University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name In re proceedings required by 702(i) of the FISA Amendments Act of 2008, MISC 08-01 NS-DC-0058
Docket / Court Misc. 08-01 ( FISC )
State/Territory District of Columbia
Case Type(s) National Security
Special Collection Foreign Intelligence Surveillance Act -- All Matters
Foreign Intelligence Surveillance Act -- Foreign Targeting (702, 703, 704)
Foreign Intelligence Surveillance Court
Attorney Organization ACLU Chapters (any)
ACLU National (all projects)
Case Summary
As explained in NS-DC-76 in this Clearinghouse, the FISA Amendments Act of 2008 (FAA) included a new title giving the government the authority to monitor electronic communications of foreigners abroad. Section 702 permits the Attorney ... read more >
As explained in NS-DC-76 in this Clearinghouse, the FISA Amendments Act of 2008 (FAA) included a new title giving the government the authority to monitor electronic communications of foreigners abroad. Section 702 permits the Attorney General and the Director of National Intelligence (DNI) to jointly authorize the targeting of foreigners reasonably believed to be located outside the U.S. Once authorized, such acquisitions may last for periods of up to one year. (Section 703, not at issue in this case, addresses targeting of Americans abroad, when the acquisition of information is carried out domestically; Section 704, also not at issue, addresses targeting of Americans abroad, when the acquisition of information is carried out off-shore.)

Under subsection 702(i), the Foreign Intelligence Surveillance Court (FISA Court) has jurisdiction to review the Attorney General and the DNI's certifications, targeting procedures, and minimization procedures. The FISA Court reviews the targeting procedures to ensure that they are reasonably designed to ensure that information is gathered only from people outside the U.S. and that information is not gathered when the sender and all recipients are believed to be in the U.S. when the communication is sent. Finally, the FISC reviews the minimization procedures to ensure that they meet the statutory standards elaborated in subsection 702(e), 50 U.S.C. § 1801(h), and 50 U.S.C. § 1821(4).

The FISA Amendments Act went into effect on July 10, 2008. That same day, the ACLU filed a motion for leave to participate in the FISA Court's proceedings under subsection 702(i). Specifically, the ACLU requested to be notified of the schedule of subsection 702(i) proceedings; that the FISA Court require the government to file public versions of the connected briefs with minimal redaction; that the ACLU be granted leave to file briefs and participate in oral argument in connection with the subsection 702(i) proceedings; and that the FISA Court's opinions regarding subsection 702(i) proceedings be made public with only the minimum necessary redactions.

On July 29, 2008, the Department of Justice, National Security Division (DOJ), filed an opposition to the ACLU's motion. The DOJ argued that the ACLU lacked a legal right to participate in subsection 702(i) proceedings and that the FISA Court could not grant the ACLU's motion as a matter of discretion because of the countervailing statutory and security concerns involved with the decisions to obtain communications under Section 702.

On August 8, 2008, the ACLU filed a reply to the DOJ's opposition, arguing that the FISC had the authority to allow organizations like the ACLU to participate in subsection 702(i) proceedings by filing amicus briefs and requiring public filing of the government's briefs as well as public filing of opinions by the FISC. The ACLU also argued that it only desired to participate in subsection 702(i) proceedings in order to challenge the constitutionality of the FAA.

On August 27, 2008, the FISC (Judge Mary McLaughlin) denied the ACLU's motion, finding that the FAA contained no provision for participation by non-government parties in subsection 702(i) proceedings, and that subsection 702(i) proceedings in the FISC do not contain a generalized and continuous constitutional challenge to the FAA.

For the first 702 certification approval process, see NS-DC-0072 in this Clearinghouse.

Edward Mroczkowski - 02/24/2015


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Issues and Causes of Action
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Issues
Defendant-type
Jurisdiction-wide
General
Access to lawyers or judicial system
Confidentiality
Courts
Records Disclosure
Terrorism/Post 9-11 issues
Plaintiff Type
Non-profit NON-religious organization
Causes of Action FISA Title VII targeting order (Sections 702, 703, 704), 50 U.S.C. 1881a, 1881b, 1881c
Defendant(s) U.S. Department of Justice
Plaintiff Description ACLU, seeking access to FISA Court proceedings.
Indexed Lawyer Organizations ACLU Chapters (any)
ACLU National (all projects)
Class action status sought No
Class action status granted No
Prevailing Party Defendant
Public Int. Lawyer Yes
Nature of Relief None
Source of Relief None
Form of Settlement None on record
Order Duration not on record
Case Closing Year 2008
Case Ongoing No
Additional Resources
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Links Guest Post: New Resource — Civil Rights Litigation Clearinghouse FISA Archives
Just Security
Posted: Jun. 26, 2014
By: Margo Schlanger
[ Detail ] [ External Link ]

Docket(s)
No docket sheet currently in the collection
General Documents
Motion for Leave to Participate in Proceedings Required by § 702(i) of the FISA Amendments Act of 2008 07/10/2008
NS-DC-0058-0002.pdf | Detail
Opposition to the American Civil Liberties Union's Motion for Leave to Participate in Proceedings Required by § 702(i) of the FISA Amendments Act of 2008 07/29/2008
NS-DC-0058-0003.pdf | Detail
Reply Memorandum in Support of Motion for Leave to Participate in Proceedings Required by § 702(i) of the FISA Amendments Act of 2008 08/05/2008
NS-DC-0058-0004.pdf | Detail
Order 08/27/2008 (2008 WL 9487946) (FISC)
NS-DC-0058-0001.pdf | WESTLAW | Detail
Judges McLaughlin, Mary A. (E.D. Pa., FISC)
NS-DC-0058-0001
Monitors/Masters None on record
Plaintiff's Lawyers Goodman, Melissa (New York)
NS-DC-0058-0002 | NS-DC-0058-0004
Jaffer, Jameel (New York)
NS-DC-0058-0002 | NS-DC-0058-0004
Spitzer, Arthur (District of Columbia)
NS-DC-0058-0002 | NS-DC-0058-0004
Tully, L. Danielle (New Jersey)
NS-DC-0058-0002 | NS-DC-0058-0004
Defendant's Lawyers Demers, John C. (District of Columbia)
NS-DC-0058-0003
Olsen, Matthew G. (District of Columbia)
NS-DC-0058-0003
Rowan, J. Patrick (District of Columbia)
NS-DC-0058-0003
Tannenbaum, Andrew H. (District of Columbia)
NS-DC-0058-0003
Other Lawyers None on record

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