Supreme Court Denies Cert in ACLU v. NSA
February 19, 2008. The Supreme Court denied certiorari in ACLU v. NSA, a case regarding warrantless surveillance. See, Orders List [36 pages in PDF] at page 5. This lets stand the July 6, 2007, opinion of the U.S. Court of Appeals (6thCir).
The plaintiffs are the American Civil Liberties Union (ACLU) and journalists, academics, and lawyers who communicate with individuals located overseas. They believe that they might be subject to National Security Agency (NSA) surveillance under a program titled by the NSA as "Terrorist Surveillance Program" or "TSP".
The Court of Appeals wrote 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 filed a complaint in the U.S. District Court (EDMich) against the NSA and others seeking injunctive and declaratory relief. The gist of their complaint is breach of privacy, based upon alleged violations of the 4th Amendment and the Foreign Intelligence Surveillance Act (FISA).
The District Court, Judge Anna Taylor presiding, issued its wide and wild 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 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.
On July 6, 2007, the Court of Appeals issued its divided opinion [PDF] vacating the judgment of the District Court. 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.
See also, story titled "6th Circuit Vacates in ACLU v. NSA for Lack of Standing" in TLJ Daily E-Mail Alert No. 1,606, July 6, 2007.
The ACLU's Jameel Jaffer stated in a release that "Congress enacted the Foreign Intelligence Surveillance Act intending to protect the rights of U.S. citizens and residents, and the president systematically broke that law over a period of more than five years. It's very disturbing that the president’s actions will not be reviewed by the Supreme Court. It shouldn’t be left to executive branch officials alone to determine what limits apply to their own surveillance activities and whether those limits are being honored. Allowing the executive branch to police itself flies in the face of the constitutional system of checks and balances."
The ACLU's Steven Shapiro stated in the same release that "Although we are deeply disappointed with the Supreme Court’s refusal to review this case, it is worth noting that today’s action says nothing about the case’s merits and does not suggest in any way an endorsement of the lower court’s decision. The court’s unwillingness to act makes it even more important that Congress insist on legislative safeguards that will protect civil liberties without jeopardizing national security."
This case is American Civil Liberties Union, et al. v. National Security Agency, et al., Sup. Ct. No. 07-468, a petition for writ of certiorari to the U.S. Court of Appeals for the 6th Circuit, App. Ct. Nos. 06-2140 and 06-2095. The Court of Appeals heard an appeal 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. Judge Ronald Gilman wrote a long dissent. See also, Supreme Court docket.