ACLU v. NSA

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ACLU v. NSA
United States District Court for the Eastern District of Michigan
Full case name American Civil Liberties Union et al., v. National Security Agency / Central et al.
Date decided August 17, 2006
Citations
Judges sitting Hon. Anna Diggs Taylor
Case history
Prior actions:
Subsequent actions:
Case opinions
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ACLU v. NSA is a lawsuit filed on January 17, 2006, in the United States District Court for the Eastern District of Michigan, by the American Civil Liberties Union (ACLU) on its own behalf, and on the behalf of three other organizations and five individuals, against the National Security Agency (NSA), to challenge its so-called Terrorist Surveillance Program (TSP) (see: NSA warrantless surveillance controversy) and the alleged NSA call database.

The plaintiffs requested declaratory judgment and injunctive relief, specifically asking that the court find the program unconstitutional and a violation of federal law, and that it bar the use of the program. The government argued that the lawsuit should be dismissed or alternatively be granted summary judgment based on the State Secrets Privilege and the Plaintiffs’ alleged lack of standing.

On August 17, 2006, District Court Judge Anna Diggs Taylor ruled that the NSA surveillance program, 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[1]. 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.

Contents

[edit] Background

Main article: NSA warrantless surveillance controversy

After September 11, 2001 (or perhaps earlier[2]), 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.[3]

[edit] 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. While she examined the plaintiff's claims that the NSA program not only violated the constitution in regard to the First Amendment, Fourth Amendment, and Separation of powers Doctrine, but also claims that the NSA Program violated statutory law in regard to the FISA. Judge Taylor stayed her own opinion, preventing it from taking effect, pending a September 7 hearing.

Here are some excerpts from her opinion:[4]

“ [pp.23-24] [I]t is important to note that if the court were to deny standing based on the unsubstantiated minor distinctions drawn by Defendants, the President's actions in warrantless wiretapping, in contravention of FISA, Title II, and the First and Fourth amendments, would be immunized from judicial scrutiny. It was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights. The three separate branches of government were developed as a check and balance for one another. It is within the court's duty to ensure that power is never condensed into a single branch of government. ”
“ [p.33] The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well. ”
“ [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.

 ”

[edit] Sixth Circuit Court of Appeals

On October 4, 2006, a unanimous three-judge panel of the United States Court of Appeals for 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. [5]

The Cincinnati-based 6th U.S. Circuit Court of Appeals heard oral arguments on the government's appeal on January 31, 2007.[6].

[edit] Reaction

The White House issued a statement saying:

“ 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. [7] ”

ACLU Executive Director Anthony Romero stated:

“ 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." [8]

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

“ It is true that there are parts of Judge Taylor's opinion which are surprisingly conclusory, but that does not necessarily make it flawed. It is amazing to watch virtually everyone who is trying to attack her opinion do so by making arguments which the DoJ never made in the case before her. A basic familiarity with this case and with the rules of civil procedure -- both of which many of her critics clearly lacked -- would reveal that Judge Taylor's opinion was infinitely more sound than the conventional wisdom (thanks to many of these law professors) now holds that it was.[9] ”

Still others, such as Laurence Tribe, took an intermediate position:

“ 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. [10] ”

[edit] See also

[edit] External links

[edit] Court documents

[edit] Other links

[edit] References

  1. ^ Find Law (PDF)
  2. ^ Harris, Andrew (2006-06-30). Spy Agency Sought U.S. Call Records Before 9/11, Lawyers Say. Bloomberg.com. Bloomberg L. P.. Retrieved on September 2, 2006.
  3. ^ Hibbits, Bernard (2006-05-28). "DOJ wants NSA wiretapping suits dismissed on state secrets basis", JURIST. Retrieved on September 8, 2006.
  4. ^ Find Law (PDF)
  5. ^ Associated Press (2006-10-05). Court Allows Warrantless Wiretapping During Appeal. Retrieved on October 6, 2006.
  6. ^ U.S. Court of Appeals for the Sixth Circuit (2007-01-16). Oral Argument Calendar. Retrieved on January 16, 2007.
  7. ^ President George W. Bush (2006-08-17). Statement on the Terrorist Surveillance Program. News releases for August 2006. Retrieved on September 2, 2006.
  8. ^ Adam Liptak. "Experts Fault Reasoning in Surveillance Decision", The New York Times, August 19, 2006.
  9. ^ Grading the law professors; apologies due Judge Taylor by Glenn Greenwald, August 22, 2006.
  10. ^ Tribe, Laurence (2006-08-19). The Bloggerati response to Judge Taylor's ruling in the NSA Case. Balkinization. Retrieved on September 2, 2006.
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