ACLU v. NSA
Encyclopedia
American Civil Liberties Union
et al., v. National Security Agency
/ Central et al., 493 F.3d 644 (6th Cir. 2007), 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. She stayed her order pending appeal. She did not rule on the alleged NSA database of domestic call detail record
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."
(or perhaps earlier), 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 plaintiff
s 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.
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:
issued a statement saying:
ACLU Executive Director Anthony Romero
stated:
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."
Some legal analysts, such as Salon columnist Glenn Greenwald
argued that critics of Taylor's reasoning were mistaken:
Still others, such as Harvard constitutional law professor Laurence Tribe
, took an intermediate position:
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)
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
et al., v. National Security Agency
National Security Agency
The National Security Agency/Central Security Service is a cryptologic intelligence agency of the United States Department of Defense responsible for the collection and analysis of foreign communications and foreign signals intelligence, as well as protecting U.S...
/ Central et al., 493 F.3d 644 (6th Cir. 2007), is a case decided July 6, 2007, in which the United States Court of Appeals for the Sixth Circuit
United States Court of Appeals for the Sixth Circuit
The 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 standing
Standing (law)
In law, standing or locus standi is the term for the 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 Union
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
(ACLU) on its own behalf, and on the behalf of three other organizations and five individuals, sued the National Security Agency
National Security Agency
The National Security Agency/Central Security Service is a cryptologic intelligence agency of the United States Department of Defense responsible for the collection and analysis of foreign communications and foreign signals intelligence, as well as protecting U.S...
(NSA) in the United States District Court
United States district court
The 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 judgment
Declaratory judgment
A declaratory judgment is a judgment of a court in a civil case which declares the rights, duties, or obligations of one or more parties in a dispute. A declaratory judgment is legally binding, but it does not order any action by a party. In this way, the declaratory judgment is like an action to...
and injunctive
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
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
Summary judgment
In 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 Privilege
State Secrets Privilege
The state secrets privilege is an evidentiary rule created by United States legal precedent. Application of the privilege results in exclusion of evidence from a legal case based solely on affidavits submitted by the government stating that court proceedings might disclose sensitive information...
and the plaintiffs' lack of standing
Standing (law)
In law, standing or locus standi is the term for the 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 Taylor
Anna Diggs Taylor
Anna 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 record
Call detail record
A call detail record , also known as call data record, is a data record produced by a telephone exchange or other telecommunications equipment documenting the details of a phone call that passed through the facility or device...
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, 2001September 11, 2001 attacks
The September 11 attacks The September 11 attacks The September 11 attacks (also referred to as September 11, September 11th or 9/119/11 is pronounced "nine eleven". The slash is not part of the pronunciation...
(or perhaps earlier), the NSA began a classified
Classified information in the United States
The United States government classification system is currently established under Executive Order 13526, the latest in a long series of executive orders on the topic. Issued by President Barack Obama in 2009, Executive Order 13526 replaced earlier executive orders on the topic and modified the...
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
Warrant (law)
Most often, the term warrant refers to a specific type of authorization; a writ issued by a competent officer, usually a judge or magistrate, which permits 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 1978
Foreign Intelligence Surveillance Act of 1978
America's 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" America's Foreign Intelligence...
.
The plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
s include the ACLU, the Council on American-Islamic Relations
Council on American-Islamic Relations
The Council on American-Islamic Relations is America's largest Muslim civil liberties advocacy organization that deals with civil advocacy and promotes human rights...
, the National Association of Criminal Defense Lawyers
National Association of Criminal Defense Lawyers
The 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 Greenpeace
Greenpeace
Greenpeace is a non-governmental environmental organization with offices in over forty countries and with an international coordinating body in Amsterdam, The Netherlands...
along with five individuals who are authors and journalists: Christopher Hitchens
Christopher Hitchens
Christopher Eric Hitchens is an Anglo-American author and journalist whose books, essays, and journalistic career span more than four decades. He has been a columnist and literary critic at The Atlantic, Vanity Fair, Slate, World Affairs, The Nation, Free Inquiry, and became a media fellow at the...
