- Congressman James Sensenbrenner, author of the Patriot Act, filed an amicus brief in support of plaintiffs challenging the NSA's mass telephone metadata collection program.
- He argues that Congress intended to authorize collection of documents and records only upon a showing of relevance to an authorized investigation, not a blanket collection of all telephone call records.
- Sensenbrenner also asserts that Congress did not intend to authorize indiscriminate collection of data on every telephone call to or from the US, which violates the privacy of millions of innocent Americans.
Darren Chaker http://darrenchaker,us/ notes, “[T]he First Amendment does not „belong‟ to any definable category of persons or entities: It belongs to all who exercise its freedoms.” First Nat. Bank. of Boston v. Bellotti, 435 U.S. 765, 802 (1978) (Burger, C.J., concurring). This federal court ruling found a Florida law preventing disclosure of police home address information to be unconstitutional for several articulated reasons based on the First Amendment. The court found the right to publish police home addresses did not fall within any category of speech the First Amendment allowed to exempt from protection.
Darren Chaker http://darrenchaker,us/ notes, “[T]he First Amendment does not „belong‟ to any definable category of persons or entities: It belongs to all who exercise its freedoms.” First Nat. Bank. of Boston v. Bellotti, 435 U.S. 765, 802 (1978) (Burger, C.J., concurring). This federal court ruling found a Florida law preventing disclosure of police home address information to be unconstitutional for several articulated reasons based on the First Amendment. The court found the right to publish police home addresses did not fall within any category of speech the First Amendment allowed to exempt from protection.
A judge on the United States Court of Appeals for the Second Circuit for the past 11 years, Sonia Sotomayor is now high on lists that lawyers and politicians have assembled of possible replacements for Justice David H. Souter of the Supreme Court. She has a reputation as a sharp, outspoken and fearless jurist, and many of her opinions have demonstrated a willingness to take the government to task whenever she believes the circumstances warrant it.
CitySt.Paul heinous Civil,Criminal,Constitutional Rights to Shut off Sharon Water, www.sharonanderson.org
then Steal Sharons Cars,Trailers,Propertys, but Theft,Trespass,Treason, must be abated,Damages Award
Brownstone Law is an appellate law firm that is led by Robert Sirianni. Our law firm handles civil appeals and criminal appeals. We handle cases in Florida, Georgia, Texas, Illinois, Michigan, and Tennessee. Bond pending appeals and PSR hearings attorneys.
Defendant's Motion to dismiss for violation of speedy trial rightsRich Bergeron
I prepared a very crisp and professional motion to dismiss just to watch Judge James D. O'Neill shoot it down with junk logic and misrepresentation of the law. He continues to show his blind loyalty to the bumbling prosecutors on my case. I had more than one lawyer tell me this was an excellent motion and hit on all the right points. This is where an appeal would expose how biased the judge really is.
Assignment 1 (Doesn’t have to be full page, citation is a MUST).docxtrippettjettie
Assignment 1 (Doesn’t have to be full page, citation is a MUST):
Kesha has invited her friend Carrie to go home with her over the school’s short holiday break. Kesha, like many African Americans, has a rich spiritual tradition that permeates most areas of her life. In addition, Kesha is close to her immediate and extended family. Carrie, on the other hand, comes from a predominantly Caucasian Presbyterian background, is an only child, and rarely sees any of her extended family.
During her visit, Carrie is noticeably uncomfortable with the vastly different dynamics of Kesha’s family. Carrie is rethinking her friendship with Kesha and wants to withdraw from her.
How will you help Carrie understand the cultural values inherent in the African American culture and how these might be affecting her?
Suggest ways in which Kesha could build a bridge to help Carrie understand the African American culture.
Assignment 2 (2 pages, CITATION IS A MUST):
Reflections on Racial Discrimination
Franklin hears about people being discriminated against at the workplace and in society but rarely experiences it first hand. Cortez, on the other hand, speaks English poorly and is often subject to derogatory comments from peers and coworkers.
Reflect on your experience with racial discrimination.
Identify examples of racial discrimination and provide examples you have personally witnessed or heard about firsthand from the following three realms:
· family
· work place
· community
Write a brief summary that includes the following:
· Describe a racial incident pertaining to each realm in detail. Explain why you believe this is racial discrimination.
· Explain how this situation could have been handled to avoid discrimination against those belonging to another race.
Your response should be at least two pages long. All written assignments and responses should follow APA rules for attributing sources.
Supreme Court of Tennessee,
at Nashville.
STATE of Tennessee
v.
Eric FLEMMING.
April 3, 2000.
Defendant was convicted in the Criminal
Court, Davidson County, Seth Norman, J., of espe-
cially aggravated robbery, and defendant appealed.
The Court of Criminal Appeals, Tipton, J., re-
versed. Upon granting state's petition for permis-
sion to appeal, the Supreme Court, Barker, J., held
that: (1) defendant's fists and feet were not deadly
weapons, and (2) evidence was sufficient to support
instruction on facilitation as lesser-included offense
of aggravated robbery.
Affirmed and remanded.
West Headnotes
[1] Statutes 361 1072
361 Statutes
361III Construction
361III(A) In General
361k1071 Intent
361k1072 k. In general. Most Cited
Cases
(Formerly 361k181(1))
Supreme Court's role in construing statutes is
to give effect to legislative intent without unduly
restricting or expanding statute's coverage beyond
its intended scope.
[2] Statutes 361 1092
361 Statutes
361III Construction
361III(B) Plain Language; Plain, Ordinary,
or Common Meaning
361k1092 k. ...
Brayshaw v. City Of Tallahassee, 2010 - Landmark Case Striking Down The 1972...Terry81
The Landmark Case Of Brayshaw V. City Of Tallahassee, 2010. This federal case made Rob Brayshaw an American Civil Rights Hero Against Dumb and Dirty Cops Annette Garrett and Mike Dilmore who were very crooked and dishonest. The Florida Statute from 1972 known as "The Dildo Law" or "Dilmore's Law" was struck down as Unconstitutional on it's face and illegally applied by false police reports as there was no threat. Tallahassee cops attempted to illegally silence and use illegal censorships for exposing them as crooked police officers.
A judge on the United States Court of Appeals for the Second Circuit for the past 11 years, Sonia Sotomayor is now high on lists that lawyers and politicians have assembled of possible replacements for Justice David H. Souter of the Supreme Court. She has a reputation as a sharp, outspoken and fearless jurist, and many of her opinions have demonstrated a willingness to take the government to task whenever she believes the circumstances warrant it.
