§ 2511 & 2520.
21. As originally enacted, Title III provided that “[n]othing contained in this chapter. . . shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government.” See 18. U.S.C. § 2511(3) (1976). As discussed below, Congress repealed this provision in 1978. Foreign Intelligence Surveillance Act.
22. In 1978, Congress enacted FISA to govern the use of electronic surveillance against foreign powers and their agents inside the United States. The statute created the Foreign Intelligence Surveillance Court, a court composed of seven (now eleven) federal district court judges, and empowered this court to grant or deny government applications for electronic surveillance orders in foreign intelligence investigations. See 50 U.S.C. § 1803(a).
23. Congress enacted FISA after the U.S. Supreme Court held, in United States v. United States District Court for the Eastern District of Michigan, 407 U.S. 297 (1972), that the Fourth Amendment does not permit warrantless surveillance in intelligence investigations of domestic security threats. FISA was a response to that decision and to the Report of the Senate Select Committee to Study Government Operations with Respect to Intelligence Activities, S.Rep. No. 94-755, 94th Cong., 2d Sess. (1976) (“Church Committee Report”), which found that the executive had engaged in warrantless wiretapping of numerous United States citizens – including journalists, activists, and Congressmen – who posed no threat to the nation’s security and who were not suspected of any criminal offense. The Church Committee Report warned that “[u]nless new and tighter controls are established by legislation, domestic intelligence activities threaten to undermine our democratic society and fundamentally alter its nature.”
24. When Congress enacted FISA, it amended Title III to provide that the procedures set out therein and in FISA “shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.” 18 U.S.C. § 2511(2)(f) (emphasis added). FISA provides that no one may engage in electronic surveillance “except as authorized by statute,” id. § 1809(a)(1), and it specifies civil and criminal penalties for electronic surveillance undertaken without statutory authority, see id. §§ 1809 & 1810. The Senate Judiciary Committee explained that “[t]he basis for this legislation is the understanding – concurred in by the Attorney General – that even if the President has an ‘inherent’ Constitutional power to authorize warrantless surveillance for foreign intelligence purposes, Congress has the power to regulate the exercise of this authority by legislating a reasonable warrant procedure governing foreign intelligence surveillance.” S. Rep. 95- 604(I), reprinted at 1978 U.S.C.C.A.N. at 3917. The Committee further explained that the legislation was meant to “spell out that the executive cannot engage in electronic surveillance within the United States without a prior Judicial warrant.” Id. at 3906.
25. FISA defines “electronic surveillance” broadly to include:
a. “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”;
b. “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 . . .”;
c. “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”; and
d. “the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.” 50 U.S.C. § 1801(f).
26. FISA defines “contents” to include “any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication.” 50 U.S.C. § 1801(n). It defines “United States person” to include United States citizens and lawful permanent residents. Id. § 1801(d).
27. In order to obtain an order from the FISA Court authorizing electronic surveillance, the government must demonstrate, among other things, probable cause to believe that “the target of the electronic surveillance is a foreign power or an agent of a foreign power” and that “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.” Id. § 1805(a)(3).
28. The Protect America Act of 2007 was a bill to amend the Foreign Intelligence Surveillance Act of 1978 and to provide additional procedures for authorizing certain acquisitions of foreign intelligence information. The bill was enacted by the 110th United States Congress and signed into law by George W. Bush in August 2007. The Protect America Act modifies the Foreign Intelligence Surveillance Act to allow for wiretapping without a warrant when the target of surveillance is a foreign intelligence target located outside the United States. It continues to require a court order to conduct electronic surveillance or physical search when targeting persons located in the United States.
29. While FISA generally prohibits surveillance without prior judicial authorization, it, like Title III, includes a provision that allows for warrantless surveillance in “emergency situation[s].” Id. § 1805(f). Where an emergency situation exists and “the factual basis for issuance of an order under this subchapter to approve such surveillance exists,” the statute permits the Attorney General to authorize warrantless 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.” Id.
30. Section 2 of the Executive Order issued December 2nd , 2007 requires that “all such data collected from American citizens must be authorized by a writ of probable cause or must at the very least cite ‘specific and articulated facts’ showing reasonable grounds to believe that data is ‘relevant to an ongoing criminal investigation’…which must be turned into the Justice Dept.’s office of the Deputy Attorney General within seven days of the gathering of the data.” This provision adds four days to the provided 72 hours stated in the Foreign Intelligence Surveillance Act, thereby altering the law itself.
31. FISA also allows the Attorney General to authorize electronic surveillance without a court order for up to one year if the Attorney General certifies in writing under oath that the electronic surveillance is directed solely at the property or means of communication used exclusively by a foreign power, that “there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party,” and that there are minimization procedures in place. Id. § 1802.
32. FISA requires the Attorney General to report to the House and Senate Intelligence Committees twice a year regarding “all electronic surveillance” authorized under FISA. Id. § 1808(a). Statistics released annually by the Justice Department indicate that, between 1978 and 2004, the government submitted almost 19,000 surveillance applications to the FISA Court. The FISC denied four of these applications; granted approximately 180 applications with modifications; and granted the remainder without modifications.
33. According to U.S. Code Title 118 Part 1 Chapter 119 Section 2516, “The Attorney General, Deputy Attorney General, Associate Attorney General,[1] or any Assistant Attorney General, any acting Assistant Attorney General, or any Deputy Assistant Attorney General or acting Deputy Assistant Attorney General in the Criminal Division specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made…” Only through an application to a federal can these electronic surveillance authorities be granted.
