ACLU v. NSA/493 F.3d 644/Dissent Gilman

by Ronald Lee Gilman

RONALD LEE GILMAN, Circuit Judge, dissenting.

My colleagues conclude that the plaintiffs have not established standing to bring their challenge to the Bush Administration's so-called Terrorist Surveillance Program (TSP). A fundamental disagreement exists between the two of them and myself on what is required to show standing and whether any of the plaintiffs have met that requirement. Because of that disagreement, I respectfully dissent. Moreover, I would affirm the judgment of the district court because I am persuaded that the TSP as originally implemented violated the Foreign Intelligence Surveillance Act of 1978 (FISA).

I. ANALYSIS

A. Procedural posture

This case comes to us in a relatively unique procedural posture. In the district court, the plaintiffs moved for partial summary judgment. They filed a statement of undisputed facts in support of that motion. The government then filed its own motion to dismiss or, in the alternative, a motion for summary judgment. In this motion, the government asserted that the plaintiffs could not establish standing and that the state-secrets privilege barred their claims. But the government did not contest the plaintiffs' statement of undisputed facts or provide its own statement of undisputed facts. The district court was therefore bound by the requirements of Rule 56(e) of the Federal Rules of Civil Procedure, which provides as follows:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

After reviewing the affidavits and related supporting material submitted in support of the plaintiffs' motion, the district court found that they had set forth the necessary facts to meet the prerequisites for standing. The court then considered the plaintiffs' claims on the merits and granted their motion as to all but their datamining claim.

Despite this procedural posture, the lead opinion asserts that the record presently before us contains only "three publicly acknowledged facts about the TSP-(1) it eavesdrops, (2) without warrants, (3) on international telephone and email communications in which at least one of the parties is a suspected al Qaeda affiliate." Lead Op. at 3. For the reasons both stated above and set forth below, I believe that this description significantly understates the material in the record presently before us.

B. Standing

1. Injury in fact

Article III of the U.S.C.onstitution "requires the party who invokes the court's authority to show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant." Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.C.t. 752, 70 L. Ed. 2d 700 (1982) (quotation marks omitted). This is sometimes referred to as the "direct injury" or the "distinct and palpable injury" requirement. Laird v. Tatum, 408 U.S. 1, 13, 92 S.C.t. 2318, 33 L. Ed. 2d 154 (1972); Valley Forge, 454 U.S. at 475. The Supreme Court has defined "injury in fact" as "an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual and imminent, not conjectural or hypothetical." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.C.t. 2130, 119 L. Ed. 2d 351 (1992) (citations and quotation marks omitted). An association has standing to sue on behalf of its members when "its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181, 120 S.C.t. 693, 145 L. Ed. 2d 610 (2000) (citation omitted).

Moreover, as the lead opinion acknowledges, only one plaintiff need establish standing to satisfy Article III's case-or-controversy requirement. Mass. v. Envtl. Prot. Agency, 549 U.S. 497, 127 S.C.t. 1438, 1453, 167 L. Ed. 2d 248 (2007) ("Only one of the petitioners needs to have standing to permit us to consider the petition for review."); see also Bowsher v. Synar, 478 U.S. 714, 721, 106 S.C.t. 3181, 92 L. Ed. 2d 583 (1986) (finding the Article III requirement satisfied where at least one plaintiff could establish standing). The position of the attorney-plaintiffs, in my opinion, is the strongest for the purpose of the standing analysis. This is not to say that the journalists and the scholars do not have standing. They might. But because only one plaintiff need establish standing, I will focus my discussion on the attorney-plaintiffs.

The lead opinion criticizes the attorney-plaintiffs for asserting multiple causes of action despite "hav[ing] one claim," but this is hardly a "ruse," whether "perfectly acceptable" or not as the lead opinion would have it. Lead Op. at 9. The Supreme Court's recent decision in DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 126 S.C.t. 1854, 1868 n.5, 164 L. Ed. 2d 589 (2006), indeed reiterates that a litigant cannot "by virtue of his standing to challenge one government action, challenge other governmental actions that did not injure him." In the present case, however, the plaintiffs seek to challenge the only action that has injured them-the NSA's implementation of the TSP-and they do so by "identifying all grounds" against that action. Id . at 1868 n.5. Thus, I do not believe that this case requires "a particularized analysis of the plaintiffs' three alleged injuries, six asserted legal claims, and two requested forms of relief." Lead Op. at 10.

I now return to the first element of the standing analysis. Despite the willingness of the lead opinion to assume that the attorney-plaintiffs' asserted injuries could be "deemed adequate to state an injury in fact," Lead Op. at 17, its analysis suggests the opposite. I have accordingly set forth below the reasons why I conclude that the attorney-plaintiffs have demonstrated that no such assumption is needed because they have actually stated an injury in fact.

The attorney-plaintiffs assert a claim for the injuries flowing from the failure of the TSP to comply with FISA's requirements that "minimization procedures" be utilized to protect privileged communications-such as between attorneys and their clients-from interception or, if intercepted, from subsequent disclosure. Contrary to the lead opinion's characterization of the attorney-plaintiffs' assertions, the harm alleged here in fact "causes the plaintiffs to refrain from" potentially harmful conduct. Lead Op. at 8. I find that the distinction the lead opinion attempts to draw between a harm that causes an injury and a harm that results from an injury is ultimately unpersuasive. To my mind, the attorney-plaintiffs have articulated an actual or imminent harm flowing from the TSP.

The lead opinion's contrary view is largely based on its reading of the D.C. Circuit's interpretation of Laird; namely, that "a plaintiff must establish that he or she is regulated, constrained, or compelled directly by the government's actions, instead of by his or her own subjective chill." Lead Op. at 13 (citing Laird, 408 U.S. at 11, and United Presbyterian Church v. Reagan, 238 U.S. App. D.C. 229, 738 F.2d 1375, 1378 (D.C. Cir. 1984)). In fact, the lead opinion says that Laird controls, and that the injury alleged here is at best no more concrete than that in Laird. Lead Op. at 16. The lead opinion then analogizes the injury to the attorney-plaintiffs' ability to perform their professional duties as a chill on "commercial speech." Drawing on this commercial-speech analogy--an argument never raised by the government--the lead opinion rejects the plaintiffs' contention of having suffered an injury in fact because, as so characterized by the lead opinion, the consequence "would effectively value commercial speech above political speech." Lead Op. at 13. But there is no legal support offered for the lead opinion's contention that the plaintiffs' inability to perform their jobs is nothing more than the equivalent of a chill on commercial speech. Lead Op. at 12-13. In addition, the lead opinion's commentary on the relative value of different forms of speech is not a point raised by either of the parties or, to my mind, in any way relevant to the resolution of this case. For this reason, I find the lead opinion's discussion ranking the value of political speech over commercial speech puzzling. I instead believe that Laird is distinguishable because the attorney-plaintiffs have in fact alleged a concrete, imminent, and particularized harm flowing from the TSP. On appeal, the government contends that any litigation about the TSP must be premised on the three general facts that the government has publicly disclosed: (1) the TSP exists, (2) it operates without warrants, and (3) it intercepts "only communications that originate or conclude in a foreign country, and only if there are reasonable grounds to believe that a party to the communication is affiliated with al Qaeda." According to the government, the plaintiffs cannot demonstrate that they were actually targets of the TSP and thus cannot show more than a "subjective chill" on their activities. The government asserts that the plaintiffs cannot establish standing because the state-secrets privilege prevents us from testing the plaintiffs' allegations that they have been or likely will be subject to surveillance under the TSP. Moreover, the government argues that the plaintiffs improperly seek to assert the rights of third parties, such as their overseas contacts, clients, and sources, who are not presently before the court.

The attorney-plaintiffs respond that they have suffered concrete, particularized injuries as a result of the TSP. Specifically, they contend that the TSP puts them in the position of abrogating their duties under applicable professional-responsibility rules if they communicate with clients and contacts via telephone or email. The TSP, in short, allegedly prevents them from doing their jobs. Specifically, the attorney-plaintiffs contend that they have had to travel internationally for face-to-face meetings at a significant expense in terms of time and money. They claim that their ability to conduct research and factfinding has been limited, if not entirely thwarted, as a result.

The attorney-plaintiffs, as part of their representation of clients accused of being enemy combatants or of providing aid to organizations designated as terrorist groups, declare that they have conducted internet research on terrorism, religion, politics, and human-rights issues in parts of the Middle East and South Asia. They further state that they have reviewed web sites where topics including jihad, kidnapping, and other terrorist acts are discussed. As part of their work on behalf of their clients, these attorneys have communicated with potential witnesses, experts, lawyers, and other individuals who live and work outside the United States about subjects such as terrorism, jihad, and al-Qaeda. The attorney-plaintiffs contend that because of the TSP, they have ceased telephone or email communications about substantive issues with their overseas contacts. This is because the TSP, unlike FISA, provides no minimization procedures to protect attorney-client communications.

Under FISA, an application for an order authorizing surveillance must include a description of the minimization procedures that will be utilized to protect privileged communications. 50 U.S.C. § 1804(a)(5). "Minimization procedures" are "specific procedures . . . that are reasonably designed . . . to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons." 50 U.S.C. § 1801(h)(1); see also 50 U.S.C. §§ 1801(h)(2)-(4) (providing a further definition of the term). Privileged communications remain such under FISA. 50 U.S.C. § 1806(a) ("No otherwise privileged communication obtained in accordance with, or in violation of, the provisions of this subchapter shall lose its privileged character."); id. § 1806(h).

