American Civil Liberties UnionThe American Civil Liberties Union consists of two separate non-profit organizations: the ACLU Foundation, a 501 organization which focuses on litigation and communication efforts, and the American Civil Liberties Union, a 501 organization which focuses on legislative lobbying...
et al., v. National Security AgencyThe National Security Agency/Central Security Service is a cryptologic intelligence agency of the United States government, administered as part of the United States Department of Defense. Created on November 4, 1952 by President Harry S...
/ Central et al., is a case decided July 6, 2007, in which the
United States Court of Appeals for the Sixth CircuitThe United States Court of Appeals for the Sixth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Kentucky* Western District of Kentucky...
held that the plaintiffs in the case did not have
standingStanding or locus standi is the term for ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...
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 UnionThe American Civil Liberties Union consists of two separate non-profit organizations: the ACLU Foundation, a 501 organization which focuses on litigation and communication efforts, and the American Civil Liberties Union, a 501 organization which focuses on legislative lobbying...
(ACLU) on its own behalf, and on the behalf of three other organizations and five individuals, sued the
National Security AgencyThe National Security Agency/Central Security Service is a cryptologic intelligence agency of the United States government, administered as part of the United States Department of Defense. Created on November 4, 1952 by President Harry S...
(NSA) in the
United States District CourtThe 94 United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
for the Eastern District of Michigan, seeking
declaratory judgmentA declaratory judgment is a judgment of a court in a civil case which declares the rights, duties, or obligations of each party in a dispute. It is commonly called a declaratory ruling, a term which also includes decisions of regulatory agencies. A declaratory judgment or ruling is legally...
and
injunctiveAn injunction is an equitable remedy in the form of a court order, whereby a party is required to do, or to refrain from doing, certain acts. The party that fails to adhere to the injunction faces civil or criminal penalties and may have to pay damages or accept sanctions for failing to follow the...
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 judgmentIn law, a summary judgment is a determination made by a court without a full trial. Such a judgment may be issued as to the merits of an entire case, or of specific issues in that case....
based on the
State Secrets PrivilegeThe State Secrets Privilege is an evidentiary rule created by United States legal precedent. The court is asked to exclude evidence from a legal case based solely on an affidavit submitted by the government stating court proceedings might disclose sensitive information which might endanger national...
and the plaintiffs' lack of
standingStanding or locus standi is the term for ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...
.
On August 17, 2006, District Court Judge
Anna Diggs TaylorAnna Diggs Taylor is a United States District Judge for the United States District Court for the Eastern District of Michigan. She graduated from Barnard College in 1954 and Yale Law School in 1957, and worked in the Office of Solicitor for the United States Department of Labor...
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. She stayed her order pending appeal. She did not rule on the alleged NSA database of domestic
call detail recordA Call Detail Record is the computer record produced by a telephone exchange containing details of a call that passed through it. It is the automated equivalent of the paper toll tickets that were written and timed by operators for long distance calls in a manual telephone exchange.-Contents:A...
s, 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."
Background
After
September 11, 2001The September 11 attacks were a series of coordinated suicide attacks by Al-Qaeda upon the United States on September 11, 2001. On that morning, 19 Al-Qaeda terrorists hijacked four commercial passenger jet airliners...
(or perhaps earlier), the NSA began a
classifiedThe United States government classification system is established under Executive Order 13292, the latest in a long series of executive orders on the topic. Issued by President George W...
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
warrantsMost often, the term warrant refers to a specific type of authorization; a writ issued by a competent officer, usually a judge or magistrate, which commands an otherwise illegal act that would violate individual rights and affords the person executing the writ protection from damages if the act is...
and therefore outside the parameters of the
Foreign Intelligence Surveillance Act of 1978The Foreign Intelligence Surveillance Act of 1978 is an Act of Congress which prescribes procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" The Foreign Intelligence Surveillance Act of...
.
