American Civil Liberties Union v. National Security Agency

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Court United States Court of Appeals for the Sixth Circuit
Full case name American Civil Liberties Union v. National Security Agency
Argued January 31 2007
Decided July 6 2007
Citation(s) 493 F.3d 644
Case history
Prior action(s) Summary judgment for the plaintiffs, 06-CV-10204 (E.D. Mich.)
Subsequent action(s) Appeal turned down by U.S. Supreme Court without comment on February 19, 2008.
ACLU did not have standing to bring the suit against the NSA, because plaintiffs could not present evidence that they were the targets of the "Terrorist Surveillance Program".
Court membership
Judge(s) sitting Alice M. Batchelder, Ronald Lee Gilman, and Julia Smith Gibbons
Case opinions
Majority Batchelder
Concurrence Gibbons
Dissent Gilman

American Civil Liberties Union v. National Security Agency, 493 F.3d 644 (6th Cir. 2007), is a case decided July 6, 2007, in which the United States Court of Appeals for the Sixth Circuit held that the plaintiffs in the case did not have standing to bring the suit against the NSA, because they could not present evidence that they were the targets of the so-called "Terrorist Surveillance Program" (TSP).

On January 17, 2006, the American Civil Liberties Union (ACLU) on its own behalf, and on the behalf of three other organizations and five individuals, sued the National Security Agency (NSA) in the United States District Court for the Eastern District of Michigan, seeking declaratory judgment and injunctive relief arguing the TSP was unconstitutional and a violation of federal law. The government argued that the lawsuit should be dismissed or alternatively be granted summary judgment based on the State Secrets Privilege and the plaintiffs' lack of standing.

On August 17, 2006, District Court Judge Anna Diggs Taylor granted summary judgment for the plaintiffs, ruling that the TSP specifically involving "international telephone and internet communications of numerous persons and organizations" within the United States of America, was unconstitutional and illegal, and ordered that it be halted immediately.[1] She stayed her order pending appeal. She did not rule on the alleged NSA database of domestic call detail records, citing the State Secrets Privilege.

On February 19, 2008, the United States Supreme Court, without comment, turned down an appeal from the [ACLU] to let it pursue a lawsuit against the program that began shortly after the September 11th terrorist attacks."[2]


After September 11, 2001 (or perhaps earlier[3]), the NSA began a classified foreign intelligence program, since named the Terrorist Surveillance Program, to intercept the international telephone and internet communications of numerous persons and organizations within the United States, without obtaining warrants and therefore outside the parameters of the Foreign Intelligence Surveillance Act of 1978.

The plaintiffs include the ACLU, the Council on American-Islamic Relations, the National Association of Criminal Defense Lawyers, and Greenpeace[4] along with five individuals who are authors and journalists: Christopher Hitchens, James Bamford, Tara McKelvey, democracy scholar Larry Diamond of Stanford University and the Hoover Institution, and Afghanistan scholar Barnett Rubin of New York University.[5] They stated in their complaint that they all have a history of communicating with people in or from the Middle East and on that basis they had a "well founded belief" of having been targeted by the TSP, based on the available public information regarding the program.[6]

ACLU v. NSA, along with a separate lawsuit simultaneously filed by the Center for Constitutional Rights, are the first lawsuits to challenge the TSP.[7]

District Court opinion[edit]

Judge Taylor wrote a 44-page, 11-part opinion in which she examined the defendant's claim over state secrets, standing, and the President's war time claim. Judge Taylor found that the NSA surveillance Program violated statutory law in regard to the FISA. Furthermore, she concluded that the NSA program violated the constitution in regard to the First Amendment, Fourth Amendment, and Separation of powers Doctrine.[8] Judge Taylor stayed her own opinion, preventing it from taking effect, pending a September 7 hearing.

Here are some excerpts from her opinion:[1]


The White House issued a statement saying:

ACLU Executive Director Anthony Romero stated:

According to the New York Times, several legal experts, including some who agreed with its conclusion, said the decision "overlooked important precedents, failed to engage the government’s major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions".[11]

Some legal analysts, such as Salon columnist Glenn Greenwald argued that critics of Taylor's reasoning were mistaken:

Still others, such as Harvard constitutional law professor Laurence Tribe, took an intermediate position:

Sixth Circuit Court of Appeals[edit]

On October 4, 2006, a unanimous three-judge panel of the Sixth Circuit Court of Appeal stayed the District Court's ruling pending evaluation of the government's appeal. In the three-paragraph ruling, the court explained that it decided to grant the government's motion to stay after balancing the likelihood an appeal would succeed, the potential damage to both sides, and the public's interest in final judicial decree.[14]

The Cincinnati-based 6th U.S. Circuit Court of Appeals heard oral arguments on the government's appeal on January 31, 2007.[15]

In its July 6, 2007 decision, the Circuit Court overturned Judge Taylor's ruling in a 2–1 vote. The majority declined to rule on the legality of the program, finding that the plaintiffs lacked standing to bring the suit.

Here are some excerpts of the Court's decision:[16]

(Footnotes omitted)

U.S. Supreme Court[edit]

On February 19, 2008, the U.S. Supreme Court, "without comment, turned down an appeal from the [ACLU] to let it pursue a lawsuit against the program that began shortly after the Sept. 11 terror attacks".[2]

See also[edit]


  2. ^ a b Associated Press (February 19, 2008). "Court rejects domestic spying appeal". 
  3. ^ Harris, Andrew (2006-06-30). "Spy Agency Sought U.S. Call Records Before 9/11, Lawyers Say". Bloomberg L. P. Archived from the original on 20 August 2006. Retrieved September 2, 2006. 
  4. ^ Bill Mears, Andrea Koppel (August 17, 2006). "NSA eavesdropping program ruled unconstitutional". 
  6. ^ University of California, Berkeley, School of Law (April 1, 2009). "In The Supreme Court of The United States AMERICAN CIVIL LIBERTIES UNION, ET AL., Petitioners, vs. NATIONAL SECURITY AGENCY, ET AL., Respondents." (PDF). 
  7. ^ Hibbits, Bernard (2006-05-28). "DOJ wants NSA wiretapping suits dismissed on state secrets basis", JURIST. Retrieved on September 8, 2006.
  8. ^ Amanda Frost; Fordham Law Review (2007). "The State Secrets Privilege and Separation of Powers". 
  9. ^ President George W. Bush (2006-08-17). "Statement on the Terrorist Surveillance Program". News releases for August 2006. Retrieved September 2, 2006. 
  10. ^ American Civil Liberties Union (January 17, 2006). "ACLU Sues to Stop Illegal Spying on Americans, Saying President Is Not Above the Law". 
  11. ^ Adam Liptak (2006-08-19). "Experts Fault Reasoning in Surveillance Decision". The New York Times. 
  12. ^ Grading the law professors; apologies due Judge Taylor by Glenn Greenwald, August 22, 2006.
  13. ^ Tribe, Laurence (2006-08-19). "The Bloggerati response to Judge Taylor's ruling in the NSA Case". Balkinization. Retrieved September 2, 2006. 
  14. ^ Associated Press (2006-10-05). "Court Allows Warrantless Wiretapping During Appeal". The Washington Post. Retrieved October 6, 2006. 
  15. ^ U.S. Court of Appeals for the Sixth Circuit (2007-01-16). "Oral Argument Calendar". Retrieved January 16, 2007. 
  16. ^ 6th Circuit Court of Appeals Decision

External links[edit]

Court documents[edit]

Other links[edit]