CitySt.Paul heinous Civil,Criminal,Constitutional Rights to Shut off Sharon Water, www.sharonanderson.org
then Steal Sharons Cars,Trailers,Propertys, but Theft,Trespass,Treason, must be abated,Damages Award
Brownstone Law is an appellate law firm that is led by Robert Sirianni. Our law firm handles civil appeals and criminal appeals. We handle cases in Florida, Georgia, Texas, Illinois, Michigan, and Tennessee. Bond pending appeals and PSR hearings attorneys.
Defendant's Motion to dismiss for violation of speedy trial rightsRich Bergeron
I prepared a very crisp and professional motion to dismiss just to watch Judge James D. O'Neill shoot it down with junk logic and misrepresentation of the law. He continues to show his blind loyalty to the bumbling prosecutors on my case. I had more than one lawyer tell me this was an excellent motion and hit on all the right points. This is where an appeal would expose how biased the judge really is.
Assignment 1 (Doesn’t have to be full page, citation is a MUST).docxtrippettjettie
Assignment 1 (Doesn’t have to be full page, citation is a MUST):
Kesha has invited her friend Carrie to go home with her over the school’s short holiday break. Kesha, like many African Americans, has a rich spiritual tradition that permeates most areas of her life. In addition, Kesha is close to her immediate and extended family. Carrie, on the other hand, comes from a predominantly Caucasian Presbyterian background, is an only child, and rarely sees any of her extended family.
During her visit, Carrie is noticeably uncomfortable with the vastly different dynamics of Kesha’s family. Carrie is rethinking her friendship with Kesha and wants to withdraw from her.
How will you help Carrie understand the cultural values inherent in the African American culture and how these might be affecting her?
Suggest ways in which Kesha could build a bridge to help Carrie understand the African American culture.
Assignment 2 (2 pages, CITATION IS A MUST):
Reflections on Racial Discrimination
Franklin hears about people being discriminated against at the workplace and in society but rarely experiences it first hand. Cortez, on the other hand, speaks English poorly and is often subject to derogatory comments from peers and coworkers.
Reflect on your experience with racial discrimination.
Identify examples of racial discrimination and provide examples you have personally witnessed or heard about firsthand from the following three realms:
· family
· work place
· community
Write a brief summary that includes the following:
· Describe a racial incident pertaining to each realm in detail. Explain why you believe this is racial discrimination.
· Explain how this situation could have been handled to avoid discrimination against those belonging to another race.
Your response should be at least two pages long. All written assignments and responses should follow APA rules for attributing sources.
Supreme Court of Tennessee,
at Nashville.
STATE of Tennessee
v.
Eric FLEMMING.
April 3, 2000.
Defendant was convicted in the Criminal
Court, Davidson County, Seth Norman, J., of espe-
cially aggravated robbery, and defendant appealed.
The Court of Criminal Appeals, Tipton, J., re-
versed. Upon granting state's petition for permis-
sion to appeal, the Supreme Court, Barker, J., held
that: (1) defendant's fists and feet were not deadly
weapons, and (2) evidence was sufficient to support
instruction on facilitation as lesser-included offense
of aggravated robbery.
Affirmed and remanded.
West Headnotes
[1] Statutes 361 1072
361 Statutes
361III Construction
361III(A) In General
361k1071 Intent
361k1072 k. In general. Most Cited
Cases
(Formerly 361k181(1))
Supreme Court's role in construing statutes is
to give effect to legislative intent without unduly
restricting or expanding statute's coverage beyond
its intended scope.
[2] Statutes 361 1092
361 Statutes
361III Construction
361III(B) Plain Language; Plain, Ordinary,
or Common Meaning
361k1092 k. ...
Brayshaw v. City Of Tallahassee, 2010 - Landmark Case Striking Down The 1972...Terry81
The Landmark Case Of Brayshaw V. City Of Tallahassee, 2010. This federal case made Rob Brayshaw an American Civil Rights Hero Against Dumb and Dirty Cops Annette Garrett and Mike Dilmore who were very crooked and dishonest. The Florida Statute from 1972 known as "The Dildo Law" or "Dilmore's Law" was struck down as Unconstitutional on it's face and illegally applied by false police reports as there was no threat. Tallahassee cops attempted to illegally silence and use illegal censorships for exposing them as crooked police officers.
The Landmark Federal Case Of Brayshaw V. City Of Tallahassee, 2010. This is the federal court order protecting the First Amendment Rights Of Our U.S. Constitution Against Dumb and Dirty Police Officers, Malicious Prosecutors and Corrupt Judges. The 1972 Florida Statute Was Struck Down as Unconstitutional on its face and as illegally applied by dirty cops of Annette Garrett and Mike Dilmore with their falsely written police reports.
FindLaw | 'Don't Ask, Don't Tell' Federal Appeals Court RulingLegalDocs
A federal appeals court ruling upholding the dismissal of a challenge to the U.S. military's "don't ask, don't tell" policy regarding homosexual service members.
COUNT 4 - CONSPIRACY TO MURDER (For UIE...Criminal Complaint)VogelDenise
17 USC § 107 Limitations on Exclusive Rights – FAIR USE
CONFEDERATE STATES OF AMERICA’S A/K/A UNITED STATES OF AMERICA’S CONFEDERATES, KU KLUX KLAN, WHITE SUPREMACISTS/ZIONISTS CONSPIRE TO HAVE THE UTICA INTERNATIONAL EMBASSY’S INTERIM PRIME MINISTER VOGEL DENISE NEWSOME ASSASSINATED AND/OR MURDERED
Minessota v. Mansky amicus brief filed by Cato Institute. Darren Chaker provides this well written brief to showcase great talent writing on First Amendmnet issues presented to the United States Supreme Court. The Supreme Court found that the state could not restrict speech at the poles when it came to wearing t-shirts expressing certain messages.
BUSW 390Please complete the following table and submTawnaDelatorrejs
BUSW 390
Please complete the following table and submit.
Legal Term Definition
Relevant Case Issues
What Elements Apply
· Standing (Right) to Sue
Allows for a party to bring suit to a court. Within the federal court any legal action cannot be brought to the court on the grounds of an individual or group being dissatisfied. The federal court only possess the authority to resolve authentic disputes according to Article III of the Constitution.
Secondary Source: Legal Information Institute. (n.d.). Standing. Legal Information Institute. Retrieved from https://www.law.cornell.edu/wex/standing.
Primary Source: Lujan v. Defenders of Wildlife (90-1424), 504 U.S. 555 (1992)
Schlesinger v. Reservists Committee to Stop the War, (72-1188), 418 U.S. 208 (1974),
“Standing alone, would adversely affect only the generalized interest of all citizens in constitutional governance . . . We reaffirm Levitt in holding that standing to sue may not be predicated upon an interest of this kind…)
Member of the United States Armed Forces Reservist committee opposing their involvement in the Vietnam War pursed a class action against the United States Secretary of Defense. Respondents utilized the fact that they were United States citizen and taxpayers to pursue this class action however the respondents lacked standing to sue as taxpayers and citizens.
