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Dead Constitution See other Dead Constitution Articles Title: NSA DOMESTIC SURVEILLANCE OPINION TEXT American Civil Liberties Union v. National Security Agency/ Central Security Service, No. 06-CV-10204 (E.D.Mich. 08/17/2006) [1] UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION [2] Case No. 06-CV-10204 [3] 2006.EMI.0002179< >http://www.versuslaw.com> [4] August 17, 2006 [5] AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION FOUNDATION; AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN; COUNCIL ON AMERICAN-ISLAMIC RELATIONS; COUNCIL ON AMERICAN ISLAMIC RELATIONS MICHIGAN; GREENPEACE, INC.; NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; JAMES BAMFORD; LARRY DIAMOND; CHRISTOPHER HITCHENS; TARA MCKELVEY; AND BARNETT R. RUBIN, PLAINTIFFS, v. NATIONAL SECURITY AGENCY / CENTRAL SECURITY SERVICE; AND LIEUTENANT GENERAL KEITH B. ALEXANDER, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE NATIONAL SECURITY AGENCY AND CHIEF OF THE CENTRAL SECURITY SERVICE, DEFENDANTS. [6] The opinion of the court was delivered by: Anna Diggs Taylor United States District Judge [7] Hon. Anna Diggs Taylor [8] MEMORANDUM OPINION [9] I. Introduction [10] This is a challenge to the legality of a secret program (hereinafter "TSP") undisputedly inaugurated by the National Security Agency (hereinafter "NSA") at least by 2002 and continuing today, which intercepts without benefit of warrant or other judicial approval, prior or subsequent, the international telephone and internet communications of numerous persons and organizations within this country. The TSP has been acknowledged by this Administration to have been authorized by the President's secret order during 2002 and reauthorized at least thirty times since.*fn1 [11] Plaintiffs are a group of persons and organizations who, according to their affidavits, are defined by the Foreign Intelligence Surveillance Act (hereinafter "FISA") as "U.S. persons."*fn2 They conducted regular international telephone and internet communications for various uncontestedly legitimate reasons including journalism, the practice of law, and scholarship. Many of their communications are and have been with persons in the Middle East. Each Plaintiff has alleged a "well founded belief" that he, she, or it, has been subjected to Defendants' interceptions, and that the TSP not only injures them specifically and directly, but that the TSP substantially chills and impairs their constitutionally protected communications. Persons abroad who before the program spoke with them by telephone or internet will no longer do so. [12] Plaintiffs have alleged that the TSP violates their free speech and associational rights, as guaranteed by the First Amendment of the United States Constitution; their privacy rights, as guaranteed by the Fourth Amendment of the United States Constitution; the principle of the Separation of Powers because the TSP has been authorized by the President in excess of his Executive Power under Article II of the United States Constitution, and that it specifically violates the statutory limitations placed upon such interceptions by the Congress in FISA because it is conducted without observation of any of the procedures required by law, either statutory or Constitutional. [13] Before the Court now are several motions filed by both sides. Plaintiffs have requested a permanent injunction, alleging that they sustain irreparable damage because of the continued existence of the TSP. Plaintiffs also request a Partial Summary Judgment holding that the TSP violates the Administrative Procedures Act ("APA"); the Separation of Powers doctrine; the First and Fourth Amendments of the United States Constitution, and the statutory law. [14] Defendants have moved to dismiss this lawsuit, or in the alternative for Summary Judgment, on the basis of the state secrets evidentiary privilege and Plaintiffs' lack of standing. [15] II. State Secrets Privilege [16] Defendants argue that the state secrets privilege bars Plaintiffs' claims because Plaintiffs cannot establish standing or a prima facie casefor any of their claims without the use of state secrets. Further, Defendants argue that they cannot defend this case without revealing state secrets. For the reasons articulated below, the court rejects Defendants' argument with respect to Plaintiffs' claims challenging the TSP. The court, however, agrees with Defendants with respect to Plaintiffs' data- mining claim and grants Defendants' motion for summary judgment on that claim. [17] The state secrets privilege is an evidentiary rule developed to prevent the disclosure of information which may be detrimental to national security. There are two distinct lines of cases covering the privilege. In the first line of cases the doctrine is more of a rule of "non-justiciability because it deprives courts of their ability to hear suits against the Government based on covert espionage agreements." El-Masri v. Tenet, 2006 WL 1391390 at 7 (E.D.Va., 2006). The seminal decision in this line of cases is Totten v. United States 92 U.S. 105 (1875). In Totten, the plaintiff brought suit against the government seeking payment for espionage services he had provided during the Civil War. In affirming the dismissal of the case, Justice Field wrote: [18] The secrecy which such contracts impose precludes any action for their enforcement. The publicity produced by an action would itself be a breach of a contract of that kind, and thus defeat a recovery. [19] Totten, 92 U.S. at 107. [20] The Supreme Court reaffirmed Totten in Tenet v. Doe, 544 U.S. 1, (2005). In Tenet, the plaintiffs, who were former Cold War spies, brought estoppel and due process claims against the United States and the Director of the Central Intelligence Agency (hereinafter "CIA") for the CIA's alleged failure to provide them with the assistance it had allegedly promised in return for their espionage services. Tenet, 544 U.S. at 3. Relying heavily on Totten, the Court held that the plaintiffs claims were barred. Delivering the opinion for a unanimous Court, Chief Justice Rehnquist wrote: [21] We adhere to Totten. The state secrets privilege and the more frequent use of in camera judicial proceedings simply cannot provide the absolute protection we found necessary in enunciating the Totten rule. The possibility that a suit may proceed and an espionage relationship may be revealed, if the state secrets privilege is found not to apply, is unacceptable: "Even a small chance that some court will order disclosure of a source's identity could well impair intelligence gathering and cause sources to 'close up like a clam.'" (citations omitted). Tenet, 544 U.S. at 11. [22] The second line of cases deals with the exclusion of evidence because of the state secrets privilege. In United States v. Reynolds, 345 U.S. 1 (1953), the plaintiffs were the widows of three civilians who died in the crash of a B-29 aircraft. Id. at 3-4. The plaintiffs brought suit under the Tort Claims Act and sought the production of the Air Force's official accident investigation report and the statements of the three surviving crew members. Id. The Government asserted the states secret privilege to resist the discovery of this information, because the aircraft in question and those aboard were engaged in a highly secret mission of the Air Force. Id. at 4. In discussing the state secrets privilege and its application, Chief Justice Vinson stated: [23] The privilege belongs to the Government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect. Reynolds, 345 U.S. at 8. [24] The Chief Justice further wrote: [25] In each case, the showing of necessity which is made will determine how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate. Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake. Reynolds, 345 U.S. at 11. [26] The Court sustained the Government's claim of privilege, finding the plaintiffs' "necessity" for the privileged information was "greatly minimized" by the fact that the plaintiffs had an available alternative. Reynolds, 345 U.S. at 11. Moreover, the Court found that there was nothing to suggest that the privileged information had a "causal connection with the accident" and that the plaintiffs could "adduce the essential facts as to causation without resort to material touching upon military secrets." Id. [27] In Halkin v. Helms, 598 F.2d 1 (D.C.Cir.1978) (Halkin I ), the District of Columbia Circuit Court applied the holding in Reynolds in a case in which the plaintiffs, Vietnam War protestors, alleged that the defendants, former and present members of the NSA, the CIA, Defense Intelligence Agency, the Federal Bureau of Investigation and the Secret Service engaged in warrantless surveillance of their international wire, cable and telephone communications with the cooperation of telecommunications providers. Id. at 3. The telecommunications providers were also named as defendants. Id. The plaintiffs specifically challenged the legality of two separate NSA surveillance operations undertaken from 1967 to 1973 named operation MINARET and operation SHAMROCK.*fn3 Id. at 4. [28] The Government asserted the state secrets privilege and moved for dismissal for the following reasons: (1) discovery would "confirm the identity of individuals or organizations whose foreign communications were acquired by NSA"; (2) discovery would lead to the disclosure of "dates and contents of such communications"; or (3) discovery would "divulge the methods and techniques by which the communications were acquired." Halkin, 598 F.2d at 4-5. The district court held that the plaintiffs' claims against operation MINARET had to be dismissed "because the ultimate issue, the fact of acquisition, could neither be admitted nor denied." Id. at 5. The district court, however, denied the Government's motion to dismiss the plaintiffs' claims regarding operation SHAMROCK, because it "thought congressional committees investigating intelligence matters had revealed so much information about operation SHAMROCK that such a disclosure would pose no threat to the NSA mission." Id. at 10. [29] On appeal, the District of Columbia Circuit Court affirmed the district court's dismissal of the plaintiffs' claims with respect to operation MINARET but reversed the court's ruling with respect to operation SHAMROCK. In reversing the district court ruling regarding SHAMROCK, the circuit court stated: [30] . . . we think the affidavits and testimony establish the validity of the state secrets claim with respect to both SHAMROCK and MINARET acquisitions; our reasoning applies to both. There is a "reasonable danger", (citation omitted) that confirmation or denial that a particular plaintiff's communications have been acquired would disclose NSA capabilities and other valuable intelligence information to a sophisticated intelligence analyst. Halkin, 598 F.2d at 10. [31] The case was remanded to the district court and it dismissed the plaintiffs' claims against the NSA and the individuals connected with the NSA's alleged monitoring. Halkin v. Helms, 690 F.2d 977, 984 (D.C. Cir.1982) (Halkin II). [32] In Halkin II, 690 F.2d 977, the court addressed plaintiffs' remaining claims against the CIA, which the district court dismissed because of the state secrets privilege. In affirming the district court's ruling, the District of Columbia Circuit stated: [33] It is self-evident that the disclosures sought here pose a "reasonable danger" to the diplomatic and military interests of the United States. [34] Revelation of particular instances in which foreign governments assisted the CIA in conducting surveillance of dissidents could strain diplomatic relations in a number of ways-by generally embarrassing foreign governments who may wish to avoid or may even explicitly disavow allegations of CIA or United States involvements, or by rendering foreign governments or their officials subject to political or legal action by those among their own citizens who may have been subjected to surveillance in the course of dissident activity. Halkin II, 690 F.2d at 993. [35] Ellsberg v. Mitchell, 709 F.2d 51 (D.C. Cir.1983) was yet another case where the District of Columbia Circuit dealt with the state secrets privilege being raised in the defense of a claim of illegal wiretapping. In Ellsberg, the plaintiffs, the defendants and attorneys in the "Pentagon Papers" criminal prosecution brought suit when, during the course of that litigation, they discovered "that one or more of them had been the subject of warrantless electronic surveillance by the federal Government." Id. at 51. The defendants admitted to two wiretaps but refused to respond to some of the plaintiffs' interrogatories, asserting the state secrets privilege. Id. at 54. The plaintiffs sought an order compelling the information and the district court denied the motion, sustaining the Government's assertion of the state secrets privilege. Id. at 56. Further, the court dismissed the plaintiffs' claims that pertained "to surveillance of their foreign communications." Ellsberg v. Mitchell, 709 F.2d at 56. [36] On appeal, the District of Columbia Circuit reversed the district court with respect to the plaintiffs' claims regarding the Government's admitted wiretaps, because there was no reason to "suspend the general rule that the burden is on those seeking an exemption from the Fourth Amendment warrant requirement to show the need for it." Ellsberg, 709 F.2d at 68. With respect to the application of the state secrets privilege, the court stated: [37] When properly invoked, the state secrets privilege is absolute. No competing public or private interest can be advanced to compel disclosure of information found to be protected by a