00789-meminsupport2

8/14/2019 00789-meminsupport2

1/34

123456789

101I1213141516171819202122232425262728

II . (U) THE L~ITED STATES HAS PROPERLY ASSERTED THE STATESECRETS PRIVILEGE IN THIS CASE.(U) The United States has properly asserted the state secrets privilege in this case. The

Director of National Intelligence, J. Michael M cCorm ell, who bears statutory authority as headof the United States Intelligence Com m unity to protect intelligence sources and m ethods, see 50U.S.C. 40 3-1(i)(1),~4 has formally asserted the state secrets privilege after personalconsideration of the matter. See Reynolds, 345 U.S. at 7-8. DN I McC onnell has subm itted anunclassified teclaration and an in cam era, exparte classified declaration, both of w hich statethat the disclosure of the intelligence information, sources, and m ethods described therein w ouldcause exceptionally grave harm to the national security of the United States. See Public and InC a m e r a Declarations of J. M ichael McC onnell, Director of National Intelligence. Based on thisassertion of privilege by the head of the United States Intelligence Com m unity, theGovernm ents claim of privilege has been properly lodged.

(U) As set forth in the following section, the inform ation at issue in the Governm entsprivilege assertion is central to the resolution of this case and the harm s to national security thatwould result from its disclosure require dismissal of the action.I II . (U) INFO RMATIO N S UBJECT T O T H E ST ATE SE CRET S PRIVIL E G E ISNECESSARY TO ADJUDICATE PLAINTIFFS CLAIMS AND, THUS, THISACTION CANNOT PROCEED.

(U) A s noted abo ve, once the state secrets privilege is asserted, the Cou rt must evaluatethe consequen ces of that assertion on the case. Here, state secrets are "so central to the subjectm atter of the litigation that any attempt to proceed will threaten disclosure of the privilegedmatters." Fitzgerald, 776 F.2d at 1241 -42. Indeed, Plaintiffs cannot prov e their standing o rclaim s, and D efendants cannot present a full defense, without the privileged inform ation. S e e

~4 (U) See 5 0 U.S.C. 4 0 1a(4) (including the National Security Agency in the United States"Intelligence Com m tmity").Public Memorandum of the United Statesin Support of Motion to Dismiss or for Summ aryJudgment, MDL No. 06-1791-VRW -25-

Case M:06-cv-01791-VRW Document 254 Filed 04/20/2007 Page 1 of 34


2/34

123456789

101t1213141516171819202t22232425262728

Kasza, t33 F.3d at 11 66. Specifically, adjudicating each of Plaintiffs claims wou ld necessarilyrequire: (1) confirming or deny ing the existence of a NSA -Verizon relationship with respect tothe particular alleged activities; (2) confirming or denying that the named Plaintiffs have beensubject to any alleged activities; (3) proving that the content surveillance program authorized bythe President after 9/11 was not a dragnet of domestic communications as alleged; (4)confirming or den ying the existence of the alleged com m unications records activities; and (5 )disclosing the nature and scope of an y such alleged activities, including the precise nature of theactivities, how they w ere conducted, why they were condu cted, when they were conducted andfor how long, and the intelligence value of the activities. Because such information cannot bedisclosed without causing exceptionally grave dam age to the national security, every step in thiscase--either for Plaintiffs to prove their claim s, for Defen dants to defend them , or for the UnitedStates to represent its interests--runs into privileged information.

A. (U) Whether or Not M CI/Verizon Has a Relationship with the NSA is aState Secret Necessary to Decide This Case.(U) The first and m ost obvious m atter at issue is whether MC I and V erizon have assisted

the NSA in any alleged intelligence activities at issue. A confirmation or denial of the allegedrelationship, how ever, is precluded by long-standing authority, not only under the state secrets~rivilege, but under the Totten doctrine as well. These are closely related but distinct groundsi~r dismissing P laintiffs claims.

1. (U) The Torten Doctrine Requ ires Dismissal of this Action to ProtectW hether or Not MCI/Verizon Has a Relationship with the NSA.(U) In the first instance, this case squarely falls w ithin the Totten/Tenet rule of dismissal.

In Totten v. United States, the Suprem e Cou rt held that public policy forbade a self-styled CivilW ar spy from suing the United States to enforce an alleged secret espionage agreem ent. Inrejecting the claim o f the alleged spys estate that the United States had refused to pay him undera contract he allegedly entered into with President Lincoln to spy on Confederate militaryPublic Memorandum of the United Statesin Support of Motion to Dismiss or for Summ aryJudgment, MDL No. 06-1791-VRW -26-



3/34

123456789

1011t213141516171819202122232425262728

operations, the Supreme Court held that "It]he service stipulated by the contract was a secretservice; the information sought w as to be obtained clandestinely, and w as to be com m unicated~rivately; the employm ent and the service were to be equally concealed." Tot ten, 92 U.S. at 107.Fhe Court added:

Both em pIoyer and agent m ust have understood that the lips of the other were tobe forever sealed respecting the relation of either to the matter. This condition ofthe engagement w as implied from the nature of the employm ent, and is implied inall secret employments of the Government in time of war, or upon mattersaffecting our foreign relations, where a disclosure of the service mightcompromise or embarrass our Government in its public duties, or endanger theperson or injure the character of the agen t.Id. For this reason, the Court held that "public policy forbids the maintenance of any suit in acourt of justice, the trial of wh ich wou ld inevitably lead to the disclosure of m atters which thelaw itself regards as confidential, and respecting w hich it will not allow the confidence to beviolated." Id.

(U) This precise principle was reaffirm ed by the S uprem e Cou rt in Tenet v . Doe. InTenet, alleged former spies sued the United States and the Director of the Central IntelligenceAgency (CIA) claiming that the Governm ent had failed to provide the assistance it had prom isedin return for their espionage service s. See 5 44 U .S. at 3-5 . The Supreme C ourt held that theCou rt of Appeals was "quite wrong" in holding that Totten was limited to a m ere "contract rule"prohibiting breach-of-contract claims seeking to enforce the terms o f espionage agreemen ts butnot barring other claims based on due process or estoppel theories. Id. at 9. Instead, the Courtreiterated that "public policy forbids the maintenance of any suit.., which would inevitablylead to the d isclosure of [confidential] matters." Id. (quoting Totten, 92 U.S. at 107) (emphasisadded). The C ourt thus held that "Totten precludes judicial review in cases such as responde ntswhere success depends upon the existence of their secret espionage relationship with theGovernment." Id.

(U) Indeed, the Tenet Court w ent on to note that the Tot ten rule was not merely an "earlyPublic Memorandum of the United Statesin Support of Motion to Dismiss or for SummaryJudgment, MDL No. 06-1791-VRW -27-



4/34

123456789

10111213141516t71819202122232425262728

expression" of the state secrets evidentiary privilege under Reynolds, but a "categorical bar" to;uch claim s. Specifically distinguishing the privilege, the Co urt held that Reynolds "in no waydgnaled our retreat from Tottens broader holding that lawsuits premised on alleged espionageagreements are altogether forbidden." Id.~5 Noting that "[e]ven a small chance that some courtwill order disclosure of a sources identity could w ell impair intelligence gathering and causesources to close up like a clam," Tenet , 544 U.S. at 11 (quoting CIA v. Sim s, 471 U.S. 159, 1(1985 )), the C ourt concluded that the "possibility that a suit may proceed and an espionagerelationship m ay be revealed, if the state secrets privilege is found n ot to apply, is unaccep table."Id

(U) In this case, the sum and sub stance of Plaintiffs allegations are that MC I andVerizon have "a secret espionage relationship w ith the G overnm ent." Tot ten , 92 U.S. at 107. Anadjudication of Plaintiffs claims w ould necessarily require either confirming or den ying theexistence of that relationship. A ccordingly, dismissal of this action is requ ired by theTorten/Tenet categorical bar to litigation that threatens to disclose alleged covert relationships.Th e Hepting decision recognizes that a case such as this "involves an alleged covertrelationship" betw een the G overnment and telecomm unications carrier, but the C ourtnevertheless held that Torten and Tenet pose no bar for tw o reasons. First the Cou rt held thatTorten is lim ited to claims seeking to enforce an espionag e relationships. Second, the Cou rtfound that AT &T and the Go vernm ent had already effectively adm itted the relationship. Neitherconclusion should apply here.