Legal Information Institute. (1992, June 12). Lujan v. defenders of wildlife, 504 U.S. 555 (1992). Legal Information Institute. Retrieved from https://www.law.cornell.edu/supct/html/90-1424.ZO.html.
1.The plaintiff must has experienced an injury that is considered of a legally protected interest being (a) concrete and particularized and (b) actual or imminent
2. There must be a causal connection between the injury and the conduct brought before the court
3.It must be likely, rather than speculative, that a favorable decision by the court will redress the injury
Secondary Source: Legal Information Institute. (n.d.). Standing. Legal Information Institute. Retrieved from https://www.law.cornell.edu/wex/standing.
Relation to Case: Schlesinger v. Reservists Committee to Stop the War, (72-1188), 418 U.S. 208 (1974),
Respondents must be able to proof that they will suffer an injury. This claim was found to lack standing due to the fact that the respondents could only tie in abstract injuries rather than concrete injuries.
Primary Source: Lujan v. Defenders of Wildlife (90-1424), 504 U.S. 555 (1992)
· Diversity of Citizenship
Is when all the parties on one side of a controversy contains a different citizenship then those of the other party. This is a requirement of diversity of jurisdiction because it promotes an unbiased court for the defendants.
Primary Source: Diversity of Citizenship Clause (U.S Const. Art. III § 2, cl. 1)
Secondary Source: Legal Information Institute. (2020, July). Diversity of citizenship. Legal Information Institute. Retrieved from https://www.law.cornell.edu/wex/diversity_of_citizenship. ...
Federal court, excluding police report, Darren Chaker, provides law on keeping a police report away from the jury in a criminal case, which is important since are usually hearsay and unreliable.
Letter brief, Darren Chaker, concerning prior restraint, First Amendment, by Reporters Committee, in pending court case, in front of court of appeal in California.
Dance Moms star, bby Lee Miller, indicted for bankruptcy fraud. Provided by Darren-Chaker, http://darrenchaker.us/ Bankruptcy fraud has been on the rise by the elite.
Through the D.C. office of WilmerHale several organizations, ACLU San Diego, Electronic Frontier Foundation, Cato Institute, and more, filed an amicus brief to support Darren Chaker on an important First Amendment issue concerning bloggers right and the right to post about police abuse and conduct.
Darren Chaker, https://plus.google.com/+DarrenChaker/ provides this lawsuit seeking an injunction against NSA spying due to constitutional limitations. Of course, the brief is authored by some of the leading attorneys in the industry. It cites cutting edge constitutional law from multiple courts and Supreme Court decisions dating back decades. Very useful law is cited and can referenced to where an expectation of privacy and electronic communications are encountered.
Fourth Amendment privacy, Darren Chaker, uploads this brief concerning GPS tracking, expectation of privacy, and relevant law cited by Electronic Frontier Foundation. The legal challenges continue to be decided in the courts about the new technology that is readily available. Constitutional law and specifically the Fourth Amendment relate to GPS technology are defined here and the brief is a great primer on such. Not only police, but private people and companies also use such technology to monitor employees, cargo, loved ones, and children.
Darren Chaker provides this ACLU handout to promote police accountability and increase awareness of the public's rights. Your right to videotape and photograph police in public are significant rights. If you witness police misconduct, photograph it, make a complaint, and post it online! See http://darrenchaker.us/ for additional information concerning Fifth Amendment and Encryption.
Arbitration law update, Darren-Chaker, written by leading law firm, citing case law, statute and other legal resources about recent arbitration developments.
Unclean hands doctrine, Darren-Chaker, provides this legal article with a focus on perjury by plaintiffs. Great resource and provides several appellate cases.
Provided by Darren Chaker, this is an excellent publication concerning obtaining police records. Booking photographs to police report for all 50 states.
San Diego - federal indictment for human trafficking alleging pimping by a street gang, that spanned nationwide. Underage girls and adults females were branded, beat, and used as sex slaves to turn a profit for a street gang that will not be on the street anytime soon.
Darren Chaker, confidential informant guide for law enforcement, attorneys, in California, but also cites numerous federal and Supreme Court cases. Privilege is examined, how to keep confidential informants, and numerous court opinions.
Darren Chaker provides the search warrant for Crystal Palace, which was a major federal investigation into methamphetamine trafficking in San Diego. The search warrant provides details and connects the dots in support of issuance of the warrant.
Bankruptcy Spendthrift Trust darren chakerDarren Chaker
Nevada article, provided by Darren Chaker, concerning asset protection and bankruptcy. The Nevada Spendthrift Trust divests legal and equitable interest in former assets to protect them from creditors and is excluded from bankruptcy. 541(c)(2).
Restraining order preventing police enforcing California Penal Code sections
290.014(b) and 290.015(a)(4)-(6) that would require sex offenders to disclose all user names for social media accounts. Darren Chaker obtained the order and provides it for your use.
Evidence Code 1101b allows conduct of uncharged acts to be admitted as evidence. This article provides case law and how California Court of Appeal decisions address what requirements must be met to allow the admission of uncharged conduct to be admitted. Courtesy of Darren Chaker
What should have been filed under seal, was filed unsealed. Darren Chaker notes the great detail the agent used while drafting the affidavit for the smart phone. Search warrants are common for smart phones like the iPhone and Android phones often due to the storage capacity and ability to do everything on a home computer can be done on a smart phone. The upside is the availability of counter-forensic technology to keep what you want private, private. Encrypted phone conversations, to encrypting files, and wiping slack space are all important to those who want to keep sensitive information from prying eyes and is commonly used for high net worth individuals to corporate executives.
Restraining order against sex offender provided by Darren Chaker. Policing sex offenders is important, but if the scope of defining who is a sex offender expands, the police/parole budget does not. As explained on www.darrenchaker.org, sex offenses cannot be typically expunged, in Nevada, even if arrested for a sex offense is later dismissed, it cannot be sealed, however California allows for record sealing if lack of probable cause exists under PC851.8.
Texas expunction aka expungement allows for record destruction. Darren Chaker goes into detail about Texas record sealing and destruction, www.DarrenChaker.org, and it serves a legitimate purpose: deducting the stigma of being charged with a crime. Texas record sealing is available for sealing traffic tickets to felony cases.
Defending Weapons Offence Charges: Role of Mississauga Criminal Defence LawyersHarpreetSaini48
Discover how Mississauga criminal defence lawyers defend clients facing weapon offence charges with expert legal guidance and courtroom representation.
