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August 17, 2006, Alert No. 1,433.
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District Court Holds NSA Surveillance Program Violates Constitution

8/17. The U.S. District Court (EDMich) issued its opinion [44 pages in PDF] in ACLU v. NSA, enjoining the National Security Agency's (NSA) extrajudicial electronic intercepts where one party is within the U.S. and the other is outside.

Introduction. The District Court held that the program violates the separation of powers doctrine, the First and Fourth Amendments, and federal statutes. It also rejected the government's procedural arguments regarding standing and the states secrets doctrine.

The District Court described the surveillance program as a program that "intercepts without benefit of warrant or other judicial approval, prior or subsequent, the international telephone and internet communications of numerous persons and organizations within this country".

The New York Times disclosed the existence of this program in December of 2005. President Bush, Attorney General Alberto Gonzales, and General Michael Hayden (former head of the NSA), have all acknowledged the existence of, and defended the legality of, this program.

While the opinion is 44 pages in length, much of it is devoted to analysis of the state secrets doctrine and standing to bring the action. The District Court then quickly analyzed several of the plaintiffs' claims. The District Court took a literal and near absolutist view of the limitations imposed upon the government by the First and Fourth amendments. And, it adopted a narrow view of Presidential authority to wage war on terrorists.

The Department of Justice (DOJ) announced after the release of the opinion that it will appeal. The U.S. Court of Appeals (6thCir) has appellate jurisdiction in this case. The DOJ would likely fare better before any of several other circuits.

There are also similar and related cases pending in other courts. Ultimately, whether the courts can decide the issues raised by these cases, and if so, how, will likely be resolved by the Supreme Court.

State Secrets Doctrine. The District Court rejected the NSA's argument that the case should be dismissed pursuant to the state secrets doctrine.

The NSA argued first that the plaintiffs' claims must be dismissed because the plaintiffs cannot establish standing or a prima facie case for any of their claims without the disclosure of state secrets.

The District Court concluded that the plaintiffs are able to establish a prima facie case regarding monitoring of communications solely on the basis of public statements from administration officials, and need no further discovery. However, the District Court also concluded that the plaintiffs cannot establish a prima facie case regarding to their data mining claims without access to privileged information.

The NSA also argued that the case should be dismissed because it can not defend against the claims without disclosing state secrets. The District Court rejected this argument too. It stated that it had reviewed classified information, and "is of the opinion that this information is not necessary to any viable defense".

Hence, the District Court concluded that "the state secrets privilege applies to Plaintiffs' data-mining claim and that claim is dismissed. The privilege, however, does not apply to Plaintiffs’ remaining claims challenging the validity of the TSP, since Plaintiffs are not relying on or requesting any classified information to support these claims and Defendants do not need any classified information to mount a defense against these claims." (Footnote omitted.)

"TSP" is an acronym used in the opinion. The District Court also used the phrase "the secret program". The DOJ uses the phrase "Terrorist Surveillance Program".

Standing. The NSA also argued that the plaintiffs lack standing to bring this action. The District Court rejected this argument.

The District Court noted that "Plaintiffs here contend that the TSP has interfered with their ability to carry out their professional responsibilities in a variety of ways, including that the TSP has had a significant impact on their ability to talk with sources, locate witnesses, conduct scholarship, engage in advocacy and communicate with persons who are outside of the United States, including in the Middle East and Asia. Plaintiffs have submitted several declarations to that effect. For example, scholars and journalists such as plaintiffs Tara McKelvey, Larry Diamond, and Barnett Rubin indicate that they must conduct extensive research in the Middle East, Africa, and Asia, and must communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations." (Footnote omitted.)

The District Court added that "All of the Plaintiffs contend that the TSP has caused clients, witnesses and sources to discontinue their communications with plaintiffs out of fear that their communications will be intercepted. They also allege injury based on the increased financial burden they incur in having to travel substantial distances to meet personally with their clients and others relevant to their cases." (Footnote omitted.)

The District Court concluded that the plaintiffs are "not asserting speculative allegations". Rather, they are asserting "concrete profession-related injuries". Moreover, the plaintiffs have established a causal connection between the government program and their alleged injuries, and that the relief requested in the complaint would redress their alleged injuries. Hence, the District Court concluded that the plaintiffs meet the standing requirements established by Supreme Court and other precedent.