The
plaintiffA plaintiff , also known as a claimant or complainant, is the party who initiates a lawsuit before a court...
s include the ACLU, the
Council on American-Islamic RelationsThe Council on American-Islamic Relations is a non-governmental organization whose stated goals are to enhance understanding of Islam, promote justice, and empower Islam in the United States. CAIR is America's largest Islamic civil liberties group, working with civil rights organizations and...
, the
National Association of Criminal Defense LawyersThe National Association of Criminal Defense Lawyers is an American criminal defense organization. Their stated mission is to "Ensure justice and due process for persons accused of crime. Foster the integrity, independence and expertise of the criminal defense profession...
, and
GreenpeaceGreenpeace is a non-governmental organization for the protection and conservation of the environment. Greenpeace uses direct action, lobbying and research to achieve its goals. Greenpeace has a worldwide presence with national and regional offices in 46 countries, which are affiliated to the...
along with five individuals who are authors and journalists
Christopher HitchensChristopher Eric Hitchens is an English-American author, journalist, and literary critic. He has been a columnist at Vanity Fair, The Atlantic, World Affairs, The Nation, Slate, Free Inquiry, and a variety of other media outlets...
,
James BamfordJames Bamford is an American bestselling author and journalist who writes about United States intelligence agencies...
,
Tara McKelveyTara Shannon McKelvey is an American journalist who is a senior editor at The American Prospect.McKelvey began her journalism career as a clerk at The New York Times, following her 1987 graduation from Georgetown University.McKelvey, a research fellow at New York University School of Law's Center...
,
democracyDemocracy is a system of government in which either the actual governing is carried out by the people governed , or the power to do so is granted by them...
scholar
Larry DiamondLarry Diamond is a leading contemporary scholar in the field of democracy studies. He is presently a Professor of Sociology and Political Science at Stanford University and a Senior Fellow at the Hoover Institution. At Stanford, he teaches courses on democratic development and supervises the...
of
Stanford UniversityThe Leland Stanford Junior University, commonly referred to as Stanford University or Stanford, is a private research university located in Stanford, California, United States...
and the
Hoover InstitutionThe Hoover Institution on War, Revolution and Peace is a public policy think tank and library founded in 1919 by then-future U.S. president Herbert Hoover....
, and
AfghanistanThe Islamic Republic of Afghanistan is a landlocked country in south central Asia. It is variously described as being located within Central Asia, South Asia, or the Middle East...
scholar
Barnett RubinBarnett R. Rubin, a political scientist, is a leading expert on Afghanistan. He is the author of eight books and is currently Director of Studies at the Center on International Cooperation at New York University, a leading foreign policy center. Dr...
of
New York UniversityNew York University is a private, nonsectarian, research university in New York City. NYU's main campus is situated in the Greenwich Village section of Manhattan...
. They stated in their complaint that they all have a history of communicating with people in or from the
Middle EastThe Middle East is a region that spans southwestern Asia, southeastern Europe, and northeastern Africa. It has no clear boundaries, often used as a synonym to Near East, in opposition to Far 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 RightsThe Center for Constitutional Rights is a non-profit legal advocacy organization based in New York City, New York, U.S., co-founded in 1966 by self-described "radical lawyer" William Kunstler...
, are the first lawsuits to challenge the TSP.
District Court opinion
Judge TaylorAnna Diggs Taylor is a United States District Judge for the United States District Court for the Eastern District of Michigan. She graduated from Barnard College in 1954 and Yale Law School in 1957, and worked in the Office of Solicitor for the United States Department of Labor...
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 lawStatutory law or statute law is written law set down by a legislature...
in regard to the
FISAThe Foreign Intelligence Surveillance Act of 1978 is an Act of Congress which prescribes procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" The Foreign Intelligence Surveillance Act of...
. Furthermore, she concluded that the NSA program violated the constitution in regard to the
First AmendmentThe First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the Congress from making laws "respecting an establishment of religion", prohibiting the free exercise of religion, infringing on the freedom of speech and infringing on the freedom of the...
