ACLU v. NSA

Infobox Court Case
name = ACLU v. NSA
court = United States Court of Appeals for the Sixth Circuit


imagesize=108
date_decided = July 6, 2007
full_name = American Civil Liberties Union et al., v. United States National Security Agency / Central et al.
citations =
judges = BATCHELDER, GILMAN, and GIBBONS
prior_actions = U.S. Dist. Court for E. MI. grant summary judgement for plaintiffs
subsequent_actions =
opinions =

"American Civil Liberties Union et al., v. National Security Agency / Central et al.", is a case decided July 6, 2007, in which the United States Court of Appeals for the Sixth Circuit held that the plaintiffs in the case did not have standing to bring the suit against the NSA, because they could not present evidence that they were the targets of the so-called "Terrorist Surveillance Program" (TSP).

On January 17, 2006, the American Civil Liberties Union (ACLU) on its own behalf, and on the behalf of three other organizations and five individuals, sued the National Security Agency (NSA) in the United States District Court for the Eastern District of Michigan, seeking declaratory judgment and injunctive relief arguing the TSP was unconstitutional and a violation of federal law. The government argued that the lawsuit should be dismissed or alternatively be granted summary judgment based on the State Secrets Privilege and the plaintiffs' lack of standing.

On August 17, 2006, District Court Judge Anna Diggs Taylor granted summary judgement for the plaintiffs, ruling that the TSP specifically involving "international telephone and internet communications of numerous persons and organizations" within the United States of America, was unconstitutional and illegal, and ordered that it be halted immediately [ [http://fl1.findlaw.com/news.findlaw.com/nytimes/docs/nsa/aclunsa81706opn.pdf Find Law (PDF)] ] . She stayed her order pending appeal. She did not rule on the alleged NSA database of domestic call detail records, citing the States Secrets Privilege.

On February 19, 2008, the US Supreme Court, "without comment, turned down an appeal from the [ACLU] to let it pursue a lawsuit against the program that began shortly after the Sept. 11 terror attacks."cite news |last= |first= | title =Court Rejects ACLU Challenge to Wiretaps |work=Breitbart.com |page= |date=2008-02-19 |accessdate=2008-02-19 |publisher=AP |type=Newspaper |language=English]

Background

After September 11, 2001 (or perhaps earlier [cite web | url = http://www.bloomberg.com/apps/news?pid=20601087&sid=abIV0cO64zJE&refer= | title = Spy Agency Sought U.S. Call Records Before 9/11, Lawyers Say | accessmonthday = September 2 | accessyear = 2006 | first = Andrew | last = Harris | date = 2006-06-30 | work = Bloomberg.com | publisher = Bloomberg L. P. ] ), the NSA began a classified foreign intelligence program, since named the Terrorist Surveillance Program, to intercept the international telephone and internet communications of numerous persons and organizations within the United States, without obtaining warrants and therefore outside the parameters of the Foreign Intelligence Surveillance Act of 1978.

The plaintiffs include the ACLU, the Council on American-Islamic Relations, the National Association of Criminal Defense Lawyers, and Greenpeace along with five individuals who are authors and journalists Christopher Hitchens, James Bamford, Tara McKelvey, democracy scholar Larry Diamond of Stanford University and the Hoover Institution, and Afghanistan scholar Barnett Rubin of New York University. They stated in their complaint that they all have a history of communicating with people in or from the Middle East and on that basis they had a "well founded belief" of having been targeted by the TSP, based on the available public information regarding the program.

"ACLU v. NSA", along with a separate lawsuit simultaneously filed by the Center for Constitutional Rights, are the first lawsuits to challenge the TSP. [Hibbits, Bernard (2006-05-28). " [http://jurist.law.pitt.edu/paperchase/2006/05/doj-wants-nsa-wiretapping-suits.php DOJ wants NSA wiretapping suits dismissed on state secrets basis] ", "JURIST". Retrieved on September 8, 2006.]