~s (U) The Tenet Court observed that Reynolds itself refutes this very suggestion b ecauseReynolds cites Totten as a case "where the very subject matter of the action, a contract toperform espionage, w as a m atter of state secret," and declares that such a case w as to be"dismissed on the pleadings w ithout ever reaching the question of evidence, since it was soobv ious that the action sho uld never prev ail over the privilege." Reynolds, 345 UoS. at 11(emphasis added).Public Memorandum of the United Statesin Support of Motion to Dismiss or for Summary-Judgment, MDL No. 06-1791-VRW -28-



5/34

123456789

lO111213141516171819202t22232425262728

(U) As to the scope of Tot ten, the C ourt held that "[t]he implicit notion in Tot ten was oneof equitable estoppel: one w ho agrees to con duct coveI~ operations imp liedly agrees not to revealthe agreement even if the agreem ent is breached." Hepting, 439 F. Supp . 2d at 991. In theCo urts view, because "AT &T , the alleged spy, is not the plaintiffhere," plaintiffs have "m adeno agreement w ith the government and are not bound by any im plied covenant of secrecy." Id.W ith respect, the Co urt misread Torten and Tenet, neither of which turned on an "im plicit"equitable estoppel theory. Rather, the Supreme Court explained explicitly in Tenet that Tortensrule "wa s not so lim ited," see Tenet, 5 44 U.S. at 9 (emphasis added), and that any suit that wouldinevitably lead to the disclosure of confidential information m ust be dism issed, see id. (emphasisadded). Of cou rse, disclosure of a classified relationship wou ld cause the sam e harm to nationalsecurity whether or not the plaintiffwas a party to the alleged relationship. Because Plaintiffsaction here hinges on the existence of an asserted secret espionage relationship between M CIand/or Verizon and the NSA , Torten and Tenet are directly applicable.

(U) Weinberger v. Catholic Act ion ofH m ,,ai i /Peace Ed uc. Project , 454 U.S. 139(1981)--cited by the Supreme C ourt in Tenet , 5 44 U.S. at 9---confirms the error in limitingTenet and Torten to an "implicit" equitable estoppel theory. In Weinberger, the Supreme Courtinvoked Totten in dismissing a challenge under the N ational Environmental Protection A ct("NEP A"), where the determ ination of whether the Nav y comp lied with NEP A w as held to bebeyond judicial scrutiny because, "du e to national security reasons" the Navy could not adm it ordeny the central fact at issue in that suit as to whether it proposed to store nu clear weapon s at afacility. See 45 4 U .S. at 147. Thus, the Supreme Court in }Veinberger applied the Totten rulecom pletely outside the context of an asserted espionage agreem ent, and precluded a lawsuit bysomeo ne w ith no alleged contractual relationship with the Governm ent. fVeinberger., -underscores that Totten is not a rule of equitable estoppel.

(U) Th e Fourth C ircuits recent ruling in El-Masri is also instructive. There, as in thisPublic Memorandum of the United Statesin Support of Motion to Dismiss or for SummaryJudgment, MDL No. 06-1791-VRW - 2 9 ~



6/34

123456789

101112t31415t6171819202122232425262728

case, the plaintiff, who was not a party to an alleged espionage relationship, sued corporate andindividual defendants, alleging their participation in secret and unlawful Government activity.The Fou rth Circuit affirmed dism issal of the case on state secrets ground s, explaining that, forthe litigation to proceed, plaintiff "would have to demonstrate the existence and details of[Government] espionage contracts, an endeavor practically indistinguishable from thatcategorically barred by Totten and Tenet." El-M asri , __ F.3d at __ , 200 7 WL 625 t30 a t *9.

(U) B eyond this, the Courts conclusion in Hepting that "unlike the clandestine spyarrangements in Tenet and T ot ten, AT &T and the governm ent have for all practical purposesalready disclosed that AT& T assists the government in m onitoring com m unication content," isalso flawed for several reasons. Hepting, 439 F. Supp. 2d at 991. First, the Governm ents mereacknowledgment of a program (the TSP) not even challenged in Hepting (or here) surely cannotbe read as an acknow ledgment of any other program, nor can it be read as an acknowledgm ent ofAT& T or V erizons participation in any program . Nor does the simple fact of AT& Ts size orpublicly-stated willingness to assist generally with law en forcem ent m atters provide any basis toconclude that AT& T assisted the N SA with any specific foreign intelligence program. Tottenand Tenet are clear that the subject of a classified espionag e relationship is categorically barredfrom litigation, and thus the very process u ndertaken by the C ourt of sifting through p ublicstatements to determine u,bettTer the case could proceed under Totten itself conflicted w ith thatthe rule established in that case.

(U) Fu rtherm ore, any pu blic statements b y the private party purportedly involved in thealleged relationship (AT& T in Hepting and V erizon here) are plainly irrelevant under Totten andTenet. Indeed, unlike here, the plaintiffs in both o f those cases w ould have.knou,n ab out theirconnection to the alleged espionage relationship. Nonetheless, the Suprem e Cou rt held that suchrelationships are no t perm issible topics of litigation. Where su its concerning alleged espionagerelationships are categorically barred even wh ere a party to that alleged relationship---an actualPublic Memorand um of the United Statesin Support of Motion to Dismiss or for Summ aryJudgment, MDL No. 06-1791-VRW -30-



7/34

123456789

10111213141516171819202122232425262728

wimess to the alleged m atter--seeks to disclose its existence, it cannot be the case that partieswith no actual knowledge can force disclosure of w hether such a relationship existed. Under theCou rts reasoning, if AT&T or Verizon sued the Governm ent alleging that they had assisted inclassified NS A activities and seeking to enforce a governm ent contract with respect to suchactivities, the matter wou ld have to be dism issed to protect national security, whereas a partywith no loTowledge of that alleged relationship cou ld sue to fo rce its very disclosure. Thatoutcome is inconsistent with the pul~ose of the Torten/Tenet doctrine: to avoid disclosinginformation that pub lic policy requires be maintained as con fidential due to national securityreasons, including impairing the nations intelligence activities. See Tenet, 5 44 U.S. at 9.

2. (U) The State Secrets Privilege Also Req uires Dismissal of this Action toProtect Wh ether or Not MCI/Verizon Assisted the NSA in the AllegedActivities.(U) Ev en if the categorical bar to suit under the Tenet/Totten doctrine did not apply here,

the state secrets privilege provides a distinct and independ ent ground for dism issing Plaintiffsclaims against the Verizon Defendants. The question presented by the state secrets privilege iswhether facts confirming or denying Verizons alleged assistance to the N SA with respect to thealleged activities are necessary to decide the case but wo uld cause harm to national security ifdisclosed. If that is so, the case cannot proceed. Here, of course, it cannot be disputed thatdisclosure of whether or not Verizon assisted the NSA is essential to proceeding. Indeed, it is akey element of every one of Plaintiffs claims. The G overnment has n ot confirmed or deniedwhether Verizon assisted with any of the alleged activities, and no grounds exist for finding thatsuch inform ation may b e disclosed in this case in the face of the harm s to national securityidentified by the DNI and N SA D irector.

(U ) Alleged Content Surveillance Dra gnet: W ith respect to the surveillance of thecontent of communications, the Governments acknowledgment of the existence of the TerroristSurveillance Program revealed nothing about whether particular telecommunication companiesPublic Memorandum of the United Statesin Support of Motion to Dismiss or for SummaryJudgment, M D L N o , 0 6 - 1 7 9 1 - V R W -3 l-



8/34

123456789

10!t1213141516171819202122232425262728

such as V erizon assisted w ith that program. The Co urts analysis on this point in Hepting--thatthe NSA could not conduct the alleged activities without the assistance of the privatesector--was based on the judicially noticed fact that AT &T is a large company . See 439 F. Supp.2d at 991-92. Bu t no pub lic facts provide any basis to conclude that only large firms, and no tsm all ones, would have the resources or expertise to furnish any needed assistance (if, indeed,:here was any su ch assistance), or that the Governm ent could not accom plish the alleged;urveillance on its own. Sim ilarly, the fact that AT& T has a h istory of providing som eassistance to the Government, including on general law enforcement matters or someunspecified classified contracts, see id., does not mean that the Government requested AT&Tassistance, or that AT&T provided assistance, with respect to the NSA surveillance activitiesalleged in Hept ing . Indeed, even considering AT&Ts general statements.concerning itscooperation w ith the U nited States on u nspecified projects, no relationship betw een A T&T andthe NS A in co nnection w ith any of the activities alleged in Hepting has ever been confirmed ordenied, and the pub lic record provides no basis for inferring wh ether such a relationship exists.The C ourt was thus able to state only that "AT &T is assisting the governmen t to imp lementsome kind of surveil lance progrmn," and "AT &T an d the government have some kind ofintelligence relationship," see id. at 994 (emphasis added). Particularly where the Plaintiffs inHepting, as here, are not even challenging the content surveillance program that wasacknow ledged by the President--the TSP--these conclusions w ere insufficient to override thejudgm ent of the Director of N ational Intelligence on a m atter of national security as to the harmthat would resu lt from confirm ing or denying an intelligence relationship w ith respect to specificallegations.

