Am. Civil Liberties Union v. Clapper

• Decision Date: 27 December 2013
• Docket Number: No. 13 Civ. 3994(WHP).,13 Civ. 3994(WHP).
• Parties: AMERICAN CIVIL LIBERTIES UNION, et al., Plaintiffs, v. James R. CLAPPER, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

959 F.Supp.2d 724

AMERICAN CIVIL LIBERTIES UNION, et al., Plaintiffs,

v.James R. CLAPPER, et al., Defendants.

No. 13 Civ. 3994(WHP).

United States District Court,

S.D. New York.

Dec. 27, 2013.

Jameel Jaffer, Esq., Alex A. Abdo, Esq., Brett M. Kaufman, Esq., Patrick C. Toomey, Esq., Catherine N. Crump, Esq., American Civil Liberties Union, Arthur N. Eisenberg, Esq., Christopher T. Dunn, Esq., New York Civil Liberties Union, New York, NY, Laura Donohue, Esq., Georgetown Law, Bethesda, MD, for Plaintiffs.

David S. Jones, Esq., Stuart F. Delery, Esq., Marcia Berman, Esq., James J. Gilligan, Esq., Bryan Dearinger, Esq., Tara M. La Morte, Esq., Christopher B. Harwood, Esq., John D. Clopper, Esq., U.S. Attorney's Office, S.D.N.Y., New York, NY, for Defendants.

MEMORANDUM & ORDER

WILLIAM H. PAULEY III, District Judge:

The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is. While Americans depended on technology for the conveniences of modernity, al-Qaeda plotted in a seventh-century milieu to use that technology against us. It was a bold jujitsu. And it succeeded because conventional intelligence gathering could not detect diffuse filaments connecting al-Qaeda.

Prior to the September 11th attacks, the National Security Agency (“NSA”) intercepted seven calls made by hijacker Khalid al-Mihdhar, who was living in San Diego, California, to an al-Qaeda safe house in Yemen. The NSA intercepted those calls using overseas signals intelligence capabilities that could not capture al-Mihdhar's telephone number identifier. Without that identifier, NSA analysts concluded mistakenly that al-Mihdhar was overseas and not in the United States. Telephony metadata would have furnished the missing information and might have permitted the NSA to notify the Federal Bureau of Investigation (“FBI”) of the fact that al-Mihdhar was calling the Yemeni safe house from inside the United States.¹

The Government learned from its mistake and adapted to confront a new enemy: a terror network capable of orchestrating attacks across the world. It launched a number of counter-measures, including a bulk telephony metadata collection program—a wide net that could find and isolate gossamer contacts among suspected terrorists in an ocean of seemingly disconnected data.

This blunt tool only works because it collects everything. Such a program, if unchecked, imperils the civil liberties of every citizen. Each time someone in the United States makes or receives a telephone call, the telecommunications provider makes a record of when, and to what telephone number the call was placed, and how long it lasted. The NSA collects that telephony metadata. If plumbed, such data can reveal a rich profile of every individual as well as a comprehensive record of people's associations with one another.

The natural tension between protecting the nation and preserving civil liberty is squarely presented by the Government's bulk telephony metadata collection program. Edward Snowden's unauthorized disclosure of Foreign Intelligence Surveillance Court (“FISC”) orders has provoked a public debate and this litigation. While robust discussions are underway across the nation, in Congress, and at the White House, the question for this Court is whether the Government's bulk telephony metadata program is lawful. This Court finds it is. But the question of whether that program should be conducted is for the other two coordinate branches of Government to decide.

The American Civil Liberties Union, the American Civil Liberties Union Foundation, the New York Civil Liberties Union, and the New York Civil Liberties Foundation (collectively, “the ACLU” or Plaintiffs) bring this action challenging the legality of the NSA's telephony metadata collection program. James R. Clapper, the Director of National Intelligence; Keith B. Alexander, the Director of NSA and Chief of the Central Security Service; Charles T. Hagel, the Secretary of Defense; Eric H. Holder, the Attorney General of the United States; and James B. Comey, the Director of the FBI (collectively, “Defendants” or the “Government”) are Executive Branch Department and Agency heads involved with the bulk telephony metadata collection program. The ACLU moves for a preliminary injunction and the Government moves to dismiss the complaint. For the reasons that follow, this Court grants the Government's motion to dismiss and denies the ACLU's motion for a preliminary injunction.