First and Fourth Amendments. The District Court held that the NSA program violates both the Fourth and First Amendments to the Constitution.

The Court's argument is simple. The Fourth Amendment provides that "The right the of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The NSA program results in searches. The Fourth Amendment requires both that searches be reasonable, and that reasonable searches only be conducted pursuant to prior warrants, based upon prior existing probable cause, limited by particularity, and issued by a neutral magistrate.

The NSA has not done this, the District Court continued. Moreover, any claims based upon the language of Title III, the Foreign Intelligence Surveillance Act (FISA), or other statute or Presidential declaration are immaterial. The Constitution is the supreme law. Hence, the NSA program violates the Fourth Amendment.

The District Court similarly found a violation of the First Amendment, which provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The District Court thus concluded that "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."

Separation of Powers. The District Court also held that the NSA program violates the separation of powers doctrine.

The District Court based this holding on the Supreme Court's 1952 opinion in Youngstown Sheet & Tube, Co. v. Sawyer, which is reported at 343 U.S. 579, and especially, Justice Robert Jackson's concurring opinion.

The District Court wrote that "the powers of the President are not fixed, but fluctuate, depending upon their junctures with the actions of Congress. Thus, if the President acted pursuant to an express or implied authorization by Congress, his power was at it maximum, or zenith. If he acted in absence of Congressional action, he was in a zone of twilight reliant upon only his own independent powers."

It continued that the NSA program violates the FISA, and hence, the executive claim of authority is in the absence of Congressional authorization. The District Court concluded that "In this case, if the teachings of Youngstown are law, the separation of powers doctrine has been violated."

Authorization for Use of Military Force (AUMF). The District Court also rejected the NSA's argument that its program is authorized by the AUMF, which the Congress enacted on September 18, 2001. See, Public Law No. 107-40.

The District Court wrote that "the AUMF says nothing whatsoever of intelligence or surveillance". Moreover, the Court concluded that the AUMF could not be implied to override specific language in the FISA and Title III. In addition, even if it did override these statutes, the First Amendment, Fourth Amendment, and separation of powers doctrine are all superior law that cannot be altered by the AUMF or any Congressional statute or resolution.

Inherent Presidential Power as Commander in Chief. The District Court also rejected with brief explanation the NSA's argument that the President has inherent power to conduct the NSA program.

This, however, is an argument that the Department of Justice (DOJ) has argued at length in many fora, including testimony at Congressional hearings, court briefs, and news conferences.

Administrative Procedure Act (APA). The District Court wrote that the plaintiffs argued that the NSA program violates the APA. And, the District Court wrote in its conclusion that the NSA program violates the APA.

DOJ Reaction. The DOJ issued a prepared statement. It states that "The Terrorist Surveillance Program is a critical tool that ensures we have in place an early warning system to detect and prevent a terrorist attack. In the ongoing conflict with al-Qaeda and its allies, the President has the primary duty under the Constitution to protect the American people. The Constitution gives the President the full authority necessary to carry out that solemn duty, and we believe the program is lawful and protects civil liberties. Because the Terrorist Surveillance Program is an essential tool for the intelligence community in the War on Terror, the Department of Justice has appealed the District Court's order. The parties have also agreed to a stay of the injunction until the District Court can hear the Department's motion for a stay pending appeal."

Then, Attorney General Alberto Gonzales held a news conference late on Thursday afternoon, August 17. He said that "We disagree with the decision -- respectfully disagree with the decision -- of the judge, and we have appealed the decision. And we -- there is a stay in place, and so we will continue to utilize the program to ensure that America is safer."

He also said that "I'm surprised", and "I'm disappointed. I believe very strongly that the President does have the authority to authorize this kind of conduct in a time -- particularly in a time of war, conduct that's very consistent with what other Presidents have done in a time of war. And we believe the authority comes from the authorization to use military force and from his constitutional authority as commander in chief."

This case is American Civil Liberties Union, et al. v. National Security Agency, et al., U.S. District Court for the Eastern District of Michigan, D.C. No. 06-CV-10204, Judge Anna Taylor presiding.

Judge Taylor was appointed to the District Court by former President Jimmy Carter in 1979. See, District Court biography and 6th Circuit biography.