To know more visit: https://www.saini-law.com/
Lifting the Corporate Veil. Power Point Presentationseri bangash
"Lifting the Corporate Veil" is a legal concept that refers to the judicial act of disregarding the separate legal personality of a corporation or limited liability company (LLC). Normally, a corporation is considered a legal entity separate from its shareholders or members, meaning that the personal assets of shareholders or members are protected from the liabilities of the corporation. However, there are certain situations where courts may decide to "pierce" or "lift" the corporate veil, holding shareholders or members personally liable for the debts or actions of the corporation.
Here are some common scenarios in which courts might lift the corporate veil:
Fraud or Illegality: If shareholders or members use the corporate structure to perpetrate fraud, evade legal obligations, or engage in illegal activities, courts may disregard the corporate entity and hold those individuals personally liable.
Undercapitalization: If a corporation is formed with insufficient capital to conduct its intended business and meet its foreseeable liabilities, and this lack of capitalization results in harm to creditors or other parties, courts may lift the corporate veil to hold shareholders or members liable.
Failure to Observe Corporate Formalities: Corporations and LLCs are required to observe certain formalities, such as holding regular meetings, maintaining separate financial records, and avoiding commingling of personal and corporate assets. If these formalities are not observed and the corporate structure is used as a mere façade, courts may disregard the corporate entity.
Alter Ego: If there is such a unity of interest and ownership between the corporation and its shareholders or members that the separate personalities of the corporation and the individuals no longer exist, courts may treat the corporation as the alter ego of its owners and hold them personally liable.
Group Enterprises: In some cases, where multiple corporations are closely related or form part of a single economic unit, courts may pierce the corporate veil to achieve equity, particularly if one corporation's actions harm creditors or other stakeholders and the corporate structure is being used to shield culpable parties from liability.
Car Accident Injury Do I Have a Case....Knowyourright
Every year, thousands of Minnesotans are injured in car accidents. These injuries can be severe – even life-changing. Under Minnesota law, you can pursue compensation through a personal injury lawsuit.
In 2020, the Ministry of Home Affairs established a committee led by Prof. (Dr.) Ranbir Singh, former Vice Chancellor of National Law University (NLU), Delhi. This committee was tasked with reviewing the three codes of criminal law. The primary objective of the committee was to propose comprehensive reforms to the country’s criminal laws in a manner that is both principled and effective.
The committee’s focus was on ensuring the safety and security of individuals, communities, and the nation as a whole. Throughout its deliberations, the committee aimed to uphold constitutional values such as justice, dignity, and the intrinsic value of each individual. Their goal was to recommend amendments to the criminal laws that align with these values and priorities.
Subsequently, in February, the committee successfully submitted its recommendations regarding amendments to the criminal law. These recommendations are intended to serve as a foundation for enhancing the current legal framework, promoting safety and security, and upholding the constitutional principles of justice, dignity, and the inherent worth of every individual.
Matthew Professional CV experienced Government LiaisonMattGardner52
As an experienced Government Liaison, I have demonstrated expertise in Corporate Governance. My skill set includes senior-level management in Contract Management, Legal Support, and Diplomatic Relations. I have also gained proficiency as a Corporate Liaison, utilizing my strong background in accounting, finance, and legal, with a Bachelor's degree (B.A.) from California State University. My Administrative Skills further strengthen my ability to contribute to the growth and success of any organization.
Daftar Rumpun, Pohon, dan Cabang Ilmu (28 Mei 2024).pdf
EFF_Brief_Darren_Chaker
1.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
AMERICAN CIVIL LIBERTIES UNION;
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION; NEW YORK CIVIL
LIBERTIES UNION; and NEW YORK CIVIL
LIBERTIES UNION FOUNDATION,
Plaintiffs,
v.
JAMES R. CLAPPER, in his official capacity as
Director of National Intelligence; KEITH B.
ALEXANDER, in his official capacity as
Director of the National Security Agency and
Chief of the Central Security Service;
CHARLES T. HAGEL, in his official capacity
as Secretary of Defense; ERIC H. HOLDER, in
his official capacity as Attorney General of the
United States; and ROBERT S. MUELLER III,
in his official capacity as Director of the Federal
Bureau of Investigation,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
ECF Case
Case No. 13 Civ. 3994 (WHP)
MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE OF
CONGRESSMAN F. JAMES SENSENBRENNER, JR.
IN SUPPORT OF PLAINTIFFS
David A. Greene (Corrected Pro Hac Vice pending)
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Tel: (415) 436-9333
Email: davidg@eff.org
Counsel for Amicus Curiae
Congressman F. James Sensenbrenner
Case 1:13-cv-03994-WHP Document 46 Filed 09/04/13 Page 1 of 5
2. 1
Representative F. James Sensenbrenner, Jr. hereby moves for leave to file the
accompanying amicus curiae brief in the above-captioned case in opposition to Defendants’
Motion to Dismiss (ECF No. 33) and in Support of Plaintiff’s Motion for a Preliminary
Injunction (ECF No. 26). Both parties, through counsel, have consented to the filing of this brief.
Rep. Sensenbrenner has represented the Fifth Congressional District of Wisconsin since
1978. He is a long-serving member of the House Judiciary Committee and the Committee on
Science and Technology. Most pertinent to the above-captioned action, Rep. Sensenbrenner was
the author of the USA PATRIOT Act. Rep. Sensenbrenner was chairman of the judiciary
committee when the United States was attacked on September 11, 2001. Five days later, he
received a first draft of the USA PATRIOT Act from the Justice Department. Firmly believing
that that original draft went too far, he asked then-House Speaker Dennis Hastert for time to
redraft the legislation. Following numerous meetings and negotiations with the White House, the
FBI and the intelligence community, Rep. Sensenbrenner authored a revised version of the Act
that was ultimately the version adopted as law. Rep. Sensenbrenner also voted to amend the
Patriot Act in 2006 and voted to reauthorize certain provisions of the law, including Section 215,
in 2009 and 2011.
The fundamental standard for submission of an amicus brief is whether it “will aid in the
determination of the motion[] at issue.” James Square Nursing Home, Inc. v. Wing, 897 F. Supp.
682, 683 (N.D.N.Y. 1995) aff’d, 84 F.3d 591 (2d Cir. 1996). Among other helpful roles of amici,
[s]ome friends of the court are entities with particular expertise not possessed by
any party to the case. Others argue points deemed too far-reaching for emphasis
by a party intent on winning a particular case. Still others explain the impact a
potential holding might have on an industry or other group.
Neonatology Associates, P.A. v. C.I.R., 293 F.3d 128, 132 (3d Cir. 2002) (Alito, J.).
