Amicus Curiae Brief — Wikimedia Foundation, Petitioner v. National Security Agency/Central Security Service, et al.
Supreme Court briefSep 29, 2022
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No. 22-190
In the
Supreme Court of the United States
WIKIMEDIA FOUNDATION,
Petitioner,
v.
NATIONAL SECURITY AGENCY/
CENTRAL SECURITY SERVICE, et al.,
Respondents.
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Fourth Circuit
BRIEF OF THE BRENNAN CENTER FOR JUSTICE,
CLAUSE 40 FOUNDATION, DUE PROCESS
INSTITUTE, ELECTRONIC FRONTIER FOUNDATION,
ELECTRONIC PRIVACY INFORMATION CENTER,
FREEDOMWORKS FOUNDATION, PROJECT FOR
PRIVACY AND SURVEILLANCE ACCOUNTABILITY,
AND TECHFREEDOM AS
AMICI CURIAE IN SUPPORT OF PETITIONER
CHRIS SWIFT
DAVID M. GOSSETT
Davis Wright Tremaine LLP
Counsel of Record
MEENAKSHI KRISHNAN
1300 SW Fifth Avenue
Suite 2400
Davis Wright Tremaine LLP
Portland, OR 97201
1301 K Street NW
Suite 500 East
ELIZABETH GOITEIN
Washington, DC 20005
Brennan Center for Justice
(202) 973-4200
at NYU School of Law
davidgossett@dwt.com
1140 Connecticut Ave. NW
Suite 1150
Washington, DC 20036
Counsel for Amici Curiae
LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ...................................... ii
INTERESTS OF AMICI CURIAE ..............................1
INTRODUCTION AND SUMMARY OF
ARGUMENT .........................................................3
ARGUMENT ...............................................................6
I.
This Court’s Intervention Is Necessary To
Preserve Civil Litigation Challenges To FISA
Surveillance. .........................................................6
II. FISC Proceedings Do Not Adequately Protect
Against Government Abuses. ...............................8
A. FISC proceedings lack the adversarial
process essential to effective judicial
review. ............................................................9
B. The government has repeatedly provided
the FISC with materially incomplete or
misleading information. ............................... 11
C. The lack of an adversarial process and
the government’s “lack of candor” render
the FISC’s review process unreliable. ......... 18
III. FISA Challenges In Criminal Prosecutions
Also Do Not Adequately Protect Against
Government Abuses. .......................................... 21
CONCLUSION .......................................................... 25
ii
TABLE OF AUTHORITIES
Page(s)
FEDERAL CASES
ACLU v. Clapper,
785 F.3d 787 (2d Cir. 2015) ................................ 20
Alderman v. United States,
394 U.S. 165 (1969)............................................. 10
Clapper v. Amnesty International USA,
568 U.S. 398 (2013)............................................. 22
FBI v. Fazaga,
142 S. Ct. 1051 (2022) ...................................... 4, 8
General Dynamics Corp. v. United
States,
563 U.S. 478 (2011)......................................... 7, 26
Joint Anti-Fascist Refugee Comm. v.
McGrath,
341 U.S. 123 (1951)............................................... 9
Kaley v. United States,
571 U.S. 320 (2014)............................................... 9
Klayman v. Obama,
957 F. Supp. 2d 1 (D.D.C. 2013),
vacated on standing grounds, 800
F.3d 559 (D.C. Cir. 2015).................................... 20
United States v. Al-Jayab,
No. 16-cr-00181 (N.D. Ill. Apr. 8,
2016) .................................................................... 23
United States v. Hasbajrami,
No. 11-cr-00623 (E.D.N.Y. Feb. 24,
2014) .................................................................... 23
iii
United States v. Khan,
No. 12-cr-00659 (D. Or. Apr. 3,
2014) .................................................................... 23
United States v. Mihalik,
No. 11-cr-00833 (C.D. Cal. Apr. 4,
2014) .................................................................... 23
United States v. Moalin,
973 F.3d 977 (9th Cir. 2020) .............................. 20
United States v. Mohammad,
No. 15-cr-00358 (N.D. Ohio Dec. 21,
2015) .................................................................... 23
United States v. Mohamud,
No. 10-cr-00475 (D. Or. Nov. 19,
2013) .................................................................... 23
United States v. Muhtorov,
187 F. Supp. 3d 1240 (D. Colo.
2015), aff’d, 20 F.4th 558 (10th Cir.
2021), pet. for cert. docketed, No. 225188 (U.S. July 26, 2022) ................................... 23
United States v. Osseily,
No. 8:19-cr-00117-JAK-1 (C.D. Cal.
Jan. 28, 2020) ...................................................... 24
United States v. Reynolds,
345 U.S. 1 (1953) ............................................ 7, 26
United States v. U.S. Dist. Court,
407 U.S. 297 (1972)............................................. 25
United States v. Zazi,
No. 09-cr-00663 (E.D.N.Y. July 27,
2015) .................................................................... 23
iv
FISC CASES
[Redacted], No. [Redacted] (FISC [Date
Redacted]),
https://www.documentcloud.org/doc
uments/4780432-EFF-Document2.html .................................................................. 18
[Redacted], No. PR/TT [Redacted] (FISC
[Date Redacted]),
https://www.dni.gov/files/documents
/1118/CLEANEDPRTT%202.pdf........................ 12
[Redacted], No. [Redacted] (FISC Oct. 3,
2011),
https://www.dni.gov/files/documents
/0716/October-2011-Bates-Opinionand%20Order-20140716.pdf......................... 14, 21
[Redacted], No. [Redacted] (FISC Nov.
6, 2015),
https://www.dni.gov/files/documents
/20151106702Mem_Opinion_Order_for_Public
_Release.pdf ........................................................ 14
[Redacted], No. [Redacted] (FISC Apr.
26, 2017),
https://www.dni.gov/files/documents
/icotr/51117/2016_Cert_FISC_Memo
_Opin_Order_Apr_2017.pdf ......................... 14, 18
[Redacted], No. [Redacted] (FISC Oct.
18, 2018),
https://www.intelligence.gov/assets/
documents/702%20Documents/decla
ssified/2018_Cert_FISC_Opin_18Oct
18.pdf................................................................... 15
v
[Redacted], No. [Redacted] (FISC Nov.