As noted above, the lead opinion finds that Laird controls this case. Lead Op. at 16. Although the lead opinion then asserts that it limits its application of Laird to only the attorney-plaintiffs' First Amendment claim, its analysis suggests otherwise. Laird addressed the question of "whether the jurisdiction of a federal court properly may be invoked by a complainant who alleges that the exercise of his First Amendment rights is being chilled by the mere existence, without more, of a governmental investigative and data-gathering activity that is alleged to be broader in scope than is reasonably necessary for the accomplishment of a valid governmental purpose." 408 U.S. at 10 (emphasis added). The case stands for the proposition that "[a]llegations of a subjective 'chill' are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm." Id. at 13-14. In Laird, the Court found that the U.S. Army, in its capacity as a domestic peacekeeping body, had collected information on "public activities that were thought to have at least some potential for civil disorder." Id. at 6. "The information itself was collected by a variety of means, but it is significant that the principal sources of information were the news media and publications in general circulation." Id.

I believe that the attorney-plaintiffs here allege a distinct set of facts that is legally distinguishable from those set forth in Laird . Unlike in the present case, the Laird plaintiffs simply articulated "speculative apprehensiveness that the Army may at some future date misuse the information in some way that would cause direct harm to [them]." 408 U.S. at 13-14. The Court stated that the plaintiffs "freely admit that they complain of no specific action of the Army against them . . . . There is no evidence of illegal or unlawful surveillance activities." Id . at 9.

In contrast to Laird, the attorney-plaintiffs here complain of specific present harms, not simply of some generalized fear of the future misuse of intercepted communications. The TSP forces them to decide between breaching their duty of confidentiality to their clients and breaching their duty to provide zealous representation. Neither position is tenable. The attorney-plaintiffs must travel to meet in person with clients and sources in order to avoid the risk of TSP surveillance. Unlike the situation in Laird, the attorney-plaintiffs in the present case allege that the government is listening in on private person-to-person communications that are not open to the public. These are communications that any reasonable person would understand to be private. The attorney-plaintiffs have thus identified concrete harms to themselves flowing from their reasonable fear that the TSP will intercept privileged communications between themselves and their clients.

To survive the government's standing-to-sue challenge, the attorney-plaintiffs do not have to demonstrate that their past communications have in fact been intercepted by the TSP. In Laidlaw, for example, the Supreme Court found that environmental groups had standing to sue a polluter where their members declared "that they would use the nearby North Tyger River for recreation if Laidlaw were not discharging pollutants into it." 528 U.S. at 184. The Court did not require the plaintiffs to show that the pollutants had actually harmed the environment, instead finding that their members' "reasonable concerns about the effects of [Laidlaw's] discharges directly affected those affiants' recreational, aesthetic, and economic interests," and that these concerns "present[ed] dispositively more than the mere general averments and conclusory allegations found inadequate" in prior cases. Id . at 183-84 (citation and quotation marks omitted).

A similar conclusion was reached by the Fourth Circuit in Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149 (4th Cir. 2000). In Gaston Copper, the court found that the plaintiff had standing based on his assertion that he used the affected lake less than he would have otherwise as a result of the ongoing pollution, despite the lack of evidence showing an objective environmental change in the lake. Id. at 156, 159.

Both the Laidlaw and the Gaston Copper plaintiffs asserted more than "a mere academic or philosophical interest," Gaston Copper, 204 F.3d at 159, or "an ingenious academic exercise in the conceivable." United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 688, 93 S.C.t. 2405, 37 L. Ed. 2d 254 (1973). The attorney-plaintiffs in the case before us likewise have alleged a harm far beyond the academic in their challenge to the TSP.

In reaching the opposite conclusion, the lead opinion attempts to distinguish Laidlaw by noting that the plaintiffs there brought their complaint under the citizen-suit provision of the Clean Water Act, a fact that the lead opinion asserts "offers only minimal support" for the plaintiffs in the present case. Lead Op. at 34. Although the plaintiffs in that case did indeed base their cause of action on an environmental statute, the Supreme Court still analyzed whether they satisfied the constitutional standing requirements of Article III. See Laidlaw, 528 U.S. at 180-89. The fact that the Clean Water Act contained a citizen-suit provision did not absolve the courts of examining the constitutional standing of the particular plaintiffs before them. I therefore find the lead opinion's treatment of Laidlaw unpersuasive. As in Laidlaw, I have analyzed the attorney-plaintiffs' assertions of Article III standing and have concluded that they satisfy those requirements.

The concurring opinion also criticizes my interpretation of Laidlaw, describing it as "transform[ing] the holding" in that case. Concurring Op. at 37. I do not believe that this characterization holds up under scrutiny. In discussing the case, the concurring opinion describes the Laidlaw plaintiffs as "in fact subject to defendant's conduct" of discharging pollutants in excess of permitted amounts into the North Tyger River. Id. (emphasis omitted). The Supreme Court, to be sure, noted that "it is undisputed that Laidlaw's unlawful conduct . . . was occurring," but nonetheless found nothing "improbable about the proposition that a company's continuous and pervasive illegal discharges of pollutants into a river would cause nearby residents to curtail their recreational use of that waterway and would subject them to other economic and aesthetic harms." Laidlaw, 528 U.S. at 184 (citation and quotation marks omitted).

The concurring opinion then argues, in reference to the Laidlaw plaintiffs, that their " fear of harm from the defendant's undisputed conduct-conduct that would also undisputably affect plaintiffs personally if they undertook their desired activities-was sufficient to support standing." Concurring Op. at 37 (emphasis in original). Similarly, the concurring opinion acknowledges that "the plaintiffs in the present case may have a reasonable fear of harm from the defendants' conduct." Id . It goes on to state, however, that the attorney-plaintiffs lack standing because they "must be actually subject to the defendant's conduct, not simply afraid of being subject to it." Id. Because I believe that the plaintiffs in the present case are "actually subject to the defendant's conduct" within the meaning of Laidlaw, I respectfully disagree with my colleague's conclusion.

To my mind, the concurring opinion describes, rather than distinguishes, the situation of the attorney-plaintiffs. The concurring opinion would hold that the attorney-plaintiffs must demonstrate that they have personally been subject to surveillance under the TSP in order to have standing to sue. This is akin to Laidlaw's argument that the plaintiffs should have been required to demonstrate that Laidlaw's mercury discharge violations caused them to "sustain[] or face[] the threat of any 'injury in fact' from Laidlaw's activities." Laidlaw, 528 U.S. at 181. But the Supreme Court rejected such an argument, stating that the plaintiffs need only show "the reasonableness of the fear that led the affiants to respond to that concededly ongoing conduct . . . ." Id . at 184 (brackets and quotation marks omitted).

Both the lead and concurring opinions proceed to analogize the present case to two cases that I find distinguishable. One is Los Angeles v. Lyons, 461 U.S. 95, 103 S.C.t. 1660, 75 L. Ed. 2d 675 (1983), where the Supreme Court denied standing for injunctive relief to a Los Angeles motorist who had been subjected to a chokehold by the police during a routine traffic stop. Id. at 100. The Court reasoned in part that the plaintiff's "subjective apprehensions" that "a recurrence of the allegedly unlawful conduct" would occur were insufficient to support standing. Id. at 107 n.8. But the likelihood that Lyons would again find himself in a chokehold by the Los Angeles police seems to me far more remote than the ongoing concern of the attorney-plaintiffs here that their telephone or email communications will be intercepted by the TSP. Based upon the principles set forth in Laidlaw, the "reasonableness of the fear" of the attorney-plaintiffs in the present case strikes me as being well beyond what is needed to establish standing to sue. See Laidlaw, 528 U.S. at 184.

Pushing the lead opinion's reasoning still further, the concurring opinion argues that the attorney-plaintiffs "can show nothing more than a fear" of "being subject to a government policy of surveillance." Concurring Op. at 37. "By contrast, if the Laidlaw plaintiffs had resumed their abandoned activities, they would definitely have been subject to the defendant's conduct-illegal discharge into the river." Id. The concurring opinion then asserts that "[t]he Supreme Court's distinction between Laidlaw and Lyons was one of kind, not degree." Id. But I find no support for this assertion, and my colleague's reliance on a quotation from Laidlaw for this point strikes me as unpersuasive.

In fact, the Laidlaw plaintiffs were personally affected by the defendant's conduct whether they used the waterway or not. Nothing in Laidlaw required that the plaintiffs demonstrate that they were all equally likely to be affected by the pollutants, that the pollutants were evenly dispersed through the waterway, or that a plaintiff swimming in the river was more likely than a plaintiff canoeing on the river to be injured. All that was required was that they demonstrate that, given Laidlaw's undisputed conduct, they possessed a reasonable fear of harm. This holds equally true for the attorney-plaintiffs in the present case. The existence of the TSP is undisputed and these plaintiffs are personally affected by the TSP whether they engage in targeted communications or not. In sum, I believe that the distinction between Laidlaw and Lyons is in fact one of degree, and that the attorney-plaintiffs here occupy a position far closer to the former than to the latter.

The other case to which the lead opinion analogizes the present suit is United Presbyterian Church v. Reagan, 238 U.S. App. D.C. 229, 738 F.2d 1375 (D.C. Cir. 1984). In United Presbyterian Church, a group of religious and political organizations, academics, journalists, and a member of Congress challenged the constitutionality of an Executive Order that "specif[ied] the organization, procedures and limitations applicable to the foreign intelligence and counterintelligence activities of the Executive Branch." Id . at 1377. The United Presbyterian Church plaintiffs sought a declaratory judgment that this Executive Order violated the First, Fourth, and Fifth Amendments to the Constitution, the separation-of-powers doctrine, and the National Security Act of 1947. Id . Unlike the attorney-plaintiffs in the present case, however, the United Presbyterian Church plaintiffs "fail[ed] to allege that any plaintiff has suffered any injury in fact under the Order." Id . (discussing the district court opinion). The D.C. Circuit therefore affirmed the district court's dismissal of the complaint for lack of standing to sue, but that fact-driven result has no bearing on the present case with its dramatically different facts.