Case 1:13-cv-03994-WHP Document 46 Filed 09/04/13 Page 2 of 5
3. 2
Rep. Sensenbrenner can assist the court in reaching its decision on each of the pending
motions. Defendants have maintained in their Motion to Dismiss and are expected to maintain in
opposition to Plaintiffs’ Motion for Preliminary Injunction, that Congress in passing, amending
and reauthorizing Section 215 intended to authorize the Mass Call Tracking Program challenged
in this lawsuit. Rep. Sensenbrenner can offer his unique perspective on this issue.
The views of an amicus may align with those of one of the parties. Concerned Area
Residents for the Environment v. Southview Farm, 834 F. Supp. 1410, 1413 (W.D.N.Y. 1993),
quoting Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982) (“[T]here is no rule . . . that amici
must be totally disinterested.”). Indeed, in the origins of amicus briefing, an interest was
mandatory: the United States Supreme Court established a criteria for amici needing to be
“interested in some other pending case involving similar questions.” Northern Securities Co. v.
U.S., 191 U.S. 555, 24 S.Ct. 119, 48 L.Ed. 299 (1903) (rejecting brief because, inter alia, there
was no such interest).1
Moreover, although “[a]n amicus . . . is not a party to the litigation and
participates only to assist the court[, n]evertheless, ‘by the nature of things an amicus is not
normally impartial’ . . . and ‘there is no rule . . . that amici must be totally disinterested.’” Waste
Mgmt., Inc. v. City of York, 162 F.R.D. 34, 36 (M.D.Pa. 1995) (quoting United States v. Gotti,
755 F. Supp. 1157, 1158 (E.D.N.Y. 1991) and Concerned Area Residents for the Environment v.
Southview Farm, 834 F. Supp. 1410, 1413 (W.D.N.Y. 1993)).
For these reasons, Rep. Sensenbrenner respectfully requests that the Court grant this
motion for leave to file the accompanying amicus curiae brief.
1
Nor does an amicus need to show that a party is incompetently represented in order to
participate. Neonatology Assocs., 293 F.3d at 132 (“Even when a party is very well represented,
an amicus may provide important assistance to the court.”).
Case 1:13-cv-03994-WHP Document 46 Filed 09/04/13 Page 3 of 5
4. 3
Dated: September 4, 2013 Respectfully submitted,
By:
/s/ David Greene
David Greene (Corrected Pro Hac Vice pending)
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Tel: (415) 436-9333
Fax: (415) 436-9993
Email: davidg@eff.org
Counsel for Amicus Curiae
Congressman F. James Sensenbrenner
Case 1:13-cv-03994-WHP Document 46 Filed 09/04/13 Page 4 of 5
5. 4
CERTIFICATE OF SERVICE
I hereby certify that on September 4, 2013, I electronically filed the foregoing with the
Clerk of the Court for the United States District Court, Southern District of New York by using
the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the CM/ECF system.
Dated: September 4, 2013 Respectfully submitted,
By:
/s/ David Greene
David Greene (Corrected Pro Hac Vice pending)
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Tel: (415) 436-9333
Fax: (415) 436-9993
Email: davidg@eff.org
Counsel for Amicus Curiae
Congressman F. James Sensenbrenner
Case 1:13-cv-03994-WHP Document 46 Filed 09/04/13 Page 5 of 5
7. UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
AMERICAN CIVIL LIBERTIES UNION;
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION; NEW YORK CIVIL
LIBERTIES UNION; and NEW YORK CIVIL
LIBERTIES UNION FOUNDATION,
Plaintiffs,
v.
JAMES R. CLAPPER, in his official capacity as
Director of National Intelligence; KEITH B.
ALEXANDER, in his official capacity as
Director of the National Security Agency and
Chief of the Central Security Service;
CHARLES T. HAGEL, in his official capacity
as Secretary of Defense; ERIC H. HOLDER, in
his official capacity as Attorney General of the
United States; and ROBERT S. MUELLER III,
in his official capacity as Director of the Federal
Bureau of Investigation,
Defendants.
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ECF Case
Case No. 13 Civ. 3994 (WHP)
BRIEF AMICUS CURIAE OF
CONGRESSMAN F. JAMES SENSENBRENNER, JR.
IN SUPPORT OF PLAINTIFFS
David Greene (Corrected Pro Hac Vice pending)
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Tel: (415) 436-9333
Email: davidg@eff.org
Counsel for Amicus Curiae
Congressman F. James Sensenbrenner, Jr.
Case 1:13-cv-03994-WHP Document 46-1 Filed 09/04/13 Page 2 of 16
8. i
TABLE OF CONTENTS
INTEREST OF AMICUS................................................................................................................1
I. INTRODUCTION...............................................................................................................1
II. CONGRESS AUTHORIZED THE COLLECTION OF DOCUMENTS AND OTHER
TANGIBLE THINGS ONLY UPON A SHOWING THAT THE ITEMS WILL BE
RELEVANT TO AN AUTHORIZED INVESTIGATION ................................................2
III. CONGRESS DID NOT INTEND TO AUTHORIZE THE COLLECTION OF DATA
OF EVERY TELEPHONE CALL MADE TO OR FROM THE UNITED STATES,
THUS CAPTURING THE INFORMATION, AND VIOLATING THE PRIVACY, OF
MILLIONS OF INNOCENT AMERICANS......................................................................4
IV. DEFENDANTS’ CLAIM THAT CONGRESS IMPLICITY RATIFIED THE
PROGRAM MUST BE REJECTED BECAUSE THERE IS NO EVIDENCE OF
EXTENSIVE CONSIDERATION OF THE PROGRAM OR A BROAD
CONSENSUS THAT IT WAS LEGAL .............................................................................7
V. CONCLUSION .................................................................................................................10
Case 1:13-cv-03994-WHP Document 46-1 Filed 09/04/13 Page 3 of 16
9. ii
TABLE OF AUTHORITIES
Federal Cases
Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975) ............................................................................................................8
Astoria Federal Savings & Loan Ass’n v. Solimino,
501 U.S. 104 (1991) ............................................................................................................6
Bowman Dairy Co. v. United States,
341 U.S. 214 (1951) ........................................................................................................4, 5
Butterbaugh v. Dep't of Justice,
336 F.3d 1332 (Fed. Cir. 2003) ...........................................................................................8
Cheney v. United States District Court for the District of Columbia,
542 U.S. 367 (2004) ............................................................................................................5
Edmonds v. Compagnie Generale Transatlantique,
443 U.S. 256 (1979) ............................................................................................................5
Forest Grove Sch. Dist. v. T.A.,
557 U.S. 230 (2009) ............................................................................................................8
Jama v. Immigration and Customs Enforcement,
543 U.S. (2005) ...................................................................................................................8
Lorillard v. Pons,
434 U.S. 575 (1978) ............................................................................................................8
MCI Telecommunications Corp. v. AT&T,
512 U.S. 218 (1994) ............................................................................................................6