District Court opinion

Judge Taylor wrote a 44 page, 11 part opinion in which she examined the defendant's claim over state secrets, standing, and the President's war time claim. Judge Taylor found that the NSA surveillance Program violated statutory law in regard to the FISA. Furthermore, she concluded that the NSA program violated the constitution in regard to the First Amendment, Fourth Amendment, and Separation of powers Doctrine. Judge Taylor stayed her own opinion, preventing it from taking effect, pending a September 7 hearing.

Here are some excerpts from her opinion: [ [http://fl1.findlaw.com/news.findlaw.com/nytimes/docs/nsa/aclunsa81706opn.pdf Find Law (PDF)] ] cquote| [p.40] The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.

We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no power not created by the Constitution. So all "inherent power" must derive from that Constitution.

Reaction

The White House issued a statement saying: cquote|The Terrorist Surveillance Program is firmly grounded in law and regularly reviewed to make sure steps are taken to protect civil liberties. The Terrorist Surveillance Program has proven to be one of our most critical and effective tools in the war against terrorism, and we look forward to demonstrating on appeal the validity of this vital program. [cite web | url = http://www.whitehouse.gov/news/releases/2006/08/20060817-2.html | title = Statement on the Terrorist Surveillance Program | accessmonthday = September 2 | accessyear = 2006 | author = President George W. Bush | date = 2006-08-17 | work = News releases for August 2006 ]

ACLU Executive Director Anthony Romero stated: cquote|President Bush may believe he can authorize spying on Americans without judicial or Congressional approval, but this program is illegal and we intend to put a stop to it... The current surveillance of Americans is a chilling assertion of presidential power that has not been seen since the days of Richard Nixon.

According to The New York Times, several legal experts, including some who agreed with its conclusion, said the decision "overlooked important precedents, failed to engage the government’s major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions." cite news|title=Experts Fault Reasoning in Surveillance Decision|author=Adam Liptak|date=2006-08-19|publisher=The New York Times|url=http://www.nytimes.com/2006/08/19/washington/19ruling.html]

Some legal analysts, such as Glenn Greenwald argued that critics of Taylor's reasoning were mistaken:

Still others, such as Laurence Tribe, took an intermediate position: cquote|Judge Taylor's [opinion is an] unusually casual and surprisingly breezy way of dispatching the Bush administration's legal defense of its NSA warrantless surveillance program.... It's altogether too easy to make disparaging remarks about the quality of the Taylor opinion, which seems almost to have been written more to poke a finger in the President's eye than to please the legal commentariat or even, alas, to impress an appellate panel, although I certainly agree with the many who predict that, while her reasoning is bound not to be embraced, her bottom line is very likely to survive appellate review. [cite web | url = http://balkin.blogspot.com/2006/08/bloggerati-response-to-judge-taylors.html | title = The Bloggerati response to Judge Taylor's ruling in the NSA Case | accessmonthday = September 2 | accessyear = 2006 | first = Laurence | last = Tribe | date = 2006-08-19 | work = Balkinization]

ixth Circuit Court of Appeals

On October 4, 2006, a unanimous three-judge panel of the Sixth Circuit stayed the District Court's ruling while the government's appeal is considered by the Court of Appeals. In the three-paragraph ruling, judges said that they balanced the likelihood an appeal would succeed, the potential damage to both sides and the public interest. [cite web | url = http://www.washingtonpost.com/wp-dyn/content/article/2006/10/04/AR2006100401731.html | title= Court Allows Warrantless Wiretapping During Appeal | accessmonthday = October 6 | accessyear = 2006 | author = Associated Press | date = 2006-10-05 ]

The Cincinnati-based 6th U.S. Circuit Court of Appeals heard oral arguments on the government's appeal on January 31, 2007. [cite web | url = http://www.ca6.uscourts.gov/cgi-bin/courtcal.pl?COURTCAL=070129.cal&puid=0 | title= Oral Argument Calendar | accessmonthday = January 16 | accessyear = 2007 | author = U.S. Court of Appeals for the Sixth Circuit | date = 2007-01-16 ] .