In dismissing the complaint, the D.C. Circuit followed Laird in concluding that the plaintiffs had alleged no more than a subjective chill. Id . at 1378-81. The facts in the present case are substantially different, however, with even the concurring opinion acknowledging that "[h]ere the plaintiffs' professional injuries are arguably a harm beyond chilled speech." Concurring Op. at 39 n.3. To be sure, several of the groups in United Presbyterian Church claimed that they had experienced direct injury, such as interception of their mail, disruption of their events, and infiltration of their meetings. United Presbyterian Church, 738 F.3d at 1381 n.2. But these allegations were deemed "too generalized" and insufficient because "[t]here is no allegation or even suggestion that any unlawful action to which the appellants have been subjected in the past was the consequence of the presidential action they seek to challenge here." Id. at 1380-81. The D.C. Circuit thus concluded that, "[w]ithout such connection, standing to pursue the present suit does not exist." Id. at 1381.

Here, in contrast, the attorney-plaintiffs have provided a connection between their injury and the TSP. Specifically, officials in the Bush Administration have publicly stated that the TSP involves "intercepts" of "international calls" and "communications" where the government "ha[s] a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda." Press Briefing by Alberto Gonzales, Att'y Gen., and Gen. Michael Hayden, Principal Deputy Dir. for Nat'l Intelligence (Dec. 19, 2005), http://www.whitehouse.gov/news/releases/2005/12/print/20051219-1.html. These are exactly the types of clients that the attorney-plaintiffs represent. The TSP therefore constitutes a "genuine threat" of harm to the attorney-plaintiffs, see Steffel v. Thompson, 415 U.S. 452, 475, 94 S.C.t. 1209, 39 L. Ed. 2d 505 (1974), the absence of which doomed the United Presbyterian Church plaintiffs' action.

A number of cases have distinguished Laird in situations such as this where the plaintiffs have suffered professional injuries. In Meese v. Keene, 481 U.S. 465, 107 S.C.t. 1862, 95 L. Ed. 2d 415 (1987), for example, a state legislator wished to publicly screen three Canadian-made films about the effects of acid rain and nuclear winter. Under a federal statute, the films would have had to be designated as "political propaganda" in order to be shown in this country. Keene sued for injunctive relief, contending that the statute violated his First Amendment rights. The Supreme Court held that Keene had standing to raise a First Amendment claim on the ground that identifying the films as "political propaganda" threatened to cause him cognizable professional injury. Id. at 473. Keene had not in fact shown the films, but alleged that he had standing based on his anticipated harm. The Court agreed, convinced that voters would be less likely to support a candidate associated with propaganda. Id . at 475.

Another example is Ozonoff v. Berzak, 744 F.2d 224 (1st Cir. 1984), where the First Circuit found standing for a physician who wished to work for the World Health Organization (WHO). An Executive Order required that a U.S. citizen undergo a loyalty check before the WHO could extend an offer of employment to that person, notwithstanding the fact that the WHO was not an entity of the U.S. government. The First Circuit distinguished Laird because Ozonoff was alleging more than "the mere existence" of a governmental investigative and data-gathering activity. Id. at 229-30. Instead, Ozonoff's alleged injury was that the loyalty check would deter him from joining certain organizations or expressing certain views. Because of the Executive Order, Ozonoff had chosen to limit his organizational affiliations, much as the existence of the TSP has caused the attorney-plaintiffs to limit their telephone and email communications. Unlike Ozonoff, however, the attorney-plaintiffs are stymied in their efforts to do their jobs by the need to limit their communications. I thus believe that the attorney-plaintiffs have alleged an even more concrete and particularized injury than Ozonoff alleged.

A final example comes from the Third Circuit case of Paton v. La Prade, 524 F.2d 862 (3d Cir. 1975), where the court found standing for high-school student Lori Paton, who alleged that the existence of an FBI investigative file about her could impair her future educational and professional opportunities. Id . at 868. As part of a high school social studies class on "the contemporary political spectrum," Paton had requested information from the Socialist Workers Party (SWP). Id. at 865. The FBI was monitoring mail received and sent by the SWP, resulting in Paton's name and address being recorded and placed in an FBI investigative file. This "mail cover" was in fact directed at the SWP. Like the TSP, the mail cover did not directly compel, proscribe, or regulate Paton. But its effect, like that of the TSP, was to injure her. Paton learned of the file after an FBI agent visited her high school to inquire about her. On these facts, the Third Circuit found that she had standing to challenge the postal regulation authorizing the recording of information about mail going to or from an organization such as the SWP because "she may have sustained or be immediately in danger of sustaining a direct injury" to her present and future educational or professional activities as a result. Id. at 871-73.

The lead opinion attempts to distinguish these cases and others like them on the basis that they challenged the "regulatory, proscriptive, or compulsory" exercise of governmental power to which the complainants were presently or prospectively subject. Lead Op. at 12 (quoting United Presbyterian Church, 738 F.2d at 1378). But that type of government power is precisely what is being challenged here. The attorney-plaintiffs have made credible allegations that the operation of the TSP has compelled them to cease telephone and email communication about sensitive topics with their clients and contacts. Publicly admitted information about the TSP supports them.

What I believe distinguishes Meese, Ozonoff, Paton, and the like from Laird is that the plaintiffs in the first-named cases successfully explained the "precise connection between the mere existence of the challenged system and their alleged chill." Laird, 408 U.S. at 13, n.7. Unlike the Laird plaintiffs who conceded that they themselves were not suffering from any chill, the attorney-plaintiffs here have established a reasonable fear that has generated "actual," "imminent," "concrete," and "particularized" harm resulting from the operation of the TSP, a program that lacks any minimization procedures to protect their privileged communications. See Lujan, 504 U.S. at 560.

Finally, the concurring opinion would find that the state-secrets privilege prevents the attorney-plaintiffs from establishing an injury in fact. Concurring Op. at 39 ("[T]he state secrets privilege has prevented the plaintiffs from conducting discovery that might allow them to establish that they are personally subject to the TSP, as I believe constitutional standing requires."). But this reading expands the reach of the privilege in ways that the caselaw does not support. Because the state-secrets privilege "operates to foreclose relief for violations of rights that may well have occurred by foreclosing the discovery of evidence that they did occur, it is a privilege not to be lightly invoked." Halkin v. Helms, 223 U.S. App. D.C. 254, 690 F.2d 977, 990 (D.C. Cir. 1982) (citation and quotation marks omitted); see also Ellsberg v. Mitchell, 228 U.S. App. D.C. 225, 709 F.2d 51, 57 (D.C. Cir. 1983) ("[T]he privilege may not be used to shield any material not strictly necessary to prevent injury to national security; and, whenever possible, sensitive information must be disentangled from nonsensitive information to allow for the release of the latter.").

The privilege is typically invoked with respect to specific requests for discovery. See, e.g., Jabara v. Kelley, 75 F.R.D. 475, 478-79 (E.D. Mich. 1977). If, however, the state-secrets privilege "deprives the [d]efendants of a valid defense to the [plaintiffs'] claims," then summary judgment may be granted to the defendant. Tenenbaum v. Simonini, 372 F.3d 776, 777-78, 96 Fed. Appx. 998 (6th Cir. 2004). But unlike in Jabara or Tenenbaum, the attorney-plaintiffs here seek no additional discovery from the defendants. Instead, the attorney-plaintiffs argue that they have established standing based on the facts in the public record. This issue highlights what I believe to be the key difference between the lead and concurring opinions on the one hand and my opinion on the other. My colleagues believe that the attorney-plaintiffs must establish that they were actually subject to surveillance under the TSP, whereas I conclude that a demonstration of a reasonable, well-founded fear that has resulted in actual and particularized injury suffices. My reading of the caselaw leads me to conclude that the state-secrets privilege is not so broad as to bar the attorney-plaintiffs from making such a showing.

In short, the critical question in this case is not whether the attorney-plaintiffs have actually been surveilled-because, as the lead opinion aptly notes, a wiretap by its nature is meant to be unknown to its targets-but whether the "reasonableness of the fear" of such surveillance is sufficient to establish that they have suffered actual, imminent, concrete, or particularized harm from the government's alleged unlawful action. See Laidlaw, 528 U.S. at 184. For the reasons discussed above, I believe that the plaintiffs have established such an injury in fact. I therefore turn to the remaining factors in the Article III constitutional-standing analysis.

2. Causation

The plaintiffs must next demonstrate a causal connection between the injury asserted and the government's alleged conduct. This means that "a federal court [can] act only to redress injury that fairly can be traced to the challenged action of the defendant, and not . . . that results from the independent action of some third party not before the court." Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42, 96 S.C.t. 1917, 48 L. Ed. 2d 450 (1976). The "fairly traceable" standard, however, does not require that the defendant's conduct be the sole cause of the plaintiff's injury. See, e.g., Am. Canoe Ass'n, Inc. v. City of Louisa Water & Sewer Comm'n, 389 F.3d 536, 543 (6th Cir. 2004) (finding the causation prong satisfied despite the absence of evidence proving "to a scientific certainty" that the defendant's pollution caused the plaintiff's injury).

In the present case, the lead opinion finds that the attorney-plaintiffs have failed to establish causation due to its characterization of their "two causal pathways based on the two types of alleged injury." Lead Op. at 18. These two pathways are then described as (1) the plaintiffs' decision to cease certain communications as a result of the TSP, and (2) the decision by overseas contacts of the plaintiffs to cease certain communications as a result of the TSP. Id. The lead opinion concludes that the plaintiffs "have no evidence . . . that the NSA has actually intercepted (or will actually intercept) any of their conversations." Id. Rather, the lead opinion characterizes the evidence in the record as establishing "only a possibility -- not a probability or certainty -- that these calls might be intercepted, that the information might be disclosed or disseminated, or that this might lead to some harm to the [plaintiffs'] overseas contacts." Id. (emphasis in original). This "possibility" is too indeterminate, according to the lead opinion, and thus renders "the plaintiffs' showing of causation less certain and the likelihood of causation more speculative." Id. The lead opinion also concludes that the absence of a warrant for the alleged surveillance is insufficient to establish causation because "it is not clear whether the chill can fairly be traced to the absence of a warrant, or if the chill would still exist without regard to the presence or absence of a warrant." Lead Op. at 19.