18, 2020),
https://www.intel.gov/assets/docume
nts/702%20Documents/declassified/
20/2020_FISC%20Cert%20Opinion_
10.19.2020.pdf ..................................................... 15
In re Accuracy Concerns Regarding FBI
Matters Submitted to the FISC,
No. Misc. 19-02 (FISC Dec. 17,
2019),
https://www.fisc.uscourts.gov/sites/d
efault/files/MIsc%2019%2002%2019
1217.pdf ............................................................... 16
In re Accuracy Concerns Regarding FBI
Matters Submitted to the FISC,
No. Misc. 19-02 (FISC Mar. 4, 2020),
https://www.fisc.uscourts.gov/sites/d
efault/files/Misc%2019%2002%20Op
inion%20and%20Order%20PJ%20J
EB%20200304.pdf............................................... 16
In re Accuracy Concerns Regarding FBI
Matters Submitted to the FISC,
No. Misc. 19-02 (FISC Apr. 3, 2020),
https://www.fisc.uscourts.gov/sites/d
efault/files/Misc%2019%2002%20Or
der%20PJ%20JEB%20200403.pdf ..................... 17
In re Application of the FBI for an Order
Requiring the Production of
Tangible Things from [Redacted],
No. BR 06-05 (FISC May 24, 2006),
https://www.dni.gov/files/documents
/section/pub_May%2024%202006%2
0Order%20from%20FISC.pdf............................. 19
vi
In re Application of the FBI for an Order
Requiring the Production of
Tangible Things from [Redacted],
No. BR 13-109, 2013 WL 5741573
(FISC Aug. 29, 2013) .......................................... 20
In re Proceedings Required by § 702(i) of
FISA Amendments Act, Misc. No.
08-01, 2008 WL 9487946 (FISC Aug.
27, 2008) .............................................................. 21
In re Production of Tangible Things
from [Redacted],
No. BR 08-13 (FISC Dec. 12, 2008),
https://www.dni.gov/files/documents
/section/pub_Dec%2012%202008%20
Supplemental%20Opinions%20from
%20the%20FISC.pdf ........................................... 19
In re Production of Tangible Things
from [Redacted],
No. BR 08-13 (FISC Mar. 2, 2009),
https://www.dni.gov/files/documents
/section/pub_March%202%202009%
20Order%20from%20FISC.pdf................... passim
FEDERAL STATUTES
Foreign Intelligence Surveillance Act,
Pub. L. No. 95-511, 92 Stat. 1783
(1978)........................................................... passim
50 U.S.C. § 1803(i)(2)(A) .................................... 11
50 U.S.C. § 1803(i)(4) ......................................... 11
50 U.S.C. § 1805 ............................................... 5, 9
50 U.S.C. § 1806(c) ............................................. 22
50 U.S.C. § 1806(e) ......................................... 5, 22
vii
50 U.S.C. § 1806(f) ................................................ 8
50 U.S.C. § 1810 ............................................... 4, 7
50 U.S.C. §§ 1821-1829 ...................................... 10
50 U.S.C. §§ 1841-1846 ...................................... 10
50 U.S.C. § 1861 (2012) ...................................... 18
50 U.S.C. §§ 1861-1864 ...................................... 10
50 U.S.C. § 1861(c)(2)(D) .................................... 19
50 U.S.C. § 1881a ............................................. 5, 9
Stored Communications Act,
18 U.S.C. § 2701 et seq. ...................................... 19
18 U.S.C. § 2712 ................................................... 7
USA PATRIOT Act, Pub. L. No. 107-56,
115 Section 215 Stat. 272 (2001).................. 18, 19
RULES
U.S. Sup. Ct. Rule 37.6 ............................................... 1
OTHER AUTHORITIES
166 CONG. REC. S2410-2412 (daily ed.
May 13, 2020) (statement of Sen.
Leahy) ................................................................. 11
Dep’t of Justice, Office of Inspector
General, Audit of the Federal
Bureau of Investigation’s Execution
of Its Woods Procedures for
Applications Filed with the Foreign
Intelligence Surveillance Court
Relating to U.S. Persons (Sept.
2021),
https://oig.justice.gov/sites/default/
files/reports/21-129.pdf ....................................... 17
viii
Dep’t of Justice, Office of Inspector
General, Management Advisory
Memorandum for the Director of the
FBI Regarding the Execution of
Woods Procedures for Applications
Filed with the FISC Relating to U.S.
Persons (Mar. 2020),
https://oig.justice.gov/sites/default/fi
les/reports/a20047.pdf ........................................ 16
Dep’t of Justice, Office of Inspector
General, Review of Four FISA
Applications and Other Aspects of
the FBI’s Crossfire Hurricane
Investigation (Dec. 2019),
https://www.justice.gov/storage/1209
19-examination.pdf ............................................. 15
Barton Gellman et al., In NSAIntercepted Data, Those Not
Targeted Far Outnumber The
Foreigners Who Are, WASH. POST
(July 5, 2014) ...................................................... 25
Human Rights Watch, Dark Side: Secret
Origins of Evidence in US Criminal
Cases (Jan. 9, 2018),
https://www.hrw.org/report/2018/01/
09/dark-side/secret-origins-evidenceus-criminal-cases ................................................ 24
David S. Kris & J. Douglas Wilson, 1
NATIONAL SECURITY INVESTIGATIONS
AND PROSECUTIONS § 30:7 (3d ed.
2019) .................................................................... 24
ix
Walter Mondale, et al., No Longer a
Neutral Magistrate: The Foreign
Intelligence Surveillance Court in
the Wake of the War on Terror, 100
MINN. L. REV. 2251 (2016) ............................ 10, 22
ODNI, Annual Statistical Transparency
Report Regarding the Intelligence
Community’s Use of National
Security Surveillance Authorities
(Calendar Year 2021) (Apr. 2022),
https://www.intelligence.gov/assets/
documents/702%20Documents/statis
tical-transparencyreport/2022_IC_Annual_Statistical_
Transparency_Report_cy2021.pdf...................... 25
Charlie Savage, Door May Open for
Challenge to Secret Wiretaps, N.Y.
TIMES (Oct. 16, 2013) .......................................... 22
1
INTERESTS OF AMICI CURIAE
This brief is submitted jointly by the Brennan
Center for Justice, Clause 40 Foundation, Due Process
Institute, Electronic Frontier Foundation, Electronic
Privacy
Information
Center,
FreedomWorks
Foundation, the Project for Privacy and Surveillance
Accountability, and TechFreedom as amici curiae in
support of Petitioner. 1
The Brennan Center for Justice at NYU School of
Law is a non-partisan public policy and law institute
focused on fundamental issues of democracy and
justice. 2 The Center’s Liberty and National Security
Program uses innovative policy recommendations,
litigation, and public advocacy to advance effective
national security policies that respect the rule of law
and constitutional values. One of the Program’s main
areas of research and advocacy is foreign intelligence
surveillance. Program staff have produced in-depth
research reports on the topic; submitted amicus briefs
in connection with FISA litigation; published op-eds
and blog posts; and testified before the Senate and
House Judiciary Committees regarding FISA on
multiple occasions.
