AMNESTY INTERN. USA v. McCONNELL
646 F.Supp.2d 633 (2009)
AMNESTY INTERNATIONAL USA, et al., Plaintiffs,
v.
John McCONNELL, et al., Defendants.
No. 08 Civ. 6259(JGK).
United States District Court, S.D. New York.
August 20, 2009.
Arthur Nelson Eisenberg, Christopher T. Dunn, New York Civil Liberties Union, New York, NY, Jameel Jaffer, Lori Danielle Tully, Melissa Goodman, Laurence Michael Schwartztol, American Civil Liberties Union Foundation, New York, NY, for Plaintiffs.
Serrin Andrew Turner, Laura Klein Abel, New York, NY, for Defendants.
OPINION AND ORDERJOHN G. KOELTL, District Judge.
This is a facial challenge to the constitutionality of Section 702 of the Foreign Intelligence Surveillance Act of 1978 ("FISA"), 50 U.S.C. § 1881a, which was added to FISA by Section 101(a)(2) of the FISA Amendments Act of 2008 (the "FAA"). In relevant part, the FAA amended FISA by creating a new framework within which federal officials may seek approval from the Foreign Intelligence Surveillance Court (the "FISC") to authorize surveillance targeting non-United States persons located outside the United States to acquire foreign intelligence information.
The plaintiffs are attorneys and organizations in the United States whose work necessitates international communications with people and organizations they believe to be likely targets of surveillance under the FAA. The defendants are the Director of National Intelligence, the Director of the National Security Agency and Chief of
the Central Security Service, and the Attorney General of the United States.1 The plaintiffs fear that their international communications will be monitored under the FAA. They make no claim that their communications have yet been monitored, and they make no allegation or showing that the surveillance of their communications has been authorized or that the Government has sought approval for such surveillance. However, the plaintiffs assert that they have an "actual and well-founded fear" of surveillance under the FAA and claim already to have incurred significant costs in taking steps to protect their international communications from surveillance. The plaintiffs challenge the FAA as unconstitutional under the Fourth Amendment, the First Amendment, and Article III of the Constitution.
The Government contends as a threshold matter that the plaintiffs lack standing to challenge the FAA. The Government also contends that the lawsuit lacks merit in any event because the FAA is constitutional on its face.
The parties have filed cross-motions for summary judgment. For the reasons explained below, the plaintiffs have failed to show that they have standing to bring their facial challenge to the statute.
1. Attorney General Eric H. Holder, Jr., should be automatically substituted for former Attorney General Michael B. Mukasey as a defendant, and the caption of this case changed accordingly. See Fed.R.Civ.P. 25(d).
2. Prior to October 26, 2001, the date on which the Patriot Act became effective, FISA required that obtaining foreign intelligence information be "the purpose" of electronic surveillance, rather than "a significant purpose." See United States v. Sattar, No. 02 Cr. 395, 2003 WL 22137012, at *3 & n. 3 (S.D.N.Y. Sept. 15, 2003).
3. The plaintiffs represent that at the time FISA was passed, approximately half of Americans' international communications were transmitted by radio or satellite, the monitoring of which Congress did not regulate. The Government represents that the percentage was greater than half.
4. FISA defines "United States person" to mean a citizen of the United States or an alien lawfully admitted for permanent residence, in relevant part. 50 U.S.C. § 1801(i).
5. The FAA provides an exception where the Attorney General and the Director of National Intelligence determine that exigent circumstances exist because, without immediate implementation of an authorization of surveillance, intelligence important to the national security of the United States may be lost or not timely acquired and time does not permit the issuance of an order pursuant to 50 U.S.C. § 1881a(i)(3) prior to the implementation of such authorization. 50 U.S.C. § 1881a(c)(2). In the case of a determination of exigent circumstances pursuant to 50 U.S.C. § 1881a(c)(2), the Attorney General and the Director of National Intelligence must undertake as soon as practicable, but in no event later than 7 days after such determination is made, to fulfill the same requirements ordinarily imposed before an order authorizing surveillance under the FAA may be obtained from the FISC. 50 U.S.C. § 1881a(g)(1)(B).
6. Insofar as the FAA regulates the surveillance of international radio communications to obtain foreign intelligence information, it establishes regulations where none existed under FISA.
7. Section 1801(h) includes a fourth requirement for minimization procedures where surveillance is conducted pursuant to 50 U.S.C. § 1802(a). Surveillance conducted under § 1802(a) is solely directed at communications transmitted by means of communications used exclusively between or among foreign powers, among other things, and may be authorized without a court order if the requirements of that section are satisfied. 50 U.S.C. § 1802(a). Surveillance conducted pursuant to the FAA is not subject to the minimization requirement set forth in § 1801(h) that applies only to surveillance conducted pursuant to § 1802(a).
8. The submission of semiannual assessments to the congressional committees, under this provision and all other provisions in the FAA, is subject to the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution. 50 U.S.C. § 1881a(l)(B).
