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

08-00001 | Foreign Intelligence Surveillance Court

Filed Date: 2008

Closed Date: 2008

Clearinghouse coding complete

Case Summary

As explained in NS-DC-76 in this Clearinghouse, 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 t…

As explained in NS-DC-76 in this Clearinghouse, 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 NS-DC-0072 in this Clearinghouse.

Summary Authors

Edward Mroczkowski (2/24/2015)

People


Judge(s)

McLaughlin, Mary A. (Pennsylvania)

Attorneys(s) for Plaintiff

Goodman, Melissa (New York)

Jaffer, Jameel (New York)

Spitzer, Arthur (District of Columbia)

Tully, L. Danielle (New Jersey)

Attorneys(s) for Defendant

Demers, John C. (District of Columbia)

Olsen, Matthew G. (District of Columbia)

Rowan, J. Patrick (District of Columbia)

Tannenbaum, Andrew H. (District of Columbia)

Judge(s)

McLaughlin, Mary A. (Pennsylvania)

Attorneys(s) for Plaintiff

Goodman, Melissa (New York)

Jaffer, Jameel (New York)

Spitzer, Arthur (District of Columbia)

Tully, L. Danielle (New Jersey)

Attorneys(s) for Defendant

Demers, John C. (District of Columbia)

Olsen, Matthew G. (District of Columbia)

Rowan, J. Patrick (District of Columbia)

Tannenbaum, Andrew H. (District of Columbia)

Documents in the Clearinghouse

Document

08-00001

Motion for Leave to Participate in Proceedings Required by § 702(i) of the FISA Amendments Act of 2008

In re Proceedings Required by § 702(i) of the FISA Amendments Act of 2008

July 10, 2008

July 10, 2008

Pleading / Motion / Brief

08-00001

Opposition to the American Civil Liberties Union's Motion for Leave to Participate in Proceedings Required by § 702(i) of the FISA Amendments Act of 2008

In re Proceedings Required by § 702(i) of the FISA Amendments Act of 2008

July 29, 2008

July 29, 2008

Pleading / Motion / Brief

08-00001

Reply Memorandum in Support of Motion for Leave to Participate in Proceedings Required by § 702(i) of the FISA Amendments Act of 2008

In re Proceedings Required by § 702(i) of the FISA Amendments Act of 2008

Aug. 5, 2008

Aug. 5, 2008

Pleading / Motion / Brief

08-00001

Government's Preliminary Responses to Certain Questions Posed By the Court

In re: DNI/AG 702(g) Certification

Aug. 26, 2008

Aug. 26, 2008

Pleading / Motion / Brief

08-00001

Order

In re Proceedings Required by § 702(i) of the FISA Amendments Act of 2008

2008 WL 9487946

Aug. 27, 2008

Aug. 27, 2008

Order/Opinion

08-00001

Notice of Clarification and Correction

In re: DNI/AG 702(g) Certification

Sept. 2, 2008

Sept. 2, 2008

Pleading / Motion / Brief

08-00001

Memorandum Opinion

In re: DNI/AG Certification [Redacted]

Sept. 4, 2008

Sept. 4, 2008

Order/Opinion

Resources

Docket

Last updated July 21, 2022, 3:19 a.m.

Docket sheet not available via the Clearinghouse.

Case Details

State / Territory: District of Columbia

Case Type(s):

National Security

Special Collection(s):

Foreign Intelligence Surveillance Act -- All Matters

Foreign Intelligence Surveillance Court

Foreign Intelligence Surveillance Act—Foreign Targeting (702, 703, 704)

Key Dates

Filing Date: 2008

Closing Date: 2008

Case Ongoing: No

Plaintiffs

Plaintiff Description:

ACLU, seeking access to FISA Court proceedings.

Plaintiff Type(s):

Non-profit NON-religious organization

Attorney Organizations:

ACLU National (all projects)

ACLU Affiliates (any)

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

U.S. Department of Justice (Washington, D.C.), Federal

Defendant Type(s):

Jurisdiction-wide

Case Details

Causes of Action:

FISA Title VII targeting order (Sections 702, 703, 704), 50 U.S.C. 1881a, 1881b, 1881c

Availably Documents:

Complaint (any)

Non-settlement Outcome

Outcome

Prevailing Party: Defendant

Nature of Relief:

None

Source of Relief:

None

Issues

General:

Access to lawyers or judicial system

Confidentiality

Courts

Records Disclosure

Terrorism/Post 9-11 issues