ACLU Foundation of Southern California v. Barr

• Decision Date: 26 February 1992
• Docket Number: No. 90-5261,90-5261
• Citation: 952 F.2d 457
• Parties: , 21 Fed.R.Serv.3d 1063 ACLU FOUNDATION OF SOUTHERN CALIFORNIA, et al., Appellants, v. William P. BARR, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 457

952 F.2d 457

293 U.S.App.D.C. 101, 21 Fed.R.Serv.3d 1063

ACLU FOUNDATION OF SOUTHERN CALIFORNIA, et al., Appellants, v. William P. BARR, et al., Appellees.

No. 90-5261.

United States Court of Appeals District of Columbia Circuit.

Argued March 8, 1991.

Decided Dec. 27, 1991.

Rehearing and Rehearing En

Banc Denied Feb. 26, 1992.

Appeal from the United States District Court for the District of Columbia (Civ.Action No. 89-2248).

Kate Martin, Washington, D.C., with whom William J. Genego, Santa Monica, Cal., was on the brief, for appellants.

Douglas Letter, Atty., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., and Jay B. Stephens, U.S. Atty., Washington, D.C., were on the brief, for appellees.

Before EDWARDS, WILLIAMS and RANDOLPH, Circuit Judges.

Opinion for the court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

This is an appeal from the district court's dismissal of a complaint for failure to state a claim upon which relief could be granted. Despite its simple procedural posture, the case presents complex questions regarding the Foreign Intelligence Surveillance Act (FISA) (50 U.S.C. §§ 1801-1811), and the standards for determining the sufficiency of complaints aimed at uncovering and halting electronic surveillance, authorized by a specially-constituted federal court and conducted for the purpose of obtaining foreign intelligence information from foreign powers and agents of foreign powers.

There are twenty-four plaintiffs. Eight are aliens; of these, six are non-resident aliens, two are permanent resident aliens. The remaining plaintiffs are thirteen private attorneys who provided legal advice to these aliens and three organizations with which some of the attorneys were affiliated. The Complaint, as amended, comprises some thirty pages and more than seventy separately-numbered paragraphs. It seeks a declaratory judgment and an injunction against the Attorney General and other federal officials with respect to alleged electronic surveillance conducted, so plaintiffs claimed, in violation of FISA and of the First, Fourth, and Fifth Amendments to the Constitution.

In reviewing the district court's ruling we must decide what impact, if any, related proceedings conducted in camera and ex parte in a California federal district court should have on this case. We must also determine whether plaintiffs' allegations, "on information and belief," of FISA surveillance aimed at some of them are enough to withstand a motion under Rule 12(b)(6), Fed.R.Civ.P. Questions are also presented regarding whether FISA entitles the government to refuse to reveal ongoing foreign intelligence operations, whether individuals may sue for injunctions to prevent alleged violations of FISA, whether the First Amendment limits governmental investigations and whether the due process clause of the Fifth Amendment bars any overhearing of attorney-client conversations.

I

A

When they filed this Complaint, the eight alien plaintiffs were the subjects of deportation proceedings in California, where they resided. So far as we have been told, the proceedings are not yet concluded. The government maintains that each alien belonged to an international terrorist group known as the Popular Front for the Liberation of Palestine. The alien plaintiffs deny this. Complaint p 53.

In the deportation proceedings, in response to a motion filed under 18 U.S.C. § 3504 by six of the aliens, the government submitted a declaration of its chief attorney, Michael Lindemann, disclosing that the FBI had overheard five of the six--Khader Hamide, Michel Shehadeh, Julie Mungai, Basher Amer, and Amjad Obeid--during electronic surveillance authorized pursuant to FISA. Lindemann's declaration also recited that a pen register, authorized by the federal district court in the Central District of California, had been placed on Mungai's telephone. According to the declaration, several attorneys representing these aliens had also been overheard, but only one of the conversations pertained to the deportation proceedings, and that conversation did not involve an attorney-client communication. The government attorneys conducting the deportation proceedings had not been given access to any of the intercepted communications between the aliens and their attorneys. The declaration stated that none of the information obtained in the course of the surveillance had been, or would be, used against the aliens in the deportation proceedings. Lindemann did not identify the targets of the FISA surveillance disclosed in his declaration.

