In re National Security Agency Telecommunications Records Litigation, No. M:2006cv01791 - Document 755 (N.D. Cal. 2011)

Court Description: ORDER granting 731 Motion for Summary Judgment; denying 742 Motion for Summary Judgment (vrwlc3, COURT STAFF) (Filed on 1/31/2011) (Entered: 01/31/2011)
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In re National Security Agency Telecommunications Records Litigation Doc. 755 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 United States District Court For the Northern District of California 10 IN RE: MDL Docket No 06-1791 VRW NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS LITIGATION Case No C 07-1115 VRW 11 12 ORDER 13 14 This order pertains to: 15 CENTER FOR CONSTITUTIONAL RIGHTS, a New York Nonprofit Law Firm; TINA M FOSTER, GITANJALI S GUTIERREZ, SEEMA AHMAD, MARIA LAHOOD and RACHEL MEEROPOL, United States Citizens and Attorneys at Law, 16 17 18 Plaintiffs, 19 20 21 22 23 24 25 26 27 28 v BARACK H OBAMA, President of the United States; NATIONAL SECURITY AGENCY and KEITH B ALEXANDER, its Director; DEFENSE INTELLIGENCE AGENCY and MICHAEL D MAPLES, its Director; CENTRAL INTELLIGENCE AGENCY and PORTER J GOSS, its Director; DEPARTMENT OF HOMELAND SECURITY and MICHAEL CHERTOFF, its Secretary; FEDERAL BUREAU OF INVESTIGATION and ROBERT S MUELLER III, its Director; JOHN D NEGROPONTE, Director of National Intelligence, Defendants. / 1 This case is part of multi-district litigation stemming 2 from the Terrorist Surveillance Program (“TSP”), a warrantless 3 surveillance program carried out by the federal government from 4 2001 to 2007. 5 government officials and associated government agencies — filed a 6 renewed motion to dismiss or, in the alternative, for summary 7 judgment based in part on plaintiffs’ failure to establish 8 standing. 9 renewed motion for summary judgment and opposition to defendants’ On May 27, 2010, defendants — certain high-ranking Doc #731/39.1 On July 29, 2010, plaintiffs filed a United States District Court For the Northern District of California 10 motion for summary judgment. 11 reasons discussed below, the court GRANTS defendants’ motion for 12 summary judgment and DENIES plaintiffs’ motion for summary 13 judgment. Doc ##742/46, 743/47. For the 14 15 I 16 On January 17, 2006, plaintiffs filed an action in the 17 United States District Court for the Southern District of New York. 18 Doc #333-1/16-1. 19 electronic surveillance without court order and thereby violated 20 the Foreign Intelligence Surveillance Act (“FISA”), the Separation 21 of Powers Doctrine and the First and Fourth Amendments. 22 Plaintiffs based these allegations primarily upon statements by 23 President George W Bush and other officials in December 2005 24 admitting that the National Security Agency (“NSA”) had monitored, 25 without a warrant, communications between the United States and a Plaintiffs alleged that defendants engaged in Id at 2. 26 27 28 1 Documents will be cited both to the MDL docket number (No M 061791) and to the individual docket number (No C 07-1115) in the following format: Doc #(MDL)/(individual). 2 1 foreign country where one of the parties was believed to be a 2 member or affiliate of al-Qa’ida. 3 Id at 8. The complaint alleges that plaintiff Center for 4 Constitutional Rights (“CCR”) represented, and continues to 5 represent, clients who are suspected by the United States 6 government of having some link to al-Qa’ida or other terrorist 7 organizations. 8 Muslim foreign nationals detained after the September 11 terrorist 9 attacks as persons “of interest” and others detained as “enemy Doc #333-1/16-1 at 2-3. These clients include United States District Court For the Northern District of California 10 combatants” at Guantanamo Bay. 11 its attorneys who represent such clients — “believe that their 12 conversations and emails with [CCR clients], and with other persons 13 abroad with whom they have communicated in connection with these 14 cases, have been subject to surveillance pursuant to the [TSP].” 15 Id at 3. 16 [p]laintiffs’ privileged attorney-client communications were and 17 continue to be intercepted by Defendants.” 18 Id. Plaintiffs — CCR and five of Plaintiffs further allege that “[i]t is likely that Id. Plaintiffs claim that they were harmed by the 19 government’s surveillance program in various ways. 20 allege that, after they became aware of the program, they were 21 compelled to “institute protective measures to reduce the potential 22 impact of such surveillance on their representation of their 23 clients.” 24 forced to stop “communicating with certain individuals at all by 25 phone or mail,” “avoid[] subjects central to the attorney-client 26 relationship and work product in electronic communications with 27 others” and “undertake international travel to avoid the risk of 28 jeopardizing the confidentiality of privileged communications.” Doc #333-1/16-1 at 12. Plaintiffs Plaintiffs allege that they were 3 Id 1 at 12-13. 