Based upon my reading of the complaint and the subsequent motion for partial summary judgment, I believe that the lead opinion has mischaracterized the attorney-plaintiffs' allegations. What the attorney-plaintiffs themselves allege, in fact, is that the existence of the TSP outside of FISA's minimization procedures has prevented them from communicating by telephone and by email with their clients, contacts, and sources, thus either compelling them to violate their ethical obligations, or requiring them to undertake costly overseas trips; in short, the TSP has prevented them from doing their jobs. In response, the lead opinion asserts that "there is no evidence in the record from which to presume that the NSA is not complying with, or even exceeding, FISA's restrictions on the acquisition, retention, use, or disclosure of [the information acquired] (i.e., FISA's minimization techniques)." Lead Op. at 20.

This unsupported assertion is belied by statements on the public record from Executive Branch officials. With respect to the acquisition of information, the TSP has been described as having a "softer trigger" than FISA, Press Briefing by Alberto Gonzales, Att'y Gen., and Gen. Michael Hayden, Principal Dep'y Dir. for Nat'l Intel. (Dec. 19, 2005), http://www.whitehouse.gov/news/releases/2005/12/print/20051219-1.html, and one that uses a "reasonable belief" standard rather than FISA's probable cause standard for surveillance. See Remarks by Gen. Michael V. Hayden, Principal Dep'y Dir. of Nat'l Intel., Address to the Nat'l Press Club, Jan. 23, 2006, http://www.dni.gov/speeches/20060123_speech.htm. A senior official in the Department of Justice further informed Congress in 2006 that, "[a]lthough the [TSP] does not specifically target the communications of attorneys or physicians, calls involving such persons would not be categorically excluded from interception . . . ." Letter from William E. Moschella, Assistant Att'y Gen., to the Honorable F. James Sensenbrenner, Jr. (Mar. 24, 2006), at 55, http://www.fas.org/irp/agency/doj/fisa/doj032406.pdf.

To be sure, the Bush Administration has also asserted that "procedures are in place to protect U.S. privacy rights, including applicable procedures required by Executive Order 12333 and approved by the Attorney General, that govern acquisition, retention, and dissemination of information relating to U.S. persons." Id. A review of this Executive Order, however, reveals that it makes no mention of protecting privileged communications. See Exec. Order No. 12,333, 46 Fed. Reg. 59, 941 (Dec. 4, 1981). Furthermore, the Administration has claimed that "[b]ecause collecting foreign intelligence information without a warrant does not violate the Fourth Amendment and because the [TSP] is lawful, there appears to be no legal barrier against introducing this evidence in a criminal prosecution." Letter from William E. Moschella, Assistant Att'y Gen., to the Honorable F. James Sensenbrenner, Jr. (Mar. 24, 2006), at 54, http://www.fas.org/irp/agency/doj/fisa/doj032406.pdf.

Which characterization of injury one accepts will largely determine the causation prong (as well as the redressability prong discussed below) of the standing analysis. As one distinguished commentator has noted,

[t]he central problem in the causation cases is not whether there is a causal nexus among injury, remedy, and illegality; it is how to characterize the relevant injury. Whether the injury is due to the defendant's conduct, or likely to be remedied by a decree in his favor, depends on how the injury is described.

Cass R. Sunstein , Standing and the Privatization of Public Law, 88 Colum. L. Rev. 1432, 1464 (1988).

The lead opinion focuses primarily on the lack of evidence that "the NSA has actually intercepted (or will actually intercept) any of [the plaintiffs'] conversations," and on the "the absence of a warrant (and all that goes with it)." Lead Op. at 18 (footnote and emphasis omitted). But as I discussed earlier in Part I.A.1., the attorney-plaintiffs need show only the reasonableness of their fear, not that their fear has in fact been realized. See, e.g., Laidlaw, 528 U.S. at 184; Meese, 481 U.S. at 475. I thus find the attorney-plaintiffs' characterization of their injury the more persuasive.

Since learning of the existence and operation of the TSP, the attorney-plaintiffs contend that they have ceased communicating by telephone or email about sensitive subjects with their clients and contacts. Whether the potential surveillance is conducted pursuant to a warrant is not the gravamen of their complaint. Their concern is directed at the impact of the TSP on their ability to perform their jobs. The causation requirement does not demand that the government's conduct be the "sole cause" of the attorney-plaintiffs' injury, only that the injury be "fairly traceable" to that conduct. See Simon, 426 U.S. at 41; Am. Canoe Ass'n, 389 F.3d at 543. If the TSP did not exist, the attorney-plaintiffs would be protected by FISA's minimization procedures and would have no reason to cease telephone or email communication with their international clients and contacts. I therefore conclude that the attorney-plaintiffs have demonstrated a causal connection between their asserted injury and the government's alleged actions.

3. Redressability

This leaves the issue of whether the attorney-plaintiffs' injury "will be redressed by a favorable decision." Laidlaw, 528 U.S. at 181. The lead opinion's redressability analysis appears to make two basic points. First, the lead opinion cites 50 U.S.C. § 1806(a) for the proposition that "the issuance of FISA warrants would not relieve any of the plaintiffs' fears of being overheard; it would relieve them only of the fear that the information might be disseminated or used against them." Lead Op. at 21. The lead opinion also asserts that

FISA might not prohibit the interception of attorney-client communications under circumstances where the NSA adheres to a policy of complete non-disclosure. Due to the State Secrets Doctrine, the plaintiffs do not (and cannot) know whether the NSA actually adheres to a policy of complete non-disclosure, but based on the record evidence, it certainly remains possible.

Lead Op. at 21 n.31. That proposition, however, is itself speculation, as the lead opinion concedes. Absent a public revelation from the NSA, the attorney-plaintiffs (or anyone else, for that matter) will simply never know whether a nondisclosure policy in fact exists.

In the face of this uncertainty, the attorney-plaintiffs must presume the absence of such a policy. Their ethical obligations require them to do so, lest they run the risk of revealing confidential and possibly incriminating information directly to the government. The reasonable concern about the possibility of disclosure-not the disclosure itself-triggers those obligations. Similarly, the simple assertion that

[t]he TSP is designed and operated for the prevention of terrorism, and the NSA is interested only in telephone and email communications in which one party to the communication is located outside the United States and the NSA has a 'reasonable basis to conclude that one party to the communication is a member of[, affiliated with,] or working in support of al Qaeda,'

Lead Op. at 21, does not mean that the TSP is not and could not be used to facilitate criminal investigation. Cf. In re Sealed Case, 310 F.3d 717, 727 (For. Intel. Surv. Ct. Rev. 2002) (stating that FISA does not "preclude or limit the government's use or proposed use of foreign intelligence information . . . in a criminal prosecution.").

The lead opinion contends that there is a lack of "evidence in the present record to suggest[] that the information collected by the NSA under the TSP has been disclosed to anyone for any purpose." Lead Op. at 21 n.31. But see Al-Haramain Islamic Found. v. Bush, 451 F. Supp.2d 1215, 1223-25, 1228-30 (D. Or. 2006) (discussing the effect of the government's inadvertent disclosure of a sealed document that arguably described surveillance of the plaintiffs under the TSP). Notwithstanding the lead opinion's contention, a plain reading of the FISA statute provides no support for the speculative assertion that a "policy of complete non-disclosure" exists within the NSA. FISA's explicit provisions regarding minimization procedures and privileged communications in fact strongly support the opposite conclusion.

The lead opinion's second point is premised on 50 U.S.C. § 1805(f), which sets forth the emergency-based exceptions to the normal FISA procedures. It cites this subsection for the proposition that "FISA's general requirement that electronic surveillance may proceed only upon issuance of a FISA Court warrant is not absolute, as FISA provides for instances in which a prior warrant may be unnecessary, at least for a short period of time." Lead Op. at 21 n.31. I agree that FISA's warrant requirement is "not absolute." But the "warrant requirement" is besides the point. Instead, FISA's minimization procedures regarding the use of wiretapped information are the only FISA protections that ultimately bear on the redressability prong of the standing analysis in the present case. The point is that these minimization procedures are "absolute" even though the warrant requirement is not. See 50 U.S.C. § 1805(f) ("If the Attorney General authorizes such emergency employment of electronic surveillance, he shall require that the minimization procedures required by this subchapter for the issuance of a judicial order be followed.") (emphasis added).

Admittedly, the Supreme Court has furnished little guidance regarding the scope of the redressability inquiry beyond requiring a "'direct' relationship between the alleged injury and the claim sought to be adjudicated." Linda R.S. v. Richard D., 410 U.S. 614, 618, 93 S.C.t. 1146, 35 L. Ed. 2d 536 (1973). But I believe that the present case clearly demonstrates such a direct link between the attorney-plaintiffs' injury and their claim. The attorney-plaintiffs' redressability arguments revolve around their very real ongoing ethical obligations to their clients, to their profession, and to themselves. These obligations, as noted above, exist independently of whether the attorney-plaintiffs' communications with their clients have actually been wiretapped through the TSP, independently of whether the NSA actually adheres to a "policy of complete non-disclosure" for all TSP-wiretapped information, and independently of whether a judicially authorized warrant has actually been procured in advance of the alleged wiretapping. This is where the Supreme Court's 2000 decision in Laidlaw again comes directly into play.