(U) The same is true in this case. Whether or not Verizon m ay have assisted theGovernment with classified or law enforcement matters in general says nothing about whether ithas assisted the NSA in connection with the activities alleged in these cases. Similarly, thePubLic Memorandum of the United Statesin Support of Motion to Dismiss or for Summ aryJudgment, MDL No. 06-1791-VRW -32-



9/34

123456789

10111213141516171819202122232425262728

relative size of V erizon does n ot by itself indicate assistance as to a particular activity such asthe TSP, especially where information about the operation of that activity has not beendisclosed.

(U) The harms to national security at stake in confirming or denying an allegedintelligence relationship are indeed significant. Revealing whether or not Verizon assists theNS A w ith specific intelligence activities, for exam ple, wou ld replace speculation with certaintyfor hostile foreign adversaries who are balancing the risk that a particular channel ofcommunication may not be secure against the need to communicate efficiently. PublicM cCon nell Decl. 13. The C ourt itself recognized this concern with respect to the allegedcommunications records activities, when it observed in Hepting that "[a] terrorist who operateswith full information is able to communicate more securely and more efficiently that a terroristwh o operates in an atm osphere of uncertainty." See id at 990. The D NI has set forth a morethan reasonable basis to conclude that harm to national security would result from the disclosureof w hether or not the NSA has w orked w ith Verizon in connection w ith the alleged activities,and the Cou rt has correctly observed that it is not in a position to second gu ess the DN Isjudgm ent regarding a terrorists risk preferences--a judgment w hich m ight depend on an arrayof facts not before the Co urt. See Hepting, 439 F. Supp. 2d at 990 , 997.

(IJ) W eighed against these considerations is the mere allegation, based on conjecture andm edia reports, that Verizon m ust be assisting the NS A w ith certain alleged intelligence activitieswithout judicial supervision. See, e.g., M aster Verizon Com plaint 142-62. Such unconfirmespeculation cannot outw eigh the DN Is assertion of privilege and the harms he has identified.The C ourt has already rejected reliance on information in m edia reports to undercut a statesecrets privilege assertion. See Hepting, 439 F. Supp. 2d at 989-90. Indeed, reliance on suchreports wou ld improperly place national security decisions in the hands of reporters whosesources often specu late as to governrnent activity and w hose reporting in any event w ill notPublic Memorand um of the United Statesin Support of Motion to Dismiss or for SummaryJudgment, MDL No. 06-1791-VRW -33-



10/34

t23456789

10111213141516171819202122232425262728

always be presumed accurate or reliable by the pub lic. It wou ld also require the United States toofficially confirm or d eny such reporting when the government has not previously done so. Th atoutcom e wo uld largely eviscerate the state secrets privilege and is con trary to cases that affirmthe Governm ents right to protect national security information if the Governm ent has notofficially disclosed the precise information to the public. Even when alleged facts have been the"subject of widespread m edia and pu blic speculation" based on "[u]nofficial leaks and p ublicsurmise," those alleged facts are not actually established in the public domain. Afshar v.Department of State, 702 F.2d 1125, 113 0-3 1 (D.C. Cir. 1983); see also Fi tzgerald, 776 F.2d at1242-43 (affirming dismissal because subject was state secret despite published article on thematter); Edm onds v. FBI, 272 F. Supp. 2d at 49 (because statements in the press were m ade byanonymous sources, even documents containing identical information may properly be withheldbecause "release would amount to official confirmation or acknowledgment of their accuracy").

(U) In a case directly on point, the Co urt in Terkel expressly held that the Govenm aenthad not confirmed or denied inyolvement by A T&T in the alleged comm unication recordsprogram and that it would "u ndermine the im portant public policy und erlying the state secretsprivilege if the governments hand could be forced by u nconfirmed allegations in the press or b yanonymous leakers w hose disclosures have not b een confirmed." Terkel v . AT& T, 441 F. Supp.2d at 9t3-14 (holding that media reports of alleged N SA programs "am ount to nothing morethan unconfirmed speculation").

(133 Similarly, public statem ents by V erizon itself, se e Master Verizon Compl. 160 -61, are irrelevant to the state secrets privilege inquiry. As the Suprem e Cou rt hasadm onished, the state secrets privilege "belongs to the Governm ent" and cannot be "w aived by a3rivate party." Reynolds, 345 U.S. at 7; see Kasza, 133 F.3d at 1165 . Thus, in inquiringhether a relationship had been confirmed or d enied, the Court in Hepting should have limiteditsetfto authoritative Gov einment statements and should not have looked to statem ents by otherPublic Memorandum of the United Statesin Support of Motion to Dismiss or fur SummaryJudgment, MDL No. 06-1791-VRW -34-



11/34

123456789

10111213141516171819202122232425262728

~ersons or entities. As the courts have recognized, "disclosure of information by government~fficials can be prejudicial to government interests, even if the information has already beendivulged from non-governm ent sources." Bar eford v. General Dynam ics Corp. , 973 F.2d at1144 (Sth Cir. 1992)]6

(U) Alleged Communication Records Collection: W ith respect to the alleged collectionof com mun ication records information, the C ourt in Hepting agreed that the authorizedExecutive Branch officials have not confirmed this activity, let alone a telecomm unicationcarriers assistance in the matter. See Hepting, 443 0 F . Supp. 2d at 997. And although the Courterred in our view by declining to dismiss this claim in Hepting because o f the possibility that theGovernment or telecommunication carriers "might disclose, either deliberately or accidentally,other pertinent information abo ut the comm unication records program as this litigation9roceeds," and that "such disclosures might make this programs existence or non-existence noonger a secret," id. at 997-98, nothing warrants proceeding with these allegations in this case.As the C ourt noted:

Revealing that a comm unications records program exists m ight encourage thatterrorist to switch to less efficient but less detectable forms of com mu nication.And revealing that such a program does not exist m ight encourage a terrorist touse [a providers] services when h e wou ld not have done so otherwise.

Hepting, 439 F. Sup p. 2d at 997; acc ord Terkel v . AT&T , 441 F. Supp. 2d at 915 (requiringtelecomm unications carrier to adm it or deny existence of G overnment request to assist onalleged communications records program would disclose significant information that had notbeen revealed by other public information). Even a sm all m argin of error m ay m ake thedifference in protecting national security. Under these circum stances, and in light of the highly

(U) Any effort to use this litigation to ascertain the meaning of Verizons statementswould plainly require discovery and confirmation of whether and to what extent MCI orVerizon assisted the Government and whether and to what extent the alleged activities evenexisted--that is, it would require new and addit ional facts that are subject to the state secretsprivilege assertion.Public Mem orandum of the United Statesin Support of Motion to Dismiss or for SummaryJudgment, MDL No, 06-1791-VRW -35-



12/34

123456789

1011I2131415161718192O2122232425262728

deferential standard of review under the state secrets privilege, for the Court to conclude basedon limited public facts that the Executive Branch must confirm or deny alleged intelligencesources or methods, where such disclosures may pose grave or even unforeseeableconsequences, would be misguided and inappropriate.

[REDACTED TEXT]

(U) Because confirm ing or denying the alleged relationship between the NS A and theVerizon D efendants could reasonably b e expected to cause the harms to national securitydescribed by the DN I and N SA Director, and because adjudicating Plaintiffs claim s w illnecessarily require confirming or denying such a relationship, the case must be dism issed.Dism issal is required regardless of whether the m atter is considered to be the "very subjectm atter" of the case, or because facts concerning the alleged relationship wou ld be needed forPlaintiffs to make aprimafacie case or for a d efense to be presented. The issue rem ains thesame: facts concerning Verizons alleged relationship w ith the N SA m ust be placed intoevidence for this case to proceed, and doing so w ould plainly harm the national security interestsof the United States.