Due Process Institute and its sister organization,
Clause 40 Foundation, are nonprofit, bipartisan,
1 Counsel of record for all parties received notice of amici’s intent
to file this brief at least 10 days before the due date, and all
parties consented to its filing. Pursuant to Rule 37.6, no counsel
for a party authored this brief in whole or in part, and no person
or entity other than amici and their counsel made a monetary
contribution intended to fund the preparation or submission of
this brief.
2 Amicus does not purport to represent the position of the NYU
School of Law.
2
public interest organizations that work to honor,
preserve,
and
promote
the
constitutionally
guaranteed due process rights in the criminal legal
system. This case is of significant concern to these
organizations because of the fundamental importance
of protecting the people against unconstitutional
governmental overreach via the use or abuse of its
foreign intelligence surveillance authorities.
The Electronic Frontier Foundation (EFF) works
to protect civil liberties and preserve privacy rights in
the digital world, supported by more than 38,000
dues-paying members. EFF has litigated issues
involving FISA and the state-secrets privilege. It has
a strong interest in ensuring that civil litigation
challenges to the lawfulness of government
surveillance programs can proceed as Congress
intended. It has an equally strong interest in ensuring
the state-secrets privilege remains within the limits
established by the Court and is not expanded to shield
government abuses and illegal conduct from judicial
scrutiny. EFF has served as counsel in lawsuits with
FISA and state-secrets issues, and has served as
amicus on state-secrets cases in this Court.
The Electronic Privacy Information Center (EPIC)
is a public interest research center in Washington,
D.C., established in 1994 to focus public attention on
emerging privacy and civil liberties issues. EPIC has
fought for public access to records about the
government’s assertion of surveillance authority.
EPIC has also brought challenges to the NSA
telephone record collection program in this Court and
has appeared as amicus in cases concerning the
ability of individuals to challenge national security
surveillance.
3
FreedomWorks Foundation is a nonprofit,
nonpartisan grassroots organization dedicated to
upholding free markets and constitutionally limited
government. Founded in 2004, FreedomWorks
Foundation is among the largest and most active
right-leaning grassroots organizations, amplifying the
voices of millions of activists both online and on the
ground. FreedomWorks Foundation has been actively
involved in education about the threats to due process,
free speech, and dissent posed by warrantless
collection of and access to Americans’ data and
communications by the NSA, and was previously a
plaintiff in a civil suit against the NSA mass metadata
collection.
The Project for Privacy & Surveillance
Accountability (PPSA) is a nonprofit, nonpartisan
organization that focuses on a range of privacy and
surveillance issues, including by helping private
citizens vindicate their rights when the government
violates them in the name of national security.
TechFreedom is a nonprofit, nonpartisan think
tank dedicated to educating policymakers, the media,
and the public about technology policy. TechFreedom
defends the freedoms that make technological
progress both possible and beneficial, including the
civil rights that protect against undue and unjust
government surveillance.
INTRODUCTION AND
SUMMARY OF ARGUMENT
This Court should grant certiorari to ensure that
Petitioner can obtain judicial review through civil
litigation of the significant legal questions posed by
Foreign Intelligence Surveillance Act (FISA)
surveillance. The federal government engages in
4
surveillance on a far greater scale and with far fewer
safeguards than our nation’s founders ever could have
anticipated. Under Section 702 of FISA, the
government searches communications en masse—
including those of Americans—as they flow through
the Internet backbone. Using this technique, known
as “Upstream” surveillance, the government has
intercepted billions of communications without any
court reviewing or approving the individual targets of
the surveillance.
FISA sought to strike a balance by providing for
judicial review of foreign intelligence surveillance
efforts in three primary ways: Foreign Intelligence
Surveillance Court (FISC) proceedings, criminal
prosecutions, and civil litigation. But experience has
shown that the former two mechanisms neither
provide meaningful review nor sufficiently protect
constitutional
rights.
Without
this
Court’s
intervention, the lower court’s improper application of
the state secrets privilege will eviscerate the last
remaining option for judicial review of FISA
surveillance—civil litigation.
1. This Court should grant certiorari to preserve
the civil litigation challenges to FISA surveillance
that Congress has expressly authorized. Plaintiffs
may seek judicial review of FISA surveillance by
bringing a claim for damages under 50 U.S.C. § 1810.
This provision evinces Congress’s intent that civil
litigation serve as a check on FISA abuses. When
combined with this Court’s recent ruling in FBI v.
Fazaga, 142 S. Ct. 1051 (2022), the Fourth Circuit’s
dismissal of a lawsuit based on the state secrets
privilege, even though the plaintiff could prove its
case without privileged evidence, effectively discards
this oversight mechanism. Unless this Court
5
intervenes, the lower court’s decision leaves litigants
with no meaningful judicial recourse to challenge
FISA surveillance because, as discussed in Parts II
and III, FISC proceedings and criminal prosecutions
are not adequate alternatives. See Part I, infra.
2. FISA generally requires FISC authorization
before the government conducts foreign intelligence
surveillance that targets U.S. persons or takes place
inside the United States. 50 U.S.C. § 1805. But this
review is largely non-adversarial and ex parte.
Judicial review of Section 702 surveillance is even
more circumscribed, permitting mass surveillance
without any individualized court review or approval of
the targets of surveillance. 50 U.S.C. § 1881a. And in
both contexts, the government has frequently
submitted inaccurate or misleading information. The
predictable result has been a failure by the FISC to
reliably check unlawful surveillance. See Part II,
infra.
3. Nor are challenges in criminal prosecutions
effective. In theory, defendants may challenge
evidence obtained through FISA surveillance when
the government attempts to use that evidence in a
criminal prosecution. 50 U.S.C. § 1806(e). But in
practice, the government rarely provides notice to
FISA surveillance targets, particularly of Section 702
surveillance. Even when it does, defendants cannot
effectively challenge surveillance because they are
denied access to the relevant underlying materials.