2 plaintiffs, plaintiffs claim that they have suffered “irreparable 3 harm to their ability to advocate vigorously on their clients’ 4 behalf.” 5 In addition to the expenses these measures imposed on Id at 13. Plaintiffs also allege that, because the government’s 6 surveillance program “permits the surveillance of conversations of 7 people for whom the government would not be able to establish 8 probable cause that the subject of surveillance is an agent of a 9 foreign power,” it has “negatively affected [p]laintiffs’ ability United States District Court For the Northern District of California 10 to communicate with clients, co-counsel, witnesses, and other 11 relevant individuals in the course of carrying out their role as 12 advocates for their clients and others.” 13 That is, “[k]nowledge that their conversations may be overheard 14 chills persons outside the United States who are not agents of 15 foreign powers from contacting the [p]laintiffs through electronic 16 means to seek their legal advice and/or to provide information in 17 connection with legal matters.” 18 has caused “irreparable harm to their ability to effectively 19 advocate for [their clients], and will continue to inflict such 20 harm until it is stopped.” 21 Id. Doc #333-1/16-1 at 13. Plaintiffs allege that this Id. Plaintiffs’ complaint requests various forms of equitable 22 relief. 23 [d]efendants’ program of warrantless surveillance is unlawful, and 24 enjoin any further such warrantless surveillance”; (2) “[o]rder 25 that [d]efendants disclose to [p]laintiffs all unlawful 26 surveillance of [p]laintiffs’ communications carried out pursuant 27 to the program”; (3) “[o]rder that all [d]efendants turn over to 28 [p]laintiffs all information and records in their possession Plaintiffs request that the court: (1) “[d]eclare that 4 1 relating to [p]laintiffs that were acquired through the warrantless 2 surveillance program or were the fruit of surveillance under the 3 program, and subsequently destroy any such information and records 4 in [d]efendants’ possession”; (4) “[a]ward costs, including an 5 award of attorneys’ fees under the Equal Access to Justice Act, 28 6 [USC] § 2412(d)(1)(A)” and (5) “[a]ward such other relief as the 7 Court may deem just and proper.” 8 9 Doc #333-1/16-1 at 15. On March 9, 2006, plaintiffs moved for partial summary judgment. Doc ##333-2/16-2, 333-3/16-3. On May 26, 2006, United States District Court For the Northern District of California 10 defendants moved to dismiss plaintiffs’ action or, alternatively, 11 for summary judgment. 12 plaintiffs and defendants received amicus briefs in support of 13 their motions. 14 Doc ##327-1/12-1, 327-3/12-3. Both On February 23, 2007, this case was consolidated with the 15 In re National Security Agency Telecommunications Records 16 Litigation multi-district litigation, Case Number 06-md-1791, and 17 transferred to the undersigned sitting in the Northern District of 18 California. 19 District of New York did not rule on the outstanding motions to 20 dismiss and for summary judgment before the case was transferred. 21 The parties agreed to file supplemental briefs and have oral 22 argument on the outstanding motions. 23 defendants filed a supplemental brief in support of their original 24 motion. 25 camera review, a classified memorandum and a classified See Doc #179/xxx.2 Doc #308/3. Judge Lynch in the Southern Doc #289/2. On June 8, 2007, Defendants also submitted, for ex parte in 26 27 28 2 Documents contained in the MDL docket but not in the docket for this particular case are listed with “xxx” rather than an individual docket number. 5 1 declaration. 2 filed a supplemental memorandum in support of their original motion 3 for summary judgment and in opposition to defendants’ motion. 4 #328/13. 5 Doc ##309/4 & 310/5. On July 10, 2007, plaintiffs Doc On August 9, 2007, the court held oral arguments on the 6 parties’ motions. 7 moved for leave to file a supplemental complaint challenging the 8 Protect America Act of 2007, which temporarily amended FISA, as 9 unconstitutional under the First and Fourth Amendments. Doc #348/20. On August 10, 2007, plaintiffs Doc United States District Court For the Northern District of California 10 #347/19. 11 the court denied plaintiffs’ motion as moot on the grounds that the 12 Protect America Act had expired in February 2008 and had not been 13 reauthorized. Defendants opposed. Doc #381/22. On January 28, 2009, Doc #555/29. 14 In response to the court’s request on January 20, 2010, 15 Doc #702/31, the parties submitted a joint status report on March 16 19, 2010 explaining the status of the case and the proceedings 17 necessary to resolve it. 18 by the parties was the fact that the TSP had been discontinued in 19 early 2007. 