claim of privilege. However, because of the broad sweep of the privilege, the Supreme Court has made clear that "[i]t is not to be lightly invoked." [38] Thus, the privilege may not be used to shield any material not strictly necessary to prevent injury to national security; and, whenever possible, sensitive information must be disentangled from nonsensitive information to allow for the release of the latter. [39] Ellsberg, 709 F.2d at 56. [40] In Kasza v. Browner, 133 F.3d 1159 (9th Cir.1998), the plaintiffs, former employees at a classified United States Air Force facility, filed suit against the Air Force and the Environmental Protection Agency under the Resource Conservation and Recovery Act, alleging violations at the classified facility. Id. at 1162. The district court granted summary judgment against the plaintiffs, because discovery of information necessary for the proof of the plaintiffs' claims was impossible due to the state secrets privilege. Id. In affirming the district court's grant of summary judgment against one of the plaintiffs, the Ninth Circuit stated: [41] Not only does the state secrets privilege bar [the plaintiff] from establishing her prima facie case on any of her eleven claims, but any further proceeding in this matter would jeopardize national security. No protective procedure can salvage [the plaintiff's] suit. Kasza, 133 F.3d at 1170. [42] The Kasza court also explained that "[t]he application of the state secrets privilege can have . . . three effects." Kasza, 133 F.3d at 1166. First, when the privilege is properly invoked "over particular evidence, the evidence is completely removed from the case." Id. The plaintiff's case, however, may proceed "based on evidence not covered by the privilege." Id. "If . . . the plaintiff cannot prove the prima facie elements of her claim with non-privileged evidence, then the court may dismiss her claim as it would with any plaintiff who cannot prove her case." Id. Second, summary judgment may be granted, "if the privilege deprives the defendant of information that would otherwise give the defendant a valid defense to the claim." Id. Lastly, "notwithstanding the plaintiff's ability to produce non-privileged evidence, if the 'very subject matter of the action' is a state secret, then the court should dismiss the plaintiff's action based solely on the invocation of the state secrets privilege." Id. [43] The Sixth Circuit delivered its definitive opinion regarding the states secrets privilege, in Tenenbaum v. Simonini, 372 F.3d 776 (6th Cir. 2004). In that case, the plaintiffs sued the United States and various employees of federal agencies, alleging that the defendants engaged in criminal espionage investigation of the plaintiff, David Tenenbaum, because he was Jewish. Id. at 777. The defendants moved for summary judgment, arguing that they could not defend themselves against the plaintiffs' "claims without disclosing information protected by the state secrets doctrine." Id. The district court granted the defendants' motion and the Sixth Circuit affirmed stating: [44] We further conclude that Defendants cannot defend their conduct with respect to Tenenbaum without revealing the privileged information. Because the state secrets doctrine thus deprives Defendants of a valid defense to the Tenenbaums' claims, we find that the district court properly dismissed the claims. Tenenbaum, 372 F.3d at 777. [45] Predictably, the War on Terror of this administration has produced a vast number of cases, in which the state secrets privilege has been invoked.*fn4 In May of this year, a district court in the Eastern District of Virginia addressed the state secrets privilege in El-Masri v. Tenet, 2006 WL 1391390, (E.D. Va. May 12, 2006). In El Masri, the plaintiff, a German citizen of Lebanese descent, sued the former director of the CIA and others, for their alleged involvement in a program called Extraordinary Rendition. Id. at 1. The court dismissed the plaintiff's claims, because they could not be fairly litigated without the disclosure of state secrets.*fn5 Id. at 6. [46] In Hepting v. AT & T Corp., 2006 WL 2038464, (E.D. Cal. June 20, 2006), which is akin to our inquiry in the instant case, the plaintiffs brought suit, alleging that AT & T Corporation was collaborating with the NSA in a warrantless surveillance program, which illegally tracked the domestic and foreign communications and communication records of millions of Americans. Id. at 1. The United States intervened and moved that the case be dismissed based on the state secrets privilege. Id. Before applying the privilege to the plaintiffs' claims, the court first examined the information that had already been exposed to the public, which is essentially the same information that has been revealed in the instant case. District Court Judge Vaughn Walker found that the Government had admitted: [47] . . . it monitors "contents of communications where * * * one party to the communication is outside the United States and the government has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda." (citations omitted). Hepting, 2006 WL 2038464, at 19. [48] Accordingly Judge Walker reasoned that "[b]ased on these public disclosures," the court could not "conclude that the existence of a certification regarding the 'communication content' program is a state secret." Id. [49] Defendants' assertion of the privilege without any request for answers to any discovery has prompted this court to first analyze this case under Totten/Tenet, since it appears that Defendants are arguing that this case should not be subject to judicial review. As discussed supra, the Totten/Tenet cases provide an absolute bar to any kind of judicial review. Tenet, 544 U.S. at 8. This rule should not be applied in the instant case, however, since the rule applies to actions where there is a secret espionage relationship between the Plaintiff and the Government. Id. at 7-8. It is undisputed that Plaintiffs' do not claim to be parties to a secret espionage relationship with Defendants. Accordingly, the court finds the Totten/Tenet rule is not applicable to the instant case. The state secrets privilege belongs exclusively to the Executive Branch and thus, it is appropriately invoked by the head of the Executive Branch agency with control over the secrets involved. Reynolds, 345 U.S. at 1. In the instant case, the court is satisfied that the privilege was properly invoked. Defendants' publicly-filed affidavits from Director of National Intelligence John D. Negroponte and Signal Intelligence Director, NSA Major General Richard J. Quirk, set forth facts supporting the Government's contention that the state secrets privilege and other legal doctrines required dismissal of the case. Additionally, Defendants filed classified versions of these declarations ex parte and in camera for this court's review. Defendants also filed ex parte and in camera versions of its brief along with other classified materials, further buttressing its assertion of the privilege. Plaintiffs concede that the public declaration from Director Negroponte satisfies the procedural requirements set forth in Reynolds. Therefore, this court concludes that the privilege has been appropriately invoked. [50] Defendants argue that Plaintiffs' claims must be dismissed because Plaintiffs cannot establish standing or a prima facie case for any of its claims without the disclosure of state secrets. Moreover, Defendants argue that even if Plaintiffs are able to establish a prima facie case without revealing protected information, Defendants would be unable to defend this case without the disclosure of such information. Plaintiffs argue that Defendants' invocation of the state secrets privilege is improper with respect to their challenges to the TSP, since no additional facts are necessary or relevant to the summary adjudication of this case. Alternatively, Plaintiffs argue, that even if the court finds that the privilege was appropriately asserted, the court should use creativity and care to devise methods which would protect the privilege but allow the case to proceed. [51] The "next step in the judicial inquiry into the validity of the assertion of the privilege is to determine whether the information for which the privilege is claimed qualifies as a state secret." El Masri, 2006 WL 1391390, at 4. Again, the court acknowledges that it has reviewed all of the materials Defendants submitted ex parte and in camera. After reviewing these materials, the court is convinced that the privilege applies "because a reasonable danger exists that disclosing the information in court proceedings would harm national security interests, or would impair national defense capabilities, disclose intelligence-gathering methods or capabilities, or disrupt diplomatic relations with foreign governments." Tenenbaum, 372 F.3d at 777. [52] Plaintiffs, however, maintain that this information is not relevant to the resolution of their claims, since their claims regarding the TSP are based solely on what Defendants have publicly admitted. Indeed, although the instant case appears factually similar to Halkin, in that they both involve plaintiffs challenging the legality of warrantless wiretapping, a key distinction can be drawn. Unlike Halkin or any of the cases in the Reynolds progeny, Plaintiffs here are not seeking any additional discovery to establish their claims challenging the TSP.*fn6 [53] Like Judge Walker in Hepting, this court recognizes that simply because a factual statement has been made public it does not necessarily follow that it is true. Hepting, 2006 WL 2038464 at 12. Hence, "in determining whether a factual statement is a secret, the court considers only public admissions or denials by the [G]overnment." Id. at 13. It is undisputed that Defendants have publicly admitted to the following: (1) the TSP exists; (2) it operates without warrants; (3) it targets communications where one party to the communication is outside the United States, and the government has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda. As the Government has on many occasions confirmed the veracity of these allegations, the state secrets privilege does not apply to this information. [54] Contrary to Defendants' arguments, the court is persuaded that Plaintiffs are able to establish a prima facie case based solely on Defendants' public admissions regarding the TSP. Plaintiffs' declarations establish that their communications would be monitored under the TSP.*fn7 Further, Plaintiffs have shown that because of the existence of the TSP, they have suffered a real and concrete harm. Plaintiffs' declarations state undisputedly that they are stifled in their ability to vigorously conduct research, interact with sources, talk with clients and, in the case of the attorney Plaintiffs, uphold their oath of providing effective and ethical representation of their clients.*fn8 In addition, Plaintiffs have the additional injury of incurring substantial travel expenses as a result of having to travel and meet with clients and others relevant to their cases. Therefore, the court finds that Plaintiffs need no additional facts to establish a prima facie case for any of their claims questioning the legality of the TSP. [55] The court, however, is convinced that Plaintiffs cannot establish a prima facie case to support their data- mining claims without the use of privileged information and further litigation of this issue would force the disclosure of the very thing the privilege is designed to protect. Therefore, the court grants Defendants' motion for summary judgment with respect to this claim. [56] Finally, Defendants assert that they cannot defend this case without the exposure of state secrets. This court disagrees. The Bush Administration has repeatedly told the general public that there is a valid basis in law for the TSP.*fn9 Further, Defendants have contended that the President has the authority under the AUMF and the Constitution to authorize the continued use of the TSP. Defendants have supported these arguments without revealing or relying on any classified information. Indeed, the court has reviewed the classified information and is of the opinion that this information is not necessary to any viable defense to the TSP. Defendants have presented support for the argument that "it . . is well-established that the President may exercise his statutory and constitutional authority to gather intelligence information about foreign enemies."*fn10 Defendants cite to various sources to support this position. Consequently, the court finds Defendants' argument that they cannot defend this case without the use of classified information to be disingenuous and without merit. [57] In sum, the court holds that the state secrets privilege applies to Plaintiffs' data-mining claim and that claim is dismissed. The privilege, however, does not apply to Plaintiffs' remaining claims challenging the validity of the TSP, since Plaintiffs are not relying on or requesting any classified information to support these claims and Defendants do not need any classified information to mount a defense against these claims.*fn11 [58] III. Standing [59] Defendants argue that Plaintiffs do not establish their standing. They contend that Plaintiffs' claim here is merely a subjective fear of surveillance which falls short of the type of injury necessary to establish standing. They argue that Plaintiffs' alleged injuries are too tenuous to be recognized, not "distinct and palpable" nor "concrete and particularized." [60] Article III of the U.S. Constitution limits the federal court's jurisdiction to "cases" and "controversies". Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To have a genuine case or controversy, the plaintiff must establish standing. "[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defenders of Wildlife, 504 U.S. at 560. To establish standing under Article III, a plaintiff must satisfy the following three requirements: (1) "the plaintiff must have suffered an injury in fact - an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical"; (2) "there must be a causal connection between the injury and the conduct complained of", and (3) "it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Id. at 560-561. The party invoking federal jurisdiction bears the burden of establishing these elements. Id. at 561. [61] "An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests it seeks to protect are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 181 (2000) (citing Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 342 (1977)). [62] "At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we 'presume that general allegations embrace those specific facts that are necessary to support the claim.' " Id. at 561 (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990)). "In response to a motion for summary judgment, however, the plaintiff can no longer rest upon such 'mere allegations,' but must 'set forth' by affidavit or other evidence 'specific facts' Fed.R.Civ.Proc. 56(e), which for purposes of the summary judgment motion will be taken to be true." Id. This court is persuaded that Plaintiffs in this case have set forth the necessary facts to have satisfied all three of the prerequisites listed above to establish standing. [63] To determine whether Plaintiffs have standing to challenge the constitutionality of the TSP, we must examine the nature of the injury-in-fact which they have alleged. "The injury must be ... 'distinct and palpable,' and not 'abstract' or 'conjectural' or 'hypothetical.'" National Rifle Association of America v. Magaw, 132 F.3d 272, 280 (6th Cir. 1997) (citing Allen v. Wright, 468 U.S 737, 751 (1982)). [64] Plaintiffs here contend that the TSP has interfered with their ability to carry out their professional responsibilities in a variety of ways, including that the TSP has had a significant impact on their ability to talk with sources, locate witnesses, conduct scholarship, engage in advocacy and communicate with persons who are outside of the United States, including in the Middle East and Asia. Plaintiffs have submitted several declarations to that effect. For example, scholars and journalists such as plaintiffs Tara McKelvey, Larry Diamond, and Barnett Rubin indicate that they must conduct extensive research in the Middle East, Africa, and Asia, and must communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations.*fn12 In addition, attorneys Nancy Hollander, William Swor, Joshua Dratel, Mohammed Abdrabboh, and Nabih Ayad indicate that they must also communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations,*fn13 and must discuss confidential information over the phone and email with their international clients.*fn14 All of the Plaintiffs contend that the TSP has caused clients, witnesses and sources to discontinue their communications with plaintiffs out of fear that their communications will be intercepted.*fn15 They also allege injury based on the increased financial burden they incur in having to travel substantial distances to meet personally with their clients and others relevant to their cases.*fn16 [65] The ability to communicate confidentially is an indispensable part of the attorney-client relationship. As University of Michigan legal ethics professor Leonard Niehoff explains, attorney-client confidentiality is "central to the functioning of the attorney-client relationship and to effective representation."*fn17 He further explains that Defendants' TSP "creates an overwhelming, if not insurmountable, obstacle to effective and ethical representation" and that although Plaintiffs are resorting to other "inefficient" means for gathering information, the TSP continues to cause "substantial and ongoing harm to the attorney-client relationships and legal representations."*fn18 He explains that the increased risk that privileged communications will be intercepted forces attorneys to cease telephonic and electronic communications with clients to fulfill their ethical responsibilities.*fn19 [66] Defendants argue that the allegations present no more than a "chilling effect" based upon purely speculative fears that the TSP subjects the Plaintiffs to surveillance. In arguing that the injuries are not constitutionally cognizable, Defendants rely heavily on the case of Laird v. Tatum, 408 U.S. 1 (1972). [67] In Laird, the plaintiffs sought declaratory and injunctive relief on their claim that their rights were being invaded by the Army's domestic surveillance of civil disturbances and "public activities that were thought to have at least some potential for civil disorder." Id. at 6. The plaintiffs argued that the surveillance created a chilling effect on their First Amendment rights caused by the existence and operation of the surveillance program in general. Id. at 3. The Supreme Court rejected the plaintiffs' efforts to rest standing upon the mere "chill" that the program cast upon their associational activities. It said that the "jurisdiction of a federal court may [not] be invoked by a complainant who alleges that the exercise of his First Amendment rights is being chilled by the mere existence, without more, of a governmental investigative and data-gathering activity." Id. (emphasis added) [68] Laird, however, must be distinguished here. The plaintiffs in Laird alleged only that they could conceivably become subject to the Army's domestic surveillance program. Presbyterian Church v. United States, 870 F.2d 518, 522 (1989) (citing Laird v. Tatum, 408 U.S at 13) (emphasis added). The Plaintiffs here are not merely alleging that they "could conceivably" become subject to surveillance under the TSP, but that continuation of the TSP has damaged them. The President indeed has publicly acknowledged that the types of calls Plaintiffs are making are the types of conversations that would be subject to the TSP.*fn20 [69] Although Laird establishes that a party's allegation that it has suffered a subjective "chill" alone does not confer Article III standing, Laird does not control this case. As Justice (then Judge) Breyer has observed, "[t]he problem for the government with Laird . . . lies in the key words 'without more.'" Ozonoff v. Berzak, 744 F.2d 224, 229 (1st Cir. 1984). This court agrees with Plaintiffs' position that "standing here does not rest on the TSP's 'mere existence, without more.'" The Plaintiffs in this case are not claiming simply that the Defendants' surveillance has "chilled" them from making international calls to sources and clients. Rather, they claim that Defendants' surveillance has chilled their sources, clients, and potential witnesses from communicating with them. The alleged effect on Plaintiffs is a concrete, actual inability to communicate with witnesses, sources, clients and others without great expense which has significantly crippled Plaintiffs, at a minimum, in their ability to report the news and competently and effectively represent their clients. See Presbyterian Church v. United States, 870 F.2d 518 (1989) (church suffered substantial decrease in attendance and participation of individual congregants as a result of governmental surveillance). Plaintiffs have suffered actual concrete injuries to their abilities to carry out their professional responsibilities. The direct injury and objective chill incurred by Plaintiffs are more than sufficient to place this case outside the limitations imposed by Laird. [70] The instant case is more akin to Friends of the Earth, in which the Court granted standing to environmental groups who sued a polluter under the Clean Water Act because environmental damage caused by the defendant had deterred members of the plaintiff organizations from using and enjoying certain lands and rivers. Friends of the Earth, 528 U.S. at 181-183. The Court there held that the affidavits and testimony presented by plaintiffs were sufficient to establish reasonable concerns about the effects of those discharges and were more than "general averments" and "conclusory allegations." Friends of the Earth, 528 U.S. at 183-184. The court distinguished the case from Lujan, in which the Court had held that no actual injury had been established where plaintiffs merely indicated "'some day' intentions to visit endangered species around the world." Friends of the Earth, 528 U.S. at 184 (quoting Lujan, 504 U.S. at 564). The court found that the affiants' conditional statements that they would use the nearby river for recreation if defendant were not discharging pollutants into it was sufficient to establish a concrete injury. Id. at 184. [71] Here, Plaintiffs are not asserting speculative allegations. Instead, the declarations asserted by Plaintiffs establish that they are suffering a present concrete injury in addition to a chill of their First Amendment rights. Plaintiffs would be able to continue using the telephone and email in the execution of their professional responsibilities if the Defendants were not undisputedly and admittedly conducting warrantless wiretaps of conversations. As in Friends of the Earth, this damage to their interest is sufficient to establish a concrete injury. [72] Numerous cases have granted standing where the plaintiffs have suffered concrete profession-related injuries comparable to those suffered by Plaintiffs here. For example, the First Circuit conferred standing upon claimants who challenged an executive order which required applicants for employment with the World Health Organization to undergo a "loyalty" check that included an investigation into the applicant's associations and activities. The court there determined that such an investigation would have a chilling effect on what an applicant says or does, a sufficient injury to confer standing. Ozonoff, 744 F.2d at 228-229. Similarly, the District of Columbia Circuit Court of Appeals granted standing to a reshelver of books at the Library of Congress who was subjected to a full field FBI investigation which included an inquiry into his political beliefs and associations and subsequently resulted in his being denied a promotion or any additional employment opportunities; the court having determined that plaintiff had suffered a present objective harm, as well as an objective chill of his First Amendment rights and not merely a potential subjective chill as in Laird. Also, the Supreme Court in Presbyterian Church v. United States, granted standing to a church which suffered decreased attendance and participation when the government actually entered the church to conduct surveillance. Presbyterian Church, 870 F.2d at 522. Lastly, in Jabara v. Kelley, 476 F.Supp. 561 (E.D. Mich. 1979), vac'd on other grounds sub. nom. Jabara v. Webster, 691 F.2d 272 (6th Cir. 1982), the court held that an attorney had standing to sue to enjoin unlawful FBI and NSA surveillance which had deterred others from associating with him and caused "injury to his reputation and legal business." Id. at 568. [73] These cases constitute acknowledgment that substantial burdens upon a plaintiff's professional activities are an injury sufficient to support standing. Defendants ignore the significant, concrete injuries which Plaintiffs continue to experience from Defendants' illegal monitoring of their telephone conversations and email communications. Plaintiffs undeniably have cited to distinct, palpable, and substantial injuries that have resulted from the TSP. [74] This court finds that the injuries alleged by Plaintiffs are "concrete and particularized", and not "abstract or conjectural." The TSP is not hypothetical, it is an actual surveillance program that was admittedly instituted after September 11, 2001, and has been reauthorized by the President more than thirty times since the attacks.*fn21 The President has, moreover, emphasized that he intends to continue to reauthorize the TSP indefinitely.*fn22 Further, the court need not speculate upon the kind of activity the Plaintiffs want to engage in - they want to engage in conversations with individuals abroad without fear that their First Amendment rights are being infringed upon. Therefore, this court concludes that Plaintiffs have satisfied the requirement of alleging "actual or threatened injury" as a result of Defendants' conduct. [75] It must now be determined whether Plaintiffs have shown that there is a causal connection between the injury and the complained of conduct. Lujan, 504 U.S. at 560-561. The causal connection between the injury and the conduct complained of is fairly traceable to the challenged action of Defendants. The TSP admittedly targets communications originated or terminated outside the United States where a party to such communication is in the estimation of Defendants, a member of al Qaeda, a member of a group affiliated with al Qaeda, or an agent of al Qaeda or its affiliates.