B. (U) Whether or Not Plaintiffs Have Standing C annot b e Established orRefuted W ithout the Disclosure of State Secrets and Harm to NationalSecurity.(U) Aside from w hether MC I or Verizon had any involvement in the alleged NSA

activities, the equally fundamental issue of Plaintiffs standing cannot be adjudicated withoutstate secrets. As is well lcnow n, the C onstitution "lim its the jurisdiction of federal cou rts toCases and C ontroversies," and "the core compo nent of standing is an essential andunchang ing part ofth[is] case-or-controversy requiremen t." Lujan v. Defenders of glildlife, 504Public Memorand um of the United Statesin Support of Motion to Dismiss or for Summ aryJudgment, MDL No, 06-1791-VRW -362



13/34

t23456789

10111213141516171819202122232425262728

U.S. 5 5 5 ,55 9-60 (1992). Plaintiffs, of course, bear the burden of establishing standing andm ust, at an "irreducible constitutional m inimum ," dem onstrate (1) an injury-in-fact, (2) a causalconnection between the injury and the conduct com plained of, and (3) a likelihood that the injurywill be redressed by a favo rable decision. Id. In m eeting that burden, the nam ed Plaintiffs mustdem onstrate an actual or imm inent--not speculative or hy pothetical--injury that is~articularized as to them; they cannot rely on alleged injuries to unnamed members of a)urported class]7 M oreover, to obtain prospective relief, Plaintiffs must show that they are"imm ediately in danger of su staining som e direct injury" as the result of the challenged conduct.City of Los Angeles v. Lyons, 461 U.S. 95, 10 2 (1983); O Shea v. Littleton, 414 U.S. 488,495 -96 (1974).t8

(U) A plaintiff mu st demon strate Article III standing for "each claim he seeks to press,"Daim lerCtvysler Corp . v. Cuno, 126 S. Ct. 185 4, 1867 (200 6), and m ust further establish"prudential" standing by showing that "the constitutional or statutory provision on wh ich [each]claim rests properly can be u nderstood as granting persons in the plaintiffs position a right toudicial relief." Warth, 422 U .S. at 499-5 0 0 . To do so, a plaintiff normally "must assert his

~7 (U) See, e.g., Wa rth v. Seldin, 422 U.S. 490 , 50 2 (1975) (the named plaintiffs in an action"mu st allege and show that they personally have been injured, not that injury has been su fferedby other, unidentified mem bers of the class to which they belong and w hich they purport torepresent").~8 ~ ) Standing requiremen ts demand the "strictest adherence" when, like here, constitutionalquestions are presented and "m atters of g reat national significance are at stake." Elk GroveUnified Sch. Dist. v. Newdow, 542 U .S. 1, 11 (2004); see also Raines v. Byrd, 521 U.S. 811,819-20 (1997) ("[O]ur standing inquiry has been especially rigorous when reaching the meritsof the dispute wou ld force us to decide whether an action taken by one o f the other twobranches of the Federal G overnm ent was u nconstitutional."); Schlesinger v. Reservists Com m .to Stop the War, 418 U.S. 208,221 (1974) ("[W]hen a court is asked to undertake constitutionaladjudication, the most important and delicate of its responsibilities, the requirement of concreteinjury further serves the function of insuring that such ad judication does not take placeunnecessarily.").Public Memorand um of the United Statesin Support of Motion to Dismiss or for SummaryJudgment, MD L No. 06-1791-VRW -37-



14/34

123456789

10111213141516171819202122232425262728

ow n legal rights and interests, and cannot rest his claim to relief on the legal rights or interests ofthird parties." Sm elt v. County of Ora nge, 447 F.3d 673,682 (9th Cir. 20 0 6) (quoting Phill ipsPetroleum Co. v. Shutts, 472 U .S. 797, 804 (1985 )). To advance a statutory claim, a plaintiffmust show that his particular injury "fall[s] within the zone of interests to be protected orregulated by the statute" in question. Id. at 683.

(U) H ere, the state secrets privilege prevents Plaintiffs from establishing, and D efendantsfrom refu ting, any injury because it bars proof of whether Plaintiffs have been sub ject to thealleged surveillance activities.~9 As d iscussed, the Governm ents privilege assertion covers,inter alia, any inform ation (1) tending to confirm or deny w hether the Plaintiffs were subject toany of the alleged intelligence activities at issue, (2) tending to confirm or deny w hether Verizonis involved w ith particular alleged intelligence activities, and (3 ) concerning the allegedactivities, including p rogram facts demon strating that the TSP was lim ited to one-end foreign alQaeda com m unications and was not the dragnet that Plaintiffs allege, and facts that wou ldconfirm or den y the existence of the alleged com m unications records activities. See PublicM cCon nell Decl. t6. W ithout these facts--the disclosure of which w ould harm nationalsecurity for reasons explained by the DN I and N SA Director--Plaintiffs cannot establish anyalleged injury that is fairly traceable to V erizon.

(U) It is important to emphasize the procedural posture of the Govermnents pendingmotions as they pertain to this standing issue. Whether the Plaintiffs can establish their standing~9 (U ) The focu s herein is on Plaintiffs inability to prove standing because it is their burden todemonstrate jurisdiction. See Lujan, 5 0 4 U.S. at 561. D ismissal of this action, howev er, is alsorequired for the equally im portant reason that the MC I and V erizon Defendants and the Un itedStates as intervenor wou ld not be ab le to present any evidence disproving standing on any claimwithout revealing inform ation covered by the state secrets privilege assertion (e.g., whether ornot a particular persons com m unications were intercepted). See Ha lkJn I, 5 98 F.2d at 11(rejecting plaintiffs argument that the acquisition of a plaintiffs communications may bepresumed from the existence of a nam e on a w atchlist, because "such a presum ption would beunfair to the individual defendants who w ould have no w ay to rebut it").Public Memorandum of the United Statesin Support of Motion to Dismiss or for SummaryJudgment, MDL N o. 06-1791-VRW ~ 3 8 -



15/34

123456789

10111213141516171819202122232425262728

is not merely a question to be decided on the pleadings. Regardless of w hether Plaintiffsadequately allege injury to get past the pleading stage, the United States, through its motion forsurnm ary judgm ent, has specifically put at issue whether the nam ed Plaintiffs will be able tosustain their burden of proving a concrete, personal injury as afactztal ma tter in light of the statesecrets privilege assertion.- Given the Governm ents sum mary judgm ent motion, the Plaintiffscannot rest on gen eral allegations in their complaints, but m ust be able to set forth specific factsby affidavit or evidence that wo uld suppo rt their standing to obtain the relief sough t. See Lewisv. Casey, 51 8 U.S. 343,358 (1996) (quoting Lujan, 50 4 U.S. at 561). The issue raised by theGovernm ents motion is whether that will be possible w here the DN I has properly assertedprivilege over facts tending to confirm or deny the application of alleged intelligence activities toparticular individuals, including the named Plaintiffs in this case. Because the DNI has set forthreasonable grounds to protect such information, the facts needed to establish or refute thePlaintiffs standing cannot be disclosed and the case thus camaot proceed. This is not an issuethat can be deferred. If Plaintiffs claims of injury cannot be proven without disclosing statesecrets and harm ing national security--and w e subm it they cannot--then judgm ent must beentered in favor of the D efendants now.

(U) In Hepting, the Un ited States argued, as it has here, that the plaintiffs wo uld beunable to establish standing ab sent state secrets. In addressing that issue, the Cou rt referred toits prior conclusion that "the state secrets privilege will not prevent plaintiffs from receiving at

~_0 (U) The C ourt can dismiss this case on the pleadings under the Totten/Tenet rule and the"very subject matter" prong of the state secrets privilege. The Governm ents summ aryjudgm ent motion is m ade in the alternative because, if the Co urt declines to dism iss on thosegrounds, the q uestions of w hether the state secrets privilege precludes Plaintiffs from provingtheir standing or m aking aprimafacie case, or Defendants from presenting a d efense, are m oreproperly considered as s,umm ary judgm ent questions. See Zuckerbrazm , 935 F.2d at 547.Indeed, the Government s sum mary judgm ent motion places the burden on P laintiffs to provetheir standing and to mak e out aprimafacie case without state secrets, which they canno t do.Public Mem orandum of the United Statesin Support of Motion to Dismiss or for SummaryJudgment, MD L No. 06-1791-VRW -39-



16/34

123456789

10111213141516171819202122232425262728

least some evidence tending to establish the factual predicate of the injury-in-fact u nderlyingtheir claims directed at A T&T s alleged involvement in the m onitoring of com mu nicationcontent." 439 F. Supp. 2d at 10 0 1. W ith respect, the Courts conclusion in Hepting as to theimpact of the state secrets privilege on the plaintiffs standing was in error. By focusing solelyon the issue of A T& Ts alleged involvement, the C ourt disregarded the critical factual issuerelated to standing: whether the individualplaintiffs had in fact been subjected to the allegedintelligence activities. That issue exists apart from w hether AT &T had any involvemen t in thealleged activities, because if the plaintiffs were not injured, they could no t establish theirstanding regardless of w hether AT& T assisted the NS A with content surveillance.

1. (U) Plaintiffs Cannot E stablish Standing Bec ause Th e StateSecrets Privilege Forecloses Litigation Over W hether TheyHave Been Su bject To Surv eillance.(U) The issue of whether Plaintiffs can file a lawsuit alleging unlawful foreign

intelligence surveillance and then seek , in the first instance, to discover w hether they haveactually been sub ject to such surveillance is not a new one. Cou rts have consistently refused torecognize standing to challenge a Governm ent surveillance program wh ere the state secretsprivilege prevents a plaintiff from establishing, and the G overnment from refuting, that he w asactually subject to su rveillance.