B

Before recounting the remaining background of this case, it will be helpful to describe the Foreign Intelligence Surveillance Act. Enacted in 1978, FISA sought to put to rest a troubling constitutional issue. For decades Presidents had claimed inherent power to conduct warrantless electronic surveillance in order to gather foreign intelligence in the interests of national security. When the Supreme Court, in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), overruled Olmstead v. United States, 277 U.S. 438 48 S.Ct. 564, 72 L.Ed. 944 (1928), and held that the warrant requirement of the Fourth Amendment applied to electronic surveillance, the constitutionality of this long-standing executive practice was called into question. In the Keith case (United States v. United States District Court, 407 U.S. 297, 321-22, 92 S.Ct. 2125, 2138-39, 32 L.Ed.2d 752 (1972)), the Court explicitly reserved judgment on the issue. Thereafter, the Fifth Circuit in United States v. Brown, 484 F.2d 418 (1973), cert. denied, 415 U.S. 960, 94 S.Ct. 1490, 39 L.Ed.2d 575 (1974), and the Third Circuit in United States v. Butenko, 494 F.2d 593 (en banc), cert. denied, 419 U.S. 881, 95 S.Ct. 147, 42 L.Ed.2d 121 (1974), sustained the President's power to conduct warrantless electronic surveillance for the primary purpose of gathering foreign intelligence information. See also United States v. Truong, 629 F.2d 908 (4th Cir.1980), cert. denied, 454 U.S. 1144, 102 S.Ct. 1004, 71 L.Ed.2d 296 (1982). In Zweibon v. Mitchell, 516 F.2d 594 (D.C.Cir.1975) (en banc), cert. denied, 425 U.S. 944, 96 S.Ct. 1684, 48 L.Ed.2d 187 (1976), however, the plurality opinion held that allegations of warrantless electronic surveillance in a complaint seeking damages stated a cause of action under the Fourth Amendment, at least insofar as the targets were not foreign powers or their agents, even though the Attorney General had authorized the surveillance for the purpose of obtaining foreign intelligence information.

By enacting FISA, Congress sought to resolve doubts about the constitutionality of warrantless, foreign security surveillance and yet protect the interests of the United States in obtaining vital intelligence about foreign powers. FISA thus created a "secure framework by which the Executive Branch may conduct legitimate electronic surveillance for foreign intelligence purposes within the context of this Nation's commitment to privacy and individual rights." S.Rep. No. 604, pt. 1, 95th Cong., 1st Sess. 15 (1977), reprinted in U.S.Code Cong. & Admin.News 1978, pp. 3904, 3916.

The centerpiece of the legislation was the formation of the United States Foreign Intelligence Surveillance Court (the FISA Court), a special tribunal composed of seven federal district judges designated by the Chief Justice. 50 U.S.C. § 1803(a). With several exceptions not here relevant, electronic surveillance of a foreign power or its agents may not be conducted unless the FISA Court authorizes it in advance. Before an application seeking authorization for surveillance may be filed with the FISA Court, the Attorney General must personally approve it. 50 U.S.C. §§ 1801(g), 1804(a). Each application must include the identity of the target of the surveillance, a statement of facts showing that the target is a foreign power or an agent thereof, and a certification that the purpose of the surveillance is to obtain foreign intelligence information that cannot reasonably be obtained by normal investigative techniques. 50 U.S.C. § 1804(a)(7). ¹

The FISA Court may not authorize surveillance unless it finds probable cause to believe the target is a foreign power or its agent; it must also find that "foreign intelligence information" is being sought. 50 U.S.C. § 1805(a)(3), (a)(5). FISA defines "foreign intelligence information" as:

(1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against--

(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;

(B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or

(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or

(2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to--

(A) the national defense or the security of the United States; or

(B) the conduct of the foreign affairs of the United States.

50 U.S.C. § 1801(e).

"United States person" means a United States citizen or "an alien lawfully admitted for permanent residence" (50 U.S.C. § 1801(i)). A United States person may not be considered a foreign power or agent, and thus a potential target, solely on the basis of the person's First Amendment activities. 50 U.S.C. § 1805(a)(3)(A). If the government proposes making a United States person the target, the FISA Court must also find that the certification required by § 1804(a)(7) is not "clearly erroneous." 50 U.S.C. § 1805(a)(5). In addition, the FISA Court must be satisfied that the application proposes appropriate procedures to minimize the acquisition and retention, and prohibit the dissemination, of information concerning unconsenting United States persons. 50 U.S.C. §§...