6th Circuit Vacates in ACLU v. NSA for Lack of Standing
July 6, 2007. The U.S. Court of Appeals (6thCir) issued its divided opinion [PDF] in ACLU v. NSA. vacating the District Court's judgment enjoining the National Security Agency's (NSA) extrajudicial electronic intercepts where one party is within the U.S. and the other is outside. The Court of Appeals held that the plaintiffs lacked standing, and hence, vacated the judgment of the District Court, and remanded with instructions to dismiss the case for lack of jurisdiction.
The opinion of the Court of Appeals describes the NSA's Terrorist Surveillance Program (TSP) in vague terms. It states that "the TSP includes the interception (i.e., wiretapping), without warrants, of telephone and email communications where one party to the communication is located outside the United States and the NSA has ``a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda.´´" (Parentheses in original. Quotation to news conference of Attorney General Alberto Gonzales and General Michael Hayden on December 19, 2005.)
The plaintiffs are the American Civil Liberties Union (ACLU), journalists, academics, and lawyers who regularly communicate with individuals located overseas. The plaintiffs believe that they are the types of people that the NSA suspects of being al Qaeda terrorists, affiliates, or supporters, and are therefore likely to be monitored under the TSP. However, the plaintiffs have no evidence that they have been surveiled. The NSA does not disclose this information.
The plaintiffs filed a complaint in the U.S. District Court (EDMich) against the NSA and others seeking injunctive and declaratory relief, asserting six causes of action. Although, the Court of Appeals wrote that "To call a spade a spade, the plaintiffs have only one claim, namely, breach of privacy, based on a purported violation of the Fourth Amendment or FISA -- i.e., the plaintiffs do not want the NSA listening to their phone calls or reading their emails. That is really all there is to it. On a straightforward reading, this claim does not implicate the First Amendment."
The District Court, Judge Anna Taylor presiding, issued its opinion [44 pages in PDF] on August 17, 2006, enjoining the TSP. The District Court held that the TSP violates the separation of powers doctrine, the First and Fourth Amendments, the Foreign Intelligence Surveillance Act (FISA), Title III of Omnibus Crime Control and Safe Streets Act, and the Administrative Procedure Act (APA). It also rejected the government's procedural arguments regarding standing and the states secrets doctrine.
See also, story titled "District Court Holds NSA Surveillance Program Violates Constitution" in TLJ Daily E-Mail Alert No. 1,433, August 17, 2006.
Opinion of the Court. Judge Batchelder wrote the opinion of the Court of Appeals, almost all of which is devoted to the issue of standing to sue.
She concluded that the plaintiffs lack standing to challenge the TSP under any of its causes of action. They cannot show that their communications have been intercepted. Hence, their asserted injuries are too speculative.
Having found a lack of standing, she concluded that the District Court lacked jurisdiction, and thus that the judgment of the District Court must be vacated, and the case dismissed.
While the Court of Appeals vacated, it neither affirmed nor reversed any of the findings of the District Court regarding the merits of the plaintiffs' claims.
Judge Gibbons's Concurring Opinion. Judge Julia Gibbons wrote a concurring opinion. She concluded that "the plaintiffs have failed to provide evidence that they are personally subject to the TSP. Without this evidence, on a motion for summary judgment, the plaintiffs cannot establish standing for any of their claims, constitutional or statutory. For this reason, I do not reach the myriad other standing and merits issues, the complexity of which is ably demonstrated by Judge Batchelder’s and Judge Gilman’s very thoughtful opinions, and I therefore concur in the judgment only."
Judge Gilman's Dissent. Judge Ronald Gilman wrote a long dissent (beginning a page 41 of the slip opinion). He argued that the Court did have jurisdiction. He further argued that the TSP as originally implemented violated the FISA.
Most of his opinion is devoted to the question of standing. He concluded that "the attorney-plaintiffs have satisfied both the constitutional and prudential requirements for standing to sue. I therefore conclude that the attorney-plaintiffs are entitled to proceed with their claims against the government for the injuries allegedly flowing from the operation of the TSP."
Having found standing, he rejected the NSA argument that the case is moot. He also concluded that the TSP violates both the FISA and Title III. Finally, he concluded that the President does not have authority under either inherent Presidential powers, or under the Congress's Authorization for Use of Military Force (AUMF). Thus, he would have affirmed the judgment of the District Court.
Judicial Politics. Each of the judges' opinions correlated with the party of the appointing President.
Judge Taylor, who wrote the opinion of the District Court, was appointed to the District Court by former President Jimmy Carter in 1979. See, District Court biography and 6th Circuit biography.
Judge Gilman, who would have affirmed the District Court, was appointed to the Court of Appeals by former President Bill Clinton. See, 6th Circuit biography.
Judge Batchelder, who wrote the opinion of the Court of Appeals vacating the judgment of the District Court, was appointed to the District Court by former President Ronald Reagan in 1984. She was appointed to the Court of Appeals in 1991 by former President George Bush. See, 6th Circuit biography.
Judge Gibbons, who concurred, was appointed to the District Court by former President Ronald Reagan. She was appointed to the Court of Appeals in 2002 by President Bush. See, 6th Circuit biography.
Reaction. Brian Roehrkass, of the DOJ's Office of Public Affairs, stated in a release that "We are pleased with the Court's decision today, which confirms that plaintiffs in this case cannot seek to expose sensitive details about the classified and important Terrorist Surveillance Program. The Terrorist Surveillance Program was a vital intelligence program that helped detect and prevent terrorist attacks. It was always subject to rigorous oversight and review. Any electronic surveillance that was being conducted pursuant to the TSP is now being conducted subject to the approval of the Foreign Intelligence Surveillance Act Court."
Sen. Patrick Leahy (D-VT), the Chairman of the Senate Judiciary Committee (SJC), stated in a release that "The Court’s decision is a disappointing one that was not made on the merits of the case, yet closed the courthouse doors to resolving it. I hope the Bush Administration will finally provide the information requested by Congress regarding the constitutional and legal questions about this program so that those of us who represent the American people can get to the bottom of what happened and why."
He added that "There is a dark cloud over the White House’s warrantless wiretapping program, and a full response to the outstanding subpoena from the Senate Judiciary Committee by this Administration would be a good start to clearing the air and moving forward in ways that allow us to better protect against terrorists while honoring the rule of law and the liberties of law-abiding Americans."
See also, story titled "Senate Judiciary Committee Authorizes Issuance of Subpoenas Directed at Bush Administration Regarding Surveillance" in TLJ Daily E-Mail Alert No. 1,599, June 21, 2007.
This case is American Civil Liberties Union, et al. v. National Security Agency, et
al., U.S. Court of Appeals for the 6th Circuit, App. Ct. Nos. 06-2095 and 06-2140, appeals
from the U.S. District Court for the Eastern District of Michigan, D.C. No. 06-CV-10204, Judge
Anna Taylor presiding. Judge Alice Batchelder wrote the opinion of the Court of
Appeals, in which Judge Julia Gibbons concurred.