In its July 6, 2007 decision, the Circuit Court overturned Judge Taylor's ruling in a 2-1 vote. The majority declined to rule on the legality of the program, finding that the plaintiffs lacked standing to bring the suit.

Here are some excerpts of the Court's decision: [http://fl1.findlaw.com/news.findlaw.com/nytimes/docs/nsa/aclunsa70607opn.pdf 6th Circuit Court of Appeals Decision]

US Supreme Court

On February 19, 2008, the US Supreme Court, "without comment, turned down an appeal from the [ACLU] to let it pursue a lawsuit against the program that began shortly after the Sept. 11 terror attacks." ]

ee also

*United States v. U.S. District Court, 1972, U.S. Supreme Court unanimous decision that established the requirement for warrants in cases involving the domestic use of electronic surveillance on Fourth Amendment grounds.
*Foreign Intelligence Surveillance Act of 1978, the principal law (as amended by the USA Patriot Act of 2001) that regulates the domestic electronic surveillance, in particular requiring that a warrant be obtained either before or shortly after domestic eavesdropping.

External links

Court documents

*Complaint: PDF| [http://www.aclu.org/images/nsaspying/asset_upload_file137_23491.pdf "ACLU v. NSA"] |201 KiB , filed by the ACLU
*Complaint: (HTML) [http://thewall.civiblog.org/rsf/aclu-nsa-complaint.html ACLU Complaint (Initial Filing) against the NSA Central Security Serice and Lieutenant General Keith B. Alexander] via thewall.civiblog.org
*Ruling - ACLU v. NSA: PDF| [http://www.mied.uscourts.gov/eGov/taylorpdf/06%2010204.pdf District Court opinion from the web site] |107 KiB
*Ruling - United States v. U.S. District Court: [http://laws.findlaw.com/us/407/297.html Supreme Court opinion (HTML)] (Ruling courtesy of FindLaw.com)

Other links

* [http://www.aclu.org/safefree/nsaspying/23486prs20060117.html "ACLU Sues to Stop Illegal Spying on Americans, Saying President Is Not Above the Law"] , ACLU press release
* [http://www.aclu.org/safefree/nsaspying/index.html "NSA Lawsuit - Stop Illegal Surveillance"] , ACLU reference site
* [http://www.aclu.org/safefree/nsaspying/23485res20060116.html "Statement - Christopher Hitchens, NSA Lawsuit Client"]
* [http://www.aclu.org/safefree/nsaspying/24076res20060206.html "Summary of Top Ten Myths About the Illegal NSA Spying on Americans" html, pdf] , ACLU summary of their full report in pdf
* [http://www.nytimes.com/2006/01/17/politics/17nsa.html "Two Groups Planning to Sue Over Federal Eavesdropping"] , New York Times, Jan. 17, 2006
* [http://www.nytimes.com/2006/08/18/washington/18nsa.html?ei=5070&en=5f52e8953e6860dd&ex=1169960400&pagewanted=all "Judge Finds Wiretap Actions Violate the Law"] , New York Times, Aug. 18, 2006
* [http://thewall.civiblog.org/rsf/fredricksonaclustmt12006.html "ACLU Washington Legislative Director Caroline Fredrickson Statement 20 January 2006 on Illegal Domestic Surveillance"] - ACLU's House Judiciary Democratic Congressional Briefing via thewall.civiblog.org
* [http://www.ccr-ny.org/v2/reports/report.asp?ObjID=IahVzRA3n9&Content=693 "CCR Files Suit over NSA Domestic Spying Program"] , CCR synopsis
* [http://www.whitehouse.gov/news/releases/2006/08/20060817-2.html White House statement on district court ruling]

References