*fn23 [76] The injury to the Plaintiffs stems directly from the TSP and their injuries can unequivocally be traced to the TSP. [77] Finally, it is likely that the injury will be redressed by the requested relief. A determination by this court that the TSP is unconstitutional and a further determination which enjoins Defendants from continued warrantless wiretapping in contravention of FISA would assure Plaintiffs and others that they could freely engage in conversations and correspond via email without concern, at least without notice, that such communications were being monitored. The requested relief would thus redress the injury to Plaintiffs caused by the TSP. [78] Although this court is persuaded that Plaintiffs have alleged sufficient injury to establish standing, it is important to note that if the court were to deny standing based on the unsubstantiated minor distinctions drawn by Defendants, the President's actions in warrantless wiretapping, in contravention of FISA, Title III, and the First and Fourth Amendments, would be immunized from judicial scrutiny. It was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights. The three separate branches of government were developed as a check and balance for one another. It is within the court's duty to ensure that power is never "condense[d] ... into a single branch of government." Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (plurality opinion). We must always be mindful that "[w]hen the President takes official action, the Court has the authority to determine whether he has acted within the law." Clinton v. Jones, 520 U.S. 681, 703 (1997). "It remains one of the most vital functions of this Court to police with care the separation of the governing powers . . . . When structure fails, liberty is always in peril." Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440, 468 (1989) (Kennedy, J., concurring). [79] Because of the very secrecy of the activity here challenged, Plaintiffs each must be and are given standing to challenge it, because each of them, is injured and chilled substantially in the exercise of First Amendment rights so long as it continues. Indeed, as the perceived need for secrecy has apparently required that no person be notified that he is aggrieved by the activity, and there have been no prosecutions, no requests for extensions or retroactive approvals of warrants, no victim in America would be given standing to challenge this or any other unconstitutional activity, according to the Government. The activity has been acknowledged, nevertheless. [80] Plaintiffs have sufficiently alleged that they suffered an actual, concrete injury traceable to Defendants and redressable by this court. Accordingly, this court denies Defendants' motion to dismiss for lack of standing. [81] IV. The History of Electronic Surveillance in America [82] Since the Court's 1967 decision of Katz v. U.S., 389 U.S. 347 (1967), it has been understood that the search and seizure of private telephone conversations without physical trespass required prior judicial sanction, pursuant to the Fourth Amendment. Justice Stewart there wrote for the Court that searches conducted without prior approval by a judge or magistrate were per se unreasonable, under the Fourth Amendment. Id. at 357. [83] Congress then, in 1968, enacted Title III of the Omnibus Crime Control and Safe Streets Act (hereinafter "Title III")*fn24 governing all wire and electronic interceptions in the fight against certain listed major crimes. The Statute defined an " aggrieved person",*fn25 and gave such person standing to challenge any interception allegedly made without a judicial order supported by probable cause, after requiring notice to such person of any interception made.*fn26 [84] The statute also stated content requirements for warrants and applications under oath therefor made,*fn27 including time, name of the target, place to be searched and proposed duration of that search, and provided that upon showing of an emergency situation, a post-interception warrant could be obtained within forty-eight hours.*fn28 [85] In 1972 the court decided U.S. v. U.S. District Court, 407 U.S. 297 (1972) (the Keith case) and held that, for lawful electronic surveillance even in domestic security matters, the Fourth Amendment requires a prior warrant. [86] In 1976 the Congressional "Church Committee"*fn29 disclosed that every President since 1946 had engaged in warrantless wiretaps in the name of national security, and that there had been numerous political abuses*fn30 , and in 1978 Congress enacted the FISA.*fn31 [87] Title III specifically excluded from its coverage all interceptions of international or foreign communications; and was later amended to state that "the FISA of 1978 shall be the exclusive means by which electronic surveillance of foreign intelligence communications may be conducted."*fn32 [88] The government argues that Title III's disclaimer language, at 18 U.S.C. § 2511(2)(f), that nothing therein should be construed to limit the constitutional power of the President (to make international wiretaps). In the Keith case, Justice Powell wrote that "Congress simply left Presidential powers where it found them", that the disclaimer was totally neutral, and not a grant of authority. U.S. v. U.S. District Court, 407 U.S. at 303. [89] The FISA defines a "United States person"*fn33 to include each of Plaintiffs herein and requires a prior warrant for any domestic international interception of their communications. For various exigencies, exceptions are made. That is, the government is granted fifteen days from Congressional Declaration of War within which it may conduct intercepts before application for an order.*fn34 It is also granted one year, on certification by the Attorney General,*fn35 and seventy-two hours for other defined exigencies.*fn36 [90] Those delay provisions clearly reflect the Congressional effort to balance executive needs against the privacy rights of United States persons, as recommended by Justice Powell in the Keith case when he stated that: [91] Different 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.. U.S. v. U.S. District Court, 407 U.S. at 322-323. [92] Also reflective of the balancing process Congress pursued in FISA is the requirement that interceptions may be for no longer than a ninety day duration, minimization is again required*fn37 , and an aggrieved person is again (as in Title III) required to be notified of proposed use and given the opportunity to file a motion to suppress.*fn38 Also again, alternatives to a wiretap must be found to have been exhausted or to have been ineffective.*fn39 [93] A FISA judicial warrant, moreover, requires a finding of probable cause to believe that the target was either a foreign power or agent thereof,*fn40 not that a crime had been or would be committed, as Title III's more stringent standard required. Finally, a special FISA court was required to be appointed, of federal judges designated by the Chief Justice.*fn41 They were required to hear, ex parte, all applications and make all orders.*fn42 [94] The FISA was essentially enacted to create a secure framework by which the Executive branch may conduct legitimate electronic surveillance for foreign intelligence while meeting our national commitment to the Fourth Amendment. It is fully described in United States v. Falvey, 540 F. Supp. 1306 (E.D.N.Y. 1982), where the court held that FISA did not intrude upon the President's undisputed right to conduct foreign affairs, but protected citizens and resident aliens within this country, as "United States persons." Id. at 1312. [95] The Act was subsequently found to meet Fourth Amendment requirements constituting a reasonable balance between Governmental needs and the protected rights of our citizens, in United States v. Cavanagh, 807 F.2d 787 (9th Cir. 1987), and United States v. Duggan,743, F.2d 59 (2d Cir. 1984). [96] Against this background the present program of warrantless wiretapping has been authorized by the administration and the present lawsuit filed. [97] V. The Fourth Amendment [98] The Constitutional Amendment which must first be discussed provides: [99] The right the of 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. [100] U.S. CONST. Amend. IV. [101] This Amendment ". . . was specifically propounded and ratified with the memory of . . . Entick v. Carrington, 95 Eng. Rep. 807 (1765) in mind", stated Circuit Judge Skelly Wright in Zweibon v. Mitchell, 516 F.2d 594, 618 n.67 (D.C. Circ. 1975) (en banc) (plurality opinion). Justice Douglas, in his concurrence in the Keith case, also noted the significance of Entick in our history, stating: [102] For it was such excesses as the use of general warrants and the writs of assistance that led to the ratification of the Fourth Amendment. In Entick v. Carrington (citation omitted), decided in 1765, one finds a striking parallel to the executive warrants utilized here. The Secretary of State had issued general executive warrants to his messengers authorizing them to roam about and to seize libelous material and libellants of the sovereign. Entick, a critic of the Crown, was the victim of one such general search during which his seditious publications were impounded. He brought a successful damage action for trespass against the messengers. The verdict was sustained on appeal. Lord Camden wrote that if such sweeping tactics were validated, then the secret cabinets and bureaus of every subject in this kingdom will be thrown open to the search and inspection of a messenger, whenever the secretary of state shall think fit to charge, or even to suspect, a person to be the author, printer, or publisher of a seditious libel.' (citation omitted) In a related and similar proceeding, Huckle v. Money (citation omitted), the same judge who presided over Entick's appeal held for another victim of the same despotic practice, saying '(t)o enter a man's house by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish Inquisition . . .' See also Wilkes v. Wood (citation omitted), . . . [t]he tyrannical invasions described and assailed in Entick, Huckle, and Wilkes, practices which also were endured by the colonists, have been recognized as the primary abuses which ensured the Warrant Clause a prominent place in our Bill of Rights. U.S. v. U.S. District Court, 407 U.S. at 328-329 (Douglas, J., concurring). Justice Powell, in writing for the court in the Keith case also wrote that: [103] Over two centuries ago, Lord Mansfield held that common-law principles prohibited warrants that ordered the arrest of unnamed individuals who the officer might conclude were guilty of seditious libel. 'It is not fit,' said Mansfield, 'that the receiving or judging of the information should be left to the discretion of the officer. The magistrate ought to judge; and should give certain directions to the officer.' (citation omitted). [104] Lord Mansfield's formulation touches the very heart of the Fourth Amendment directive: that, where practical, a governmental search and seizure should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of the magistrate that the collected evidence is sufficient to justify invasion of a citizen's private premises or conversation. Inherent in the concept of a warrant is its issuance by a 'neutral and detached magistrate.' (citations omitted) The further requirement of 'probable cause' instructs the magistrate that baseless searches shall not proceed. U.S. v. U.S. District Court, 407 U.S. at 316. [105] The Fourth Amendment, accordingly, was adopted to assure that Executive abuses of the power to search would not continue in our new nation. [106] Justice White wrote in 1984 in United States v. Karo, 468 U.S. 705 (1984), a case involving installation and monitoring of a beeper which had found its way into a home, that a private residence is a place in which society recognizes an expectation of privacy; that warrantless searches of such places are presumptively unreasonable, absent exigencies. Id. at 714-715. Karo is consistent with Katz where Justice Stewart held that: [107] 'Over and again this Court has emphasized that the mandate of the (Fourth) Amendment requires adherence to judicial processes,' (citation omitted) and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions. Katz, 389 U.S. at 357. [108] Justice Powell's opinion in the Keith case also stated that: [109] The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. (citation omitted) But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech. U.S. v. U.S. District Court, 407 U.S. at 317. [110] Accordingly, the Fourth Amendment, about which much has been written, in its few words requires reasonableness in all searches. It also requires prior warrants for any reasonable search, based upon prior-existing probable cause, as well as particularity as to persons, places, and things, and the interposition of a neutral magistrate between Executive branch enforcement officers and citizens. [111] In enacting FISA, Congress made numerous concessions to stated executive needs. They include delaying the applications for warrants until after surveillance has begun for several types of exigencies, reducing the probable cause requirement to a less stringent standard, provision of a single court of judicial experts, and extension of the duration of approved wiretaps from thirty days (under Title III) to a ninety day term. [112] All of the above Congressional concessions to Executive need and to the exigencies of our present situation as a people, however, have been futile. The wiretapping program here in litigation has undisputedly been continued for at least five years, it has undisputedly been implemented without regard to FISA and of course the more stringent standards of Title III, and obviously in violation of the Fourth Amendment. [113] The President of the United States is himself created by that same Constitution. [114] VI. The First Amendment [115] The First Amendment provides: [116] Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. [117] U.S. CONST. Amend. I. [118] This Amendment, the very first which the American people required to be made to the new Constitution, was adopted, as was the Fourth, with Entick v. Carrington, and the actions of the star chamber in mind. As the Court wrote in Marcus v. Search Warrants, 367 U.S. 717 (1961): [119] Historically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure. . . . [120] This history was, of course, part of the intellectual matrix within which our own constitutional fabric was shaped. The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression. Marcus, 367 U.S. at 724, 729 As Justice Brennan wrote for the Court in Dombrowski v. Pfister, 380 U.S. 479 (1965), the appellant organizations had been subjected to repeated announcements of their subversiveness which frightened off potential members and contributors, and had been harmed irreparably, requiring injunctive relief. The Louisiana law against which they complained, moreover, had a chilling effect on protected expression because, so long as the statute was available, the threat of prosecution for protected expression remained real and substantial. [121] Judge Wright, in Zweibon, noted that the tapping of an organization's office phone will provide the membership roster of that organization, as forbidden by Bates v. City of Little Rock, 361 U.S. 516 (1960); thereby causing members to leave that organization, and thereby chilling the organization's First Amendment rights and causing the loss of membership. Zweibon, 516 F.2d at 634. [122] A governmental action to regulate speech may be justified only upon showing of a compelling governmental interest; and that the means chosen to further that interest are the least restrictive of freedom of belief and association that could be chosen. Clark v. Library of Congress, 750 F.2d 89, 94 (D.C. Cir. 1984). [123] It must be noted that FISA explicitly admonishes 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." 