BACKGROUND

I. Foreign Intelligence Surveillance Act

In 1972, the Supreme Court recognized that “criminal surveillances and those involving domestic security” are distinct, and that “Congress may wish to consider protective standards for the latter which differ from those already prescribed for [criminal surveillances].” United States v. U.S. Dist. Court for East. Dist. of Mich. (Keith), 407 U.S. 297, 322, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). “Although the Keith opinion expressly disclaimed any ruling ‘on the scope of the President's surveillance power with respect to the activities of foreign powers,’ it implicitly suggested that a special framework for foreign intelligence surveillance might be constitutionally permissible.” Clapper v. Amnesty Int'l USA, ––– U.S. ––––, 133 S.Ct. 1138, 1143, 185 L.Ed.2d 264 (2013) (quoting Keith, 407 U.S. at 322–23, 92 S.Ct. 2125) (internal citations omitted).

In 1975, Congress organized the Senate Select Committee to Study Governmental Operations With Respect to Intelligence Activities, known as the “Church Committee,” to investigate and report on the Government's intelligence-gathering operations. The Church Committee concluded that the Executive Branch had engaged in widespread surveillance of U.S. citizens and that Congress needed to provide clear boundaries for foreign intelligence gathering.

In 1978, Congress did just that. Legislating against the backdrop of Keith and the Church Committee findings, Congress enacted the Foreign Intelligence Surveillance Act of 1978 (FISA). Pub. L. No. 95–511, 92 Stat. 1783 (codified as amended at 50 U.S.C: §§ 1801 to 1885c). FISA requires the Government to obtain warrants or court orders for certain foreign intelligence surveillance activities and created the FISC to review those applications and grant them if appropriate.

While the FISC is composed of Article III judges, it operates unlike any other Article III court. Proceedings in Article III courts are public. And the public enjoys a “general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Comm'cns, Inc., 435 U.S. 589, 597–98, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978) (footnotes omitted). “The presumption of access is based on the need for federal courts, although independent—indeed, particularly because they are independent—to have a measure of accountability and for the public to have confidence in the administration of justice.” Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir.2006) (quoting United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir.1995)); see also Standard Chartered Bank Int'l (Americas) Ltd. v. Calvo, 757 F.Supp.2d 258, 259–60 (S.D.N.Y.2010).²

But FISC proceedings are secret. Congress created a secret court that operates in a secret environment to provide judicial oversight of secret Government activities. See50 U.S.C. § 1803(c) (“The record of proceedings [in the FISC] shall be maintained under security measures established by the Chief Justice in consultation with the Attorney General and the Director of Central Intelligence.”). While the notion of secret proceedings may seem antithetical to democracy, the Founding Fathers recognized the need for the Government to keep secrets. SeeU.S. Const. Art. I § 5, cl. 3. (“Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy.”)

Congress has long appreciated the Executive's paramount need to keep matters of national security secret. See, e.g.,5 U.S.C. § 552(b)(1)(A) (first enacted July 4, 1966, Pub. L. 89–487) (The Executive is not required to disclose “matters that are specifically authorized ... by an Executive order to be kept secret in the interest of national defense” under the Freedom of Information Act). Indeed, “[s]ecrecy and dispatch” are essential ingredients to the President's effective discharge of national security. See The Federalist No. 70, at 472 (Alexander Hamilton) (J. Cooke ed., 1961). FISC is an exception to the presumption of openness and transparency—in matters of national security, the Government must be able to keep its means and methods secret from its enemies.

In 1998, Congress amended FISA to allow for orders directing common carriers, public accommodation facilities, storage facilities, and vehicle rental facilities to provide business records to the Government. See Intelligence Authorization Act for Fiscal Year 1999, Pub. L. 105–272, § 602, 112 Stat. 2396, 2410 (1998). These amendments required the Government to make a showing of “specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power.” § 602.

After the September 11th attacks, Congress expanded the Government's authority to obtain additional records. See USA PATRIOT Act of 2001, Pub. L. 107–56, § 215, 115 Stat. 272, 287 (2001) (codified as amended at 50 U.S.C. § 1861) (“section 215”); Section 215 allows the Government to obtain an order “requiring the production of any tangible things (including books, records, papers, documents, and other items),” eliminating the restrictions on the types of businesses that can be served with such orders and the requirement that the target be a foreign power or their agent. The Government invoked this authority to collect virtually all call detail records or “telephony metadata.” See infra, Part II. See generally David...