University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name In re Various Known and Unknown Agents of [Redacted] NS-DC-0068
Docket / Court Redacted ( 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
Case Summary
Following 9/11, the Bush administration undertook the "Terrorist Surveillance Program," which included warrantless wiretapping of foreign communications arguably covered by Foreign Intelligence Surveillance Act (FISA) Title I's requirement of a probable-cause warrant for wiretaps of certain ... read more >
Following 9/11, the Bush administration undertook the "Terrorist Surveillance Program," which included warrantless wiretapping of foreign communications arguably covered by Foreign Intelligence Surveillance Act (FISA) Title I's requirement of a probable-cause warrant for wiretaps of certain electronic communications. The program was described in the New York Times>/a> in December 2005; in response, in 2006, the decision was made to seek FISA Court approval of the surveillance.

In January 2007, FISA Court judge Malcolm Howard had accepted the government's argument that it was authorized to surveil not just a particular phone number or email address but the "gateway or cable head foreign targets used for communications," because terrorists were probably among the millions of people whose communications used that gateway. That matter, NS-DC-0050 in this Clearinghouse, is discussed
here.

On reapplication, the matter was heard by a different FISA Court judge, Judge Roger Vinson. Judge Vinson disagreed with the January ruling, and refused to reauthorize the surveillance unless the government made significant changes to its procedures. Specifically, the judge ruled that the procedural shift to probable cause determinations being made by the Attorney General and the Director of National Intelligence, rather than by the court, was in violation of FISA. According to a 2007 interview of National Intelligence Director Mike McConnell, Judge Vinson said "if it's on a wire and it's foreign in a foreign country, you have to have a warrant."

Rather than flatly denying the government's request for reauthorization, the Judge took into account the difficulty of deciding between terminating all of the previously authorized surveillance and making individual determinations of which surveillance could continue in compliance with FISA , and allowed the government to continue the surveillance until May 31, 2007. If the government had not come forward with procedures acceptable under FISA by that time, he said, the authorization would be denied permanently. Unwilling to comply with Judge Vinson's reading of the requirements of FISA, the government instead pushed for legislative change, and in August 2007 the Protect America Act (PAA) legalized the surveillance in question.

The FISA Court authorized the first surveillance under the PAA in a subsequent application, compress summary

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Issues and Causes of Action
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Issues
Content of Injunction
Monitoring
Reporting
Warrant/order for search or seizure
General
Record-keeping
Records Disclosure
Search policies
Terrorism/Post 9-11 issues
Plaintiff Type
U.S. Dept of Justice plaintiff
Causes of Action FISA Title VII targeting order (Sections 702, 703, 704), 50 U.S.C. 1881a, 1881b, 1881c
FISA Title I Warrant (Electronic Surveillance), 50 U.S.C. ยงยง 1801-1812
Plaintiff Description U.S. Government
Class action status sought No
Class action status granted No
Prevailing Party None Yet / None
Public Int. Lawyer No
Nature of Relief FISA Order denying authorization for surveillance
Source of Relief Litigation
None
Order Duration 2007 - 2007
Case Closing Year 2007
Case Ongoing No
Docket(s)
No docket sheet currently in the collection
General Documents
Standard Minimization Procedures for Electronic Surveillance Conducted by the National Security Agency (NSA)
NS-DC-0068-0003.pdf | Detail
Date: 12/13/2006
Source: Office of the Director of National Intelligence
CIA Minimization Procedures for Information from FISA Electronic Surveillance Conducted by NSA
NS-DC-0068-0004.pdf | Detail
Date: 12/13/2006
Source: Office of the Director of National Intelligence
Order and Memorandum Opinion (FISC)
NS-DC-0068-0001.pdf | Detail
Date: 04/03/2007
Source: Office of the Director of National Intelligence
Order (FISC)
NS-DC-0068-0002.pdf | Detail
Date: 04/05/2007
Source: Office of the Director of National Intelligence
Memorandum to Judge Vinson
NS-DC-0068-0005.pdf | External Link | Detail
Date: 04/20/2007
Source: Office of the Director of National Intelligence
Motion to Amend and supporting Memorandum of Law
NS-DC-0068-0007.pdf | External Link | Detail
Date: 07/27/2007
Source: Office of the Director of National Intelligence
Memorandum of Law in Support of Application for Authority to Conduct Electronic Surveillance of [Redacted]
NS-DC-0068-0006.pdf | External Link | Detail
Date: 05/24/2015
Source: Office of the Director of National Intelligence
Judges Howard, Malcolm Jones (FISC)
NS-DC-0068-0002
Vinson, Roger (FISC)
NS-DC-0068-0001
Plaintiff's Lawyers Olsen, Matthew G. (District of Columbia)
NS-DC-0068-0006 | NS-DC-0068-0007
Reno, Janet (District of Columbia)
NS-DC-0068-0003
Wainstein, Kenneth L. (District of Columbia)
NS-DC-0068-0005 | NS-DC-0068-0007

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