(U) In H alk in I, for exam ple, a num ber of individuals and organizations claim ed that theywere subject to unlawful surveillance by the NSA and CIA (among other agencies) due to theiropposition to the Vietnam W ar. See 5 98 F.2d at 3. The D .C. Circuit upheld an assertion of thestate secrets privilege regarding the identities of individuals su bject to N SA surveillance,rejecting the plaintiffs argument that the privilege could not extend to the "mere fact ofinterception," id. at 8, and despite significant public disclosures ab out the su rveillance activities

Public Memorand um of the United Statesin Support of Motion to Dismiss or for Summ aryJudgment, MDL No. 06-1791-VRW -40-



17/34

123456789

10111213141516171819202122232425262728

a t i s s u e , id . a t 1 0 . 2 ~(U) A sim ilar state secrets assertion with respect to the identities of individuals subject to

CIA surveillance was upheld in H alkin II. See 690 F.2d at 991. There, as here, the plaintiffsclaimed that alleged NSA surveillance of their communications violated the Fourth Amendment.Plaintiffs relied on the claim that their names were included on "watchlists" used to govern NS Asurveillance, arguing that this fact demonstrated a "substantial threat" that their comm unicationswould be intercepted. See id. at 983-84, 997. T he D .C. Circuit nevertheless affirmed dismissal)f the Fourth Amendm ent claim, "hold[ing] that appellants inability to adduce proof of actualtcquisition of their communications" rendered them "incapable of making the showingnecessary to establish their standing to seek relief." Id . at 998. As here, plaintiffs "alleged, butultimately cannot show , a concrete injury" in light of the Governm ents invocation of the statesecrets privilege. Id . at 999.22 The court thus found dismissal warranted, even though thecomplaint alleged actual interception o f plaintiffs com mu nications, because the plaintiffsalleged injuries could be no m ore than speculative in the absence of their ability to prove thatsuch interception occurred.~ Id . at 999, 10 01 ; see also Ellsberg, 709 F.2d 51 (also holding that

2~ (U ) As the cou rt of appeals recognized, the "identification of the individuals or organizationswhose com mu nications have or have not been acquired presents a reasonable danger that statesecrets w ould b e revealed... [and] can be useful inform ation to a sophisticated intelligenceanalyst." H alk in I, 5 98 F.2d at 9.~-- (U) See H alkJn II, 690 F.2d at 990 ("Without access to the facts about the identities ofparticular plaintiffs who were su bjected to CIA surveillance (or to N SA interception at theinstance of the CIA), direct injury in fact to any of the plaintiffs would not have beensusceptible of proof."); id. at 987 ("Without access to docum ents identifying either the subjectsof... surveillance or the typ es of surveillance u sed against pa rticular plaintiffs, the likelihoodof establishing injury in fact, causation by the defendants, violations of sub ,,stantiveconstitutional provisions, or the qu antum of dam ages w as clearly m inimal. ).23 (U) B ecause the CIA conceded that nine plaintiffs were sub jected to certain types ofnon-NS A surveillance, the D.C. Circuit held that those plaintiffs had dem onstrated anPublic Memorand um of the United Statesin Support of Motion to Dismiss or for Summ aryJudgment, MDL No. 06-1791-VRW -41-



18/34

123456789

10111213141516171819202122232425262728

dismissal w as w arranted where a plaintiff could not, absent recourse to state secrets, establishthat he was actually subject to surveillance).

(U) In addition to foreclosing Plaintiffs ability to prove standing for their constitutionalclaims as in Halkin, the state secrets privilege wo uld preclude P laintiffs from establishingstanding as to their statutory claims. For exam ple, FISA authorizes only an "aggrieved person"to bring a civil action challenging the acquisition of com m unications contents. 50 U.S.C. 1 80 1 (f), 1810 . To ensure that this term w ould be "coextensive [with], but no broader than,those persons who have standing to raise claim s under the Fourth A m endm ent with respect toelectronic surveillance," H.R. Rep. No. 95-1283, at 66 (1978), Congress defined "aggrieved~erson" to mean one "whose comannnications or activities were subject to electronic;urveillance," 5 0 U.S.C. 180 1(k) (em phasis added). Litigants who cannot establish their statusas "aggrieved persons" therefore do "n ot have standing" under "any " of FISA s provisions. H.R.Rep. No. 95 -1283, at 89-90; cf. United Sta tes v. Ott , 827 F.2d 473,475 n.1 (9th Cir. 1987); seealso Director; Office of Workers Com p. Program s v. Newport News Shipbuilding & D~ y DockCo., 5 14 U.S. 122, 126 (1995 ) ("aggrieved" is a well-known term of art used "to designate thosewho have standing").

(U) Title III sim ilarly specifies that civil actions m ay be bro ught by a "person w hose...communication is intercepted, disclosed, or intentionally used." 18 U.S.C. 25 20 (a) (emph asisadded). The Stored C om m unications A ct likewise limits its civil remedies to "person[s]aggrieved" under that statute, see 18 U.S.C. 270 7(a), and the only persons aggrieved by acom m unication-service providers "knowing[] divulge[rice]" of the "contents of a

injury-in-fact. See H alkin II, 690 F.2d at 100 3. Nonetheless, the nine plaintiffs were precludedfrom seek ing injunctive and declaratory relief because they could not dem onstrate thelikelihood o f future injury or a live controversy in light of the fact that the C IA had terminatedthe specific intelligence methods at issue. See id. at 1005-09.Public Memorand um of the United Statesin Support of Motion to Dismiss or for SummaryJudgment, MDL No, 06-1791-VRW -42-



19/34

123456789

10111213141516171819202122232425262728

comm unication" or of custom er records, 18 U.S.C. 2702(a), are those persons who secomm unications or records were actually divulged. See 18 U.S.C. 271 1(1) (adopting 25 10 (11) definition of"aggrieved person" as one "wh o w as a party to any intercepted. ..com mu nication" or "a person against who m the interception was directed"). Plaintiffsadditionally seek relief under 47 U .S.C. 60 5 , but this statute mak es equally clear that only a"person aggrieved" m ay challenge allegedly unlaw ful "divulge[nce] or,publi[cation], of thecontents of a com m unication, see 47 U.S.C. 60 5 (a), (e)(3)(A), and only a party to a tappedconversation may com plain" of an alleged disclosure under 60 5 . See United Sta tes ex reLRoss v. LaV allee, 341 F.2d 823,824 (2d C ir. t965 ). Each of these provisions reflects thefundam ental point that only persons w hose rights were injured by the actual interception ordisclosure of their own communications (or records) have standing. Put simply, to recoverdam ages, a plaintiff has to show that his or her rights were injured--and that cannot be do nehere.

(U) W ith respect, we disagree w ith the Courts statement in Hepting that allowing further~roceed ings, such as discovery, befo re assessing the full impact of the state secrets privilegewou ld be consistent with Halkin an d Ellsberg. See Hep ting, 439 F. Sup p. 2d at 994. InHalkin I, the Governm ent imm ediately m oved to dismiss on state secrets grounds to protect factssuch as those at issue here--whether the plaintiffs were subject to surveillance and the methodsand techniques by wh ich comm unications w ere intercepted. See 598 F.2d at 4-5. TheGovernment also opposed discovery requests, and responded only to court-propounded inquireswith a state secrets privilege assertion. See id. at 6. The district court upheld the claim o f~rivilege and dismissed the case as to one surveillance program (called MINARET), but deniedtism issal as to a separate program (called SH AM RO CK ) as to which som e information hadbeen m ade public in Congressional hearings. See id. at 5 . The C ourt of Appeals upheld theprivilege assertion and dismissal as to the MIN AR ET program and reversed the district courtPublic Memorand um of the United Statesin Support of Motion to Dismiss or for SummaryJudgment, MD L No. 06-1791-VRW -43-



20/34

t23456789

101112131415!6!71819202122232425262728

and upheld the privilege assertion as to the SHAM ROC K program. See 598 F.2d at 8-11.Specifically with respect to discovery, the Court of A ppeals said:

In the case before u s the acquisition of plaintiffs com m unications is a fact vitalto their claim. N o am ount of ingenuity of counsel in putting questions ondiscovery can ou tflank the governm ents objection that disclosure of this fact isprotected byprivilege. Thus, in these special circumstances, w e conclude thataffording additional discovery for the governm ent to parry plaintiffs requestswo uld be fruitless. In camera resolution of the state secrets question wasinevitable.H alk in I, 5 98 F.2d at 6-7. A s a result of this ruling, the claims against the NS A challenging thealleged surveillance of the plaintiffs were d ismissed on remand without any discovery. SeeH alkin II, 690 F.2d at 984.

