Case: In re proceedings required by 702(i) of the FISA Amendments Act of 2008 [Misc. 08-01]

As explained in [Redacted]; FISA Court Authorizing Surveillance Procedures Under Protect America Act, the FISA Amendments Act of 2008 (FAA) included a new title giving the government the authority to monitor electronic communications of foreigners abroad. Section 702 permits the Attorney General and the Director of National Intelligence (DNI) to jointly authorize the targeting of foreigners reasonably believed to be located outside the U.S. Once authorized, such acquisitions may last for periods of up to one year. (Section 703, not at issue in this case, addresses targeting of Americans abroad, when the acquisition of information is carried out domestically; Section 704, also not at issue, addresses targeting of Americans abroad, when the acquisition of information is carried out off-shore.)

Under subsection 702(i), the Foreign Intelligence Surveillance Court (FISA Court) has jurisdiction to review the Attorney General and the DNI's certifications, targeting procedures, and minimization procedures. The FISA Court reviews the targeting procedures to ensure that they are reasonably designed to ensure that information is gathered only from people outside the U.S. and that information is not gathered when the sender and all recipients are believed to be in the U.S. when the communication is sent. Finally, the FISC reviews the minimization procedures to ensure that they meet the statutory standards elaborated in subsection 702(e), 50 U.S.C. § 1801(h), and 50 U.S.C. § 1821(4).

The FISA Amendments Act went into effect on July 10, 2008. That same day, the ACLU filed a motion for leave to participate in the FISA Court's proceedings under subsection 702(i). Specifically, the ACLU requested to be notified of the schedule of subsection 702(i) proceedings; that the FISA Court require the government to file public versions of the connected briefs with minimal redaction; that the ACLU be granted leave to file briefs and participate in oral argument in connection with the subsection 702(i) proceedings; and that the FISA Court's opinions regarding subsection 702(i) proceedings be made public with only the minimum necessary redactions.

On July 29, 2008, the Department of Justice, National Security Division (DOJ), filed an opposition to the ACLU's motion. The DOJ argued that the ACLU lacked a legal right to participate in subsection 702(i) proceedings and that the FISA Court could not grant the ACLU's motion as a matter of discretion because of the countervailing statutory and security concerns involved with the decisions to obtain communications under Section 702.

On August 8, 2008, the ACLU filed a reply to the DOJ's opposition, arguing that the FISC had the authority to allow organizations like the ACLU to participate in subsection 702(i) proceedings by filing amicus briefs and requiring public filing of the government's briefs as well as public filing of opinions by the FISC. The ACLU also argued that it only desired to participate in subsection 702(i) proceedings in order to challenge the constitutionality of the FAA.

On August 27, 2008, the FISC (Judge Mary McLaughlin) denied the ACLU's motion, finding that the FAA contained no provision for participation by non-government parties in subsection 702(i) proceedings, and that subsection 702(i) proceedings in the FISC do not contain a generalized and continuous constitutional challenge to the FAA.

For the first 702 certification approval process, see [In re DNI/AG 702(i) Certification 2008].