9. The FAA also provides a framework for directives to be issued by the Attorney General and the Director of National Intelligence to electronic communication service providers in order to carry out surveillance authorized under § 1881a, and for judicial review of such directives. See 50 U.S.C. § 1881a(h).
10. The plaintiffs argue in passing that the defendants should not be entitled to summary judgment because they failed to submit a 56.1 Statement in support of their motion for summary judgment. However, the Court can dispense with the requirement of a 56.1 Statement, see Hadden v. Bureau of Prisons, No. 07 Civ. 8586, 2008 WL 5429823, at *5 (Dec. 22, 2008) (citing D.H. Blair & Co. v. Gottdiener,462 F.3d 95, 109 n. 2 (2d Cir.2006)), and it would make no sense to require such a statement from the defendants in this case because they are prepared to accept the plaintiffs' allegedly undisputed facts, the conditional acceptance of which is in any event the consequence of failing to submit a 56.1 Statement. Cf. Cosy Goose Hellas v. Cosy Goose U.S.A. Lt.,581 F.Supp.2d 606, 616-17 (S.D.N.Y.2008).
Moreover, when the plaintiffs' standing has been challenged on a motion for summary judgment the plaintiffs must come forward with sufficient evidence to show that there is a genuine material issue as to their standing to warrant a trial. See Simon v. Eastern Kentucky Welfare Rights Organization,426 U.S. 26, 53-54, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). If the plaintiffs fail to meet this standard, then summary judgment should be granted dismissing their complaint.
11. The Court only recites those facts set forth by the plaintiffs that are material to the disposition of these motions. See, e.g., Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 12. The Court of Appeals for the Second Circuit has indicated that the standard of showing an "actual and well-founded fear" of enforcement is "slightly" easier to satisfy than the standard of showing a "realistic danger" of enforcement that applies to non-First Amendment pre-enforcement challenges to a statute. Am. Booksellers, 342 F.3d at 101 (internal quotation marks omitted). The plaintiffs argue that the "actual and well-founded fear" standard should apply to the determination of standing with respect to all of their claims, rather than the First Amendment claim alone, because the alleged conduct that is the source of the injuries asserted under each constitutional claim—the potential enforcement of the statute—implicates First Amendment rights. The difference between the "actual and well-founded fear" standard and the "realistic danger" standard has never been explained, and it should be noted that there are some indications that there is no meaningful difference between the two standards. See Brooklyn Legal Servs. Corp. v. Legal Servs. Corp.,462 F.3d 219, 227 (2d Cir.2006) (finding standing for as-applied First Amendment challenge based on "actual and well-founded fear" and "realistic danger"); cf. Babbitt v. United Farm Workers Nat'l Union,442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979) (invoking "realistic danger" standard in First Amendment context). In any event, any difference between the "actual and well-founded fear" standard and the "realistic danger" standard has no bearing on the outcome of this case, and the parties agree that Article III standing should be assessed under a single standard with respect to all of the plaintiffs' claims. (Tr. 12, 54.) Therefore, the Court applies the "actual and well-founded fear" standard to all of the challenges to the FAA.
In addition, because the potential enforcement of the challenged statute accounts for all of the injuries asserted under each constitutional claim; the parties agree that Article III standing should be assessed under a single standard with respect to all of the plaintiffs' claims; and separate standing analyses for each constitutional claim would not affect the outcome of this case, the Court does not undertake a separate standing analysis with respect to each alleged constitutional violation. See Duke Power Co. v. Carolina Envtl. Study Group, Inc.,438 U.S. 59, 78, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978) (holding that plaintiffs need not "demonstrate a connection between the injuries they claim and the constitutional rights being asserted"); United Presbyterian Church in the United States of America v. Reagan,738 F.2d 1375 (D.C.Cir.1984) (Scalia, J.) (conducting collective standing analysis for First, Fourth, and Fifth Amendment claims and separation of powers claims); cf. Friends of the Earth v. Laidlaw Envtl. Servs., Inc.,528 U.S. 167, 185, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (standing must be demonstrated separately for injunctive relief and civil penalties because these are different forms of relief).
13. The lead opinion only discussed this basis for standing in the context of determining whether the plaintiffs had standing to bring Fourth Amendment claims in connection with the TSP. However, the lead opinion denied the plaintiffs standing to bring any of their claims.
14. In Babbitt the Supreme Court also denied the plaintiffs standing to challenge a compulsory arbitration provision in the statute. The Court based its holding in part on the fact that the plaintiffs had "never contested the constitutionality of the arbitration clause." Id. at 305, 99 S.Ct. 2301.
15. The plaintiffs in Laidlaw also included a person whose property value was allegedly diminished by the pollution of the river and another who would like to purchase a home near the river but did not intend to do so because of the pollution. See id. at 182, 120 S.Ct. 693.
16. Judge Gibbons explained: "I read Laidlaw to require that plaintiffs demonstrate that they (1) are in fact subject to the defendant's conduct, in the past or future, and (2) have at least a reasonable fear of harm from that conduct." ACLU, 493 F.3d at 689 (Gibbons, J., concurring).