34. The Authorization of Military Force (AUMF) provides that “That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” The AUMF was also the basis of one of the principal arguments advanced by the Department of Justice in the NSA warrantless surveillance controversy, namely that the AUMF implicitly overrode the Foreign Intelligence Surveillance Act. In Hamdan v. Rumsfeld, however, it was ruled that there is no evidence that Congress intended to override FISA; if anything the opposite is the case. The decision in Hamdan v. Rumsfeld established that the AUMF only allows the executive to circumvent federal laws specifically listed in the AUMF, FISA not being one of them.
35. Under U.S. Code Title 50, 413, it is required that “The President shall ensure that the congressional intelligence committees are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity as required by this subchapter.” President George W. Bush did not inform the congressional intelligence committees before issuing his December 3rd Executive Order, which did indeed increase the surveillance authorities of the NSA.
FACTUAL BACKGROUND
36. According to published news reports, in the fall of 2001 the NSA launched a secret surveillance program (“the Program”) to intercept, without prior judicial authorization, the telephone and Internet communications of people inside the United States. President Bush ratified the Program in 2002. Since then, the President has reauthorized the Program more than 30 times.
37. Under the Program, the NSA engages in “electronic surveillance” as defined by FISA and Title III.
38. Under the Program, the NSA intercepts vast quantities of the international telephone and Internet communications (hereinafter collectively “communications”) of people inside the United States, including citizens and lawful permanent residents.
39. Under the Program, the NSA also intercepts some purely domestic communications, that is, communications among people all of whom are inside the United States.
40. Under the Program, the NSA intercepts the communications of people inside the United States without probable cause to believe that the surveillance targets have committed or are about to commit any crime.
41. Under the Program, the NSA intercepts the communications of people inside the United States without probable cause to believe that the surveillance targets are foreign powers or agents thereof.
42. Under the Program, the NSA intercepts the communications of people inside the United States without obtaining authorization for each interception from the President or the Attorney General.
43. Under the Program, the NSA conducts surveillance categorically on groups such as the ANSWER coalition and other activist groups within the domestic anti-war movement.
44. Under the Program, the NSA accesses communications in at least three ways.
45. First, the NSA uses Trap and Trace devices, Pen Registers, Cell Phone Tower Site Data systems, E911 systems to access domestic and foreign communications.
46. Second, the NSA uses Hot Watch orders to gather information about American citizens’ credit card use.
47. The NSA works with Internet providers and telecommunications companies, and uses click trails to access communications transmitted over the Internet.
48. Under the Program, the NSA intercepts, retains, and analyzes communications in at least three ways.
49. First, the NSA obtains names, telephone numbers and Internet addresses from the cell phones, computers, and other information found in the possession of persons and groups deemed suspicious. The NSA intercepts the telephone numbers and Internet addresses associated with these people, as well as numbers and emails associated with anyone who communicates with them, and continues to identify additional telephone numbers and Internet addresses in an expanding network of people with fewer and fewer links to the original suspect. Through this method, the NSA intercepts the contents of the communications of as many as a thousand people inside the United States at any one time.
50. Second, the NSA intercepts communications to and from particular countries. The intercepted communications include calls and emails between people inside the United States and people in those other countries.
51. Third, the NSA engages in wholesale datamining of domestic and international communications. It uses artificial intelligence aids to search for keywords and analyze patterns in millions of communications at any given time. One purpose of this datamining is to identify individuals for targeted surveillance.
52. Under the Program, the NSA does not obtain judicial review before or after intercepting the communications of people inside the United States.
Plaintiffs’ Allegations
53. Plaintiffs and their staff and members (hereinafter “plaintiffs”) routinely communicate by email and telephone with people outside the United States, including people in the Middle East and Asia.
54. Some of the plaintiffs, in connection with scholarship, journalism, or legal representation, communicate with people whom the United States government believes or believed to be terrorist suspects or to be associated with terrorist organizations.
55. Plaintiffs communicate about subjects that are likely to trigger scrutiny by the NSA under the Program.
56. Some of the plaintiffs conduct research on the Internet concerning topics that are likely to trigger scrutiny under the Program.
57. Because of the nature of plaintiffs’ communications and the identities and locations of those with whom they communicate, plaintiffs have a well-founded belief that their domestic and international communications are being intercepted by the NSA under the Program.
58. The Program is substantially impairing plaintiffs’ ability to obtain information from sources abroad and to engage in advocacy.
59. The Program is inhibiting the lawful, constitutionally protected communications of plaintiffs and others not before the Court.
CAUSES OF ACTION
60. The Program violates plaintiffs’ free speech and associational rights guaranteed by the First Amendment.
61. The Program violates plaintiffs’ privacy rights guaranteed by the Fourth Amendment.
62. The Program violates the principle of separation of powers because it was authorized by President Bush in excess of his Executive authority under Article II of the United States Constitution and is contrary to limits imposed by Congress.
63. The Program violates the Administrative Procedures Act because the NSA’s actions under the Program exceed statutory authority and limitations imposed by Congress through FISA and Title III; are not otherwise in accordance with law; are contrary to constitutional right; and are taken without observance of procedures required by law.
WHEREFORE plaintiffs respectfully requests that the Court:
1. Declare that the Program is unconstitutional under the First and Fourth Amendments;
2. Declare that the Program violates the principle of separation of powers;
2. Declare that the Program violates the Administrative Procedures Act;
3. Permanently enjoin defendants from utilizing the Program;
4. Grant such other and further relief as the Court deems just and proper.
Respectfully submitted,
Kelly McCarthy
National Legal Department
Union for American Civil Liberties