Moreover, the provisions for challenges by criminal
defendants apply only where the government initiates
a criminal prosecution. Where, as is frequently true
with Section 702, the government engages in
surveillance but does not prosecute the targets of that
surveillance, these provisions have no relevance.
6
Therefore, criminal prosecutions similarly fail to offer
meaningful review of FISA surveillance. See Part III,
infra.
*****
Because of the shortcomings in FISC proceedings
and in challenges to FISA evidence in criminal
prosecutions, no court in either context is likely ever
to fully review the government’s Upstream
surveillance program. This renders civil litigation the
sole bulwark against government overreach, not only
with respect to Upstream but likely for FISA activities
more generally. But the Fourth Circuit’s improper
application of the state secrets privilege would
effectively eliminate this protection, too. This Court’s
intervention is therefore necessary to preserve civil
litigation as a viable means to challenge FISA
surveillance.
ARGUMENT
I. This Court’s Intervention Is Necessary To
Preserve Civil Litigation Challenges To FISA
Surveillance.
Congress established three mechanisms for
obtaining judicial review of FISA surveillance: FISC
proceedings, challenges in criminal prosecutions, and
civil litigation. As we discuss below, however, neither
FISC proceedings nor criminal prosecutions have
been effective checks on FISA abuses. Intervention by
this Court is therefore necessary to ensure that civil
litigation remains available to fill the void. Absent
this Court’s review, the government will be able to
rely on the state secrets privilege to circumvent
judicial review of FISA surveillance even in cases in
which the plaintiff seeks to proceed only on the basis
of non-secret evidence. Such an outcome would be
7
inconsistent with congressional intent and the
preservation of constitutional liberties.
FISA’s text expressly authorizes judicial review in
civil cases in traditional federal courts. Congress
provided a cause of action for damages against
individuals responsible for FISA violations. See 50
U.S.C. § 1810. And it waived sovereign immunity for
some FISA violations. See 18 U.S.C. § 2712.
The decision below held that the government may
obtain dismissal of constitutional claims by asserting
that it would need privileged evidence to mount any
hypothetical defense. Pet. App. 5a. As Petitioner
explains, this decision conflicts with this Court’s
precedent in United States v. Reynolds, 345 U.S. 1
(1953), and General Dynamics Corp. v. United States,
563 U.S. 478 (2011), which hold that the privilege is
merely an evidentiary one. As with all other
evidentiary privileges, the rule is that privileged
evidence simply drops out of the case, and the
litigation proceeds without it. Accordingly, as long as
a plaintiff can make out a prima facie case without
resort to privileged evidence—as is the case here—the
privilege provides no ground for dismissal. Pet. 20-24.
If this Court does not intervene, an invocation of
the state secrets privilege may now be used to
mandate automatic dismissals in virtually every case
involving FISA surveillance. FISA surveillance
applications are always classified and will thus
automatically trigger a claim of state secrets privilege.
Much of the information relating to programmatic
surveillance under Section 702 is similarly classified.
And it is reasonable to expect that the government
will assert a need for this information in defending
against claims of unlawful FISA surveillance. The
state secrets privilege, as interpreted and applied by
8
the Fourth Circuit, would thus stymie civil litigation
over FISA abuses.
This result is especially likely in light of this
Court’s ruling in Fazaga that Section 1806(f) does not
displace the state secrets privilege. 142 S. Ct. at 1060.
Section 1806(f) applies in cases involving electronic
surveillance. It requires courts, when presented with
a government assertion that the disclosure of
information through litigation would harm national
security, to examine the surveillance materials in
camera and ex parte and rule on the lawfulness of
surveillance. Under Fazaga, the government may
bypass this set of procedures by invoking the state
secrets privilege. As a practical matter, this means
that the legal review contemplated by Section 1806(f)
is unlikely to take place in civil litigation.
In light of Fazaga, it is all the more important that
the state secrets privilege not be construed to close the
door to civil lawsuits where plaintiffs can prove their
case with non-privileged evidence. Especially given
the well-documented limitations of FISC proceedings
and challenges to FISA surveillance in criminal
prosecutions discussed below, the lower court’s
erroneous conception of the state secrets privilege
would undermine the accountability needed to
safeguard Americans’ liberty and privacy and leave
individuals with little protection against unlawful
surveillance. This Court’s intervention is the only
means of preventing that outcome.
II. FISC Proceedings Do Not Adequately Protect
Against Government Abuses.
The Fourth Circuit’s decision is particularly
problematic given the demonstrated ineffectiveness of
9
other means to enforce constitutional limits on FISA
surveillance.
The
government
generally
must
obtain
authorization from the FISC before conducting
foreign intelligence surveillance of U.S. persons or
inside the United States, 50 U.S.C. § 1805, and must
obtain FISC approval to conduct programmatic
surveillance under Section 702, including Upstream.
50 U.S.C. § 1881a. But FISC oversight has proven
insufficient to protect against government overreach.
It “takes little imagination” to appreciate the risks
presented by ex parte proceedings. Kaley v. United
States, 571 U.S. 320, 355 (2014) (Roberts, C.J.,
dissenting). “[C]ommon sense” dictates that “decisions
based on only one side of the story will prove
inaccurate more often than those made after hearing
from both sides.” Id. The risks of ex parte
proceedings—one-sided, inaccurate factual presentations and distorted legal outcomes—have materialized, time and time again, in FISC proceedings.
A. FISC proceedings lack the adversarial
process essential to effective judicial
review.
An open, adversarial process is a bedrock of the
American judicial system. “[F]airness can rarely be
obtained by secret, one-sided determination of facts
decisive of rights.” Joint Anti-Fascist Refugee Comm.
v. McGrath, 341 U.S. 123, 170 (1951) (Frankfurter, J.,
concurring). While adversarial proceedings do not
“magically eliminate all error,” informed advocacy on
both sides of a case “substantially reduce[s] its
incidence.” Alderman v. United States, 394 U.S. 165,
184 (1969). Proceedings before the FISC, however, are
ex parte and lack the hallmarks of our adversarial
system. And the provisions Congress enacted in 2015
10
for the use of amici were far from sufficient to solve
the problems inherent in non-adversarial processes.
Initially, the FISC considered government
applications
to
conduct
domestic
electronic
surveillance of specific individuals for foreign
intelligence purposes—a process designed to mirror
the issuance of warrants and wiretaps in traditional
criminal proceedings, which are conducted ex parte.
See generally Foreign Intelligence Surveillance Act,
Pub. L. No. 95-511, 92 Stat. 1783 (1978).