(U) A separate claim proceeded against the C IA for allegedly providing "watchlisting"information to the NSA that was used to u ndertake surveillance. See Ha lkin II , 690 F.2d at 984.While some document discovery occurred as to the defunct surveillance program at issue, whichhad been the sub ject of a Congressional investigation, the CIA nonetheless successfully assertedthe state secrets privilege as to several facts, including whether any of the plaintiffs names hadbeen submitted on any w atchlists to the N SA. See id. at 985 . The district court concluded that,;ince the very fact of any interception was protected by N SA s state secrets assertion, the~laintiffs would be u nable to prove any liability on the part of CIA, and thu s dismissed those:laims. T he C ourt of A ppeals affirm ed, again upholding the state secrets privilege to bardisclosure of the identities of individuals subject to surveillance, see id. at 988-89, 993 n.57, andaffirming dismissal for lack of standing, see id. at 997-1000. See also id. at 998 ("Since it is theconstitutionality of such interceptions that is the ultimate issue, the im possibility of p roving thatinterception of any [plaintiffs] com m unications ever occurred renders the inqu iry pointless fromthe outset."). Thus, H alk in II likewise supports dism issal of claims challenging allegedsurveillance on state secrets grounds and without discovery. W hatever discovery that did occurin Halkin was therefore irrelevant and wasteful, because the threshold fact of whether thePublic Memorand um of the United Statesin Support of Motion to Dismiss or for S u m m a r yJudgment, MDL No. 06-1791-VRW -44-



21/34


22/34

123456789

10111213141516171819202122232425262728

sensitive intelligence methods and thereby could help any adversary evade detection. See id.The consequences of identifying who is and is not subject to alleged surveillance activities mayvary depending on the circumstances. It is important to realize, however, that even a small piecof information related to one individual Plaintiff could represent, to a sophisticated adversary, important "piece of the puzzle" of U.S. intelligence operations. See Halkin I, 598 F.2d at 8-9("[t]he significance of one item of information may frequently depend upon knowledge of maother items of information" and "what may seem trivial to the uninformed, may appear of greamoment to one who has a broad view of the scene and may put the questioned item ofinformation in its proper context.").

2. (U) Plaintiffs Cannot Establish Standing On TheBasis Of A "Dragnet" Theory of Surveillance.(U) It bears specifically noting that Plaintiffs allegation of a "dragnet" of surveillance

the Verizon Defendants--the interception of millions of domestic and internationalcommunications made by ordinary Americans and transmitted by MCI and Verizon, see, e.g., id. 3, 165--does not establish their standing. Even if that allegation were sufficient to avoiddismissal through a standard Rule 12(b)(1) motion, facts concerning whether Plaintiffs havebeen subject to any such dragnet of surveillance would obviously be essential to adjudicate theistanding for purposes of summary judgment.

(U) As an initial matter, the Plaintiffs have not even alleged that their communicatiohave been intercepted under the Terrorist Surveillance Program acknowledged by the President.Indeed, the various complaints against the Verizon and MCI Defendants avoid any suggestionthat Plaintiffs might fall within the acknowledged and limited scope of the TSP."-4MoreoveCourt has already recognized that, in acknowledging that the TSP was a limited program aimed

,-4 (U) A ccordingly, even if Plaintiffs did purport to challenge the TSP, they wou ld lackstanding to do so on the face of their comp laint.Public Memorandum of the United Statesin Support of Motion to Dismiss or for SummaryJudgment, MDL No. 06-1791-VRW -46-



23/34

123456789

10111213141516171819202122232425262728

at tracking international comm unications of m emb ers or agents ofal Qaeda and affiliatedterrorist organizations, the Governm ent denied that it was condu cting the type of dom esticcontent dragne t that Plaintiffs allege. See Hepting, 439 F. Supp. 2d at 996. In order to provetheir standing for purposes of surviving the Governments sum m ary judgm ent motion, therefore,the named Plaintiffs are required to come fo rward w ith specific evidence rebutting theGovernments denial and establishing that they personally were subject to content surveillance.But that cannot be done in light of the state secrets assertion. As previously explained, the DNIhas asserted the state secrets privilege over any inform ation tending to confirm o r deny w hetherPlaintiffs were su bject to surveillance, as well as program inform ation about the TSP thatPlaintiffs likely wo uld w ant disclosed to test, as an evidentiary matter, the limited scope of thatprogram. B ecause none of that information can b e disclosed without revealing intelligencetargets, sources, and methods, P laintiffs are not able to confirm or deny that they personally w eresubject to surveillance (either under the TSP or their alleged domestic dragnet). Similarly, inlight of the privilege, Defendan ts are not able to offer evidence that wou ld dem onstrate any lackof standing. Accordingly, summ ary judgm ent mu st be granted against the Plaintiffs.

~DACTED TEXT]

3. (U) Plaintiffs Standing to Challenge Alleg ed Collection ofCommunication Records Information Cannot be AdjudicatedW ithout State Secrets.(U) Plaintiffs standing to challenge the alleged assistance of the Verizon D efendants

ith an alleged program by the NSA to collect records about their communications, se e MasterVerizon Co mp l. 226, cannot be adjudicated for the sam e reasons. The facts needed toadjudicate standing wou ld include not only whether such a program existed but, even if it didexist and could be acknow ledged by the Governm ent, whether and how it may imp act thePublic Memorand um of the United Statesin Support of Motion to Dismiss or for Summ aryJudgment, MD L No. 06-1791-VRW -47-



24/34

t23456789

10111213141516171819202122232425262728

Plaintiffs. Disclosure of such information w ould again reveal intelligence sources and m ethods,confirming for our adversaries the nature and scope of what the Government does or does not doand thereby enabling them to avoid detection.

REDACTED TEXT]

C. (U) The Disclosure of Facts Concern ing the Alleged NSA IntelligenceActivities Is Requ ired to Adju dicate Plaintiffs Claim s on the Merits.(U) As with the threshold issues of relationship and standing, Plaintiffs cannot prove the

aerits of their case w ithout establishing the existence of the alleged activities, that the V erizonDefendants were involved in such activities, and that they are personally subject to suchactivities--all of which is precluded b y the state secrets privilege. And ev en assum ing a r g u e n d othat these threshold facts could be established (a possibility the Go vernm ent disputes), the meritsof Plaintiffs claims also could not be adjudicated without facts about the operation of anyalleged activity, including the precise nature of the activities, how they were conducted, whythey were conducted, w hen they w ere conducted and for how long, and the intelligence value ofthe activities.

1. (U) Plaintiffs Claim s as to Alleged W arrantless Content SurveillanceCannot b e Adjud icated W ithout Disclosing State Secrets.(U) This lawsuit comm enced after media reports in Decemb er 200 5 alleged that the NSA

was engaged in certain surveillance activities. See M aster Verizon Com pI. 138, 142; ChulstgCom pl. 18, 24; Riordan Compl. 20; see also Hep ting, 439 F. Supp. 2d at 986. Plaintiffs citestatements m ade at the time b y the President, the Attorney G eneral, and the Deputy D irector ofNational Intelligence acknowledging that the President had authorized the NSA to intercept thecontent of one-end foreign communications where a party to the communication was reasonablybelieved to be a m emb er or agent oral Q aeda or an affiliated terrorist organization. For

Public Memorandum of the United Statesin Support of Motion to Dismiss or for Summ aryludgment, MDL No. 06-1791-VRW -48-



25/34

123456789

I011121314t516171819202122232425262728

exam ple, the President has stated that the TSP w as limited to surveillance of com m unicationsand individuals associated with at Qaeda and did not involve the interception of purely domesticcalls in the U nited States. See Hepting, 439 F. Supp. 2d at 987 (taking judicial notice ofPresidents statem ent that the governm ents "international activities strictly target al Qaeda andtheir lcnow affiliates" and that "the governmen t does not listen to dom estic phone calls withou tapproval" and that the gov ernmen t is "not mining or trolling through the p ersonal lives ofm ill ions o f A m ericans."); see also M aster Verizon Com pl. 139; Chulsky Compl. 25 (citingstatement b y President on TS P). Attorney General G onzales has likewise stated that the TSPdoes not involve the interception of dom estic to domestic calls within the United States. S e eHepting, 439 F. Supp. 2d at 987 (citing statements); see also Verizon Master Com pl . 141;Chulsky Com pl. 26. Then-D eputy DN I, Gen. Michael Hayden, also stated regarding the scopeof the TSP:

The pu rpose of all this is not to collect reams of intelligence, bu t to detect andprevent attacks. The intelligence community has neither the time, the resources,nor the legal authority to read communications that arent likely to protect us, andthe NSA has no interest in doing so. These are comm unications that we havereason to believe are al Qaeda com mu nications, a judgment m ade by intelligenceprofessionals . .. . This is targeted and fo cused. Th is is not abou t interceptingconversations between peop le in the United States. This is hot pursuit ofcom mu nications entering or leaving Am erica involving someone we b elieve isassociated w ith al Qaeda.

