8/17. The U.S. District Court (EDMich) issued
[44 pages in PDF] in ACLU v. NSA, enjoining the
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
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
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
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
in Youngstown Sheet & Tube, Co. v. Sawyer, which is reported at 343 U.S. 579, and
especially, Justice Robert Jackson's
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
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
and 6th Circuit