But, as amendments to FISA expanded the
statute, so too did the types of matters the FISC was
required to consider ex parte. FISA was amended to
encompass a growing body of surveillance techniques,
like physical searches, 50 U.S.C. §§ 1821-1829; pen
registers/trap and traces, 50 U.S.C. §§ 1841-1846; and
the compelled disclosure of certain business records,
50 U.S.C. §§ 1861-1864. For decades, these types of
applications, too, were considered ex parte by the
FISC.
Beginning in 2004, the FISC’s role began to
change even more fundamentally. For the first time,
the government sought FISC review and approval of
increasingly complex programmatic surveillance
activities. These activities presented sophisticated
technical questions, along with complex and novel
questions of federal statutory and constitutional law;
at times, they encompassed mass surveillance of the
communications of millions of Americans. Walter
Mondale, et al., No Longer a Neutral Magistrate: The
Foreign Intelligence Surveillance Court in the Wake of
the War on Terror, 100 MINN. L. REV. 2251, 2270-72
(2016). This, too, was all done ex parte.
11
In 2008, Congress enacted Section 702, a law
permitting surveillance of foreign targets overseas
without any individualized court approval despite the
certainty that such surveillance would sweep in the
communications of large numbers of Americans.
Congress charged the FISC with annually approving
the general Section 702 surveillance procedures. This
task requires in-depth statutory and constitutional
analysis and an accurate understanding of highly
complex surveillance practices—again without the
benefit of adversarial proceedings.
FISA amendments in 2015 did establish a
presumption that FISC judges should appoint amici
in cases that present “a novel or significant
interpretation of the law.” 50 U.S.C. § 1803(i)(2)(A).
But this amicus provision still does not guarantee an
adversarial process. Among other problems, the FISC
may decline to appoint amici if it determines that such
appointment is “not appropriate,” id.; and even when
appointed, amici are not required to oppose the
government’s positions, and therefore do not serve as
a proxy for an opposing party. See 50 U.S.C. §
1803(i)(4); see also 166 CONG. REC. S2410-2412 (daily
ed. May 13, 2020) (statement of Sen. Leahy)
(describing proposed amendments to FISA amicus
provision).
B. The government has repeatedly provided
the FISC with materially incomplete or
misleading information.
The FISC’s ex parte consideration of increasingly
complex surveillance techniques potentially affecting
millions of Americans coincided with another
troubling development: increasing evidence that the
government was presenting false or misleading
information to the FISC.
12
This problem has afflicted all aspects of FISA
surveillance. The government has publicly disclosed,
for example, that since 2004, it has sought FISC
approval for at least three types of programmatic,
mass surveillance—domestic internet metadata,
domestic phone records, and, under Section 702,
international communications. At various points, the
government provided incomplete or misleading
information to the FISC about each of these programs,
leading the court to authorize surveillance based on
incorrect or incomplete understandings of the
programs’ operation. Often, the misrepresentations
effectively concealed the government’s failure to
comply with the law or with court-imposed rules.
The first of these programs—mass surveillance of
domestic internet metadata—was marked by a
“history of material misstatements” about the
program and repeated “non-compliance” with FISC
orders. [Redacted], No. PR/TT [Redacted], at 72 (FISC
[Date Redacted]). 3 For years, the government
“exceeded the scope of authorized acquisition
continuously,” without the court’s knowledge. Id. at 23. These were no mere technical violations:
“[V]irtually every” record generated by the metadata
program “included some data that had not been
authorized for collection.” Id. at 21.
The government also engaged in “systematic
noncompliance” with FISC-mandated procedures
while conducting its program of mass surveillance of
domestic phone records. In re Production of Tangible
Things from [Redacted], No. BR 08-13, at 10 (FISC
3 Available at https://www.dni.gov/files/documents/1118/CLEAN
EDPRTT%202.pdf.
13
Mar. 2, 2009). 4 The government “compounded its noncompliance” by “repeatedly submitting inaccurate
descriptions” of the program’s operation, id. at 6,
leading the FISC to authorize surveillance “premised
on a flawed depiction” of the program. Id. at 10-11
(noting the FISC’s “misperception” was “buttressed by
repeated inaccurate statements made in the
government’s submissions”). Ultimately, the FISC
lost all confidence that “the government [was] doing
its utmost to ensure that those responsible for
implementation [of the program] fully compl[ied] with
the Court’s orders.” Id. at 12. Again, the errors that
were withheld from the court were not minor: The
FISC observed that the court-approved rules
governing the program “have been so frequently and
systemically violated that it can fairly be said that
this critical element of the overall [phone records]
regime has never functioned effectively.” Id. at 11.
In addition, the government repeatedly provided
materially incomplete or misleading information to
the FISC about its Section 702 surveillance—
including Upstream. In 2011, the court learned,
through a belated disclosure by the government, that
“the volume and nature of the information [the
government was] collecting” through Upstream was
“fundamentally different from what the Court had
been led to believe.” [Redacted], No. [Redacted], at 28
(FISC Oct. 3, 2011). 5 This disclosure “fundamentally
alter[ed] the Court’s understanding of the scope of the
collection,” id. at 15, and it marked “the third instance
in less than three years in which the government
4 Available at https://www.dni.gov/files/documents/section/pub_
March%202%202009%20Order%20from%20FISC.pdf.
Available at https://www.dni.gov/files/documents/0716/Oct
ober-2011-Bates-Opinion-and%20Order-20140716.pdf.
5
14
ha[d] disclosed a substantial misrepresentation
regarding the scope of a major collection program.” Id.
at 16 n.14.
Four years later, the government disclosed
another significant compliance incident under Section
702 involving the failure to purge improperly collected
communications. The FISC wrote: “Perhaps more
disturbing and disappointing than the NSA’s failure
to purge this information for more than four years,
was the government’s failure to convey to the Court
explicitly during that time that the NSA was
continuing to retain this information.” [Redacted], No.
[Redacted] at 58 (FISC Nov. 6, 2015). 6 Another FISC
opinion describes violations of the FISC’s orders that
occurred “with much greater frequency” than the
government had previously disclosed, suggesting a
“widespread” problem with Section 702 surveillance.
[Redacted], No. [Redacted] at 19 (FISC Apr. 26,
2017). 7 Yet another FISC opinion described
“documented misunderstandings” of relevant FISCimposed standards that led to “broad and apparently
suspicionless” queries of communications obtained
through Section 702 and lengthy government “delays
in reporting” violations to the FISC. [Redacted], No.