, James Bamford
James Bamford
V. James Bamford is an American bestselling author and journalist who writes about United States intelligence agencies, most notably the National Security Agency.-Biography:...
, Tara McKelvey
Tara McKelvey
Tara 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...
, democracy
Democracy
Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
scholar Larry Diamond
Larry Diamond
Larry 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, a conservative policy think tank...
of Stanford University
Stanford University
The Leland Stanford Junior University, commonly referred to as Stanford University or Stanford, is a private research university on an campus located near Palo Alto, California. It is situated in the northwestern Santa Clara Valley on the San Francisco Peninsula, approximately northwest of San...
and the Hoover Institution
Hoover Institution
The 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, an early alumnus of Stanford....
, and Afghanistan
Afghanistan
Afghanistan , officially the Islamic Republic of Afghanistan, is a landlocked country located in the centre of Asia, forming South Asia, Central Asia and the Middle East. With a population of about 29 million, it has an area of , making it the 42nd most populous and 41st largest nation in the world...
scholar Barnett Rubin
Barnett Rubin
Barnett Richard Rubin , a political scientist, is a leading expert on Afghanistan. He is the author of eight books and is currently Senior Fellow at the Center on International Cooperation at New York University, a leading foreign policy center, as well as Senior Advisor to the US Special...
of New York University
New York University
New York University is a private, nonsectarian research university based 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 East
Middle East
The Middle East is a region that encompasses Western Asia and Northern Africa. It is often used as a synonym for 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 Rights
Center for Constitutional Rights
Al Odah v. United States:Al Odah is the latest in a series of habeas corpus petitions on behalf of people imprisoned at the Guantanamo Bay detention center. The case challenges the Military Commissions system’s suitability as a habeas corpus substitute and the legality, in general, of detention at...
, are the first lawsuits to challenge the TSP.
District Court opinion
Judge TaylorAnna Diggs Taylor
Anna 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 law
Statutory law
Statutory law or statute law is written law set down by a legislature or by a legislator .Statutes may originate with national, state legislatures or local municipalities...
in regard to the FISA
Foreign Intelligence Surveillance Act of 1978
America's 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" America's Foreign Intelligence...
. Furthermore, she concluded that the NSA program violated the constitution in regard to the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
, Fourth Amendment
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
, and Separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified 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 HouseWhite House
The 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., the house was designed by Irish-born James Hoban, and built between 1792 and 1800 of white-painted Aquia sandstone in the Neoclassical...
issued a statement saying:
ACLU Executive Director Anthony Romero
Anthony Romero
Anthony 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 Times
The New York Times
The New York Times is an American daily newspaper founded and continuously published in New York City since 1851. The New York Times has won 106 Pulitzer Prizes, the most of any news organization...
, 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 Greenwald
Glenn Greenwald
Glenn Greenwald is an American lawyer, columnist, blogger, and author. Greenwald worked as a constitutional and civil rights litigator before 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 Tribe
Laurence Tribe
Laurence Henry Tribe is a professor of constitutional law at Harvard Law School and the Carl M. Loeb University Professor at Harvard University. He also works with the firm Massey & Gail LLP on a variety of matters....
, 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 CourtUnited States v. U.S. District CourtUnited 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 1978Foreign Intelligence Surveillance Act of 1978America's 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" America's Foreign Intelligence...
, the principal law (as amended by the USA Patriot ActUSA PATRIOT ActThe USA PATRIOT Act is an Act of the U.S. Congress that was signed into law by President George W. Bush 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
- Complaint: ACLU v. NSA, (PDF file, 201 KiB), filed by the ACLU
- Complaint: (HTML) ACLU Complaint (Initial Filing) against the NSA Central Security Service and Lieutenant General Keith B. Alexander via thewall.civiblog.org
- Ruling - ACLU v. NSA: Sixth Circuit Court of Appeals opinion, (PDF file, 107 KiB)
- Ruling - United States v. U.S. District Court, 1972: Supreme Court opinion (HTML) (Ruling courtesy of FindLaw.com)
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