50 U.S.C. §1805(a)(3)(A). See also United States v. Falvey, 540 F. Supp. at 1310. [124] Finally, as Justice Powell wrote for the Court in the Keith case: [125] National security cases, moreover, often reflect a convergence of First and Fourth Amendment values not present in cases of 'ordinary' crime. Though the investigative duty of the executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech. 'Historically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure power,' (citation omitted). [126] History abundantly documents the tendency of Government --however benevolent and benign its motives -- to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. U.S. v. U.S. District Court, 407 U.S. at 313-314. [127] The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well. [128] VII. The Separation of Powers [129] The Constitution of the United States provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States. . . ."*fn43 It further provides that "[t]he executive Power shall be vested in a President of the United States of America."*fn44 And that ". . . he shall take care that the laws be faithfully executed . . . ."*fn45 [130] Our constitution was drafted by founders and ratified by a people who still held in vivid memory the image of King George III and his General Warrants. The concept that each form of governmental power should be separated was a well-developed one. James Madison wrote that: [131] The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. THE FEDERALIST NO. 47, at 301 (James Madison). [132] The seminal American case in this area, and one on which the government appears to rely, is that of Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952) in which Justice Black, for the court, held that the Presidential order in question, to seize steel mills, was not within the constitutional powers of the chief executive. Justice Black wrote that: [133] The founders of this Nation entrusted the law-making power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand. [134] Youngstown, 343 U.S. at 589. [135] Justice Jackson's concurring opinion in that case has become historic. He wrote that, although the Constitution had diffused powers the better to secure liberty, the powers of the President are not fixed, but fluctuate, depending upon their junctures with the actions of Congress. Thus, if the President acted pursuant to an express or implied authorization by Congress, his power was at it maximum, or zenith. If he act
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[180] First, it must be remembered that both Title III and FISA permit delayed applications for warrants, after surveillance has begun. Also, the case law has long permitted law enforcement action to proceed in cases in which the lives of officers or others are threatened in cases of "hot pursuit", border searches, school locker searches, or where emergency situations exist. See generally Warden v. Hayden, 387 U.S. 294 (1967); Veronia School District v. Acton, 515 U.S. 646 (1995); and Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990). [181] Indeed, in Zweibon, Judge Wright enumerates a number of Defendants' practical arguments here (including judicial competence, danger of security leaks, less likelihood of criminal prosecution, delay, and the burden placed upon both the courts and the Executive branch by compliance) and finds, after long and careful analysis, that none constitutes adequate justification for exemption from the requirements of either FISA or the Fourth Amendment.Zweibon, 516 F.2d at 641." The common reaction to the opinion in ACLU v. NSA is, "where's the beef?" This is because the source of the court's ruling lies outside of the opinion, in two earlier cases. The above is the heart of the ACLU v. NSA opinion. It makes it clear that Judge Taylor relied upon earlier rulings in Zweibon v. Mitchell, 170 U.S. App. D.C. 1, 516 F.2d 594, 618 n.67 (D.C. Circ. 1975) (en banc) (plurality opinion), and U.S. v. U.S. District Court, 407 U.S. 297 (1972) (the Keith case). Those two cases, in turn, rely upon earlier cases, such as Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S. Ct. 2022, 29 L.Ed.2d 564 (1971); Katz v. U.S., 389 U.S. 347 (1967); and Vale v. Louisiana, 399 U.S. 30, 34, 90 S. Ct. 1969, 26 L.Ed.2d 409 (1970); all of which establish that warrantless searches are presumptively illegal. There are only a few exceptions to that rule, and national security is not yet among them. The Keith case established a framework for analyzing the public policy arguments in favor of establishing an exception to the warrant requirement, and the 75 Zweibon opinion applied that analysis, as set forth in detail below. WARRANTLESS SEARCHES ARE "PER SE" UNREASONABLE AND THUS ILLEGAL Warrantless searches“are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions." Katz v. United States, supra, 389 U.S. at 357 (footnotes omitted). The Government bears the burden, and it is a “heavy” burden, of showing that one of the exceptions applies. Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S. Ct. 2022, 29 L.Ed.2d 564 (1971); Vale v. Louisiana, 399 U.S. 30, 34, 90 S. Ct. 1969, 26 L.Ed.2d 409 (1970). THE KEITH OPINION: NATIONAL SECURITY IS NOT AN EXCEPTION TO THE WARRANT REQUIREMENT United States v. United States District Court [ Keith ], 407 U.S. 297, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972), narrowed the scope of the possible exception to the warrant requirement. The Keith court held that no exception exists for surveillance justified solely on the basis of domestic threats to the national security. The Court expressed no opinion as to the result that would be required if foreign powers were involved in the threat to the national security, as that question was not before it. To determine whether national security justifies exempting surveillance from prior judicial scrutiny, the Keith court engaged in an analysis involving the following factors: (1) "judicial competence" vel non in the area of national security, (2) the danger of "security leaks" which might endanger the lives of informants and agents and which might seriously harm the national security; (3) the fact that such surveillance is of the "ongoing intelligence gathering" type and that, since criminal prosecutions are less likely, Fourth Amendment protections are not as essential as in a normal criminal context; (4) the possibility that the delay involved in the warrant procedure might result in substantial harm to the national security; and (5) the fact that the administrative burden on the courts or the Executive Branch which would result from such a requirement would be enormous. National security has not been added to the list of exceptions, and it is not likely to be, for the reasons stated in Zweibon, quoted below. Despite the fact that the Keith court never reached the question of whether an exception to the warrant requirement can be justified on the basis of threats to the national security involving foreign powers, some lower courts have subsequently held that such an exception to the warrant requirement in fact exists. The reasoning of these cases leaves much to be desired. They give only lip service to a proper analysis, as described in Keith. Those opinions simply overlooked the substantial body of case law, including Keith, which rejects the contention that the warrant requirement may be abrogated merely because the Government has a legitimate need to engage in certain activity. "Instead of following the proper analysis of determining whether a warrant proceeding would frustrate the legitimate need of the Executive to acquire foreign intelligence information, these courts treated the need itself as determinative of the legality of warrantless surveillance. We find this methodology simply inconsistent with the spirit and holding of Keith and prior cases, particularly given the substantial First and Fourth Amendment interests that may be infringed by unsupervised surveillance." Zweibon v. Mitchell, 170 U.S. App. D.C. 1, 516 F.2d 594 (1975). THE EFECT OF VALE AND KEITH When read together, Vale and Keith contradict Silberman’s In re Sealed Case opinion, and together, they clearly establish that warrantless surveillance is illegal. Warrantless searches and seizures are pre se unreasonable, subject only to a very few carefully delineated exceptions Vale v. Lousiana, 90 S. Ct. 1969, 399 U.S. 30 (U.S. 06/22/1970). In the absence of a Supreme Court holding that recognizes such an exception, no one should assume that the Supreme Court will carve out such an exception in the future. In United States v. United States District Court (Keith), 407 U.S. 297, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972), the Supreme Court refused to carve out such an exception (in a case, as noted above, involving domestic surveilllance, national security, but not foreign powers). Warrantless wiretapping remains illegal, until further word from the Supreme Court. One may choose to resurrect the opinion of Jefferson and Lincoln, that we are all judges of the Constitution (an opinion that I favor), but the rest of the US legal world remains in fealty to the Supreme Court. THE KEITH ANALYSIS IN ACTION Herewith that portion of the Zweibon opinion that engaged in a "Keith" analysis: JUDICIAL COMPETENCE " 'Judicial competence ': Although the judicial competence factor arguably has more force when made in the foreign rather than the domestic security context, the response of Keith to the analogous argument is nevertheless pertinent to any claim that foreign security involves decisions and information beyond the scope of judicial expertise and experience: 'We cannot accept the Government's argument that internal security matters are too subtle and complex for judicial evaluation. Courts regularly deal with the most difficult issues of our society. There is no reason to believe that federal judges will be insensitive to or uncomprehending of the issues involved in domestic security cases. Certainly courts can recognize that domestic security surveillance involves different considerations from the surveillance of "ordinary crime." If the threat is too subtle or complex for our senior law enforcement officers to convey its significance to a court, one may question whether there is probable cause for surveillance.' 407 U.S. at 320, 92 S. Ct. at 2138 (emphasis added). Similarly, we do not believe federal judges will be "insensitive to or uncomprehending of the issues involved in" foreign security cases, or that judges will deny any legitimate requests for a warrant. Congress apparently concurs in the belief that judges are competent to analyze the substance of matters allegedly pertaining to the national security. This attitude was unambiguously expressed by the passage of Public Law No. 93- 502, 88 Stat. 1561 (1974), which amended the Freedom of Information Act, 5 U.S.C. § 552 (1970), to, inter alia, overrule the Supreme Court's decision in EPA v. Mink, 410 U.S. 73, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973). In Mink the Court interpreted 5 U.S.C. 552(b)(1), which exempted from the forced disclosure mandate of the Act those matters "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy," not to allow judicial review of Executive security classifications and not even to allow in camera inspection of a contested document bearing a security classification so that nonsecret matter could be separated from secret matter and ordered disclosed. 