Washington Tech Calendar
New items are highlighted in red.
Thursday, August 17

The House will next meet at 2:00 PM on Wednesday, September 6. See, Republican Whip Notice.

The Senate will next meet at 11:00 AM on Tuesday, September 5.

Friday, August 18

Deadline to submit comments to the Internet Corporation for Assigned Names and Numbers' (ICANN) General Names Supporting Organization (GNSO) regarding its report titled "GNSO Initial Report: Introduction of New Generic Top-Level Domains". See, request for comments.

Monday, August 21

12:00 NOON - 1:00 PM. The U.S. Chamber of Commerce will host a lunch briefing for reporters to discuss its "Global Anti-Counterfeiting and Piracy Initiative". The speakers will be Caroline Joiner, Brad Huther, Michael Considine, and Jennifer Osika. For more information, or to register, e-mail press at uschamber dot com or call 202 463-5682. Location: U.S. Chamber, 1615 H St., NW.

Tuesday, August 22

8:30 AM - 4:30 PM. The U.S.-China Economic and Security Review Commission. will hold a hearing titled "China's Financial System and Monetary Policies: The Impact on U.S. Exchange Rates, Capital Markets, and Interest Rates''. See, notice in the Federal Register, August 15, 2006, Vol. 71, No. 157, at Pages 46978-46979. Location: Room 385, Russell Senate Office Building, Capitol Hill.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding its "modified plan to remove the paper search collection of marks that include design elements from the USPTO's Trademark Search Facility and replace them with electronic documents. The USPTO has determined that the paper search collection is no longer necessary due to the availability and reliability of the USPTO's electronic search system." See, notice in the Federal Register, June 23, 2006, Vol. 71, No. 121, at Pages 36065-36068.

Wednesday, August 23

8:30 AM - 2:30 PM. The American Electronics Association (AeA) will host an event titled "AeA Annual Government - Industry Executive Interchange". See, notice. Prices to attend range from $195-$295. Location: The Spy Museum, 800 F St., NW.

9:30 AM - 4:30 PM. Day one of a two day meeting of the U.S.-China Economic and Security Review Commission to consider drafts of material for the 2006 Annual Report. The agenda includes discussion of export controls and China's WTO compliance. See, notice in the Federal Register, August 16, 2006, Vol. 71, No. 158, at Page 47328. Location: Conference Room 381, Hall of The States, 444 North Capitol St., NW.

12:00 NOON - 3:00 PM. The DC Bar Association will host a panel discussion titled "DR-CAFTA: The United States-Dominican Republic-Central America Free Trade Agreement A Roundtable with the Ambassadors". The speakers will include ambassadors to the U.S. from Dominican Republic, Guatemala, Honduras, Nicaragua, El Salvador, and Costa Rica. The price to attend ranges from $15-40. For more information, call 202-626-3488. See, notice. Location: Arnold & Porter, 555 12th St., NW.

1:30 - 3:30 PM. The Department of State will host a meeting to hear public views on issues related to the possible expansion of the mandate of the International Mobile Satellite Organization (IMSO) to include new oversight and regulatory responsibilities that may affect U.S. and non-U.S. mobile satellite services providers. See, notice in the Federal Register, August 10, 2006, Vol. 71, No. 154, at Pages 45897-45898. Location: Harry S. Truman building, 2201 C St., NW.

CANCELLED. Federal Communications Commission (FCC) Auction 67 is scheduled to begin. This is the 400 MHz Air-Ground Radiotelephone Service auction. See, FCC notice of cancellation [PDF] and notice of cancellation in the Federal Register, May 17, 2006, Vol. 71, No. 95, at Page 28695.

Thursday, August 24

9:30 AM - 4:30 PM. Day two of a two day meeting of the U.S.-China Economic and Security Review Commission to consider drafts of material for the 2006 Annual Report. The agenda includes discussion of export controls and China's WTO compliance. See, notice in the Federal Register, August 16, 2006, Vol. 71, No. 158, at Page 47328. Location: Conference Room 381, Hall of The States, 444 North Capitol St., NW.

Friday, August 25

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division regarding its draft [159 pages in PDF] of Special Publication 800-53, Revision 1 (Second Public Draft), titled "Recommended Security Controls for Federal Information Systems".

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