20 challenged in [p]laintiffs’ original summary judgment papers is no 21 longer in active operation with respect to the continuing 22 interception of communications,” plaintiffs’ request for an order 23 requiring defendant to disclose all unlawful surveillance of 24 plaintiffs, turn over all information pertaining to plaintiffs that 25 was acquired through the TSP and destroy any such information in 26 defendants’ possession was still “necessary to remedy the harms set 27 forth in [p]laintiffs’ summary judgment papers.” 28 Defendants continued to argue that plaintiffs’ claims should be Id. Doc #716/35. Among the issues addressed Plaintiffs stated that “[e]ven if the NSA Program 6 Id at 3. 1 dismissed or summary judgment granted because plaintiffs lack 2 standing. 3 cross-motions and file new oppositions and replies. 4 Id at 4-7. The court ordered the parties to renew their Doc #720/36. On May 27, 2010, defendants filed a renewed motion to 5 dismiss or for summary judgment. 6 plaintiffs filed a renewed motion for summary judgment and an 7 opposition to defendants’ motion. 8 September 14, 2010, defendants filed an opposition to plaintiffs 9 summary judgment motion and in reply to plaintiffs’ opposition. United States District Court For the Northern District of California 10 Doc #749/49. 11 defendants’ opposition. Doc #731/39. On July 29, 2010, Doc ##742/46, 743/47. On On October 5, 2010, plaintiffs filed a reply to Doc #750/50. 12 13 14 II The following is a statement of the relevant facts of the 15 case, drawn largely from plaintiffs’ declarations and included 16 documents, and construed most favorably to plaintiffs. 17 On December 17, 2005, President Bush gave a radio address 18 stating that shortly after September 11, 2001 he authorized the NSA 19 to intercept “the international communications of people with known 20 links to [al-Qa’ida] and related terrorist organizations.” 21 #333-4/16-4 at 39-40. 22 Attorney General Alberto Gonzales explained that the program 23 involved surveillance of communications between a party in the 24 United States and a party outside of the United States where there 25 is “a reasonable basis to conclude that one party to the 26 communication is a member of [al-Qa’ida], affiliated with [al- 27 Qa’ida], or a member of an organization affiliated with [al- 28 Qa’ida], or working in support of [al-Qa’ida].” Doc In a December 19, 2005 press conference, 7 Doc #333-4/16-4 at 1 62. 2 Intelligence (and former NSA Director) Michael Hayden confirmed 3 that under the program this “reasonable basis” determination was 4 made by a NSA intelligence expert without court involvement. 5 #333-4/16-4 at 90-91. 6 government and others as the Terrorist Surveillance Program 7 (“TSP”). In a speech on January 23, 2006, Deputy Director of National 8 9 Doc This program has been referred to by the See, for example, Doc #308/3 at 5. On January 17, 2007, Attorney General Gonzales sent a letter regarding the TSP to various members of Congress. Doc United States District Court For the Northern District of California 10 #127/xxx. 11 Intelligence Surveillance Court judge had issued orders 12 “authorizing the Government to target for collection international 13 communications into or out of the United States where there is 14 probable cause to believe that one of the communicants is a member 15 or agent of [al-Qa’ida] or an associated terrorist organization.” 16 Doc #127-1/xxx at 1. 17 surveillance that was occurring as part of the [TSP] will now be 18 conducted subject to the approval of the Foreign Intelligence 19 Surveillance Court” — that is, in compliance with FISA. 20 Gonzales stated that “under these circumstances, the President has 21 determined not to reauthorize the [TSP] when the current 22 authorization expires.” 23 In the letter, Gonzales explained that a Foreign “As a result of these orders, any electronic See id. Id at 1-2. Plaintiffs have “served as counsel in many cases alleging 24 violations of constitutional and human rights as a result of the 25 detention and interrogation practices of the [Bush] administration 26 in connection with anti-terrorism policies and practices.” 27 #333-4/16-4 at 3. 28 bono, with no expectation that they will ever pay any expenses Doc Most of plaintiffs’ clients are represented pro 8 1 related to their representation. 2 the use of law as a positive force for social change” and 3 “considers litigation to be not merely a tool for advancing 4 precedent but also a fulcrum around which to organize mass 5 movements for political change and a means of giving voice to the 6 aspirations of oppressed peoples.” 7 Id at 3. CCR “is committed to Id at 2-3. The individual attorney plaintiffs regularly communicate with individuals who “fit within the criteria articulated by 9 Attorney General Gonzales for targets of the [TSP] * * * or are 10 United States District Court For the Northern District of California 8 reasonably likely to be viewed by the United States as fitting 11 within those criteria.” 