The Court in Laidlaw found that the plaintiffs had satisfied the redressability prong even though the defendant, during the course of the appeal, had voluntarily ceased the conduct that had initially given rise to the lawsuit. 528 U.S. at 188-89. Here, too, the NSA has allegedly ceased conducting the TSP independently of the FISA court, as discussed in greater depth in Part I.D. below. But as the government's counsel conceded at oral argument, the Executive Branch views itself as free to unilaterally "opt out" of the FISA court's oversight at any time. The civil penalties imposed on the defendant in Laidlaw, the Supreme Court held, redressed the plaintiffs' alleged injuries from the prior unauthorized pollutant discharges because those injuries were ongoing and the penalties would generally deter not only that particular defendant, but also others similarly situated to it, from engaging in similar conduct in the future. See id. at 187.

Deterrence, in short, is an especially appropriate consideration where, as here, the alleged harm is not "wholly past" but, as publicly acknowledged by the government, instead "ongoing at the time of the complaint and . . . could continue into the future." Laidlaw, 528 U.S. at 188 (distinguishing the holding in Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 108, 118 S.C.t. 1003, 140 L. Ed. 2d 210 (1998)). The Court's holding in Laidlaw could not be more applicable than it is to the present case: "It can scarcely be doubted that, for a plaintiff who is injured or faces the threat of future injury due to illegal conduct ongoing at the time of suit, a sanction that effectively abates that conduct and prevents its recurrence provides a form of redress." Id. at 185-86.

The facts alleged by the attorney-plaintiffs here fit this language to a "T." Each of them "faces the threat" that the TSP will harm them in the future, the TSP was undisputedly ongoing at the time that the attorney-plaintiffs filed their lawsuit, and the district court's injunction "effectively abates" the TSP and "prevents its recurrence." The lead opinion's parting assertion that "[t]he only way to redress the injury would be to enjoin all wiretaps, even those for which warrants are issued and for which full prior notice is given to the parties being tapped," Lead Op. at 22, provides rhetorical flourish but significantly overstates the attorney-plaintiffs' allegations. Simply requiring that the Executive Branch conform its surveillance-gathering activities to governing law, including the requirements of FISA, will redress the attorney-plaintiffs' injury. More is not needed. I therefore conclude that the attorney-plaintiffs have satisfied the redressability prong of the standing analysis.

4. Prudential requirements

The attorney-plaintiffs must satisfy the requirements of prudential standing in addition to satisfying the Article III constitutional requirements. Specifically, they must demonstrate that they are asserting their own interests rather than those of a third party, see Allen v. Wright, 468 U.S. 737, 751, 104 S.C.t. 3315, 82 L. Ed. 2d 556 (1984), and that they are asserting a personalized claim rather than a generalized grievance. See FEC v. Akins, 524 U.S. 11, 23-25, 118 S.C.t. 1777, 141 L. Ed. 2d 10 (1998). Other prudential-standing requirements exist that are not universally applied in all cases. One such requirement is the so-called zone-of-interests test. See Clarke v. Sec. Indus. Ass'n, 479 U.S. 388, 400 n.16, 107 S.C.t. 750, 93 L. Ed. 2d 757 (1987) (noting that the zone-of-interests test "is most usefully understood as a gloss on the meaning of § 702" of the Administrative Procedures Act). This test requires plaintiffs to show that they are "within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit." Bennett v. Spear, 520 U.S. 154, 162, 117 S.C.t. 1154, 137 L. Ed. 2d 281 (1997).

a. Generalized grievance and personal interest

Prudential-standing requirements preclude litigation in federal court "when the asserted harm is a 'generalized grievance' shared in substantially equal measure by all of a large class of citizens," or where a plaintiff seeks to "rest his claim to relief on the legal rights or interests of third parties." Warth v. Seldin, 422 U.S. 490, 499, 95 S.C.t. 2197, 45 L. Ed. 2d 343 (1975). The fact that a harm is widely shared, however, will not by itself preclude standing if the harm is also concrete and particularized. Mass. v. Envtl. Protection Agency, 549 U.S. 497, 127 S.C.t. 1438, 1456, 167 L. Ed. 2d 248 (2007) ("[W]here a harm is concrete, though widely shared, the Court has found 'injury in fact.'") (quoting FEC v. Akins, 524 U.S. 11, 24, 118 S.C.t. 1777, 141 L. Ed. 2d 10 (1998))).

In the present case, the attorney-plaintiffs have alleged specific and concrete injuries to themselves and to their ability to engage in their professional work due to the operation of the TSP. They allege that they are unable to engage in telephone and email communications with clients and contacts because the identity of those clients and contacts, some of whom have been charged with links to terrorism or terrorist organizations, fall within the ambit of the TSP. Because the government has admitted that the TSP has operated outside of FISA and does not distinguish attorneys from any other person whose telephone or email communications might be under electronic surveillance, the attorney-plaintiffs have been unable, consistent with their ethical responsibilities to their clients and to the bar, to engage in privileged communications. They must instead incur the significant financial and professional burden of traveling to meet in person with clients and contacts.

The TSP has thus injured the attorney-plaintiffs both personally and professionally. For these reasons and for the reasons previously discussed in my analysis of injury in fact in Part I.B.1. above, I conclude that the attorney-plaintiffs are asserting personalized, individual harms rather than generalized grievances or the rights of a third party.

b. Zone of interests

The zone-of-interests test is the other prudential standing requirement that the attorney-plaintiffs must satisfy. They must show that they are arguably within the zone of interests of "a relevant statute." 5 U.S.C. § 702; Clarke, 479 U.S. at 396. The Supreme Court has clarified

"that the breadth of the zone of interests varies according to the provisions of law at issue, so that what comes within the zone of interests of a statute for purposes of obtaining judicial review of administrative action under the generous review provisions of the APA may not do so for other purposes." Id. at 163 (quotation marks omitted).

In the present case, the attorney-plaintiffs do not raise a cause of action under FISA or under Title III; instead, their cause of action arises under the APA. Under § 702 of the APA, "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. A plaintiff must therefore "identify some agency action that affects him in the specified fashion." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 882, 110 S.C.t. 3177, 111 L. Ed. 2d 695 (1990) (quotation marks omitted). Second, the plaintiff must show that he has suffered a "legal wrong" because of that agency action or that he is "adversely affected or aggrieved by that action within the meaning of a relevant statute." Id. at 883 (quotation marks omitted).

The Supreme Court said in Lujan "that to be adversely affected or aggrieved . . . within the meaning of a statute, the plaintiff must establish that the injury he complains of . . . falls within the zone of interests sought to be protected by the statutory provision whose violation forms the legal basis for his complaint." Id. (quotation marks omitted). "In determining whether the petitioners have standing under the zone-of-interests test to bring their APA claims, we look not to the terms of the [relevant statute's] citizen-suit provision, but to the substantive provisions of the [statute], the alleged violations of which serve as the gravamen of the complaint." Bennett, 520 U.S. at 175. The attorney-plaintiffs here maintain that the TSP violates FISA and Title III by functioning as an electronic surveillance program outside the "exclusive means" of those statutes.

FISA includes a civil-liability provision, which states that

[a]n aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801(a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation and shall be entitled to recover [actual and punitive damages and reasonable attorney fees and costs].

50 U.S.C. § 1810. The lead opinion asserts that the attorney-plaintiffs cannot establish that they have a right to sue because they are not "aggrieved persons" under FISA. An "aggrieved person" is defined as "a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance." 50 U.S.C. § 1801(k). According to the lead opinion, because the plaintiffs "have not shown that they were actually the target of, or subject to, the NSA's surveillance," they cannot establish a cause of action under FISA. Lead Op. at 32.

The attorney-plaintiffs' challenge, however, is precisely that the TSP has operated outside of FISA despite the fact that Congress has declared FISA to be the "exclusive means" for the government to engage in electronic surveillance for foreign intelligence purposes in this country. 18 U.S.C. § 2511(2)(f). They rely on provisions of FISA and of Title III of the Omnibus Crime Control and Safe Streets Act, which criminalizes the interception and/or disclosure of wire, oral, or electronic communications other than pursuant to those statutes. See 50 U.S.C. § 1809(a); 18 U.S.C. § 2511(2)(f).

The lead opinion contends that Title III cannot support standing because the statute provides that "[n]othing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications." 18 U.S.C. § 2511(2)(f). Lead Op. at 29. But this reading of the statute ignores the remainder of the sentence. In full, section (2)(f) states as follows:

Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.

(Emphasis added.) In light of the fact that Title III deals only with domestic wiretaps to obtain intelligence information relating to certain specified offenses, see 18 U.S.C. § 2516, the above-quoted subsection makes quite clear that FISA "shall be the exclusive means by which electronic surveillance [for foreign intelligence purposes] . . . may be conducted." Id. (emphasis added).

The lead opinion contends, however, that the "exclusive means" provision of Title III and FISA should be read "as two separate and independent, albeit parallel, statements." Lead Op. at 32. Accordingly, the lead opinion asserts, "[t]his provision does not foreclose the possibility that the government may engage in certain surveillance activities that are outside of the strictures of both Title III and FISA." Id. But the lead opinion provides no legal support for this novel statutory interpretation and none is apparent to me. This, in my opinion, flies directly in the face of the plain language of FISA and its legislative history. I note, moreover, that the government announced in January of this year that the TSP would henceforth be conducted under the aegis of the FISA Court of Review.

The language of both the FISA statute and its legislative history is explicit: FISA was specifically drafted "to curb the practice by which the Executive [B]ranch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it." S. Rep. No. 95-604, pt. I, at 8, reprinted at 1978 U.S.C.C.A.N. 3904, 3910; see also id. at 3908. When debating FISA, Congress made clear that it intended to prevent the Executive Branch from engaging in electronic surveillance in the United States without judicial oversight, even during times of war. See S. Rep. No. 95-701, at 47, reprinted at 1978 U.S.C.C.A.N. 3973, 4016 ("This bill will establish the exclusive United States law governing electronic surveillance in the United States for foreign intelligence purposes.").

