See Holder, 130 S. Ct. at 2727; Haig, 453 U.S. at 309-10; Al Haramain Islamic Found., Inc. v. U.S. Dep’t of Treasury, 686 F.3d 965, 980-81 (9th Cir. 2012).38 CONCLUSION For the reasons stated above, Defendants’ Motion to Dismiss should be granted, and Plaintiffs’ Motion for Partial Summary Judgment should be denied. 36 See 50 U.S.C. § 1861(f)(2)(A)(i) (providing only recipients the right to challenge lawfulness of Section 215 orders before the FISC); supra at 18-19 & n.11 Cf. Jerry T. O’Brien, Inc., 467 U.S. at 742-50 (target of investigation not entitled to notice—under due process clause or otherwise—when SEC issues subpoenas to third party providers). 37 See, e.g., Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 679 (1974) (dispensing with pre-deprivation notice or hearing when exigent circumstances exist and the government demonstrates a “pressing need for prompt action”); Al Haramain Islamic Found., Inc. v. U.S. Dep’t of Treasury, 686 F.3d 965, 985 (9th Cir. 2012) (“[A]s many courts have held, the potential for ‘asset flight’ almost certainly justifies OFAC’s decision not to provide notice before freezing the assets.”)

at 32, this interest has been and is being vindicated through the statutory framework for Sections 215 and 702 that involves stringent supervision and oversight by all three branches. See 50 U.S.C. § 1861(a), (b) (Executive must apply to the FISC for an order requiring the production of tangible things under Section 215), id. § 1861(g) (Executive minimization procedures); Letter from Ronald Weich to Rep. Silvestre Reyes (Dec. 14, 2009) (sharing information about the bulk collection of telephony metadata with Congress); see also 50 U.S.C. § 1881a(d), (e), (i) (judicial review of Section 702 Executive certifications, as well as targeting and minimization procedures); id.

at 32, this interest has been and is being vindicated through the statutory framework for Sections 215 and 702 that involves stringent supervision and oversight by all three branches. See 50 U.S.C. § 1861(a), (b) (Executive must apply to the FISC for an order requiring the production of tangible things under Section 215), id. § 1861(g) (Executive minimization procedures); Letter from Ronald Weich to Rep. Silvestre Reyes (Dec. 14, 2009) (sharing information about the bulk collection of telephony metadata with Congress); see also 50 U.S.C. § 1881a(d), (e), (i) (judicial review of Section 702 Executive certifications, as well as targeting and minimization procedures); id.

CONCLUSION For the reasons stated above, Plaintiff’s motion for a preliminary injunction should be denied, and this case should be dismissed. 25 See Primary Order at 8-9 (requiring NSA General Counsel’s Office to review all findings of reasonable, articulable suspicion for numbers reasonably believed to be used by U.S. persons to ensure the findings are not based on activities protected by the First Amendment); 50 U.S.C. § 1861(a)(1) (prohibiting any investigation of a United States person “conducted solely upon the basis of activities protected by the first amendment to the Constitution”). 45 Dated: January 25, 2014 WENDY J. OLSON, Idaho Bar No. 7634 United States Attorney SYRENA C. HARGROVE, Idaho Bar No. 6213 Assistant United States Attorney District Of Idaho Washington Group Plaza IV 800 E. Park Boulevard, Suite 600 Boise, ID 83712-9903 Telephone: (208) 334-1211 Facsimile: (208) 334-1414 Syrena.Hargrove@usdoj.gov Respectfully submitted, STUART F. DELERY Assistant Attorney General JOSEPH H. HUNT Director, Federal Programs Branch ANTHONY J. COPPOLINO Deputy Branch Director /s/ James J. Gilligan JAMES J. GILLIGAN Special Litigation Counsel MARCIA B

Section 215 authorizes the government to obtain a sealed, ex parte order from the FISC requiring third parties to turn over citizens’ personal and business records. 50 U.S.C. § 1861. Citizens targeted under Section 215 are not informed if or when their records are requested by or produced to the government, and entities that receive Section 215 orders are prohibited from disclosing that receipt.

Congress repeated the phrase no less than thirteen times in section 215. 50 U.S.C. § 1861 (b)(1)(B), (b)(2)(A), (b)(2)(B), (c)(1), (c)(2)(A), (c)(2)(B), (c)(2)(D), (d)(1), (d)(2)(B), (e), (f)(1)(A), (g)(2)(A), (h). Congress clearly intended the phrase to impose a limitation that excludes “intangible things.”

The FISC’s imposition of such minimization procedures is required by the terms of Section 215 itself, which provides that an order directing the production of documents, records, or other tangible items under authority of the statute “shall direct” that the Government also follow specific “minimization procedures,” adopted by the Attorney General, that are reasonably designed … to minimize the retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information. Government Defendants’ Response to Plaintiffs’ Opening Brief re Evidence Preservation, Jewel v. NSA (08-cv- 4373-JSW), First Unitarian Church of Los Angeles v. NSA (13-cv-3287-JSW) 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 50 U.S.C. § 1861(c)(1), (g(2)(A) (emphasis added). The five-year limit on retention of telephony metadata after their collection is one of the minimization procedures that the FISC has consistently imposed on the NSA as a condition on its authorization of the telephony metadata program.

Congress subsequently reauthorized Section 215 for limited periods of time on several occasions. See 50 U.S.C. § 1861 note. On May 26, 2011, Congress reauthorized Section 215 until June 1, 2015.

¶ 50 (citing 50 U.S.C. § 1861(d)(1)), but specifically channels challenges to Title V nondisclosure obligations to the FISC. See 50 U.S.C. § 1861(f). Viewed through this prism—the reality that FISA nondisclosure obligations function largely through FISC orders— the Amended Complaint shows the extent to which plaintiff’s claims would require this Court to interpret the orders of another court.

Congress subsequently reauthorized Section 215 for limited periods of time on several occasions. See 50 U.S.C. § 1861 note. Most recently, on May 26, 2011, Congress reauthorized Section 215 until June 1, 2015.