See Rem arks of Gen. Michael V. Hayden, National Press Club, Jan. 23, 200 6.(U) D espite these plain denials that the TSP w as a dom estic content dragnet~enials

wh ich the Court in Hepting acknowledged, see 439 F. Supp. 2d at 996--Plaintiffs allege withoutany foundation, based on a new spaper article, that "the NSA intercepts mill ions ofcom mu nications made or received by people inside the United States" as part of a "massivesurveillance operation" for "data-mining" the "content" of m illions of com m unications to findthose of particular interest. See Verizon M aster Com pl. 165 , 167. They claim that the NSAintercepts "all or a substantial num ber of the com m unications transmitted through [V erizons]Public Memorand um of the United Statesin Support of Motion to Dismiss or for SummaryJudgment, MDL No, 06-1791-VRW -49-



26/34

123456789

10!t1213141516171819202122232425262728

key domestic telecommunication facilities, including direct access to streams of domestic,international, and foreign telephone and electronic communications." Id. I68. See H epting,43 9 F. Supp. 2d at 994 ("Plaintiffs allege a surveillance program of far greater scope than the~ubticly disclosed terrorist surveillance program."). In short, through their content surveillance:laim, Plaintiffs seek to prove w hether the Governm ents statements about the limited nature ofthe TSP are true or whether Plaintiffs alleged dragnet actually exists and covered their owncommunications. Plaintiffs thus allege that the NSA undertakes a secret content surveillanceprogram other than a nd broader than the TSP.

(U) The C ourts conclusion in Hepting that the Governm ents acknow ledgment of theexistence of the T SP has "opened the door for judicial inquiry" into the scope of any contentmonitoring program un dertaken by the NSA, Hept ing , 433 F. Supp. 2d at 996, is unfounded inour view (and is among the issues now on appeal). If such a disclosure did open the do or tofurther inquiry, state secrets wo uld be need ed to w alk through it. The C ourt in Heptingrecognized that the Government "has disclosed the universe of possibilities in terms of w h o s ecomm unications its monitors and where those com m unicating parties are located." S e e i d . Asthe President stated, that universe involved the surveillance of com m unications (1) m ade by~arties reasonably believed to be members or agents of al Qaeda or affiliated terrorist~rganizations, and (2) sent to or from the United States. But proving or disproving those twofacts as an evidentiary matter, in order to adjudicate Plaintiffs dragnet allegation, would requirethe disclosure of TSP program information and perhaps other NS A surveillance methods andactivities, to show that the alleged dragnet of m illions of dom estic comm unications is notoccurring,z5 As set forth in the privilege assertions ofDN I McC onnell and NSA Director_,5 (U) To the extent the Co urt in Hepting suggested that the proof needed to address w hether ornot the alleged dom estic content surveillance dragnet exists m ight be found in the scope of anycertification to a telecom mu nications carrier, see id. at 996-97, w e again respectfully disagree.That very relationship issue is am ong the m atters subject to the G overnments privilegePublic Memorand um of the United Statesin Support of Motion to Dismiss or for Summ aryJudgment, MDL No. 06-1791-VRW -50-



27/34

123456789

10111213141516171819202122232425262728

Alexander, those facts cannot be disclosed without causing exceptionally grave harm to nationalsecurity.

REDACTED TEXT]

(U) The foregoing demonstrates that the TSP authorized by the President after 9/11 waslot directed at generalized domestic surveillance of the content of communications of millionsof A m ericans, as Plaintiffs allege. M oreover, to dem onstrate that no other NSA programinvolves the alleged dom estic content dragnet, proof beyond the operation of the TS P w ouldhave to be offered to dem onstrate these facts (again, by having to prove a negative). But suchinformation also could not be disclosed without revealing sensitive NSA sources and methods toour adversaries and thereby causing harm to the national security. Courts cannot allow litigants"to force groundless fishing expeditions upon them," Sterl ing, 416 F.3d at 344, and a plaintiffis not permitted to "emb ark on a fishing expedition in governm ent waters on the b asis of [itsown] speculation," Ellsberg v. M itchell, 807 F.2d 204, 207-08 (D.C. Cir. 1986) (Scalia, CircuitJustice) ("Ellsberg II"). Litigation cannot proceed o n claims where discovery of the actual factsneeded to prove or rebut allegations is barred by the state secrets privilege. See M olerio v.Federal Bur eau of Investigation, 749 F. 2d 815 , 826 (D.C. Cir. 1984) (it would be "a m ockery ofustice" to permit further proceedings w here the actual facts are privileged).- ~ 6

assertion, and to put that matter at risk in order to dem onstrate that an allegation already d eniedby the Governm ent is false, would be u nfounded.,-6 (U) Becau se Plaintiffs neither allege that the TS P applies to them nor challenge thatprogram, the lawfulness of the TSP is not at issue here. Even if they did challenge the TSP,however, classified details about the program, as described in the In Camera AlexanderDeclaration, w ould be needed to adjudicate its lawfulness.Public Memorand um of the United Statesin Support of Motion to Dismiss or for SummaryJudgment, MD L No. 06-1791-VRW -51-



28/34

!23456789

101112131415!6171819202122232425262728

2. (U) Plaintiffs Challenge to Alleged Com m unication RecordsCollection Cannot be Adjudicated Without Disclosing State Secrets.(U) Plaintiffs challenge to the alleged collection of communication records likewise

cannot be adjudicated without disclosing state secrets. See Terkel, 441 F. Supp. 2d at 919-20(holding that disclosure of w hether or not A T&T has assisted the governm ents intelligenceactivities by providing large qu antities of telephone records "w ould adversely affect our nationalsecurity" and therefore is "barred by the state secrets privilege"). The C ourt in Hepting correctlyfound that information confirming or denying an alleged communication records program shouldremain protected from disclosure. See 439 F. Supp. 2d at 997-98. Indeed, the Court recognizedthe potential harm of confirming or denying such allegations, and it also appropriately held thatit is not in a position to second-guess the judgment of the DNI and NSA Director regarding suchharm.

(U) At the sam e time, we respectfully believe that the Cou rts decision not to dismiss therecords claim--a decision based on the "conceivable" possibility that deliberate or evenaccidental disclosures about the records allegations could be m ade in the future--was erroneou s.See id. at 997. First, the Go vernm ent has consistently maintained that the records allegationscould not be confirmed or denied without harming national security, and it is inappropriate forthe Court to keep the claims open on the chance that such harmful disclosures might be made,even accidentally, at som e undetermined future date. M oreover, the suggestion that publicdisclosures of private entities m ight waive the state secrets privilege is incorrect. As outlinedabove, whether information may be protected under the state secrets privilege rums on whetherthe Government has reasonably shown that harm wo uld flow from disclosure of thatinformation. Unless an authorized official of the United States Government fomaally confirms

r denies the existence of an alleged activity, any other p ublic statement or disclosure,articularly "accidental" ones, cann ot trump the Go vernm ents assertion of privilege. For these

easons, the Cou rt in Terkel correctly dism issed a case alleging that AT &T participated in anPublic Memorand um of the United Statesin Support of Motion to Dismiss or for Summ aryJudgment, MD L No. 06-1791-VRW -52-



29/34

123456789

10111213141516171819202122232425262728

illegal record program . See 441 F. Supp. 2d at 916, 91 9-20. To the extent this Cou rt has anyremaining doubts about w hether the records claims should be d ismissed here, we wish to~m phasize the following.