Midlantic Nat’l Bank v. New Jersey Dep’t of Envtl. Prot.,
474 U.S. 494 (1986) ............................................................................................................5
Nat’l Labor Rel. Bd. v. Gullett Gin Co.,
340 U.S. 361 (1951) ............................................................................................................8
United States v. Powell,
379 U.S. 48 (1964) ..............................................................................................................8
Whitman v. American Trucking Ass’ns, Inc.,
531 U.S. 457 (2001) ............................................................................................................6
Case 1:13-cv-03994-WHP Document 46-1 Filed 09/04/13 Page 4 of 16
10. iii
Federal Statutes
50 U.S.C. § 1842 .............................................................................................................................6
50 U.S.C. § 1861 .....................................................................................................................1, 3, 7
Legislative Materials
H.R. Rep. No. 107-236 (2001) ........................................................................................................3
Pub. L. No. 107-56, 115 Stat. 272...................................................................................................2
USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, § 106,
120 Stat. 192........................................................................................................................3
Case 1:13-cv-03994-WHP Document 46-1 Filed 09/04/13 Page 5 of 16
11. 1
INTEREST OF AMICUS
Amicus curiae F. James Sensenbrenner, Jr. is a Member of Congress who was the author
the USA PATRIOT (“Patriot Act”) in its original passage in 2001, and supported its revision in
2006 and its reauthorizations in 2009 and 2011. Rep. Sensenbrenner has represented the Fifth
Congressional District of Wisconsin since 1978. He is a long-serving member of the House
Judiciary Committee and the Committee on Science and Technology. Rep. Sensenbrenner was
chairman of the judiciary committee when the United States was attacked on September 11,
2001. Five days later, he received a first draft of the Patriot Act from the Justice Department.
Firmly believing that that original draft granted the government too much investigative power, he
asked then-House Speaker Dennis Hastert for time to redraft the legislation. Following numerous
meetings and negotiations with the White House, the FBI, and the intelligence community, Rep.
Sensenbrenner authored a revised version of the Act that was ultimately adopted as law. Rep.
Sensenbrenner also voted to amend the Patriot Act in 2006 and voted to reauthorize certain
provisions of the law, including Section 215, in 2009 and 2011.
I. INTRODUCTION
The Defendants attempt to justify their practice of collecting the records of every
telephone call made to or from the United States, including purely domestic calls, by claiming
that Congress intended to authorize precisely such a program when it enacted and reauthorized
Section 215 of the Act, 50 U.S.C. § 1861 (“Section 215”). Defs’ Mot. to Dismiss (ECF No. 33)
at 21-28. But Congress intended no such thing.
Amicus curiae is a Member of Congress who was the author of the original Patriot Act, in
2001, and supported its revision in 2006 and its reauthorizations in 2009 and 2011. Amicus
agrees with Defendants that in enacting Section 215, Congress granted the Executive branch
Case 1:13-cv-03994-WHP Document 46-1 Filed 09/04/13 Page 6 of 16
12. 2
broad investigative powers relating to investigations of suspected foreign terrorist activities.
However, amicus vehemently disputes that Congress intended to authorize the program
challenged by this lawsuit, namely, the unprecedented, massive collection of the
telecommunications data of millions of innocent Americans. Indeed, the unfocused dragnet
undertaken by Defendants is exactly the type of unrestrained surveillance Congress, including
amicus, tried to prevent.
Amicus thus urges the Court to find that the bulk data collection program challenged in
this lawsuit is not authorized by Section 215 or any other provision of law.
II. CONGRESS AUTHORIZED THE COLLECTION OF DOCUMENTS AND
OTHER TANGIBLE THINGS ONLY UPON A SHOWING THAT THE ITEMS
WILL BE RELEVANT TO AN AUTHORIZED INVESTIGATION
The Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001 was adopted by Congress
shortly after the September 11, 2001 terrorist attacks. Pub. L. No. 107-56, 115 Stat. 272. Among
the Act’s 17 provisions was Section 215, the business records provision, which authorized
intelligence agencies to apply for an order from the Foreign Intelligence Surveillance Court
“requiring the production of any tangible things (including books, records, papers, documents,
and other items).” Id. § 215. However, intelligence agencies were not given unbounded record-
collecting authority. Instead, records could be obtained only if they were “sought for an
authorized investigation.” Id.
In imposing this limitation, the authors intended that the ability to collect such records
would be confined to the situations in which the information was relevant to an authorized
investigation. Amicus Rep. Sensenbrenner was chairman of the House Judiciary Committee
during the debates over the passage of the Act and was the author of the version that was
ultimately passed. Rep. Sensenbrenner’s statements in the report for the House bill that became
Case 1:13-cv-03994-WHP Document 46-1 Filed 09/04/13 Page 7 of 16
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Section 215 made it clear that such an order could be obtained only upon a showing to the FISC
that “the records are relevant to an ongoing foreign intelligence investigation.” H.R. Rep.
No. 107-236, pt. 1, at 61 (2001) (emphasis in original).
To put any doubts to rest, the relevancy requirement was expressly incorporated into
Section 215 when the law was re-authorized in 2006. Pub. L. No. 107-56, 115 Stat. 272. The
“sought for an authorized investigation” language was replaced by a requirement that the
government establish “reasonable grounds to believe that the tangible things sought are relevant
to an authorized investigation (other than a threat assessment).” USA PATRIOT Improvement
and Reauthorization Act of 2005, Pub. L. No. 109-177, § 106, 120 Stat. 192, 196. Other
revisions to the bill shed light on what Congress meant by “relevant to an authorized
investigation.” Records sought will be considered “presumptively relevant to an authorized
investigation” if the government demonstrates that the records pertain to “(i) a foreign power or
an agent of a foreign power; (ii) the activities of a suspected agent of a foreign power who is the
subject of such authorized investigation; or (iii) an individual in contact with, or known to, a
suspected agent of a foreign power who is the subject of such authorized investigation.” 50
U.S.C. § 1861(b)(2)(A).
Notably amicus and his colleagues in Congress required that the records sought be
relevant to “an authorized investigation,” rather than relevant to general or omnibus efforts to
combat terrorism. Congress thus required intelligence agencies to establish a specific link
between the records sought and a specific, individual investigation.