12 plaintiffs Gutierrez, Foster and Ahmad work on habeas corpus 13 petitions for designated “enemy combatants” held at Guantanamo Bay. 14 Id at 3-5. 15 detainees, “former detainees who have been released and returned to 16 their home countries,” and various witnesses, lawyers and other 17 individuals who reside in foreign countries, including persons who 18 have been designated by the United States as “enemy combatants.” 19 Id. 20 and has been declared by the United States to be a member of al- 21 Qa’ida, in a civil suit and regularly communicates with him by 22 phone and email. 23 in the Turkmen v Ashcroft civil class action on behalf of Muslim 24 non-citizens detained shortly after September 11, 2001 and declared 25 to be “of interest” to the September 11 terrorism investigation. 26 Id at 5-6. 27 potential class members, all of whom reside outside the United 28 States. Doc #333-4/16-4 at 4. Specifically, They regularly communicate with family members of Plaintiff LaHood represents Maher Arar, who resides in Canada Id at 5. Plaintiff Meeropol is the lead attorney Meeropol regularly communicates with these actual and Id at 5-6. 9 1 Plaintiffs did not produce, in response to defendants’ 2 motion for summary judgment, any evidence that they were actually 3 surveilled under the TSP. 4 evidence and argument to the claim that their constitutional rights 5 were “chilled” by the mere risk that they were surveilled under the 6 TSP. 7 communications that may have been intercepted by the TSP, take 8 corrective action and implement measures to prevent future 9 communications from being intercepted by the government. Instead, plaintiffs limited their Plaintiffs claim that this risk forced them to review past See Doc United States District Court For the Northern District of California 10 #333-4/16-4 at 6-10. 11 communication concerning sensitive matters with overseas contacts 12 and have traveled internationally to discuss such matters in 13 person. 14 Plaintiffs have attempted to avoid electronic Id at 7-9. In January 2006, CCR and its staff submitted requests to 15 various agencies under the Freedom of Information Act seeking all 16 records obtained through warrantless electronic surveillance, which 17 required “[s]ubstantial expenditures of staff time and effort.” 18 at 7. 19 Ashcroft seeking to discover any attorney-client communications 20 that were monitored or intercepted, and CCR attorneys have been 21 instructed by CCR’s director to move for such disclosure in other 22 cases where surveillance is suspected. 23 allege that this “divert[s] staff time and organizational resources 24 away from core mission tasks,” which “hurts [their] organization by 25 reducing the number of cases [they] can bring, and undermin[ing 26 their] ability to litigate [their] existing cases in the most 27 effective manner.” 28 // Id Plaintiffs also drafted interrogatories in Turkmen v Id at 9-10. 10 Id at 6, 9. Plaintiffs 1 Plaintiffs also claim to have suffered less quantifiable 2 harm since learning about the existence of the TSP. 3 believe that given their knowledge of the existence and nature of 4 the TSP they are ethically required to avoid international 5 electronic communications involving sensitive information. 6 ##333-7/16-7 at 2-5, 333-8/16-8 at 3-6, 333-9/16-9 at 2-3. 7 Plaintiffs submitted a declaration from Professor Stephen Gillers, 8 a specialist in legal ethics, stating that “[i]n light of what is 9 now known about the [TSP] and given the nature of CCR’s work as Plaintiffs See Doc United States District Court For the Northern District of California 10 detailed in submissions to the Court, CCR attorneys and their 11 support persons have substantial reason to fear that telephonic, 12 fax, and e-mail communications * * * that they may have or have had 13 with CCR clients, or with third persons or each other in the course 14 of representing clients, have been or will be intercepted by the 15 United States. 16 may not ethically use * * * these electronic means of communication 17 in exchanging or collecting * * * [n]early all communications with 18 or about clients.” 19 an effective substitute for easy electronic communications, 20 plaintiffs have not been able to communicate with overseas clients 21 and contacts as much as desired and believe that the quality of 22 their litigation has been undermined. 23 Doc #333-6/16-6 at 4. Id at 4-5. As a result, “CCR attorneys Because international travel is not Plaintiffs have also deemed it necessary to inform 24 persons communicating with them via electronic means that their 25 conversation may be subject to government surveillance. 26 example, Doc ##333-7/16-7 at 3, 333-8/16-8 at 5. 