Case: In re Various Known and Unknown Agents of [Redacted]

Redacted | Foreign Intelligence Surveillance Court

Filed Date: 2007

Closed Date: 2007

Clearinghouse coding complete

Case Summary

Following 9/11, the Bush administration undertook the "Terrorist Surveillance Program," which included warrantless wiretapping of foreign communications arguably covered by Foreign Intelligence Surveillance Act (FISA) Title I's requirement of a probable-cause warrant for wiretaps of certain electronic communications. The program was described in the New York Times in December 2005; in response, in 2006, the decision was made to seek FISA Court approval of the surveillance. In January 2007, FI…

Following 9/11, the Bush administration undertook the "Terrorist Surveillance Program," which included warrantless wiretapping of foreign communications arguably covered by Foreign Intelligence Surveillance Act (FISA) Title I's requirement of a probable-cause warrant for wiretaps of certain electronic communications. The program was described in the New York Times in December 2005; in response, in 2006, the decision was made to seek FISA Court approval of the surveillance.

In January 2007, FISA Court judge Malcolm Howard had accepted the government's argument that it was authorized to surveil not just a particular phone number or email address but the "gateway or cable head foreign targets used for communications," because terrorists were probably among the millions of people whose communications used that gateway. That matter, NS-DC-0050 in this Clearinghouse, is discussed here.

On reapplication, the matter was heard by a different FISA Court judge, Judge Roger Vinson. Judge Vinson disagreed with the January ruling, and refused to reauthorize the surveillance unless the government made significant changes to its procedures. Specifically, the judge ruled that the procedural shift to probable cause determinations being made by the Attorney General and the Director of National Intelligence, rather than by the court, was in violation of FISA. According to a 2007 interview of National Intelligence Director Mike McConnell, Judge Vinson said "if it's on a wire and it's foreign in a foreign country, you have to have a warrant."

Rather than flatly denying the government's request for reauthorization, the Judge took into account the difficulty of deciding between terminating all of the previously authorized surveillance and making individual determinations of which surveillance could continue in compliance with FISA , and allowed the government to continue the surveillance until May 31, 2007. If the government had not come forward with procedures acceptable under FISA by that time, he said, the authorization would be denied permanently. Unwilling to comply with Judge Vinson's reading of the requirements of FISA, the government instead pushed for legislative change, and in August 2007 the Protect America Act (PAA) legalized the surveillance in question.

The FISA Court authorized the first surveillance under the PAA in a subsequent application,

Summary Authors

Edward Mroczkowski (3/29/2015)

People


Judge(s)

Howard, Malcolm Jones (North Carolina)

Vinson, Roger (District of Columbia)

Attorneys(s) for Plaintiff

Olsen, Matthew G. (District of Columbia)

Reno, Janet (District of Columbia)

Expert/Monitor/Master

Wainstein, Kenneth L. (District of Columbia)

Judge(s)

Howard, Malcolm Jones (North Carolina)

Vinson, Roger (District of Columbia)

Attorneys(s) for Plaintiff

Olsen, Matthew G. (District of Columbia)

Reno, Janet (District of Columbia)

Expert/Monitor/Master

Wainstein, Kenneth L. (District of Columbia)

Documents in the Clearinghouse

Document

CIA Minimization Procedures for Information from FISA Electronic Surveillance Conducted by NSA

Dec. 13, 2006

Dec. 13, 2006

Pleading / Motion / Brief

Standard Minimization Procedures for Electronic Surveillance Conducted by the National Security Agency (NSA)

Dec. 13, 2006

Dec. 13, 2006

Pleading / Motion / Brief

Order and Memorandum Opinion

April 3, 2007

April 3, 2007

Order/Opinion

Order

April 5, 2007

April 5, 2007

Order/Opinion

[Redacted]

Memorandum to Judge Vinson

April 20, 2007

April 20, 2007

Pleading / Motion / Brief

[Redacted]

Motion to Amend and supporting Memorandum of Law

July 27, 2007

July 27, 2007

Pleading / Motion / Brief

[Redacted]

Memorandum of Law in Support of Application for Authority to Conduct Electronic Surveillance of [Redacted]

May 24, 2015

May 24, 2015

Pleading / Motion / Brief

Resources

Docket

Last updated May 29, 2022, 3:21 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: 2007

Closing Date: 2007

Case Ongoing: No

Plaintiffs

Plaintiff Description:

U.S. Government

Plaintiff Type(s):

U.S. Dept of Justice plaintiff

Public Interest Lawyer: No

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Case Details

Causes of Action:

FISA Title I Warrant (Electronic Surveillance), 50 U.S.C. §§ 1801-1812

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

Availably Documents:

None of the above

Outcome

Prevailing Party: None Yet / None

Source of Relief:

Litigation

None

Order Duration: 2007 - 2007

Content of Injunction:

Monitoring

Reporting

Warrant/order for search or seizure

Issues

General:

Record-keeping

Records Disclosure

Search policies

Terrorism/Post 9-11 issues