In early July 2007, in a 2-1 decision, the Sixth Circuit Court of Appeals dismissed one of the main legal challenges to the Bush administration’s warrantless surveillance program. The challenge was brought by the American Civil Liberties Union on behalf of prominent journalists, scholars, attorneys and national nonprofit organizations who say that the unchecked surveillance program is disrupting their ability to communicate effectively with sources and clients.
Even though the plaintiffs alleged a well-founded fear that their communications were subject to illegal surveillance; the 6th Circuit decided to dismiss the case because plaintiffs could not ‘state with certainty’ that they had been wiretapped by the National Security Agency.
The question then becomes: how can you prove legal standing in a secret classified NSA domestic spying program?
In response to the 6th Circuit ruling, ACLU Legal Director Steven R. Shapiro said, “We are deeply disappointed by today’s decision that insulates the Bush administration’s warrantless surveillance activities from judicial review and deprives Americans of any ability to challenge the illegal surveillance of their telephone calls and e-mails. As a result of today’s decision, the Bush administration has been left free to violate the Foreign Intelligence Surveillance Act, which Congress adopted almost 30 years ago to prevent the executive branch from engaging in precisely this kind of unchecked surveillance.”
In deciding the merits at the district court level, Judge Anna Diggs Taylor construed the Fourth Amendment as an absolute rule that “requires prior warrants for any reasonable search,” ACLU v. NSA, 438 F. Supp. 2d at 775, and announced that “searches conducted without prior approval by a judge or magistrate were per se unreasonable,” id. at 771. Having found that the NSA was operating without warrants, the district court concluded without further explanation that President Bush had “undisputedly violated the Fourth [Amendment] . . . and accordingly ha[d] violated the First Amendment Rights of these Plaintiffs as well.” Id. at 776. Proceeding from this conclusion, the court deemed the TSP unconstitutional and issued an order enjoining its further operation entirely.
Judge Taylor got it right. The 6th Circuit got it wrong.
The plaintiffs in this action include journalists, academics, and lawyers who regularly
communicate with individuals located overseas, who the plaintiffs believe are the types of people the NSA suspects of being al Qaeda terrorists, affiliates, or supporters, and are therefore likely to be monitored under the TSP. From this suspicion, and the limited factual foundation in this case, the plaintiffs allege that they have a “well founded belief” that their communications are being tapped. According to the plaintiffs, the NSA’s operation of the TSP — and the possibility of warrantless surveillance — subjects them to conditions that constitute an irreparable harm.
According to the majority opinion in the 6th Circuit, Judge Alice Batchelder wrote on the standing issue: “By refraining from communications (i.e., the potentially harmful conduct), the plaintiffs have negated any possibility that the NSA will ever actually intercept their communications and thereby avoided the anticipated harm.”
For those of us who were represented by this lawsuit, the fact is not that we ‘refrained’ from communications and thus, had no legal standing. It was that our government had already been monitoring the communications of hundreds of thousands of Americans without any judicial oversight or congressional approval.
That’s why our forefathers created our system of checks and balances.
The 6th Circuit simply got it wrong.