27 the director of CCR, states that “it is difficult to imagine a 28 worse thing to have to say at the onset of a relationship with a 11 See, for William Goodman, 1 client, witness, or other person with whom one wishes to work 2 closely” because it “inevitably [makes] the CCR staffer appear to 3 be in some fashion an agent of the United States government, or 4 [makes] our organization appear suspect due to the fact that 5 communications with us are subject to government surveillance.” 6 Doc #333-7/16-7 at 3. 7 thereby created has negatively impacted the quality of their 8 litigation activities. Plaintiffs imply that the lack of trust 9 United States District Court For the Northern District of California 10 11 III Summary judgment is proper where the pleadings, discovery 12 and affidavits show that there is “no genuine issue as to any 13 material fact and the moving party is entitled to judgment as a 14 matter of law.” 15 “against a party who fails to make a showing sufficient to 16 establish the existence of an element essential to that party's 17 case, and on which that party will bear the burden of proof at 18 trial * * * since a complete failure of proof concerning an 19 essential element of the nonmoving party's case necessarily renders 20 all other facts immaterial.” 21 322-23 (1986). 22 FRCP 56(c). A court will grant summary judgment Celotex Corp v Catrett, 477 US 317, “It goes without saying that those who seek to invoke the 23 jurisdiction of the federal courts must satisfy the threshold 24 requirement imposed by Article III of the Constitution by alleging 25 an actual case or controversy.” 26 US 95, 101 (1983). 27 grounded in Article III of the Constitution. 28 Wildlife, 504 US 555, 559 (1992). City of Los Angeles v Lyons, 461 Standing is a jurisdictional requirement 12 Lujan v Defenders of To establish Article III 1 standing, a plaintiff must establish: (1) it suffered an “injury- 2 in-fact,” which is both “concrete and particularized” and “actual 3 or imminent;” (2) a causal connection between the injury and the 4 conduct complained of and (3) that it is likely that the injury 5 will be “redressed by a favorable decision.” 6 party invoking federal jurisdiction bears the burden of 7 establishing these elements, and each element must be supported 8 with the manner and degree of evidence required at the successive 9 stages of the litigation. Id at 561. Id at 560-61. The “At the pleading stage, United States District Court For the Northern District of California 10 general factual allegations of injury resulting from the 11 defendant’s conduct may suffice * * *. 12 judgment motion, however, the plaintiff can no longer rest on such 13 ‘mere allegations,’ but must ‘set forth’ by affidavit or other 14 evidence ‘specific facts’[].” 15 “only conclusory allegations, not backed up by statements of fact, 16 * * * cannot defeat a motion for summary judgment.” 17 Greyhound Lines, Inc, 868 F2d 1057, 1061 (9th Cir 1989). Id. In response to a summary An affidavit that contains Shane v 18 19 IV 20 The court first turns to whether plaintiffs have 21 introduced sufficient evidence to establish standing for their 22 claim under the First Amendment. 23 “[p]laintiffs’ allegations of a subjective chill coupled with an 24 unwillingness to communicate are insufficient to establish injury- 25 in-fact.” 26 challenged conduct has unquestionably ceased, as here, plaintiffs’ 27 allegations of a subjective chill * * * are insufficient to confer 28 standing for their First Amendment claim.” Doc #731/39 at 16. Defendants contend that According to defendants, “where the 13 Id at 21. 1 Plaintiffs maintain that they continue to suffer harm to 2 their “First Amendment interest in litigating against the 3 government.” 4 responsible attorney would have to conform their behavior to 5 account for the possibility that potential clients and witnesses 6 might be tainted by the possibility of past government 7 interception,” meaning that “CCR will have to exercise caution 8 going forward in using such individuals in litigation.” 9 13. Doc #743/47 at 12. Plaintiffs argue that “any Id at 12- This “need for caution interferes with [CCR’s] ability to United States District Court For the Northern District of California 10 construct a case under the ordinary assumptions of confidentiality 11 that underpin our adversary system of justice.” 12 Id at 13. Plaintiffs also argue that “third parties might sensibly 13 be hesitant to communicate freely with CCR staffers even absent a 14 risk of current unlawful interception,” creating “a current risk 15 that third parties who communicated with [CCR] previously will now 16 be less willing to do so, knowing that the government may have been 17 listening in on those earlier calls.” 18 Doc #743/47 at 11. Other than references to “possibilities” and “risks,” 19 plaintiffs do not argue and have presented no evidence that they 20 were unlawfully surveilled. 