Congress explicitly refuted the "inherent authority" argument on which the government seeks to justify the TSP's existence:

Finally, S. 1566 spells out that the Executive cannot engage in electronic surveillance within the United States without a prior judicial warrant. This is accomplished by repealing the so-called executive "inherent power" disclaimer clause currently found in section 2511 (3) of Title 18, United States Code. S. 1566 provides instead that its statutory procedures (and those found in chapter 119 of title 18) "shall be the exclusive means" for conducting electronic surveillance, as defined in the legislation, in the United States. The highly controversial disclaimer has often been cited as evidence of a congressional ratification of the President's inherent constitutional power to engage in electronic surveillance in order to obtain foreign intelligence information essential to the national security. Despite the admonition of the Supreme Court that the language of the disclaimer was "neutral" and did not reflect any such congressional recognition of inherent power, the section has been a major source of controversy. By repealing section 2511(3) and expressly stating that the statutory warrant procedures spelled out in the law must be followed in conducting electronic surveillance in the United States, this legislation ends the eight-year debate over the meaning and scope of the inherent power disclaimer clause.

S. Rep. No. 95-604, pt. I, at 6-7, reprinted at 1978 U.S.C.C.A.N. 3904, 3908. In fact, Congress rejected language that would have made FISA and Title III the "exclusive statutory means" under which electronic surveillance could be conducted, instead adopting language that made those statutes simply the "exclusive means" governing such surveillance. See H.R. Conf. Rep. No. 95-1720, at 35, reprinted at 1978 U.S.C.C.A.N. 4048, 4064 (emphasis added).

More to the point, the government has publicly admitted that the TSP has operated outside of the FISA and Title III statutory framework, and that the TSP engages in "electronic surveillance." Press Briefing by Alberto Gonzales, Att'y Gen., and Gen. Michael Hayden, Principal Deputy Dir. for Nat'l Intelligence (Dec. 19, 2005), http://www.whitehouse.gov/news/releases/2005/12/print/20051219-1.html (General Hayden: "I can say unequivocally that we have used this program in lieu of [the FISA processes] and this program has been successful."). In January of 2007, in fact, the Bush Administration announced that it had reached a secret agreement with the Foreign Intelligence Surveillance Court (FISC) whereby the TSP would comply with FISA, a further acknowledgment that the TSP had previously been operating without FISA approval. See Letter from Alberto Gonzales, Att'y Gen., to the Honorable Patrick Leahy & the Honorable Arlen Specter (Jan. 17, 2007), at 1 ("[A]ny electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court."), http://leahy.senate.gov/press/200701/1-17-07%20AG%20to%20PJL%20Re%20FISA%20Court.pdf; see also Dan Eggen, Spy Court's Orders Stir Debate on Hill, Wash. Post, Jan. 19, 2007, at A06 (reporting on the reaction to the Bush administration's announcement "that it will dismantle the controversial counterterrorism surveillance program run by the National Security Agency and instead conduct the eavesdropping under the authority of the secret Foreign Intelligence Surveillance Court, which issues warrants in spy and terrorism cases").

The lead opinion, however, repeats the government's assertion that none of the plaintiffs have shown "that the NSA's surveillance activities include the sort of conduct that would satisfy FISA's definition of 'electronic surveillance,'" and declares that "the present record does not demonstrate that the NSA's conduct falls within FISA's definitions." Lead Op. at 31. As an initial matter, this argument has been waived because the government failed to raise it before the district court. See, e.g., United States v. Abdi, 463 F.3d 547, 563 (6th Cir. 2006) ("It is fundamental, and firmly established by Supreme Court precedent, that appellate courts generally are not to consider an issue brought for the first time on appeal.").

Moreover, the government's contention lacks merit. The Attorney General has publicly acknowledged that FISA "requires a court order before engaging in this kind of surveillance . . . unless otherwise authorized by Congress." Press Briefing by Alberto Gonzales, Att'y Gen., and Gen. Michael Hayden, Principal Dep'y Dir. for Nat'l Intel. (Dec. 19, 2005), http://www.whitehouse.gov/news/releases/2005/12/print/20051219-1.html. (Emphasis added.) Other Administration officials have similarly characterized the TSP as being used "in lieu of" FISA. Id. These statements indicate that the TSP in fact captures electronic surveillance as defined by FISA, despite the belated effort of Executive Branch officials to disavow this acknowledgment.

There is no doubt in my mind that the attorney-plaintiffs have established that the injury complained of falls within the zone of interests sought to be protected by these statutes. Accordingly, I conclude that they have satisfied the prudential-standing requirements.

5. Standing summary

For all of the reasons discussed above, I believe that the attorney-plaintiffs have satisfied both the constitutional and prudential requirements for standing to sue. I therefore conclude that the attorney-plaintiffs are entitled to proceed with their claims against the government for the injuries allegedly flowing from the operation of the TSP.

C. Mootness

The last procedural hurdle that the plaintiffs must overcome is the question of mootness. Article III of the Constitution limits the jurisdiction of the federal courts to "actual, ongoing controversies." Honig v. Doe, 484 U.S. 305, 317, 108 S.C.t. 592, 98 L. Ed. 2d 686 (1988). Federal courts have "neither the power to render advisory opinions nor to decide questions that cannot affect the rights of litigants in the case before them." Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.C.t. 2330, 45 L. Ed. 2d 272 (1975) (quotation marks omitted). Mootness became an issue in this case in January of 2007, when the government publicly announced that a judge of the Foreign Intelligence Surveillance Court had issued orders authorizing the government to conduct electronic surveillance of "international communications into or out of the United States where there is probable cause to believe" that one party to the communication is "a member or agent of al Qaeda or an associated terrorist organization." Letter from Alberto Gonzales, Att'y Gen., previously cited on p. 56, at 1.

As a result of these orders, electronic surveillance that had been occurring under the TSP "will now be conducted subject to the approval" of the FISC, and "the President has determined not to reauthorize" the TSP. Id. at 1-2. The government, in short, decided to voluntarily cease electronic surveillance of international communications in this country outside of FISA. On the ground that such surveillance would henceforth be FISA-compliant, the government argues that we should dismiss this case as moot and vacate the judgment below. To be sure, if we could be satisfied that the TSP would never be reinstituted, then the government's argument would have merit. We must therefore determine whether the present situation fits into the voluntary-cessation exception to the mootness doctrine.

Under well-established Supreme Court precedent, the "voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot," United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.C.t. 894, 97 L. Ed. 1303 (1953), because "courts would be compelled to leave the defendant . . . free to return to his old ways." United States v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 203, 89 S.C.t. 361, 21 L. Ed. 2d 344 (1968) (quotation marks omitted). The test is demanding: "A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur," Concentrated Phosphate, 393 U.S. at 203, and if "interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." Los Angeles County v. Davis, 440 U.S. 625, 631, 99 S.C.t. 1379, 59 L. Ed. 2d 642 (1979). Moreover, the "heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness." Laidlaw, 528 U.S. at 189 (brackets and quotation marks omitted). The government urges us to find that there is "no longer any live genuine controversy to adjudicate" because the TSP ceased to exist when the President's last authorization for it expired, thus resolving and mooting the plaintiffs' claims.

But the government continues to assert that the TSP did not violate the Constitution or any federal statute prior to the January 2007 FISC orders. Instead, it contends that "[a]n independent judicial body--the FISA court--has now acted to provide additional and wholly sufficient legal authority for the activity in question." The government accordingly argues that it "has in no sense terminated its conduct in response to plaintiffs' suit," but rather that the FISC orders "provide[] legal authority that plaintiffs claimed was absent." Both in its briefs and at oral argument, the government insisted that the FISC orders represent an independent "intervening act of a coordinate branch of government" that suffices to render the voluntary-cessation exception inapplicable.

But the government acknowledged at oral argument that the President maintains that he has the authority to "opt out" of the FISA framework at any time and to reauthorize the TSP or a similar program. The government also conceded that the FISC orders were actively sought by the Executive Branch, and that the President decided that he would comply with the orders only "after determining that the [FISC] order[s] provide[d] the necessary speed and agility" for TSP-style surveillance. Most recently, the Director of National Intelligence stated during a congressional hearing that the government continued to believe that the President has the authority under Article II of the Constitution to order the NSA to conduct warrantless electronic surveillance. James Risen, Administration Pulls Back on Surveillance Agreement, N.Y. Times, May 2, 2007, at A18. These facts do not support a conclusion that it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Concentrated Phosphate, 393 U.S. at 203. Indeed, the government's insistence that the TSP was perfectly lawful and the reservation of its ability to opt out of the FISC orders at any time lend credence to the opposite position.

I therefore conclude that the government has failed to meet its heavy burden of showing that the challenged conduct cannot reasonably be expected to start up again. Accordingly, I conclude that this case is not moot and that this court may properly continue to exercise jurisdiction over it.

D. Merits

Without expressing an opinion concerning the analysis of the district court, I would affirm its judgment because I conclude that the TSP violates FISA and Title III and that the President does not have the inherent authority to act in disregard of those statutes. The clearest ground for deciding the merits of this appeal is the plaintiffs' statutory claim, just as the clearest argument for standing is presented by the attorney-plaintiffs. This is not to say that the plaintiffs' other causes of action lack merit, but simply that this case can, and therefore should, be decided on the narrowest grounds possible. See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 457, 105 S.C.t. 3249, 87 L. Ed. 2d 313 (1985) ("When a lower court correctly decides a case, albeit on what this Court concludes are unnecessary constitutional grounds, our usual custom is . . . to affirm on the narrower, dispositive ground available.") (quotation marks omitted).

