6th Circuit Court Reverses ACLU Terror Surveillance Ruling

"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."

The ACLU Registers it's Protest: ACLU: Wiretap Suit Is Not Over

"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."

"It is important to emphasize that the court today did not uphold the legality of the government's warrantless surveillance activity. Indeed, the only judge to discuss the merits clearly and unequivocally declared that the warrantless surveillance was unlawful.

"We are currently reviewing all of our legal options, including taking this challenge to the U.S. Supreme Court. In the meantime it is now more important than ever for Congress to engage in meaningful oversight."

The court pointed out:

In the present case,the plaintiffs concede that there is no single plaintiff who can show that he or she has actually been wiretapped.

Thus, in crafting their declaratory judgment action, the plaintiffs have attempted (unsuccessfully) to navigate the obstacles to stating a justiciable claim. 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 - this is typical of declaratory judgment and perfectly permissible. But, by proposing only injuries that result from this refusal to engage in communications (e.g., the inability to conduct their professions without added burden and expense), they attempt to supplant an insufficient, speculative injury with an injury that appears sufficiently imminent and concrete, but is only incidental to the alleged wrong (i.e., the NSA's conduct) - this is atypical and, as will be discussed, impermissible. Therefore, the injury that would support a declaratory judgment action (i.e., the anticipated interception of communications resulting in harm to the contacts) is too speculative, and the injury that is imminent and concrete (i.e., the burden on professional performance) does not support a declaratory judgment action.

The Court Went on to Say:

It is not the mere existence of the TSP, but the possibility that the plaintiffs' overseas contacts will be subjected to it, that ultimately results in the alleged harm. Even assuming these fears are imminent rather than speculative, this is still a tenuous basis for proving a concrete and actual injury. That is, even if it were certain that the NSA would intercept these particular plaintiffs' overseas communications, if the overseas contacts were nonetheless willing to communicate with the plaintiffs by telephone or email in spite of the impending interception, then it is doubtful that the plaintiffs (journalists, academics, lawyers, or organizations), who have themselves alleged no personal fear of our government (or basis for fear of our government), would still be unwilling or unable to communicate. The plaintiffs'
unwillingness comes not from any anticipated harm to themselves, but from their apprehension for and duty to their overseas contacts.

Moreover, even if their allegations are true, the plaintiffs still allege only a subjective apprehension and a personal (self-imposed) unwillingness to communicate, which fall squarely within Laird, 408 U.S. at 13-14. In fact, this injury is even less concrete, actual, or immediate than the injury in Laird. In Laird, the Army was conducting "massive and comprehensive" surveillance of civilians, secretly and (apparently) without warrants. The Laird plaintiffs alleged that the Army surveillance program caused a chilling effect on their First Amendment rights in that they and others were reluctant to associate or communicate for fear of reprisal, stemming from their fear that the government would discover or had discovered them (and their activities) by way of the secret surveillance. The harm alleged in the present case is no more substantial; the plaintiffs allege a similar chilling effect on their First Amendment rights, in that they are bound by professional and ethical obligations to refrain from communicating with their overseas contacts due to their fear that the TSP surveillance will lead to discovery, exposure, and ultimately reprisal against those contacts or others. But unlike the Laird plaintiffs, the plaintiffs here do not assert that they personally anticipate or fear any direct reprisal by the United States government, or that the TSP data is being widely circulated or misused. Indeed, the district court stated that, to date, no one has been exposed or prosecuted based on information collected under the TSP.

We hold that the plaintiffs do not have standing to assert their claims in federal court. Accordingly, we VACATE the order of the district court and REMAND this case to the district court with instructions to DISMISS for lack of jurisdiction.

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