21 uncertainty about whether they were surveilled, the possible 22 existence of records of that surveillance and the purportedly 23 reasonable actions taken in response to it as the harm, alleging 24 that it exerts a “chilling effect” on the exercise of their First 25 Amendment rights. 26 Instead, plaintiffs characterize the Doc #743/47 at 21-22. The question, then, is whether such chilling effects — 27 where there is no evidence that plaintiffs were actually surveilled 28 under the TSP — are sufficient to establish the “concrete and 14 1 particularized” injury required for Article III standing. 2 504 US at 560. Lujan, 3 4 A 5 In Laird v Tatum, 408 US 1 (1972), the Supreme Court 6 considered whether the chilling of First Amendment rights by the 7 existence of an allegedly unlawful government surveillance program 8 presented a justiciable controversy. 9 “constitutional violations may arise from the deterrent, or The Court recognized that United States District Court For the Northern District of California 10 ‘chilling,’ effect of governmental regulations that fall short of a 11 direct prohibition against the exercise of First Amendment rights.” 12 Id at 11. 13 “chilling effect aris[ing] merely from the individual’s knowledge 14 that a governmental agency was engaged in certain activities or 15 from the individual’s concomitant fear that, armed with the fruits 16 of those activities, the agency might in the future take some other 17 and additional action detrimental to that individual.” 18 The Court emphasized that “[a]llegations of a subjective ‘chill’ 19 are not an adequate substitute for a claim of specific present 20 objective harm or a threat of specific future harm.” 21 The Court, however, found no case that involved a Id at 11. Id at 14-15. Plaintiffs attempt to distinguish Laird by relying 22 heavily on Presbyterian Church (USA) v United States, 870 F2d 518 23 (9th Cir 1989). 24 claimed that their First and Fourth Amendment rights were violated 25 when “INS agents entered the churches wearing ‘body bugs’ and 26 surreptitiously recorded church services.” 27 plaintiffs alleged that their right to free exercise of religion 28 and association was abridged and that “as a result of the In Presbyterian Church, the plaintiff churches 15 Id at 520. The 1 surveillance of worship services, members have withdrawn from 2 active participation in the churches.” 3 ruled that the plaintiffs had established standing because “[w]hen 4 congregants are chilled from participating in worship services * * 5 * because they fear the government is spying on them and taping 6 their every utterance, * * * a church suffers organizational injury 7 because its ability to carry out its ministries has been impaired.” 8 Id at 522. 9 effect “caused, not by any specific action of the Army directed Id at 520-22. The court The court distinguished Laird as involving a chilling United States District Court For the Northern District of California 10 against the plaintiffs, but only by ‘the existence and operation’ 11 of the surveillance program in general.” 12 plaintiffs in Laird did not allege that they were actually 13 surveilled, but “only that they could conceivably become subject to 14 the Army’s domestic surveillance program.” 15 Id. That is, the Id. In this case, the fear that plaintiffs describe as 16 chilling the exercise of their First Amendment rights is far closer 17 to Laird than Presbyterian Church. 18 fact, more speculative than in Laird given that (unlike Laird) the 19 government has ceased the activities that gave rise to the lawsuit. 20 Instead, there is only a fear that plaintiffs may have been subject 21 to unlawful surveillance in the past combined with a fear that some 22 “agency might in the future take some other and additional action 23 detrimental to [them].” 24 some of the ongoing burdens described by plaintiff cannot fairly be 25 traced to the TSP itself. 26 length the disruption to their operations resulting from their 27 inability to use quick and efficient electronic communications. 28 Even assuming (without deciding) that such fears and measures were The alleged injury here is, in Laird, 408 US at 11. Moreover, at least Plaintiffs’ declarations describe at 16 1 reasonable and that such an injury is sufficiently concrete to 2 confer standing, the TSP cannot provide a justification for 3 continuing to incur such costs. 4 #127/xxx. 5 being illegally monitored, there is no imperative (ethical or 6 otherwise) to avoid the use of electronic communications. 7 The TSP ended in 2007. Doc With no reason to believe that they or their clients are The facts of this case are simply not analogous to 8 Presbyterian Church, in which the chilling effect was caused by 9 actual, substantiated unlawful surveillance of four churches United States District Court For the Northern District of California 10 lasting almost a year. 11 demonstrated “specific present objective harm or a threat of 12 specific future harm” in a way that plaintiffs here cannot. 