[Redacted] at 76-77, 82 (FISC Oct. 18, 2018). 8 And in
2021, the government released a FISC opinion
involving Section 702 in which the court recounted a
“particularly concerning” “system failure” that
Available at https://www.dni.gov/files/documents/20151106702Mem_Opinion_Order_for_Public_Release.pdf.
6
Available at https://www.dni.gov/files/documents/icotr/51117/
2016_Cert_FISC_Memo_Opin_Order_Apr_2017.pdf.
7
Available at https://www.intelligence.gov/assets/documents/
702%20Documents/declassified/2018_Cert_FISC_Opin_18Oct
18.pdf.
8
15
resulted in noncompliance with a court-imposed
documentation requirement, which went “undetected
or unreported for nearly a year.” FISC [Redacted], No.
[Redacted] at 50-51 (FISC Nov. 18, 2020). 9
The government’s misrepresentations to the FISC
are not limited to the operation of its mass
surveillance programs; all types of proceedings before
the FISC appear to be infected with inaccuracies and
errors. In December 2019, a report from the
Department of Justice Inspector General reviewed
four FISA applications submitted as part of the FBI’s
investigation into alleged Russian interference in the
2016 presidential election. See Dep’t of Justice, Office
of Inspector General, Review of Four FISA
Applications and Other Aspects of the FBI's Crossfire
Hurricane Investigation (Dec. 2019). 10 The report
identified 17 separate problems with the FBI’s
applications to the FISC, representing “serious
performance failures by the supervisory and nonsupervisory agents with responsibility over the FISA
applications.” Id. at viii-xiii. These errors “raised
significant questions regarding the FBI chain of
command’s management and supervision of the FISA
process.” Id. at xiv.
The IG’s report led the FISC to question the
reliability of FBI information in other FISA
applications. See In re Accuracy Concerns Regarding
FBI Matters Submitted to the FISC, No. Misc. 19-02,
9Available at https://www.intel.gov/assets/documents/702%20Do
cuments/declassified/20/2020_FISC%20Cert%20Opinion_10.19.
2020.pdf.
10 Available at https://www.justice.gov/storage/120919-examina
tion.pdf.
16
at 2-3 (FISC Dec. 17, 2019). 11 The FISC noted that the
“frequency with which representations made by FBI
personnel turned out to be unsupported or
contradicted by information in their possession, and
with which they withheld information detrimental to
their case, calls into question whether information
contained in other FBI applications is reliable.” Id. at
3; see also In re Accuracy Concerns Regarding FBI
Matters Submitted to the FISC, No. Misc. 19-02, at 1
(FISC Mar. 4, 2020). 12
The IG thus expanded his inquiry, reviewing “a
judgmentally selected sample of 29 [FISA]
applications relating to U.S. Persons and involving
both counterintelligence and counterterrorism
investigations” to assess the FBI’s compliance with
the “Woods Procedures”—the FBI’s procedures to
ensure the accuracy of facts submitted in FISC
surveillance applications. See Dep’t of Justice, Office
of Inspector General, Management Advisory
Memorandum for the Director of the FBI Regarding
the Execution of Woods Procedures for Applications
Filed with the FISC Relating to U.S. Persons, at 2
(Mar. 2020). 13 The IG’s initial report concluded that
25 of the 29 applications contained “apparent errors
or inadequately supported facts.” Id. at 3. For four
FISA applications, the FBI could not locate the files
containing the requisite documentation. Id. at 2-3.
And for three of those four missing files, the FBI “did
Available at https://www.fisc.uscourts.gov/sites/default/files/
MIsc%2019%2002%20191217.pdf.
11
Available at https://www.fisc.uscourts.gov/sites/default/files/
Misc%2019%2002%20Opinion%20and%20Order%20PJ%20JEB
%20200304.pdf.
12
Available at https://oig.justice.gov/sites/default/files/reports/
a20047.pdf.
13
17
not know if [the requisite documentation] ever
existed.” Id. at 3. The IG’s report provided the FISC,
yet again, with “further reason for systemic concern.”
In re Accuracy Concerns Regarding FBI Matters
Submitted to the FISC, No. Misc. 19-02, at 2-3 (FISC
Apr. 3, 2020). 14
Following a closer look at the 29 FISA
applications, the IG issued a final report in September
2021. See Dep’t of Justice, Office of Inspector General,
Audit of the Federal Bureau of Investigation’s
Execution of Its Woods Procedures for Applications
Filed with the Foreign Intelligence Surveillance Court
Relating to U.S. Persons (Sept. 2021). 15 It revealed
“over 400 instances of non-compliance with the Woods
Procedures.” Id. at 7. The IG also reviewed the results
of an FBI inventory of Woods files for approximately
7,000 FISA applications for the period 2015-2020. The
Woods files were incomplete or non-existent in 183
cases. Id. at 8.
Unsurprisingly, the FISC has described the
government’s interactions with the court as being
marked by an “institutional ‘lack of candor.’”
[Redacted], No. [Redacted], at 19 (FISC Apr. 26,
2017). 16 Indeed, the FISC has observed that the
government “has exhibited a chronic tendency” to
provide inaccurate, incomplete, or materially
misleading information to the FISC in its filings.
Available at https://www.fisc.uscourts.gov/sites/default/files/
Misc%2019%2002%20Order%20PJ%20JEB%20200403.pdf.
14
15Available
21-129.pdf.
at https://oig.justice.gov/sites/default/files/reports/
16 Available at https://www.dni.gov/files/documents/icotr/51117/
2016_Cert_FISC_Memo_Opin_Order_Apr_2017.pdf.
18
[Redacted], No. [Redacted], at 13-14 (FISC [Date
Redacted]). 17
C. The lack of an adversarial process and the
government’s “lack of candor” render the
FISC’s review process unreliable.
As discussed, FISC proceedings generally involve
only one party, and that party exhibits “a chronic
tendency” to provide misleading information.
It should come as no surprise that this process does
not consistently yield fair and reliable outcomes.
The FISC’s consideration of the NSA’s program of
mass surveillance of domestic call records illustrates
the problem. That program—under which the NSA
collected billions of records about Americans’ phone
calls—ostensibly operated under Section 215 of the
USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272
(2001), which amended FISA’s business records
provision. 18 Section 215 authorized ex parte
applications to the FISC to compel the production of
specific “tangible things,” such as business records or
documents, if the government could show they were
relevant to an authorized counterterrorism, counterespionage, or foreign intelligence investigation.