REDACTED TEXT]

(U) Assuming, argTtendo, that the alleged records program did exist and w as confirmed, the Governm ent, numerous facts about the operation of any such program wou ld be needed to

determine its lawfulness, including how the activity proceeds, whose information may becollected, what may be d one w ith the information, and w hy the information may becollected--all of wh ich, if such activity occurred, w ould reveal intelligence sources and m ethodsto our adv ersaries. For exam ple, civil liability provisions of the Stored C om mu nications Actrequire proof of actual dam ages by the plaintiff, see 18 U.S.C. 270 7(c), and that would requireshowing that an action w as taken against an individual plaintiff that caused that person actualdamages. Similarly, the Suprem e C ourt has held that an individual has no Fourth Am endment~rotected legitim ate expectation of privacy regarding the num bers dialed on a telephone, see;mith v. M aryland, 442 U .S. 735 ,742 (1979), and this issue could not be adjudicated w ithoutdescribing the extent to which the NSA, if it does at all, collects data in which there is anexpectation of p rivacy. Similarly, the need for any such activity wo uld be relevant evidence indeciding the lawfulness of such a program, see Vernonia Sch. Dist . v. Act ion, 515 U.S. 646, 653(1995) (there are circumstances when special needs, beyond the normal need for lawenforcement, make the warrant and p robable cause requirement im practicable)]-7 Finally, the

~_7 (U) Sim ilarly, the Stored Com munications Act provides that a telecomm unication carriermay divulge customer records "to a governmental entity, if the provider reasonably believesthat an emergency involving im m ediate danger or d eath or serious physical injury to any p ersonustifies disclosure of the information." 18 U.S.C. 2702(c)(4).~ub lic Memorandum of the United Statesin Support of Motion to Dismiss or for SummaryJudgment, MD L No, 06-1791-VRW -53-



30/34

123456789

10111213141516171819202122232425262728

efficacy of a challenged activity is another factor in assessing it lawfulness. See Vernonia, 515U.S. at 663. Thus, even assum ing purely for the sake of argum ent that one could show that a~articular activity is occurring, the evidence need ed to adjud icate a challenge on the m eritsreplicates host of different facts, all of w hich im plicate the existence, scope, and nature of

alleged intelligence sources and methods.[REDACTED TEXT]

IV. (U) STATUTORY PRIVILEGE CLAIMS HAVE ALSO BEEN PROPERLYRAISED IN THIS CASE.(U) Two statutory protections also apply to the intelligence-related information, sourcesand m ethods at issue in this case, and bo th have been properly invoked h ere as well. First,

Section 6 of the National Security Agency Act of 195 9, Pub. L. N o. 86-36, 6, 73 Stat. 63, 64,codified at 50 U.S.C. 4 0 2 note, provides:

d[d~i ]othing in this A ct or any other law .., shall be construed to require thesclosure of the organization or any function of the National Security Agency ,of any inform ation w ith respect to the activities thereof, or of the nam es, titles,salaries, or num ber of persons em ployed by such agency.~d. Section 6 reflects a "congressional judgm ent that in order to preserve national security,information elucidating the sub jects specified ought to b e safe from forced exposure." T h e

Founding C hurch of Sc ientology of W ashington, D.C., inc. v. Nat l Securi ty Agency, 610 F.2d824, 828 (D.C. C ir. 1979); acco rdH ayden v. Nat l Securi ty Agency, 608 F.2d 1381, 1389 (D.C.Cir. 1979). In enacting Section 6, Co ngress was "fully aw are of the unique and sensitiveactivit ies of the [NSA ] w hich require extreme security m easures." Hayden, 60 8 F.2d at t390(citing legislative history). Thus, "[t]he protection afforded by Section 6 is, by its very terms,absolute. Ifa docum ent is covered by Section 6, NS A is entitled to w ithhold it ...." Linder v.Na t l Securi ty Agency, 94 F.3d 693,698 (D.C. Cir. 1996).

Public Memorand um of the United Statesin Support of M otion to Dismiss or for SummaryJudgment, MDL No. 06-1791-VRW -54-



31/34

123456789

1011121314151617t819202122232425262728

(U) The secon d applicable statute is Section 10 2A(i)(1) of the Intelligence Refo rm andTerrorism Prevention Act of 200 4, Pub. L. No. 10 8-458, 118 Stat. 3638 (Dec. 17, 200 4),codified at 50 U.S.C. 403-1(i)(1). This statute requires the Director of National Intelligence toprotect intelligence sources and m ethods from unau thorized disclosure. The authority to protectmtelhgence sources and methods from dxsclosure ~s rooted ~n the practical necesmt~es omo dem intelligence gathering," Fitzgibbon v. CIA, 911 F.2d 755 ,761 (D.C. Cir. 1990 ), and hasbeen described by the Supreme Court as both "sw eeping," CIA v . S im s, 471 U .S. at 169, and:wideranging." Snepp v. Uni ted States, 444 U .S. 5 07, 5 09 (1980 ). Sources and methodsconstitute "the heart of all intelligence operations," Sims, 471 U .S. at 167, and "[i]t is theresponsibility of the [intelligence com m unity], not that of the judiciary to w eigh the variety ofcomplex and subtle factors in determining whether disclosure of information may lead to anunacceptable risk of com prom ising the.., intelligence-gathering process." Id at 180.

(U) T hese statutory privileges have been properly asserted as to any intelligence-relatedinformation, sources and methods implicated by Plaintiffs claims, and the information coveredby these privilege claim s are at least co-extensive w ith the assertion of the state secrets privilegeby the DN I. See Public McC onnetl Decl. 10; P ublic Alexander Decl. 12. M oreover, theseprivileges reinforce the conclusion that the state secrets privilege requires dismissal here, and)rovide an additional, independent basis for that conclusion. The fact that intelligence sourcestnd m ethods, as well as information concerning N SA activities, are subject to express statutory)rohibitions on disclosure underscores that the need to protect such information does not reflect;olely a policy judgm ent by the Executive Branch, but the judgm ent of Cong ress as well.

(U) Since the C ourts decision in Hepting, Section 6 of the National Security Act hasbeen applied in a FOIA context to information concerning the Terrorist Surveillance Program .See People for the Americ an Wa y Foundation v. Nationa l Security Agency/Central SecurityServ ice , 462 F. Supp. 2d 21 (D.D.C. 200 6). In P F A W, the court applied Section 6 to precludePublic Memorand um of the United Statesin Support of Motion to Dismiss or for Summ aryJudgment, MDL No. 06-1791-VRW - 5 5 -



32/34

123456789

10111213141516171819202122232425262728

disclosure under FO IA of several categories of information related to the TSP , including thenum ber of individuals subject to surveillance under the program, the num ber of com mu nicationsintercepted, the identity of individuals targeted and, in particular, information that wouldconfirm or d eny w hether the plaintiffs in that case had been subject to TSP surveillance--thevery kind o f inform ation at issue in this case. See id. at 29. The court agreed that the NSA hadput forward a rational explanation as to why this information should b e upheld u nder Section 6,including that it would reveal information about N SAs success or lack of success under theTSP , as well as inform ation about the U .S. intelligence com m unities capabilities, priorities, andactivities. See id. The cou rt also agreed that confirmation by NS A that a particular personsactivities are not of a foreign intelligence interest or that NSA is unsuccessful in collecting[oreign intelligence information on their activities "w ould allow o ur adversaries to accum ulateinformation and draw conclusions about N SAs technical capabilities, sources, and m ethods.";ee id.

(U) The court in P F A W also held that Section 6 of the National Security A ct does notequire N SA to dem onstrate what harm m ight result from disclosure of its activities, since:"Congress has already, in enacting the statute, decided that disclosure of NSA activities ispotential harmful." See PFAW, 462 F. Supp. 2d at 30 (quoting Hayden, 608 F.2d at 1390 ).Finally, the court in PFAWrejected the contention that, because the legality of the TSP is atissue, Section 6 does not apply to p rotect information about N SA activities. The court held:

W hether the TSP, one of the NSA s many SIGINT programs involving thecollection of electronic comm unications, is ultimately determined to be unlawful,its potential illeg,a, lity cannot be u sed to evade the "u nequivocal[]" languag e ofSection 6 w hich prohibit[s] the disclosure of inform ation relating to the N SA sfunctions and activities..."P F A W , 462 F. Supp. 2d at 31 (quoting Linder, 94 F .3d at 696).,-8

88 (U) The C ourt in P F A W a l s o agreed that the TSP inform ation at issue in that case was~rotected by the DN Is statutory privilege under 50 U.S.C. 40 3-1(i)(1). See 462 F. Supp. 2d at~ublic Memorandum of the United Statesin Support of Motion to Dismiss or for SummaryJudgment, MDL No. 06-1791-VRW - 5 6 -



33/34


34/34

123456789

101112131415161718192021222324252627

DATED : April 20 , 2007

Respectfully submitted,PETER D. KEISLERAssistant Attorney GeneralCARL J . NICHO LSDeputy Assistant Attorney GeneralJOSEPH H. HUN TDirector, Federal Programs Branchs/Anthony J. CoppolhToANTH ONY J. COPPOLINOSpecial Litigation C [email protected] /Andrew H . Ta nnenbaumA N D R E W H . TA N N E N B A U MTrial [email protected]. Department of JusticeCivil Division, Federal Programs Branch20 M assachusetts Avenue, NWWashington, D.C. 200 01Phone: (202) 5 14-4782/(202) 5 14-4263Fax: (202) 616-8460/(202) 616-8202Attorneys for United States of America

Public Memorandum of the United Statesin Support of Motion to Dismiss or for Summ ary


00789-meminsupport2

Documents