,
Fourth AmendmentThe Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures. It was ratified as a response to the abuse of the writ of assistance, which is a type of general search warrant, in the American Revolution...
, and
Separation of powersThe separation of powers, also known as trias politica, is a model for the governance of democratic states. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the uncodified Constitution of the Roman Republic...
Doctrine. Judge Taylor stayed her own opinion, preventing it from taking effect, pending a September 7 hearing.
Here are some excerpts from her opinion:
Reaction
The
White HouseThe White House is the official residence and principal workplace of the President of the United States. Located at 1600 Pennsylvania Avenue NW in Washington, D.C., it was built between 1792 and 1800 of white-painted Aquia sandstone in the late Georgian style and has been the residence of every...
issued a statement saying:
ACLU Executive Director
Anthony RomeroAnthony D. Romero is the American executive director of the American Civil Liberties Union.-Early life:Romero was born in New York City on July 9, 1965 to Puerto Rican parents Demetrio and Coralie Romero. He was raised in the Bronx.-Education:...
stated:
According to
The New York TimesThe New York Times is an American daily newspaper founded in 1851 and published in New York City. The largest metropolitan newspaper in the United States, "The Gray Lady"—named for its staid appearance and style—is regarded as a national newspaper of record...
, 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."
Some legal analysts, such as Salon columnist
Glenn GreenwaldGlenn Greenwald is an American lawyer, columnist, blogger, and author. Greenwald worked as a constitutional and civil rights litigator prior to becoming a contributor to Salon.com, where he focuses on political and legal topics...
argued that critics of Taylor's reasoning were mistaken:
Still others, such as Harvard constitutional law professor
Laurence TribeLaurence Henry Tribe is a professor of constitutional law at Harvard Law School and the Carl M. Loeb University Professor. He also serves as a consultant for the law firm of Akin Gump Strauss Hauer & Feld....
, took an intermediate position:
Sixth Circuit Court of Appeals
On October 4, 2006, a unanimous three-judge panel of the Sixth Circuit Court of Appeal stayed the District Court's ruling pending evaluation of the Government's appeal. In the three-paragraph ruling, the court explained that it decided to grant the Government's motion to stay after balancing the likelihood an appeal would succeed, the potential damage to both sides, and the public's interest in final judicial decree.
The Cincinnati-based 6th U.S. Circuit Court of Appeals heard oral arguments on the government's appeal on January 31, 2007..
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:
(Footnotes omitted)
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."
See also
- United States v. U.S. District Court
United States v. U.S. District Court, 407 U.S. 297 , also known as the Keith case, was a landmark United States Supreme Court decision that upheld, in a unanimous 8-0 ruling, the requirements of the Fourth Amendment in cases of domestic surveillance targeting a domestic threat.-The case:The United...
, 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 Foreign Intelligence Surveillance Act of 1978 is an Act of Congress which prescribes procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" The Foreign Intelligence Surveillance Act of...
, the principal law (as amended by the USA Patriot ActThe USA PATRIOT Act, commonly known as the "Patriot Act", is a statute enacted by the United States Government that President George W. Bush signed into law on October 26, 2001...
of 2001) that regulates the domestic electronic surveillance, in particular requiring that a warrant be obtained either before or shortly after domestic eavesdropping.
Court documents
Other links
- "ACLU Sues to Stop Illegal Spying on Americans, Saying President Is Not Above the Law", ACLU press release
- "NSA Lawsuit - Stop Illegal Surveillance", ACLU reference site
- "Statement - Christopher Hitchens, NSA Lawsuit Client"
- "Summary of Top Ten Myths About the Illegal NSA Spying on Americans" html, pdf, ACLU summary of their full report in pdf
- "Two Groups Planning to Sue Over Federal Eavesdropping", New York Times, Jan. 17, 2006
- "Judge Finds Wiretap Actions Violate the Law", New York Times, Aug. 18, 2006
- "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
- "CCR Files Suit over NSA Domestic Spying Program", CCR synopsis
- White House statement on district court ruling