Even though this statutory authority was
explicitly no broader than a grand jury or similar
subpoena authority, 50 U.S.C. § 1861(c)(2)(D), the
government interpreted it to allow the compelled
disclosure of billions of records of calls made to and
from Americans.
Available at https://www.documentcloud.org/documents/
4780432-EFF-Document-2.html.
17
18 50 U.S.C. § 1861 (2012). Section 215 expired in 2020 when
Congress failed to pass reauthorizing legislation.
19
The FISC’s initial order authorizing the mass
collection of Americans’ call records under Section
215—an order unprecedented in the history of
American surveillance—was a brief and largely
perfunctory recitation of the statutory requirements
for issuance of an order. In re Application of the FBI
for an Order Requiring the Production of Tangible
Things from [Redacted], No. BR 06-05 (FISC May 24,
2006). 19 At the time, the government failed to bring to
the court’s attention another statute, the Stored
Communications Act, 18 U.S.C. § 2701, et seq. (SCA),
specifically governing the disclosure of call records
from telecommunications providers. Although the
SCA was plainly necessary to the FISC’s
consideration of the program from the outset, the
FISC did not consider that statute until nearly two
years after the program began. See In re Production of
Tangible Things from [Redacted], No. BR 08-13 (FISC
Dec. 12, 2008). 20
In fact, the FISC did not fully review the
program’s constitutional or statutory basis in a
written opinion until 2013—seven years after the
FISC’s first authorization of the program. In re
Application of the FBI for an Order Requiring the
Production of Tangible Things from [Redacted], No.
BR 13-109, 2013 WL 5741573 (FISC Aug. 29, 2013).
Not coincidentally, this review occurred shortly after
the secrecy of the program was pierced by Edward
Snowden’s disclosures. And, although this post hoc ex
parte review upheld the NSA program, id., two years
19 Available at https://www.dni.gov/files/documents/section/pub_
May%2024%202006%20Order%20from%20FISC.pdf.
20 Available at https://www.dni.gov/files/documents/section/pub_
Dec%2012%202008%20Supplemental%20Opinions%20from%20
the%20FISC.pdf.
20
later—after public, adversarial testing of the
substantive legal basis for the phone records
program—two different federal courts concluded that
the program was illegal. See ACLU v. Clapper, 785
F.3d 787 (2d Cir. 2015); Klayman v. Obama, 957 F.
Supp. 2d 1 (D.D.C. 2013), vacated on standing
grounds, 800 F.3d 559 (D.C. Cir. 2015). A third federal
court reached the same conclusion in 2020. United
States v. Moalin, 973 F.3d 977 (9th Cir. 2020).
Lacking an adversarial process to air all of the
legal arguments against the program and to force the
FISC to grapple with those arguments, the FISC
allowed the government to collect billions of call
records under a mass surveillance program of at best
dubious legality—and one whose actual operation
often differed significantly from the government’s
portrayals.
The same conditions that led to a flawed outcome
in that instance—secret, one-sided proceedings combined with an “institutional lack of candor” on the part
of the government—are all the more pronounced in
the FISC’s review of Section 702. Even compared with
other FISA provisions, the FISC’s review of Section
702 is more “narrowly circumscribed.” In re
Proceedings Required by § 702(i) of FISA Amendments
Act, Misc. No. 08-01, 2008 WL 9487946, at *2 (FISC
Aug. 27, 2008).
Indeed, there is no better illustration of the limits
of the FISC’s review than Upstream surveillance.
Upstream comprises a relatively small percentage of
the surveillance the government conducts under
Section 702, [Redacted], No. [Redacted], at 29-30
21
(FISC Oct. 3, 2011), 21 but it poses particularly acute
constitutional concerns in light of its dragnet
scanning of communications traversing the Internet
backbone. And yet, despite annually reviewing and
approving Section 702 surveillance for more than a
decade, the FISC has never addressed the
constitutional challenges to Upstream surveillance
that Petitioner raises here.
III. FISA Challenges In Criminal Prosecutions
Also Do Not Adequately Protect Against
Government Abuses.
Nor have criminal prosecutions proven to be an
adequate substitute for the type of civil litigation that
Petitioner sought to bring here. In criminal
prosecutions, initial ex parte warrant proceedings are
tolerated because later safeguards exist: Once the
government brings charges, searches can be
challenged; facts can be contested; affiants can be
impeached. But adversarial testing of FISA
surveillance in criminal proceedings has proven a poor
mechanism for challenging unlawful surveillance.
One serious impediment to such challenges is the
government’s avoidance of FISA’s requirement that
notice be provided when the government intends to
use evidence “obtained or derived from” FISA
surveillance against an “aggrieved person.” 50 U.S.C.
§ 1806(c). This requirement permits the aggrieved
person to then move to suppress evidence obtained
through unauthorized surveillance. Id. § 1806(e).
Notice that Section 702 surveillance will be used
in a criminal prosecution is exceedingly rare. In the
21Available at https://www.dni.gov/files/documents/0716/October
-2011-Bates-Opinion-and%20Order-20140716.pdf.
22
first five years the government conducted Section 702
surveillance, it provided notice to zero defendants—
even as the government intercepted billions of
communications during that same period. This
stemmed from the government’s adoption of an
unjustifiably narrow interpretation of its FISA
disclosure obligations, and the resulting practice—
known as “parallel construction”—of masking
evidentiary trails that would have required notice to
criminal defendants and allowed FISA surveillance to
be challenged. See Mondale, No Longer a Neutral
Magistrate, 100 MINN. L. REV. at 2283. 22
Eventually, the government notified a handful of
defendants whose prosecutions involved evidence
derived from Section 702 surveillance—often
belatedly and sometimes even after sentencing. See
United States v. Muhtorov, 187 F. Supp. 3d 1240, 1242
(D. Colo. 2015) (“[B]elated notice in this case was part
of the Snowden fallout and the revelation, postClapper, that the Executive Branch does, in fact, use
FAA-acquired information to investigate U.S. persons
for suspected criminal activity[.]”), aff’d, 20 F.4th 558
22 In Clapper v. Amnesty International USA, 568 U.S. 398 (2013),
the government assured the Court that “aggrieved persons”
subject to FISA surveillance would receive notice. See Br. for
Petitioner, Amnesty Int’l, 2012 WL 3090949, at *8; Tr. of Oral
Argument at 4-5, available at http://www.supremecourt.gov/
oral_arguments/argument_transcripts/2012/11-1025.pdf. Those
representations were false. Instead, DOJ had adopted a practice
“of not disclosing links” to Section 702 surveillance in criminal
cases—a practice the Solicitor General later determined had “no
legal basis.” Charlie Savage, Door May Open for Challenge to
Secret Wiretaps, N.Y. TIMES (Oct. 16, 2013). It was only after
Snowden’s revelations that the major discrepancy between the
government’s practice in Section 702 cases and what it told the
Supreme Court was discovered. Id.