410 U.S. at 81-84, 93 S. Ct. 827. Congress responded with amendments to Section 552 which altered Section 552(b)(1) to exempt from disclosure those documents which are: specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive order. It also specified that when the question of discoverability of a document is placed in issue, "the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld . . .." Although the conference report on these amendments expressed a congressional expectation that, since "Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse effects might occur as a result of public disclosure of a particular classified record, . . . Federal courts . . . will accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record," it unequivocally stated that the Mink decision was to be legislatively overruled with respect to in camera review and that the propriety of a document's classification was to be judicially determined with respect to "both procedural and substantive criteria contained in the Executive order under which it was classified." Moreover, despite the fact that the amendments were vetoed by the President, primarily on the ground that "the courts should not be forced to make what amounts to the initial classification decision in sensitive and complex areas where they have no particular expertise," 120 Cong.Rec. H10705 (daily ed. Nov. 18, 1974)(Veto Message from the President of the United States), both Houses of Congress overwhelmingly voted to repudiate that contention by convincingly overriding the presidential veto. Although such a congressional expression in no way binds us in the context of Fourth Amendment adjudication, we find that this vote of confidence in the competence of the judiciary affirms our own belief that judges do, in fact, have the capabilities needed to consider and weigh data pertaining to the foreign affairs and national defense of this nation. The description of current Executive procedures for authorizing national security wiretapping also gives us reason to hesitate in according undue deference to the "expertise" that the Executive Branch brings to each decision. Former Attorney General Saxbe, testifying on "National Security Electronic Surveillance and S. 2820134 before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary", (Dept. of Justice release, Oct. 2, 1974), admitted that the practice of warrantless surveillance had apparently been abused in the past, see id. at 5-6,135 and then described current procedures: ' First of all, for a request for a foreign intelligence surveillance to survive, it must first be approved by several different levels of supervision within the FBI before it even reaches the Director's office, and the request must contain very detailed information. If the request originates in an FBI field office, the proposal will be considered by the case Agent, the Supervisor, and the Special Agent in Charge of the field office. At FBI Headquarters the request will be considered by the Supervisory Special Agent, the Unit Chief, the Section Chief, the Branch Chief, the Assistant Director, the Deputy Associate Director, and the Associate Director before it reaches the Director for his approval. If the Director approves the request, it is then sent to the Assistant Attorney General in charge of the Criminal Division, Mr. Petersen. He then forwards the request with his recommendation and comments for my consideration. If, and only if, I approve the request can the surveillance be installed and then for a maximum period of three months, after which I will approve a renewal only with what I deem sufficient justification. Let me assure you that I do not approve these automatically. Numerous requests are turned down long before they reach my desk. I personally have withheld some authorizations and on at least one occasion I have denied a request for an extension.' Id. at 6-7. With due deference to the former Attorney General, we believe this description, when considered together with the fact that there is a high turnover in the office of Attorney General,136 indicates that most actual decisionmaking with respect to wiretapping occurs before a request reaches the desk of the Attorney General, and that he would therefore be predisposed to rely on the recommendations of his subordinates. We cannot blindly accept the argument that the Attorney General, who is chosen for his abilities as a lawyer rather than his acumen as a diplomat, is more likely than a federal judge to have the analytical ability or sensitivity to foreign affairs necessary to evaluate such recommendations. Indeed, there is even a danger that an Attorney General, pressed for time and involved in other activities, will effectively delegate the task of supervising national security wiretaps to his aides; such was the case with his arguably less important although statutorily mandated duty to supervise wiretapping under the provisions of Title III. To the extent the Attorney General bases his decisions on the factual data and recommendations of those career officials schooled in foreign relations and intelligence gathering, judges can be similarly informed in camera, as they often are during post hoc judicial review in criminal prosecutions or civil cases. We simply do not believe that any margin of expertise possessed by the Attorney General can compensate for the neutral and detached attitude that a judge would bring to his decision; given the likely deference that a judge will accord the Attorney General's request, there is no substantial likelihood that any marginal lack of expertise will result in denial of legitimate requests for a warrant and frustration of proper intelligence gathering on the part of the Executive. Finally, the Executive Branch itself acknowledges the fact that courts are competent to conduct post hoc review to determine whether a surveillance is reasonable. In its Memorandum for the United States in Ivanov v. United States, cert. denied, 419 U.S. 881, 95 S. Ct. 147, 42 L. Ed. 2d 121 (1974) (responding to petition for writ of certiorari to the Third Circuit), the Government took the position that since, in its judgment, reasonable warrantless national security surveillance is constitutional, Alderman does not require anything more than an in camera determination that the evidence was obtained from a reasonable wiretap. The Government argued: The task of determining whether the purpose of a surveillance was foreign intelligence gathering is clearly not "too complex" nor is "the margin of error too great to rely wholly on the in camera judgment of the trial court." . . . Rather, in a field as delicate and sensitive as foreign intelligence gathering, there is every reason to proceed in camera and without disclosure. Id. at 14. To be sure, the Government was making these arguments in support of restricting access to foreign intelligence information to the judge rather than to the private litigants. But the arguments must be evaluated against the realization that no one seriously denies that at least post hoc judicial review, under whatever standard of "reasonableness," is proper even for wiretaps installed pursuant to the President's foreign affairs powers. If a court can make a proper determination of reasonableness after a wiretap has been installed, and since the reasonableness of a search and seizure cannot depend on information secured after it occurs,there is no reason why judges should be presumed to be incompetent before the surveillance takes place. Although judicial competence per se is thus no argument against prior rather than post hoc judicial review, there may be other factors actually behind the competence theory which would suggest that a warrant requirement would frustrate legitimate Executive surveillance. First, there may be a fear on the part of the Government that the standard of probable cause will be higher in a prior rather than in a post hoc judicial proceeding. Even if this were true as a practical matter, it is clearly wrong as a matter of law, and we decline to base a decision as to the legality of warrantless national security surveillances on so thin a reed. Moreover, we doubt whether this fear is realistic as a practical matter. As the quote from Keith indicates, judges are likely to be highly deferential to the Executive's determination concerning need to install a wiretap, particularly where a judicial error might substantially harm the national interest; in a post hoc review in a criminal or civil case, removed from the exigencies of day-to-day intelligence gathering activities, a court might be harsher in its judgment as to the reasonableness of the particular surveillance. And if pure practicalities are being considered, it should be remembered that the Government has its choice as to what judge to seek a warrant from, a circumstance usually not present with respect to post hoc judicial review. Actually, this aspect of the competence argument is properly directed to the standard for judicial review, not to whether it should occur before or after the surveillance takes place. To the extent non-judicial policy factors constitute the Executive's rationale for desiring intelligence information, it is possible the standard for probable cause would reflect that fact. We must reemphasize the fact that we are not presented with the question of the scope of the President's substantive powers, but only with the procedural question whether a presidentially directed surveillance must run the gauntlet of judicial review before or after its installation. Since factors relating to judicial competence may arise at either time, we believe they should at most affect the standard of judicial review, not its timing. Focusing on the timing of judicial intervention, however, we perceive a second fear that may actually be behind the judicial competence argument: even if the same standard is applied in prior as in post hoc judicial proceedings, an error before a surveillance occurs is likely to cause irreparable harm to the national security, whereas an error after it occurs may only result in improper award of damages or release of a single criminal defendant. The assumptions upon which this fear is based are, to say the least, questionable, and relate to the implicit belief that national security or foreign affairs information is of paramount import in all situations. The argument assumes that the erroneous invasion of individual privacy which prior review could prevent is invariably of less importance than the erroneous denial of information which could have been obtained from a reasonable wiretap. Even ignoring our belief that any error in a warrant proceeding is likely to be in favor of the Government, we find this view of foreign security information to be unduly myopic. Not only does it relegate the personal interests protected by the Fourth and First Amendments to the level of second-class rights, it also naively equates all foreign threats with such dangers as another Pearl Harbor. Domestic security information, which must, under Keith, be obtained pursuant to the warrant procedure, may be no less important than foreign security information, and the potential harm from judicial error no less devastating. For example, if there were grounds to believe that a massive conspiracy existed among military officers in this country to overthrow civilian rule and institute martial law, a judge would have to approve any surveillance. Yet the Government would have us approve a rule of law that would grant the President the power to himself authorize surveillance to obtain information pertaining to routine commercial affairs, so long as they "affected" such an international problem as our balance of payments. And it should be obvious that as the magnitude of a national security threat approaches that of a preemptive nuclear attack rather than that of a minor disruption of trade, the probability that a judge would erroneously deny the Executive the requested warrant approaches the infinitesimal. A third possible fear behind the competence argument, and the one that is most realistic, is that a warrant procedure will deny the Government the benefits flowing from the fact that most surveillance could be barricaded from any judicial review if there were only post hoc review proceedings. Since surveillance often would not be used for prosecutorial purposes, and since few individuals would institute damage actions on the mere possibility that they were the subject of an unreasonable wiretap, much warrantless surveillance would never have its legality challenged. However, every search and seizure is properly subject to judicial review, and the fact that some searches are not actually reviewed is a mere convenience. To the extent that this argument is made an affirmative reason for abrogating the warrant procedure as a frustration of Executive power, it amounts to no more than an assertion that the Executive Branch's illegal activities are best kept secret. We find such an argument to be, to say the least, somewhat less than compelling. Thus, given the fact that judicial review of Executive-ordered surveillance would be proper in any event after it occurs, the judicial competence argument has no substantial merit as a rationale for abrogating the warrant procedure. SECURITY LEAKS (2) " Security leaks ": It has been said that the President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Disclosure of the secret information on which Executive decisions to install a wiretap are made would arguably pose the threat of security leaks which might endanger the national security or the lives of informants and agents, or which might frustrate the proposed surveillance itself. This argument was rejected in the domestic security context by the Supreme Court in Keith, see 407 U.S. at 320-321, 92 S. Ct. 2125, and we find that it is no more persuasive in the foreign security context. Since the warrant proceeding is conducted ex parte, disclosure of information can be restricted to the judge; administrative personnel can be provided by the Government should he require clerical or other assistance. Moreover, the Government can seek the warrant from a judge whose loyalty and discretion it considers unimpeachable. Indeed, judges generally have maintained confidences with respect to sensitive information in criminal investigations, and are likely to be even more careful where the national security is at stake. And