1. The TSP violated FISA and Title III

The government contends that "it would be imprudent . . . to address plaintiffs' FISA claim without a district court decision addressing the predicate questions necessary to the resolution of that claim in the first instance." This argument overlooks the fact that an appellate court possessed of proper jurisdiction can affirm on any ground fairly supported by the record. See In re Cleveland Tankers, Inc., 67 F.3d 1200, 1205 (6th Cir. 1995). Moreover, as the following analysis indicates, no predicate findings from the district court are needed to resolve the plaintiffs' statutory argument.

Both FISA and Title III expressly prohibit electronic surveillance outside of their statutory frameworks, as set forth in Part I.B.4.b. above. The language used is unequivocal. In enacting FISA, Congress directed that electronic surveillance conducted inside the United States for foreign intelligence purposes was to be undertaken only as authorized by specific federal statutory authority. See 50 U.S.C. § 1809. Title III criminalizes the interception and disclosure of wire, oral, and electronic communications except under certain specified exceptions. See 18 U.S.C. § 2511(2)(f). The statute clearly states that chapter 119 and FISA "shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted." Id . (emphasis added).

In construing statutory language, we assume that "Congress said what it meant." United States v. LaBonte, 520 U.S. 751, 757, 117 S.C.t. 1673, 137 L. Ed. 2d 1001 (1997). Where the text of a statute is clear, "we need not assess the legislative history of the . . . provision." Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 119, 121 S.C.t. 1302, 149 L. Ed. 2d 234 (2001). I nonetheless reiterate that the legislative history of FISA clearly reinforces the conclusion that FISA and Title III constitute the sole means by which electronic surveillance may lawfully be conducted. During a conference session on the FISA legislation, members of Congress rejected language that would have described FISA and Title III as the "exclusive statutory means" by which electronic surveillance was permitted, preferring instead the broader construction, "exclusive means." H.R. Conf. Rep. No. 95-1720, at 35 (1978), reprinted in 1978 U.S.C.C.A.N. 4048, 4064.

Congress has thus unequivocally declared that FISA and Title III are the exclusive means by which electronic surveillance is permitted. No other authorization can comply with the law. Congress further emphasized this point by criminalizing the undertaking of electronic surveillance not authorized by statute in two separate places in the U.S.C.ode. See 50 U.S.C. § 1809; 18 U.S.C. § 2511(1) & (2)(e). The government, however, contends that Congress authorized the TSP in the aftermath of the September 11, 2001 attacks by enacting the Authorization for Use of Military Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224 (Sept. 18, 2001). In addition, the government notes that "foreign intelligence gathering is . . . vital to the successful prosecution of war."

But FISA itself expressly and specifically restricts the President's authority even in times of war. The statute provides that "[n]otwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress." 50 U.S.C. § 1811. FISA thus limits warrantless electronic surveillance to the first 15 days following a declaration of war, a more formal action than even the enactment of an authorization for the use of force. This 15-day period of warrantless surveillance was enacted to permit "consideration of any amendment to this Act that may be appropriate during a wartime emergency." H.R. Conf. Rep. 95-1720, at 34, reprinted at 1978 U.S.C.C.A.N. 4048, 4063.

To be sure, Congress in 1978 likely did not contemplate a situation such as the one that arose with the attacks of September 11, 2001. But in the aftermath of those attacks, Congress has shown itself both willing and able to consider appropriate amendments to FISA. Congress has in fact amended FISA multiple times since September 11, 2001, increasing the President's authority by permitting "roving" wiretaps and expanding the permissible use of pen-register devices. See USA PATRIOT Act of 2001, Pub. L. No. 107-56 §§ 206, 214,, as amended by Pub. L. No. 109-177, §§ 108, 128 (codified as amended at 50 U.S.C. § 1805 and 50 U.S.C. § 1842).

But Congress has never suspended FISA's application nor altered the 15-day limit on warrantless electronic surveillance. Id. The Attorney General has in fact acknowledged that the Bush Administration has never sought an amendment to FISA that might have provided authorization for the TSP or a similar program because certain members of Congress allegedly informed the Administration that such an amendment would be "difficult, if not impossible" to obtain. Press Briefing by Alberto Gonzales, Att'y Gen., http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html.

Yet the TSP is precisely the type of program that FISA was enacted to oversee. A senior Department of Justice official has conceded that the TSP involved warrantless electronic surveillance of communications into and out of the United States. Letter from William Moschella, Assistant Att'y Gen., to the Honorable Pat Roberts, the Honorable John D. Rockefeller, IV, the Honorable Peter Hoekstra, & the Honorable Jane Harman (Dec. 22, 2005), at 1-3, http://www.nationalreview.com/pdf/12%2022%2005%20NSA%20letter.pdf. The TSP, in addition, operated without a court order. Press Briefing by Alberto Gonzales, Att'y Gen., http://www.whitehouse.gov/news/releases/2005/12/print/20051219-1.html.

In arguing that the TSP did not violate FISA, the government contends that Congress authorized such warrantless electronic surveillance when it passed the AUMF. The AUMF states in pertinent part

[t]hat the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Pub. L. No. 107-40, 115 Stat. 224 (Sept. 18, 2001).

According to the government, the AUMF provides the authorization necessary to satisfy FISA's prohibition on electronic surveillance "except as authorized by statute." See 50 U.S.C. § 1809(a). No reference to surveillance, however, is found in the AUMF. Instead, the government's argument rests on a general inference to be drawn from the AUMF; in other words, that the phrase "all necessary and appropriate force" encompasses electronic surveillance by implication. But this interpretation of the AUMF directly conflicts with the specific statutory language of both FISA and Title III.

In particular, the government's argument requires us to accept that the AUMF has implicitly repealed the "exclusive means" provision of Title III. See 18 U.S.C. § 2511(2)(f). The problem with this position is that neither the caselaw nor the rules of statutory construction support the government's argument. Certainly the express language of the AUMF cannot sustain such an interpretation because, as noted above, it says nothing about electronic surveillance. In 18 U.S.C. § 2511, Congress criminalized the undertaking of electronic surveillance except as "specifically provided in this chapter" or as authorized by FISA. The AUMF is neither "in this chapter" nor designated as an amendment to FISA. In order to give the government's argument effect then, the AUMF must either repeal the "exclusive means" provision of the original FISA legislation as codified in Title III or work in conjunction with FISA.

"Repeals by implication are not favored," Ex parte Yerger, 75 U.S. 85, 105, 19 L. Ed. 332 (1868), and are appropriate only when established by "overwhelming evidence" that Congress intended the repeal and "when the earlier and later statutes are irreconcilable." J.E.M. Ag. Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc., 534 U.S. 124, 137, 141-42, 122 S.C.t. 593, 151 L. Ed. 2d 508 (2001). In the present situation, the statutes are easily reconciled: FISA places limits on the means by which the President may fulfill his duties under the AUMF. The President is free to engage in surveillance without a warrant up to the limits set by Congress when it enacted FISA, which is in keeping with Congress's stated purpose "to curb the practice by which the Executive Branch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it." S. Rep. No. 95-604, pt. I, at 8, reprinted at 1978 U.S.C.C.A.N. 3904, 3910.

FISA, as noted previously, includes explicit provisions for wartime usage. The government argues that if the AUMF has not implicitly repealed the exclusive-means provision, then the AUMF and FISA must be in conflict, and that the AUMF should trump FISA. This disregards the fact that shortly after enacting the AUMF, Congress amended certain provisions of FISA through its enactment of the USA PATRIOT Act, as described above. Congress thus saw no conflict between FISA and the AUMF. Cf. Ali Saleh Kahlah Al-Marri v. Wright, 487 F.3d 160, 2007 U.S. App. LEXIS 13642, 2007 WL 1663712, at *22 (4th Cir. 2007) (concluding that Congress's enactment of the USA PATRIOT Act, with specific provisions relating to the detention of "terrorist aliens" such as the plaintiff, "provides still another reason why we cannot assume that Congress silently empowered the President in the AUMF to order the indefinite military detention without any criminal process of civilian 'terrorist aliens' as 'enemy combatants'").

In addition, the government's argument completely ignores two fundamental principles of statutory construction. The first relevant principle is that when interpreting potentially conflicting statutes, "a more specific statute will be given precedence over a more general one, regardless of their temporal sequence." Busic v. United States, 446 U.S. 398, 406, 100 S.C.t. 1747, 64 L. Ed. 2d 381 (1980); see also Morales v. TWA, Inc., 504 U.S. 374, 384-85, 112 S.C.t. 2031, 119 L. Ed. 2d 157 (1992) (noting that a specific and "carefully drawn" statute prevails over a more general one). FISA's provisions regarding wartime electronic surveillance are detailed and specific. The AUMF, in contrast, sweeps broadly, making no reference at all to electronic surveillance.

To read the statutes as the government suggests would render FISA's provisions relating to wartime usage mere surplusage. Such a reading would run counter to the second relevant principle of statutory construction that requires courts to "give effect, if possible, to every clause and word of a statute." Montclair v. Ramsdell, 107 U.S. 147, 152, 2 S.C.t. 391, 27 L. Ed. 431 (1883); see also United States v. Perry, 360 F.3d 519, 538 (6th Cir. 2004) (discussing the rule against surplusage in statutory construction). Thus, FISA prevails over the AUMF with respect to electronic surveillance in the context of this case.

In addition, the government's reading of the phrase "except as authorized by statute" strains the legislative record. See Elizabeth B. Bazan & Jennifer K. Elsea, Cong. Research Serv., Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information, at 40 (Jan. 5, 2006), http://www.fas.org/sgp/crs/intel/m010506.pdf (noting that "the legislative history appears to reflect an intention that the phrase 'authorized by statute' was a reference to chapter 119 of Title 18 of the U.S.C.ode (Title III) and to FISA itself, rather than having a broader meaning"). I accordingly believe that the legislative history does not support the government's reading.