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14. 4
III. CONGRESS DID NOT INTEND TO AUTHORIZE THE COLLECTION OF
DATA OF EVERY TELEPHONE CALL MADE TO OR FROM THE UNITED
STATES, THUS CAPTURING THE INFORMATION, AND VIOLATING THE
PRIVACY, OF MILLIONS OF INNOCENT AMERICANS
The parties can argue over the dictionary and legal definitions of the words “relevance”
and “an.” But regardless of how those words are defined, one thing is clear: amicus, and the
other Members of Congress who enacted Section 215, did not intend to authorize the program at
issue in this lawsuit or any program of a comparable scope.
Amicus does not dispute that “relevance” is customarily given a broad meaning, and that
he and his colleagues in Congress were aware of this broad meaning when they enacted and
reauthorized Section 215. Nor does amicus dispute that Section 215 was intended to create a
“sufficiently flexible” standard. See Defs’ Mot. to Dismiss at 24. But there is no suggestion in
any legal precedent or in any statements in the legislative history that the relevance standard
could justify the ongoing collection of the records of every telephone call made to or by every
person on American soil, the vast majority of which Defendants concede will not be related even
remotely to any terrorist activities.
To the contrary, amicus understood that “relevance” was commonly construed by the
Supreme Court as a limiting factor that specifically prevented the bulk collection of records, even
on a much smaller scale, on the belief that investigators might find the information useful at
some point in the future. For example, in Bowman Dairy Co. v. United States, 341 U.S. 214, 218
(1951), the defendants obtained a subpoena duces tecum that required the government attorneys
prosecuting an antitrust case to produce, among other things, all documents which were “relevant
to the allegations or charges contained in said indictment, whether or not they might constitute
evidence with respect to the guilt or innocence of any of the defendants.” The Supreme Court
rejected that part of the subpoena as an improper “fishing expedition to see what may turn up,”
Case 1:13-cv-03994-WHP Document 46-1 Filed 09/04/13 Page 9 of 16
15. 5
despite the expansive reach of Federal Rule of Criminal Procedure 17(c). Id. at 221. In the civil
discovery context, the Supreme Court sharply criticized as “anything but appropriate” a
subpoena containing numerous “all documents” requests, characterizing it as seeking
“everything under the sky.” Cheney v. United States Dist. Court for the Dist. of Columbia, 542
U.S. 367, 387-88 (2004).1
In these and all other cases, the Court has looked at relevance in relation to the subject
matter at issue.2
But Defendants here, without citing to any supporting authority, offer an
unprecedented and dangerous version of “relevance”: records are also relevant “if there is reason
to believe [the business records] are necessary to the application of investigative techniques that
will advance its purposes.” Defs’ Mot. to Dismiss at 24. Thus, Defendants claim they can collect
millions of records that they know are not pertinent or related or connected to any terrorist
activities, and retain those records for five years, because it may be necessary at some point
within those five years to analyze those records to see if they contain any links to terrorists.
Defendants maintain this claim even though they concede that even third degree connections to
terrorists will be found in only a miniscule subset of the records collected. Defs’ Mot. to Dismiss
at 6 (“Therefore, ‘only a small fraction of the records are ever reviewed.’”) The vast majority of
the records collected will have no relation to the investigation of terrorism at all. This collection
of millions of unrelated records is built in to the mass call collection program.
1
The normal rule of statutory construction is that if Congress intends for legislation to change
the interpretation of a judicially created concept, it makes that intent specific.” Midlantic Nat’l
Bank v. New Jersey Dep’t of Envtl. Prot., 474 U.S. 494, 501 (1986) (quoting Edmonds v.
Compagnie Generale Transatlantique, 443 U.S. 256, 266-67 (1979)).
2
Defendants, quoting one dissenting senator, contend that Congress specifically rejected
proposals that would have required the records to be relevant to specific individuals suspected of
terrorist activities. Defs’ Mot. to Dismiss at 24 n.13. Regardless of whether this is true – the
words of the statute should be interpreted by what they say, not by what words were not
enacted – it is not support for Defendants’ theory that subject matter relevance, as distinct from a
connection to an individual terrorist, is not required.
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16. 6
Defendants’ theory of “relevance” is simply beyond any reasonable understanding of the
word. And it certainly is not what amicus intended the word to mean.
Indeed, Defendants concede that the program is unprecedented in its scope. Defs’ Mot. to
Dismiss at 24. Even if Section 215 granted intelligence agencies enhanced powers with respect
to terrorism investigations, Congress cannot be said to have implicitly authorized a program that
reaches so much father than any program previously approved by any court in any context. See
Whitman v. American Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001) (“Congress . . . does not
alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions — it
does not . . . hide elephants in mouseholes.”); MCI Telecommunications Corp. v. AT&T, 512
U.S. 218, 231 (1994) (explaining that conferral of authority to “modify” rates was not a cryptic
conferral of authority to make filing of rates voluntary).
Defendants claim that the massive scope of this program is merely a product of the
unique interaction of interconnected telecommunications data and terrorism investigations.
Defendants dispute that their interpretation of Section 215 grants it unbounded investigatory
powers because similar bulk collection of other data sets, such as medical records, would not be
authorized by Section 215. Id. (“Ordinarily, therefore, bulk collection of such records would not
meet the ‘relevance’ standard.”). However, Congress addressed the special need for
telecommunications data in foreign intelligence and international terrorism investigations by
providing separate procedures for the use of pen register and trap-and-trace devices, which are
designed specifically to gather such data. See 50 U.S.C. § 1842. If the Defendants’ interpretation
of Section 215 is correct, these provisions are rendered superfluous. See Astoria Federal Savings
& Loan Ass’n v. Solimino, 501 U.S. 104, 112 (1991) (explaining that statutes should be
construed “so as to avoid rendering superfluous” any statutory language).
Case 1:13-cv-03994-WHP Document 46-1 Filed 09/04/13 Page 11 of 16
17. 7
Moreover, Defendants’ interpretation of Section 215 renders numerous other provisions
of the USA PATRIOT Act as mere surplusage. As discussed above, certain categories of
information are presumed to be “relevant” for the purposes of Section 215. See 50 U.S.C.
§ 1861(b)(2)(A)(i)-(iii). If the meaning of “relevant” is as “flexible” as Defendants contend, then
Congress wasted its time in articulating these more specific and focused categories.
Defendants do not explain why Congress would have enacted such meaningless
provisions. The bulk data collection program is unbounded in its scope. The NSA is gathering on
a daily basis the details of every call that every American makes, as well as every call made by
foreigners to or from the United States. How can every call that every American makes or
receives be relevant to a specific investigation?