as the Keith Court observed, "Title III . . . already has imposed this responsibility on the judiciary in connection with such crimes as espionage, sabotage and treason, § 2516(1)(a) and (c), each of which may involve domestic as well as foreign security threats." Furthermore, except for the possibility of frustrating the tap itself, most risks of security leakage will not be lessened in a post hoc review setting. Finally, it is important to realize that the judge need only satisfy himself that "probable cause" to conduct the surveillance exists. Thus, in cases where wiretapping would in fact be reasonable, the Government should be able to make this showing without actually disclosing the vast majority of the data it has available; indeed, even as to information which it does disclose, it could withhold the name or other information which would identify an informant or destroy the cover of an agent. STRATEGIC INFORMATION GATHERING (3) " Strategic" information-gathering : Foreign security wiretaps, even more than domestic security wiretaps, are likely to be aimed at collecting and maintaining "strategic" intelligence information on a continuing basis rather than at obtaining evidence for use in criminal prosecutions. Such long-term intelligence gathering is supposedly less offensive to Fourth Amendment values and less susceptible to judicial review than are searches in the criminal context. It is, of course, a myth to characterize national security surveillance as purely non-prosecutorial in the criminal sense; the whole controversy concerning wiretap legislation pre-Katz revolved around the question whether evidence obtained in the course of a national security surveillance should be admitted into evidence if the wiretap had not received prior judicial approval. Incriminating evidence is often uncovered through such a wiretap,168 and the cases which have dealt with the issue of the constitutionality of warrantless national security surveillance demonstrate that the Executive Branch will not hesitate to utilize the fruits of its surveillance to obtain criminal convictions. More important is the fact that "official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech." Keith (supra) 407 U.S. at 320, 92 S. Ct. at 2138 (emphasis added). Indeed, the ongoing nature of such surveillance just increases its intrusiveness and the likelihood that individuals will fear that their conversations are being overheard. See id. Nor are the Fourth Amendment privacy interests any weaker merely because the offensive search does not lead to a criminal prosecution. Public disclosure of many legal activities could be highly embarrassing and intimidating; indeed, mere knowledge that one's "private" discussions have been overheard may be extremely insulting or traumatic. In short, the premise behind the "strategic information" rationale for abrogating the warrant procedure, the idea that the Fourth Amendment is limited to remedies in the criminal process, is anomalous, since it would suggest that the more innocent the individual the less protection his privacy interests merit. DELAY (4) " Delay ": It is frequently asserted that electronic surveillance must often be hastily instituted, and that the delay which would result from compliance with a warrant procedure could mean loss of essential intelligence information and subsequent disastrous harm to the national security. Admitting the validity of this contention, we nevertheless find it to be nothing more than an argument that warrantless electronic surveillance, like many other warrantless searches, may be justifiable in exigent circumstances. It cannot be gainsaid that even if national security surveillance is subjected to prior judicial approval, a traditional exigent circumstances exception should be available where delay might cause irreparable harm. Indeed, even Title III provides for up to 48 hours of warrantless surveillance if "an ADMINISTRATIVE BURDEN (5) " Administrative burden" on courts and the Executive : It has been suggested that 'Judges [should not be] burdened with the grave responsibility of deciding whether [national security] surveillances are reasonable and necessary to fulfill information requirements of foreign policy and national defense.' If this "burden" refers to the imposition of a task beyond the capability of the judiciary, our "judicial competence" argument should indicate our feelings as to this asserted factor for abrogating the warrant procedure. If, however, it refers to the desirability of removing the weight of responsibility for making admittedly difficult decisions from our shoulders, we can only respond that we are grateful for the sympathy with which our role is viewed. Nevertheless, we are mindful that the judicial system is the focal point of all the conflicts and controversies of our society, and that the task of a judge, though not always a pleasant or a simple one, is to resolve those controversies in the fairest manner of which he is capable. Faced with such problems, we can only recall Chief Justice Marshall's lament: ' With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, then to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty.' Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404, 5 L. Ed. 257 (1821). Although the "burden" argument may be cast alternatively as the administrative cost and burden which will be imposed on the Executive Branch if it must justify in every case its request for a wiretap, we decline to accept an argument grounded in expediency as a basis for resolving our constitutional inquiry. As the Supreme Court in Keith observed in rejecting a similar argument in the domestic context, "Although some added burden will be imposed upon the Attorney General, this inconvenience is justified in a free society to protect constitutional values." 407 U.S. at 321, 92 S. Ct. at 2139.182 " Zweibon v. Mitchell, 170 U.S. App. D.C. 1, 516 F.2d 594 (1975). From the portions of the Zweibon opinion quoted above, in which the Zweibon court carefullly adhered to the guidelines for analysis set down in "Keith," It can readily be seen that Zweibon is the best predictor of how the Supreme Court would rule if presented with these questions. THE KATZ DECISION Fans of expanding executive power to conduct warrantless surveillance are fond of citing the following language from the concurring opinion of justice White in Katz v. United States, 389 U.S. 347, 364 (1967): "We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security [from foreign threats] and authorized electronic surveillance as reasonable." That quote is nothing but obiter dicta. Katz involved surveillance of a domestic gambling operation. It did not involve wiretapping for national security reasons. Many casual readers would be misled into thinking that the Supreme Court had carved out a national security exception to the warrant requirement. THE TRUONG DECISION Truong (Hung, actually, as in US v Truong Dinh Hung ) is the unreconstructed Fourth Circuit's answer to Zweibon v. Mitchell, 170 U.S. App. D.C. 1, 516 F.2d 594, cert. denied, Barrett et al. v. Zweibon et al. Zweibon et al v. Mitchell et al. and Mitchell v. Zweibon et al,, 96 S. Ct. 1685, 425 U.S. 944 (U.S. 04/19/1976)and not a very competent reply at that. In Truong, the 4th Circus pretended to engage in a Keith analysis, but its references to Zweibon, without adequate attempts to distinguish Zweibon, amount to a confession that the earlier case contains the best analysis. The Zweibon analysis will be used below, to demolish any pretension that Truong represents the state of the law, or a competent predictor of any future Supreme Court rulings. The Hung (Truong) court held that the Executive Branch need not always obtain a warrant for foreign intelligence surveillance. The Hung court admitted that the Supreme Court has never decided the issue, but that it has formulated an analytical approach applicable to th eissue, in case of United States v. United States District Court (Keith), 407 U.S. 297, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972). In Keith, the executive had conducted warrantless domestic security surveillance. The Supreme Court concluded that the executive must seek a warrant before it undertakes domestic security surveillance. The Keith Court decided that two inquiries guide the determination of whether a warrant is required under the Fourth Amendment: If the legitimate need of Government to safeguard domestic security requires the use of electronic surveillance, the question is whether the needs of citizens for privacy and free expression may not be better protected by requiring a warrant before such surveillance is undertaken. It must also asked whether a warrant would unduly frustrate the efforts of Government to protect itself from acts of subversion and overthrow directed against it. United States v. United States District Court (Keith), 407 U.S. at 315, 92 S. Ct. at 2135. In Keith Supreme Court concluded that the executive must seek a warrant before it undertakes domestic security surveillance. The Hung court erroneously concluded that the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would "unduly frustrate" the President in carrying out his foreign affairs responsibilities. DELAY The Hung court claimed that “attempts to counter foreign threats to the national security require the utmost stealth, speed, and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence initiatives, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations.” The Zweibon court, on the other hand, said as follows: "It is frequently asserted that electronic surveillance must often be hastily instituted, and that the delay which would result from compliance with a warrant procedure could mean loss of essential intelligence information and subsequent disastrous harm to the national security.174 Admitting the validity of this contention, we nevertheless find it to be nothing more than an argument that warrantless electronic surveillance, like many other warrantless searches,175 may be justifiable in exigent circumstances. It cannot be gainsaid that even if national security surveillance is subjected to prior judicial approval, a traditional exigent circumstances exception should be available where delay might cause irreparable harm.” In other words, while Bush is insisting upon maintaining warrantless wiretaps for months at a time, and while the Hung (Truong) court claims that delay is an excuse for such conduct, the Zweibon court recognized that delay is a factor only in the short run, and that an exigent circumstances exception already covers the short run situations, as recognized by Vale v. Lousiana, 90 S. Ct. 1969, 399 U.S. 30 (U.S. 06/22/1970). EXPERTISE The Hung court claimed that “More importantly, the executive possesses unparalleled expertise to make the decision whether to conduct foreign intelligence surveillance, whereas the judiciary is largely inexperienced in making the delicate and complex decisions that lie behind foreign intelligence surveillance. See New York Times Co. v. United States, 403 U.S. 713, 727-30, 91 S. Ct. 2140, 2148-2150, 29 L. Ed. 2d 822 (1971) (Stewart, J., concurring); United States v. Belmont, 301 U.S. 324, 330, 57 S. Ct. 758, 760, 81 L. Ed. 1134 (1937). The executive branch, containing the State Department, the intelligence agencies, and the military, is constantly aware of the nation's security needs and the magnitude of external threats posed by a panoply of foreign nations and organizations. On the other hand, while the courts possess expertise in making the probable cause determination involved in surveillance of suspected criminals, the courts are unschooled in diplomacy and military affairs, a mastery of which would be essential to passing upon an executive branch request that a foreign intelligence wiretap be authorized. Few, if any, district courts would be truly competent to judge the importance of particular information to the security of the United States or the "probable cause" to demonstrate that the government in fact needs to recover that information from one particular source. Perhaps most crucially, the executive branch not only has superior expertise in the area of foreign intelligence, it is also constitutionally designated as the pre-eminent authority in foreign affairs. See First National Bank v. Banco Nacional de Cuba, 406 U.S. 759, 765-68, 92 S. Ct. 1808, 1812-1814, 32 L. Ed. 2d 466 (1972); Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S. Ct. 309, 310, 62 L. Ed. 726 (1918). The President and his deputies are charged by the constitution with the conduct of the foreign policy of the United States in times of war and peace. See United States v. Curtiss-Wright Corp., 299 U.S. 304, 57 S. Ct. 216, 81 L. Ed. 255 (1936). Just as the separation of powers in Keith forced the executive to recognize a judicial role when the President conducts domestic security surveillance, 407 U.S. at 316-18, 92 S. Ct. at 2136- 2137, so the separation of powers requires us to acknowledge the principal responsibility of the President for foreign affairs and concomitantly for foreign intelligence surveillance.” Weibon demolished this argument, in the section on Judickial competence, quoted above. As the Zweibon court concluded, given the fact that judicial review of Executive-ordered surveillance would be proper in any event after it occurs, the judicial competence argument has no substantial merit as a rationale for abrogating the warrant procedure. SECURITY LEAKS, STRATEGIC INFORMATION GATHERING, AND ADMINISTRATIVE BURDEN The Hung court based its holding upon nothing more than its fallacious reasoning with regard to the factors of delay and judicial competence. The Zweibon court, on the other hand, not only demonstrated that those factors were no excuse for another exception to the warrant requirement, but discussed the impact of other factors as well, as can be seen in the quote from Zweibon, above. Clearly, then, Zweibon is the surest predictor of the results of any future Supreme Court opinion on this subject, and the most accurate reflection of the current state of the law. THE BROWN OPINION Apologists of executive power are fond of citing US v. Brown, 484 F.2d 418 (5th Cir. 1973), as if it were authoritative. It is not. It is, instead, a sorry, pathetic excuse for a decision, that depends entirely upon the fallacious argument that government secrets should not be divulged to the courts. Brown is nonsense upon stilts. Herewith the relevant portions of Brown's "analysis": "In United States v. Clay, 5 Cir., 1970, 430 F.2d 165, 170-172, rev'd on other grounds, 1971, 403 U.S. 698, 91 S.Ct. 2068, 29 L.Ed.2d 810, . . . we concluded that the President had such authority over and above the Warrant Clause of the Fourth Amendment. We found that authority in the inherent power of the President with respect to conducting foreign affairs. We took our text from Chicago & Southern Air Lines v. Waterman S.S. Corp., 1948, 333 U.S. 103, 111, 68 S.Ct. 431, 92 L.Ed. 568, where the Supreme Court stated: [T]he President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. 