Jewel v. National Security Agency
965 F.Supp.2d 1090, 2013 WL 3829405 (2013)
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Rule of Law:
The procedural mechanism in the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. § 1806(f), which provides for in camera and ex parte review of sensitive national security evidence, preempts and displaces the common law state secrets privilege in cases alleging unlawful electronic surveillance.
Facts:
- Following the September 11, 2001 attacks, the President of the United States allegedly authorized a program of widespread, warrantless dragnet surveillance of United States citizens.
- The National Security Agency (NSA), with the alleged assistance of major telecommunications companies, began indiscriminately intercepting the communications content and records of millions of Americans.
- The program allegedly involved attaching sophisticated surveillance devices to the key facilities and infrastructure of telecommunications companies that carry Americans' internet and telephone communications.
- Plaintiffs allege the government unlawfully obtained private telephone and internet records, including metadata indicating who communicated with whom, when, and for how long, for both domestic and international communications.
- Carolyn Jewel and other plaintiffs, representing a class of people whose communications were allegedly monitored, sued the government to stop the surveillance program.
Procedural Posture:
- Carolyn Jewel and other plaintiffs filed a class-action lawsuit against the National Security Agency and other government defendants in the U.S. District Court for the Northern District of California.
- Defendants moved to dismiss for lack of jurisdiction based on sovereign immunity and, alternatively, for summary judgment based on the state secrets privilege.
- The district court initially dismissed the complaint, finding that the plaintiffs had failed to establish standing.
- Plaintiffs appealed the dismissal to the U.S. Court of Appeals for the Ninth Circuit.
- The Ninth Circuit reversed the district court's dismissal on standing grounds and remanded the case back to the district court.
- On remand, the Ninth Circuit instructed the district court to consider the government's assertion of the state secrets privilege.
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Issue:
Does the specific procedural mechanism in the Foreign Intelligence Surveillance Act (FISA) for handling sensitive national security information preempt the government's ability to use the common law state secrets privilege to secure dismissal of a lawsuit challenging the legality of its electronic surveillance activities?
Opinions:
Majority - Judge Jeffrey S. White
Yes, FISA preempts the state secrets privilege. The procedural mechanism in FISA § 1806(f) displaces the common law state secrets privilege in cases concerning electronic surveillance. Congress enacted FISA to create a comprehensive statutory framework to regulate domestic surveillance and curb executive branch abuses, intending for it to occupy the field and replace inconsistent judge-made common law rules. The plain language of FISA § 1806(f) states that its review procedure applies 'notwithstanding any other law' and legislative history confirms Congress intended this to be the exclusive procedure for resolving claims about the legality of surveillance. Therefore, when FISA applies, the government cannot use the state secrets privilege to dismiss the case; instead, the court must use FISA's secure procedures to review the classified evidence in camera and ex parte to determine whether the surveillance was lawful.
Analysis:
This decision significantly curtails the Executive Branch's ability to use the state secrets privilege as an absolute shield to dismiss litigation challenging the legality of its electronic surveillance programs. It establishes that Congress, through FISA, has already created the controlling legal framework for balancing national security concerns with the need for judicial oversight. By finding that FISA's specific procedures preempt the broader common law doctrine, the court prevents the government from short-circuiting such lawsuits at the pleading stage. This reinforces the role of the judiciary in overseeing surveillance activities and ensures that claims of illegality are reviewed under the specific statutory scheme Congress designed for that purpose.