13 Laird, 408 US at 15; Presbyterian Church, 870 F2d at 522. 14 short, there is no “specific action * * * directed against the 15 plaintiffs,” only a fear that plaintiffs may have been unlawfully 16 surveilled, may conceivably suffer an unfair disadvantage in 17 litigation at some point in the future and that some third parties 18 may be unwilling to communicate or cooperate with plaintiffs based 19 on their uncertainty about the details of the TSP. 20 insufficient to establish injury in fact for purposes of Article 21 III standing. 870 F2d at 520. That set of facts See In That is 22 23 B 24 Even if the possibility of harm in this case were 25 sufficiently concrete to constitute injury in fact, the injury 26 claimed by plaintiffs is not itself cognizable under the First 27 Amendment. 28 First Amendment when it is used as a means of political expression Although litigation is unquestionably protected by the 17 1 and advocacy, the First Amendment does not protect against every 2 conceivable burden or difficulty that may arise during litigation. 3 Plaintiffs rely upon NAACP v Button, 371 US 415 (1963), to support 4 their First Amendment claim, arguing that “[w]hat was true of the 5 NAACP in the 1960’s is certainly true of CCR today” and “the [TSP] 6 intrudes on plaintiffs’ right to ‘petition for redress of 7 grievances,” * * * and on their ‘political expression.’” 8 3/16-3 at 47. 9 Doc #333- In NAACP, the NAACP and its Legal Defense and Education United States District Court For the Northern District of California 10 Fund frequently sought out aggrieved persons, informed them of 11 their legal rights and offered to represent them without charge in 12 school desegregation and other such cases. 13 22. 14 children at which its representatives would explain the steps 15 necessary to achieve school desegregation and offer legal 16 representation. 17 to promote the ultimate goal of the NAACP, “to secure the 18 elimination of all racial barriers which deprive Negro citizens of 19 the privileges and burdens of equal citizenship rights in the 20 United States.” 21 a statute making it a criminal violation to solicit legal business 22 through the use of “an agent for an individual or organization 23 which retains a lawyer in connection with an action to which it is 24 not a party and in which it has no pecuniary right or liability.” 25 Id at 424. 26 NAACP, its members and its attorneys had practiced criminal 27 solicitation as defined in the statute. 28 the United States Supreme Court read the Virginia statute as NAACP, 371 US at 419- Typically, the NAACP did so at meetings of parents and Id at 421. Id at 419. Litigation was just one strategy used In 1956, the state of Virginia enacted The Virginia Supreme Court of Appeals held that the 18 Id at 433-34. On appeal, 1 “proscribing any arrangement by which prospective litigants are 2 advised to seek the assistance of particular attorneys.” 3 433. 4 freedoms of expression and association” and posed “the gravest 5 danger of smothering all discussion looking to the eventual 6 institution of litigation on behalf of the rights of members of an 7 unpopular minority.” 8 9 Id at The court held that the statute “unduly inhibit[s] protected Id at 434, 437. Unlike the plaintiffs in NAACP, whose legal activities on behalf of minorities were criminalized by an exceedingly broad United States District Court For the Northern District of California 10 state law, plaintiffs in the present case claim to be harmed 11 because there is a risk “that the government may have access to 12 aspects of CCR’s litigation strategy” as well as a risk “that third 13 parties who communicated with [CCR] previously will now be less 14 willing to do so.” 15 harmed by the need to take steps to assess the scope of any past 16 surveillance and to ensure that no confidential communications are 17 disclosed in the future. 18 to have established that their litigation activities have become 19 more costly due to their concern about the TSP, plaintiffs remain 20 free to pursue their political goals by litigating against the 21 government, and continue to do so vigorously. 22 provided any precedent for the notion that the First Amendment 23 protects against a “risk * * * that the government may have access 24 to aspects of [a plaintiff’s] litigation strategy” where there is 25 no proof that any surveillance in fact occurred. 26 have plaintiffs provided precedent for a protected First Amendment 27 right “to litigate * * * cases in the most effective manner.” 28 #333-4/16-4 at 9-10. Doc #743/47 at 11. Id at 10, 13. 