333 U.S. at 111, 68 S.Ct. at 436. See also United States v. Belmont, 1937, 301 U.S. 324 at 328, 57 S.Ct. 758, 81 L.Ed. 1134. The constitutional power of the President is adverted to, although not conferred, by Congress in Title III of the Omnibus Crime Control and Safe Streets Act of 1968. 18 U.S.C.A. Secs. 2510-2520. 18 U.S.C.A. Sec. 2511 (3) of that Act provides as follows: "Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1103; 47 U.S.C. 605) 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. . . ." As United States District Court teaches, in the area of domestic security, the President may not authorize electronic surveillance without some form of prior judicial approval. However, because of the President's constitutional duty to act for the United States in the field of foreign relations, and his inherent power to protect national security in the context of foreign affairs, we reaffirm what we held in United States v. Clay, supra, that the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence. Accord, Zweibon v. Mitchell, D.D.C.1973, 363 F.Supp. 936; United States v. Butenko, D.N.J., 1970, 318 F.Supp. 66, Restrictions upon the President's power which are appropriate in cases of domestic security become artificial in the context of the international sphere. United States v. Smith, supra, 321 F.Supp. at 430 (dicta). Our holding in Clay is buttressed by a thread which runs through the Federalist Papers: that the President must take care to safeguard the nation from possible foreign encroachment, whether in its existence as a nation or in its intercourse with other nations. See e. g., The Federalist No. 64, at 434-36 (Jay); The Federalist No. 70, at 471 (Hamilton); The Federalist No. 74 at 500 (Hamilton) (J. Cooke ed. 1961).” Each one of the citations in Brown is misleading at best. FEDERALIST NO. 64 AND FEDERALIST NO. 70 The Brown court cited The Federalist No. 64 (Jay) and The Federalist No. 70 (Hamilton) for the proposition that the President must take care to safeguard the nation from possible foreign encroachment, whether in its existence as a nation or in its intercourse with other nations. Federalist 64 says nothing of the kind, even if it were important to cite an authority for such an obvious proposition. No. 64 discusses traty negotiation, and contains arguments that the Senate is the appropriate body to provide the president with advice and consent, and that the President is the appropriate one to carry on the negotiations, because of the frequent need for secrecy. These are considerations too general in their import to lead to exceptions from the Fourth Amendment warrant requirement. Federalist No 70 is an argument for the single executive, both for the energy it would bring to the defense of the nation, and for the greater ability of the people to watch for encroachments, by the executive, upon their liberties. Once again, these are considerations too general in their import to lead to exceptions from the Fourth Amendment warrant requirement. FEDERALIST NO. 74 The Brown court also cited The Federalist No. 74 (Hamilton) for the proposition that the President must take care to safeguard the nation from possible foreign encroachment, whether in its existence as a nation or in its intercourse with other nations. This is obviously a dummy cite, for No. 74 is principally concerned with the presidential pardoning power, and only briefly touches upon the president’s powers as commander in chief, and then only in the vaguest of terms, regarding the propriety of conferring command of the armed forces upon a single executive. Yet again, these are considerations too general to lead to exceptions from the Fourth Amendment warrant requirement. THE CLAY OPINION The Brown court cited United States v. Clay, 430 F.2d 165, 170-172, (5 Cir., 1970), rev'd on other grounds, 1971, 403 U.S. 698, 91 S.Ct. 2068, 29 L.Ed.2d 810, for the proposition that the President had wiretap authority over and above the Warrant Clause of the Fourth Amendment, in cases involving national security. The Clay case referred to national security wiretapping only in obiter dicta, because, as the Clay opinion confides, while Cassius Clay challenged the lower court’s refusal to order disclosure of certain wiretaps, to which they referred as the “fifth log,” nevertheless, “no use of the fifth log was made in this case against defendant. It played no part in his conviction and our in camera scrutiny thereof thoroughly convinces us that defendant was not prejudiced thereby.” Because the issue in Clay was one of disclosure of the wiretaps, not the legality of the wiretaps themselves, it was inappropriate for the Brown court to cite dicta from the Clay decision in a case involving the legality of national security wiretaps. The Analysis in Clay consisted of nothing more than citing and quoting from Chicago v. Southern Air, in precisely the same way that the Brown court did. It is to Chicago v. Southern Air that we must turn. CHICAGO V. SOUTHERN AIR The Brown court cited Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111, 68 S.Ct. 431, 92 L.Ed. 568 (1948), where the Supreme Court stated: “[T]he President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret.” 333 U.S. at 111, 68 S.Ct. at 436. While it may be obvious from the caption of the case, Chicago and Southern Air was not a fourth amendment case. It did not involve criminal laws. It did not involve wiretapping. It did not involve the legality or wiretapping or any other fourth amendment interest. Chicago and Southern Air involved an airline’s request for review of the President’s denial, through the Civil Aeronautics, Board, of one airline’s application to engage in overseas transportation, and the President’s grant of its competitor’s application. The Supreme Court held that the President’s decision was unreviewable, because it might rest upon national security considerations, which should, in this context, remain secret. It was inappropriate and amateurish, at best, and deceptive, at worst, for the Brown court to cite language from a civil aeronautics board case, in a fourth amendment wiretapping case. THE BELMONT CASE The Brown court cited United States v. Belmont, 301 U.S. 324 at 328, 57 S.Ct. 758, 81 L.Ed. 1134 (1937). for the same proposition quoted from Chicago v. Southern Air, supra. Belmont is another dummy cite. This case involved a conflict between State law and a US treaty. To no one’s surprise, the Supreme Court held the federal treaty trumped State law. Belmont, however, involved no wiretapping, or secrecy issues, or fourth amendment issues at all. Citing Belmont was another amateurish or deceptive move on the part of the Brown court. THE SMITH CASE The Brown court cited United States v. Smith, supra, 321 F.Supp. at 430 (dicta).for the proposition that “Restrictions upon the President's power which are appropriate in cases of domestic security become artificial in the context of the international sphere.” Here, the Brown court appears to have been deliberately deceptive. What the Smith court actually said was: “It should be noted that the government does not limit its assertion of this power to those cases involving foreign intelligence, i.e., espionage and counter-espionage. Indeed, there is nothing in the present case which suggests that it is anything other than a purely domestic situation. It might very well be that warrantless surveillance of this type, while unconstitutional in the domestic situation, would be constitutional in the area of foreign affairs.” The Brown court paraphrased the last sentence from the above Smith quote, but only removing the qualifier, “might very well be.” The Smith case did not involve national security wiretapping. In using Smith, he Brown Icourt again resorted to obiter dicta, in a most misleading manner. The 1973 ZWEIBON V. MITCHELL CASE The Brown court cited Zweibon v. Mitchell, 363 F.Supp. 936 (D.D.C.1973), for the proposition that the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence. The 1973 Zweibon asserts that proposition, but cites absolutely no authority for it. The “reasoning” of the 73 Zweibon is merely trite and conclusory: “The activities of the JDL posed a threat to the continuance of our peaceful foreign relations with the Soviet Union and subjected American citizens living in Moscow to harm by retaliation. Under the facts of this case, which show a clear threat to this country's foreign relations, it is the executive and not the judiciary, which should determine whether or not an electronic surveillance requires prior judicial authorization. No prior authorization from a Court is necessary where, as in this case, electronic surveillances relate to the foreign aspects of our national security. The Keith case, dealing only with the domestic aspects of our national security, is clearly distinguishable. Keith, supra, 407 U.S. 297, 321-322, 92 S. Ct. 2125, 32 L. Ed. 2d 752. It is within the constitutional power of the President acting through the Attorney General to gather intelligence by authorizing electronic surveillance relating to foreign affairs and deemed essential to protect this nation and its citizens against hostile acts of a foreign power. The electronic surveillances were installed in this case under the constitutional authority of the President over the conduct of foreign relations and his inherent power to protect our national security. Based on the facts of this case the surveillances, without prior judicial authorization, were reasonable within the meaning of the Fourth Amendment and were therefore lawful.” The '73 Zweibon decision is a headnote in search of authority. THE BUTENKO CASE The Brown court cited United States v. Butenko, 318 F.Supp. 66, (D.N.J. 1970), also for the proposition that the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence. However, the only authorities cited in the Butenko opinion are US v. Clay, the worthless decision discussed above, and an inapposite quote from Marbury v. Madison, to wit: By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience.” Chief Justice Marshall, in Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 165, 2 L. Ed. 60 (1803). What the Butenko opinion failed to quote was the next sentence from Marbury v. Madison, namely, this: “To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.” Ibid. That famous case did not involve national security or the Fourth Amendment; it involved the power of the President to make midnight appointments. OMNIBUS CRIME CONTROL ACT The Brown court cited 18 U.S.C.A. Sec. 2511(3), within Title III of the Omnibus Crime Control and Safe Streets Act of 1968. 18 U.S.C.A. Secs. 2510- 2520. That provision reads, in pertinent part, as follows: "Nothing contained in this chapter or in section 605 of the Communications Act of 1934 . . . . 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. . . ." A plain reading of this text reveals that nothing of the limits of the constitutional powers of the President in the field of foreign intelligence is defined by its terms. CONCLUSION The Brown case is a hollow authority, and not worth mentioning. THE DUGGAN OPINION Advocates of executive authority will often cite US v. Duggan, 743 F.2d 59 (1984), as if it were authority for the proposition that the President can conduct warrantless wiretapping to collect foreign intelligence information. It is not. First of all, the question of the President's authority to conduct warrantless wiretaps was not before the Duggan court. Duggan involved wiretaps that had been authorized by the FISA court. The appellants in Duggan challenged the FISA statute. It was not necessary for them to challenge the President's authority to perform warrantless wiretaps, because the Duggan case did not involve any warrantless wiretaps. Everything the Duggan court said on this issue is obiter dicta. Secondly, the Duggan opinion relied upon no competent authority. The Duggan court cited the same tired old cases, Truong, Brown, and Butenko, that have been thoroughly discredited above. The only other case Duggan cited was United States v. Buck, 548 F.2d 871, 875 (9th Cir.), cert. denied, 434 U.S. 890, 54 L. Ed. 2d 175, 98 S. Ct. 263 (1977). That case suffers from the same shallow analysis that the others do. The Buck opinion merely cites Butenko and Clay, also discredited above.
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