The government also contends that the AUMF can be read as a more specific statute than FISA based on recent Supreme Court jurisprudence. In Hamdi v. Rumsfeld, 542 U.S. 507, 519, 124 S.C.t. 2633, 159 L. Ed. 2d 578 (2004), a plurality of the Court concluded that "[b]ecause detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war, in permitting the use of 'necessary and appropriate force,' Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here." The plurality then reached the conclusion that "the AUMF is explicit congressional authorization for the detention of individuals in the narrow category we describe," namely individuals who were "part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there." Hamdi, 542 U.S. at 516-17 (plurality) (quotation marks omitted). Despite the stated narrowness of this holding, the government argues that Hamdi allows us to read the AUMF as authorizing "signals intelligence" gathering on al-Qaeda and other suspected terrorists, and to construe such signals intelligence as including electronic surveillance targeting U.S. persons inside this country.

But FISA's wartime provision distinguishes the present situation from that raised in Hamdi . Congress had not enacted a law at the time of the Hamdi decision that specifically authorized the unlimited detention of American citizens during wartime, and the effect of that legislative omission was the subject of the analysis in the Hamdi decision. 542 U.S. at 516-25. In contrast, Congress has enacted a law (FISA) that specifically authorizes electronic surveillance within the U.S. for foreign intelligence purposes, and has specifically included a provision dealing with times of war. 50 U.S.C. § 1811. What was thus found to be a reasonable exercise of authority where Congress had been silent becomes an unreasonable exercise where Congress has plainly spoken. See also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38, 72 S.C.t. 863, 96 L. Ed. 1153, 62 Ohio Law Abs. 417 (1952) (Jackson, J., concurring) (discussing the authority of the President and how it relates to congressional enactments).

Finally, the Supreme Court's more recent decision in Hamdan v. Rumsfeld, 548 U.S. 557, 126 S.C.t. 2749, 165 L. Ed. 2d 723 (2006), clearly rejected the government's theory of the AUMF. The Court in Hamdan declined to read the AUMF as implicitly authorizing the President to override a provision in the Uniform Code of Military Justice (UCMJ) that sets forth the conditions for convening military commissions in lieu of courts-martial. "[T]here is nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization set forth in Article 21 of the UCMJ." Hamdan, 126 S.C.t. at 2775.

The same observation holds true in the present case. Nothing in the AUMF suggests that Congress intended to "expand or alter the authorization" set forth in FISA. Moreover, the text and the legislative history of FISA and Title III make quite clear that the TSP or a similar program can be authorized only through those two statutes. The TSP plainly violated FISA and Title III and, unless there exists some authority for the President to supersede this statutory authority, was therefore unlawful.

2. Inherent authority

The government's final defense is that the Constitution grants the President the "inherent authority" to "intercept the international communications of those affiliated with al Qaeda." A contrary position would, according to the government, "present a grave constitutional question of the highest order." For that reason, the government contends that we should follow the canon of constitutional avoidance and construe FISA and the AUMF to avoid any constitutional conflict. See Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 108 S.C.t. 1392, 99 L. Ed. 2d 645 (1988) (discussing the canon of constitutional avoidance).

But the canon of constitutional avoidance "is not a method of adjudicating constitutional questions by other means." Clark v. Martinez, 543 U.S. 371, 381, 125 S.C.t. 716, 160 L. Ed. 2d 734 (2005) (discussing the role played by the canon of constitutional avoidance in statutory interpretation). Instead, its purpose is to allow courts to construe a statute so as to avoid serious constitutional problems, " unless such construction is plainly contrary to the intent of Congress." DeBartolo, 485 U.S. at 575 (emphasis added).

The Constitution divides the nation's war powers between the Executive and the Legislative Branches. See U.S.C.onst. art. I, § 8 (setting forth the powers of Congress) & art. II, § 2 (setting forth the powers of the President); see also Youngstown, 343 U.S. at 635 (Jackson, J., concurring) (noting that the powers of the President "depend[] upon their disjunction or conjunction with those of Congress"). In contrast to the government's suggestion, the President does not have exclusive war powers. U.S.C.onst. art. I, § 8 (setting forth the affirmative powers of the Congress, including the power "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers").

The Constitution expressly grants Congress the power to make laws in the context of national defense. Id . Moreover, the Constitution requires the President to conform to duly enacted laws. U.S.C.onst. art. II, § 3 ("[H]e shall take Care that the Laws be faithfully executed."). This requirement endures even in times of war. In Little v. Barreme, 6 U.S. (2 Cranch) 170, 177-78, 2 L. Ed. 243 (1804), for example, the Supreme Court held that during the "Quasi War" with France, the President could not give instructions that ran counter to a validly enacted statute, despite the fact that the President's construction seemed to give the law better effect. The Supreme Court reiterated this principle in Ex Parte Milligan, 71 U.S. (4 Wall) 2, 18 L. Ed. 281 (1866), holding that the Habeas Corpus Act of 1863 barred the President from denying habeas corpus rights to a detainee who was captured outside the area of battle. More recently, the Court held in Hamdan that the President "may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers." Hamdan, 126 S.C.t. at 2774 n. 23 (citing Youngstown, 343 U.S. at 637 (Jackson, J., concurring)).

The Supreme Court fully addressed the question of the inherent authority of the President in Youngstown. There, the Court struck down President Truman's executive order to seize domestic steel-production facilities during the Korean war. In his famous concurring opinion, Justice Jackson described our tripartite system as one of "separateness but interdependence, autonomy but reciprocity." Youngstown, 343 U.S. at 635 (Jackson, J., concurring). "Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress." Id. He then laid out the three so-called zones of presidential power as follows:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. . . .

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. . . .

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.

Id. at 635-37.

When the President acts in Zone 3, "[c]ourts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system." Id. at 637-38 (footnote omitted).

We must thus determine into which zone the TSP fits. From that determination, the program will stand or fall. The government argues that the TSP fits into Zone 1, where the President's authority is at its zenith. But this argument ignores Congress's clear directive that FISA and Title III constitute the exclusive means for undertaking electronic surveillance within the United States for foreign intelligence purposes. The result might not be what the President would prefer, but that does not give him license to "disregard limitations" that Congress has "placed on his powers." Hamdan, 126 S.C.t. at 2774 n.23. In light of FISA and Title III, I have no doubt that the TSP falls into Zone 3, where the President's authority is at its lowest ebb.

The government, however, turns to a case from the Foreign Intelligence Surveillance Court of Review as support for its argument that the President has "inherent constitutional authority to conduct warrantless foreign intelligence surveillance." See In re Sealed Case, 310 F.3d 717, 746 (For. Intel. Surv. Ct. Rev. 2002) (per curiam). To be sure, the Sealed Case court stated in dicta that "[w]e take for granted that the President does have" the "inherent authority to conduct warrantless searches to obtain foreign intelligence information." Id. at 742. This dicta, however, is unpersuasive because the Sealed Case court relied on a Fourth Circuit decision from 1980 that dealt with a challenge to pre-FISA surveillance. Id. (discussing United States v. Truong Dinh Hung, 629 F.2d 908, 914 n.4 (4th Cir. 1980)).

The Sealed Case court discussed Truong for the purpose of determining whether the Fourth Circuit had articulated the proper constitutional standard for evaluating a Fourth Amendment challenge to FISA. Id . at 742-44. Finding that Truong did set forth the proper standard, the Sealed Case court applied the same standard to uphold the post-PATRIOT Act version of FISA against a Fourth Amendment challenge. Id . at 742. In sum, the dicta in Sealed Case cannot overcome the fact that Congress has unequivocally acted within its constitutional power to limit the President's authority over warrantless electronic surveillance within this country.

Finally, all of the courts to have considered the question of whether FISA was constitutional before the statute was amended by the USA PATRIOT Act of 2001 have in fact upheld the statute. See United States v. Nicholson, 955 F. Supp. 588, 590 n.3 (E.D. Va. 1997) (collecting cases upholding FISA against various constitutional challenges). Those courts that have considered the constitutionality of FISA since it was amended by the USA PATRIOT Act have likewise upheld the statute against constitutional challenges. See United States v. Ning Wen, 477 F.3d 896, 898-99 (7th Cir. 2007) (finding no conflict with the Fourth Amendment where evidence obtained pursuant to a FISA court order was used in a criminal prosecution); United States v. Damrah, 412 F.3d 618, 625, 124 Fed. Appx. 976 (6th Cir. 2005) (noting that "FISA has uniformly been held to be consistent with the Fourth Amendment"); In re Sealed Case, 310 F.3d at 746. In light of these persuasive authorities, I find no merit to the government's "inherent authority" argument.

E. Plaintiffs' datamining cross-appeal

The plaintiffs raise a cross-appeal from the district court's grant of summary judgment to the government on the plaintiffs' datamining claim. After a careful review of the record, I conclude that the district court's analysis of this issue and of the preclusive effect of the state-secrets privilege is persuasive. I would therefore not disturb the district court's judgment on the plaintiffs' datamining claim.

II. CONCLUSION

The closest question in this case, in my opinion, is whether the plaintiffs have the standing to sue. Once past that hurdle, however, the rest gets progressively easier. Mootness is not a problem because of the government's position that it retains the right to opt out of the FISA regime whenever it chooses. Its AUMF and inherent-authority arguments are weak in light of existing precedent and the rules of statutory construction. Finally, when faced with the clear wording of FISA and Title III that these statutes provide the "exclusive means" for the government to engage in electronic surveillance within the United States for foreign intelligence purposes, the conclusion becomes inescapable that the TSP was unlawful. I would therefore affirm the judgment of the district court.