IV. DEFENDANTS’ CLAIM THAT CONGRESS IMPLICITY RATIFIED THE
PROGRAM MUST BE REJECTED BECAUSE THERE IS NO EVIDENCE OF
EXTENSIVE CONSIDERATION OF THE PROGRAM OR A BROAD
CONSENSUS THAT IT WAS LEGAL
Defendants claim that Congress “legislatively ratified” a construction of Section 215
under which the mass call-tracking program was permitted by reauthorizing Section 215 after
being notified about the details of the program. This claim is founded on the assertion that a
“classified briefing paper, explaining that the Government and the FISC had interpreted
Section 215 to authorize the bulk collection of telephony metadata, was provided to the House
and Senate Intelligence Committees and made available for review, as well, by all Members of
Congress.” Defs’ Mot. to Dismiss at 27.
Defendants vastly understate the quantum of consensus required for a court to find
implied Congressional ratification of a statutory interpretation. Implied Congressional
ratification is not appropriate merely upon a showing that Congress was notified about an
interpretation of the statute. Rather, it will be found only where Congress both reenacted a statute
Case 1:13-cv-03994-WHP Document 46-1 Filed 09/04/13 Page 12 of 16
18. 8
without change, and did so where the specific interpretation of the statute was broad and
unquestioned. Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 349 (2005); United
States v. Powell, 379 U.S. 48, 55 n.13 (1964). The required broad and unquestioned
interpretation may be established by evidence that “Congress considered [the interpretation] in
great detail,” Nat’l Labor Rel. Bd. v. Gullett Gin Co., 340 U.S. 361, 366 (1951), specifically
evidence of "[e]xtensive hearings, repeated efforts at legislative correction, and public
controversy.” Butterbaugh v. Dep’t of Justice, 336 F.3d 1332, 1342 (Fed. Cir. 2003). Or it may
be established by a broad unanimity of judicial decisions. In Jama, the Supreme Court declined
to find ratification even though Congress reenacted the legislation after two Court of Appeals
decisions had adopted the proposed interpretation; even in the absence of contrary authority,
those two appellate decisions could not establish the adequate judicial consensus needed for
implied Congressional ratification. Jama, 543 U.S. at 349. In contrast, in Forest Grove Sch. Dist.
v. T.A., 557 U.S. 230, 239-40 (2009), upon which Defendants base their ratification argument,
the Supreme Court found implied ratification only because Congress did not change a statutory
provision following the Supreme Court’s definitive interpretation of that provision in another
case. See also Lorillard v. Pons, 434 U.S. 575, 580 (1978) (finding ratification where “every
court to consider the issue” had interpreted the statute in the same way); Albemarle Paper Co. v.
Moody, 422 U.S. 405, 414 n.8 (1975) (finding ratification because “[t]he Court of Appeals that
have confronted the issue are unanimous”).
In this case there is no evidence to support implied ratification. The issue was not debated
in Congress, nor, because of the overwhelming secrecy the Executive applied to the legal
interpretations of FISA, were there public hearings or a public debate. There is no evidence of
Case 1:13-cv-03994-WHP Document 46-1 Filed 09/04/13 Page 13 of 16
19. 9
extensive deliberations or any rejected efforts at legislative correction specific to the mass call
tracking program.
Defendants’ only evidence supporting implied ratification is the assertion that a 5-page
report was made available for Members of Congress to read in a secure location for a limited
period of time in both 2009 and 2011, when Congress was considering whether to reauthorize
Section 215 as a whole. Defs’ Mot. to Dismiss Exh. 4 (ECF No. 33-4), Exh. 6 (ECF No. 33-6).
However, the 5-page report was only a brief summary, sorely lacking in detail, with only one
sentence that hinted at the breadth of the program.3
Moreover, the report was not made available
to House Members in 2011. See Defs’ Mot. to Dismiss at 27 n.15. Nor were Members of
Congress given access to any of the FISC orders approving of the bulk collection of call data.
Even if mere notice were enough, it would have to be actual notice. Defendants make no
attempt to demonstrate that all, or even most, Members of Congress had actual notice that the
government was engaging in the bulk acquisition of the telephone records of Americans. The
doctrine of implied ratification is subordinate to the fundamental principle that statutory
interpretation turns on Congress’ actual intent: as such, ratification requires actual notice, not
constructive notice. The doctrine never has been—and never should be—applied in
circumstances like these, where the Executive has kept its interpretation of the law secret and
there is no evidence that anything more than a handful of Members of Congress had actual
knowledge of the Executive’s interpretation.
Regardless of whether Defendants attempted or intended to educate all Members of
Congress beyond the intelligence committees, amicus attests that he was not aware of the full
3
“The orders generally require production of the business records (as described above) relating
to substantially all of the telephone calls handled by the companies, including both calls made
between the United States and a foreign country and calls made entirely within the United
States.” Defs’ Mot. to Dismiss, Exh. 5 (ECF No. 33-5) at 4.
Case 1:13-cv-03994-WHP Document 46-1 Filed 09/04/13 Page 14 of 16
20. 10
scope of the program when he voted to reauthorize Section 215. And amicus attests that had he
been fully informed he would not have voted to reauthorize Section 215 without change.
But, as set forth above, even if every member of Congress had been fully informed of the
program, a mere awareness of a statutory interpretation is not sufficient to establish implied
ratification. As amicus wrote, “the suggestion that the administration can violate the law because
Congress failed to object is outrageous. But let them be on notice: I am objecting right now.”4
V. CONCLUSION
For the above-stated reasons, amicus curiae urges this Court to deny Defendants’ Motion
to Dismiss and grant Plaintiffs’ Motion for Summary Judgment.
Dated: September 4, 2013 By:
/s/ David Greene
David Greene
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Tel: (415) 436-9333
Email: davidg@eff.org
Counsel for Amicus Curiae
Congressman F. James Sensenbrenner, Jr.
4
Rep. Jim Sensenbrenner, How Obama Abused the Patriot Act: The White House ‘s justification
for collecting Americans’ phone data doesn’t stand up to the light of day, LATIMES.COM,
August 19, 2013, <latimes.com/opinion/commentary/la-oe-sensenbrenner-data-patriot-act-
obama-201308190,0,138781.story>.
Case 1:13-cv-03994-WHP Document 46-1 Filed 09/04/13 Page 15 of 16
21. 11
CERTIFICATE OF SERVICE
I hereby certify that on September 4, 2013, I electronically filed the foregoing with the
Clerk of the Court for the United States District Court, Southern District of New York by using
the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the CM/ECF system.
Dated: September 4, 2013 By:
/s/ David Greene
David Greene
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Tel: (415) 436-9333
Email: davidg@eff.org
Counsel for Amicus Curiae
Congressman F. James Sensenbrenner, Jr.
Case 1:13-cv-03994-WHP Document 46-1 Filed 09/04/13 Page 16 of 16