23
(10th Cir. 2021), pet. for cert. docketed, No. 22-5188
(U.S. July 26, 2022). 23 But to date—and despite
conducting Upstream surveillance for well over a
decade—the government has never provided notice to
a criminal defendant that information specifically
obtained or derived from Upstream was used in their
prosecution.
Notice to criminal defendants has been more
common in cases where the government used evidence
derived from surveillance under Title I of FISA (under
which the government may obtain individualized
FISC orders to target U.S. persons). But here, too,
there are questions about whether the government is
at times engaging in parallel construction to avoid its
notification obligation. 24 In United States v. Osseily,
No. 8:19-cr-00117-JAK-1 (C.D. Cal.), for instance, the
defendant received no notice of FISA surveillance, and
23 In total, amici are aware of fewer than ten prosecutions where
notice of Section 702 surveillance has been provided. See United
States v. Mohamud, No. 10-cr-00475 (D. Or. Nov. 19, 2013) (ECF
486); United States v. Hasbajrami, No. 11-cr-00623 (E.D.N.Y.
Feb. 24, 2014) (ECF 65); United States v. Khan, No. 12-cr-00659
(D. Or. Apr. 3, 2014) (ECF 59); United States v. Mihalik, No. 11cr-00833 (C.D. Cal. Apr. 4, 2014) (ECF 145); United States v.
Zazi, No. 09-cr-00663 (E.D.N.Y. July 27, 2015) (ECF 59); United
States v. Al-Jayab, No. 16-cr-00181 (N.D. Ill. Apr. 8, 2016) (ECF
14); United States v. Mohammad, No. 15-cr-00358 (N.D. Ohio
Dec. 21, 2015) (Dkt. Nos. 27-30).
See Human Rights Watch, Dark Side: Secret Origins of
Evidence in US Criminal Cases (Jan. 9, 2018), available at
https://www.hrw.org/report/2018/01/09/dark-side/secret-originsevidence-us-criminal-cases.
24
24
learned that he had been subject to such surveillance
only through discovery. 25
Even when notice of FISA surveillance is given,
defendants are still precluded from meaningfully
challenging the surveillance used against them.
Critically, the government refuses to provide
defendants with necessary information about the
surveillance, including FISC applications and orders.
Indeed, in FISA’s 44-year history, no criminal
defendant has ever been allowed to review the FISA
materials used to authorize their surveillance. See
David S. Kris & J. Douglas Wilson, 1 NATIONAL
SECURITY INVESTIGATIONS AND PROSECUTIONS § 30:7
(3d ed. 2019). This lack of access renders challenges
an exercise in futility.
Finally, even if every defendant subject to FISA
surveillance received notice and had full access to the
necessary materials, this would provide no remedy to
the far larger number of individuals who are
surveilled but never prosecuted. See United States v.
U.S. Dist. Court, 407 U.S. 297, 318 (1972) (“postsurveillance review would never reach the
surveillances which failed to result in prosecutions”).
In 2021, the government provided notice of its intent
to use FISA evidence in only five criminal
proceedings. ODNI, Annual Statistical Transparency
Report Regarding the Intelligence Community’s Use of
National Security Surveillance Authorities (Calendar
See Br. of Amici Curiae ACLU and ACLU of Southern
California in Support of Defendant’s Motion for Disclosure of
FISA-Related Material, United States v. Osseily, No. 8:19-cr00117-JAK-1 (C.D. Cal. Jan. 28, 2020) (ECF 78).
25
25
Year 2021) at 31 (Apr. 2022). 26 During that same year,
the government “targeted” 232,432 individuals under
Section 702. ODNI (2021) at 17. Of course, the number
of untargeted individuals swept up in that
surveillance, which would include anyone who
communicates with a target, is greater still. See
Barton Gellman et al., In NSA-Intercepted Data,
Those Not Targeted Far Outnumber The Foreigners
Who Are, WASH. POST (July 5, 2014).
Thus, challenges to FISA surveillance—and
particularly Section 702 surveillance—in criminal
cases are both vanishingly rare and ineffective. The
limitations of criminal prosecution challenges to FISA
surveillance further underscore the need for this
Court’s intervention to preserve civil litigants’ ability
to seek judicial review of that surveillance.
CONCLUSION
The avenues for judicial review of FISA
surveillance that exist outside of civil litigation—
FISC proceedings and suppression efforts in criminal
prosecutions—do not function as reliable checks on
the government. Access to the courts through civil
litigation is thus a vital safeguard for the vindication
of constitutional rights implicated by foreign
intelligence surveillance.
To preserve this safeguard, it is critical that the
Court grant certiorari in this case. Only this Court can
settle the questions now before it: first, whether the
state secrets privilege articulated in Reynolds and
General Dynamics authorizes courts to dismiss
actions where plaintiffs can prove their case without
Available at https://www.intelligence.gov/assets/documents/
702%20Documents/statistical-transparency-report/2022_IC_An
nual_Statistical_Transparency_Report_cy2021.pdf.
26
26
reliance on privileged evidence; and second, if the
privilege does so authorize courts, whether a court
may do so without first determining ex parte and in
camera whether the privileged evidence establishes a
valid defense. In our view, the lower court’s conception
of the state secrets privilege is fundamentally
incorrect. Unless this Court rights the ship, there will
soon be few, if any, effective means of checking
unconstitutional abuses of the government’s foreign
intelligence surveillance authorities.
Respectfully submitted.
CHRIS SWIFT
Davis Wright Tremaine
LLP
1300 SW Fifth Avenue
Suite 2400
Portland, OR 97201
ELIZABETH GOITEIN
Brennan Center for
Justice at NYU
School of Law
1140 Connecticut Ave. NW
Suite 1150
Washington, DC 20036
DAVID M. GOSSETT
Counsel of Record
MEENAKSHI KRISHNAN
Davis Wright Tremaine
LLP
1301 K Street NW
Suite 500 East
Washington, DC 20005
(202) 973-4200
davidgossett@dwt.com
Counsel for Amici Curiae
SEPTEMBER 2022
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.