19 Plaintiffs also claim to be Although plaintiffs appear Plaintiffs have not Id at 11. Nor Doc 1 In short, plaintiffs have not shown that they “personally 2 ha[ve] suffered some actual or threatened injury as a result of the 3 putatively illegal conduct,” 4 Americans United for Separation of Church and State, Inc, 454 US 5 464, 472 (1982), especially in light of the “clear precedent 6 requiring that the allegations of future injury be particular and 7 concrete.” 8 83, 109 (1998). 9 standing for their First Amendment claim. Valley Forge Christian College v Steel Co v Citizens for a Better Environment, 523 US Plaintiffs have therefore failed to establish United States District Court For the Northern District of California 10 11 V 12 In their renewed motion for summary judgment and 13 opposition to defendants’ motion for summary judgment, plaintiffs 14 make little attempt to establish standing for their remaining 15 claims under FISA, the Fourth Amendment and the separation of 16 powers doctrine. 17 whether plaintiffs have established standing for these other 18 claims. 19 Nevertheless, the court will briefly examine FISA establishes a cause of action for an “aggrieved 20 person * * * who has been subjected to an electronic surveillance 21 or about whom information obtained by electronic surveillance of 22 such person has been disclosed or used in violation of section 23 1809.” 24 related case Al-Haramain Islamic Foundation v Obama, Case No C 07- 25 0109, only by presenting evidence of actual surveillance can a 26 plaintiff establish the “aggrieved person” status necessary to 27 proceed with a FISA claim. 28 Litigation, 564 F Supp 2d 1109, 1131-35 (ND Cal 2008). 50 USC § 1810. As discussed at length by this court in the See In re NSA Telecoms Records 20 Because 1 plaintiffs have presented no evidence of such surveillance, they 2 have failed to establish standing for their FISA claim. 3 The same is true of plaintiffs’ Fourth Amendment claim. 4 “[T]he rights assured by the Fourth Amendment are personal rights, 5 [which] * * * may be enforced * * * only at the instance of one 6 whose own protection was infringed by the search and seizure.” 7 Rakas v Illinois, 439 US 128, 133-38 (1978) (quotation omitted). 8 Plaintiffs therefore cannot establish Fourth Amendment standing 9 without showing that they were in fact subject to unreasonable United States District Court For the Northern District of California 10 11 search or seizure. Plaintiffs have not done so. Finally, plaintiffs’ claim based on the separation of 12 powers doctrine also fails. 13 that they were subjected to the unlawful program at issue: the TSP. 14 Plaintiffs cannot establish, therefore, that the government’s 15 alleged violation of separation of powers principles by 16 implementing the TSP caused plaintiffs any “actual injury 17 redressable by the court.” 18 (9th Cir 1989) (ruling that a defendant not subject to the statute 19 at issue did not have standing to challenge it); see also 20 Immigration and Naturalization Service v Chadha, 462 US 919, 935-36 21 (1983) (claims asserted under the separation of powers doctrine are 22 subject to the traditional Article III standing requirements). 23 Unlike other cases in which standing to bring a separation of 24 powers claim was found, plaintiffs cannot establish that they were 25 actually subjected to the conduct alleged to have violated the 26 separation of powers. 27 935-36 (reviewing whether one house of Congress could order the 28 plaintiff deported); Buckley v Valeo, 424 US 1, 117 (1976) Plaintiffs have failed to establish United States v Hoyt, 879 F2d 505, 514 See, for example, Chadha, 462 US at 923, 21 1 (reviewing whether the Federal Election Commission could make 2 rulings regarding the plaintiff); Glidden Co v Zdanok, 370 US 530, 3 532-33 (1962) (reviewing whether the plaintiffs’ cases could be 4 adjudicated by judges from non-Article III courts). 5 Accordingly, plaintiffs have failed to establish standing 6 for any of their claims and summary judgment in favor of defendants 7 is appropriate. 8 9 United States District Court For the Northern District of California 10 VI For the reasons stated above, defendants’ motion for 11 summary judgment is GRANTED. 12 summary judgment is DENIED. 13 submit and serve a proposed form of judgment in accordance with 14 this order no later than February 7, 2011; plaintiffs shall submit 15 and serve any objections to defendants’ form of judgment not later 16 than February 14, 2011. 17 Doc #39. Doc #47. Plaintiffs’ motion for Defendants are ordered to Upon entry of judgment, the clerk is directed to 18 terminate all motions and close the file for Center For 19 Constitutional Rights v Obama, Case Number 07-cv-1115. 20 is further directed upon entry of judgment herein to terminate all 21 motions and close the file for the multi-district litigation In re 22 National Security Agency Telecommunications Records Litigation, 23 Docket No MDL-1791. The clerk 24 25 IT IS SO ORDERED. 26 27 VAUGHN R WALKER United States District Judge 28 22