6th Circuit kicks ACLU’s standing argument in challenge to terror surveillance to the curb
Posted on July 6, 2007
We covered crooked Anna Diggs Taylor’s ridiculous ruling in federal district court pretty extensively last year. Check it all out here.
Good news from the 6th Circuit today. From a PAO at Justice:
“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 its tears and its marching orders to Congress: 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.”
Of course, the goofbags who filed the suit have no evidence that their calls were monitored, as the court points 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.
I’m thinking, since the program that was challenged was one that monitored calls between overseas terror suspects and American contacts that these guys should be looked at. If they are not chewing the fat with suspected terrorists for nefarious reasons, their international calls would not be monitored and if they were, there would be a ready explanation as to why they were talking to terror suspects in order to conduct their “business.” So where would this “chilling effect” come from? Since they are worried about it and in fact argued in court that they were good candidates for communication interception, it sounds like they are admitting that they are knowingly cozy with some jihadis.
Through that prism, it sounds like the very existence of the program had a deterrent effect by stopping people who seem to be asking that their communication to overseas terror suspects not be monitored so they can plot in peace.
The court:
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.
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.
This case was carved up (an “acceptable ruse”) into six causes of action by the plaintiffs and the opinion addresses them all separately. Just thought I’d pull some nuggets that dealt with what I see as the most ridiculous claim of the plaintiffs and how the court addressed it. Wish I had more time. I end with the following:
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.
Commentary from smarter people:
SCOTUSBlog: Circuit Court bars challenge to NSA spying
Volokh: Plaintiffs Lack Standing to Challenge NSA Surveillance
Captain’s Quarters: Court Reverses Anna Diggs Taylor
Powerline: Reversal in the NSA surveillance case
Flopping Aces
The American Mind
Sister Toldjah
Macsmind
» Filed Under 1st Amendment, ACLU, Border Control/Homeland Security, News, War On Terror
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20 Responses to “6th Circuit kicks ACLU’s standing argument in challenge to terror surveillance to the curb”
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Good!
The ACLU is protecting your rights as a citizen.
You wrote good in your article commentary.
You rather lose your privacy protection and be spied on because your pro republican party agenda.
That’s just twisted.
Don’t put your party above your country or be foolish enough to think they are actually protecting you by spying.
Why do conservatives approve of unchecked Executive power?
Blankchannelbob, this is mainly for you: The ACLU is not protecting your rights as a citizen in this case. The organization known as the ACLU is placing our lives at risk by taking actions that may hinder our federal government from protecting us from the enemy. What part of the fact that we are in a state of war do you not understand? It has nothing to do with putting any party above our country. Besides, why would a law abiding citizen worry about the fact that our government is spying in order to better locate enemy cells? If you have nothing to hide, and you understand this is a necessary precaution in a time of war, then there should be no complaint. The ACLU, besides, has its own agenda, and frankly, based on the founding principles and the current direction of the organization, it is not in yours or my best interest. The ACLU stands for Leninistic ideals – and you are falling hook, line, and sinker for their propaganda.
By God, bob is indeed a blank channel.
.
blankchannelbob Says:
“You wrote good in your article commentary.
You rather lose your privacy protection and be spied on because your pro republican party agenda.”
What, me fail English? That unpossible!
There are four logical possibilities:
1) The NSA has a 100% accuracy rate when it comes to choosing its targets
2) The NSA’s rate is less than 100% and it errs on the side of false negatives.
3) The NSA’s rate is less than 100% and it errs on the side of false positives.
4) The NSA’s rate is less than 100% and it has false positives and false negatives.
I think we all have enough experience with the government to know that nothing is done with 100% accuracy, so we can discount #1. Given the monstrous size of the no-fly list and the president’s track record of taking bold action on imperfect intelligence, I think #2 is unlikely as well.
We are thus left with #3 and #4 which makes it safe to say that a person who regularly calls foreigners that fit certain criteria could probably be considered a “good candidate” for this surveillance even if he’s not actually “cozy with some jihadis.”
As for the ruling itself, the case was understandably rejected on a technicality. I just hope like hell SCOTUS takes takes the case. If it’s ruled to be constitutional and all that jazz, I can live with that.
It can’t end like this, though. This would create an incredible precedent that the executive branch can do anything it damn well pleases as long as it can paint all relevant evidence as a “state secret.” If that happens, we might as well cut the charades and give the president a title that does justice to his limitless power.
Jeff, you made a bunch of points that have nothing to do with the the basis of the ruling. I hope it goes to SCOTUS too. I hope it sets a precedent to not send a bunch of nobody’s that have no actual claim into a court system trying to claim harm when they have no proof. That would be a terrible precedent to set. The courts are clogged up with nonsense enough.
I know. I just had to refute Glib’s ridiculous implication the government only watches the “bad guys”. It doesn’t take much thought to realize that, if unchecked, they’ll watch a lot of innocent people too, if for no other reason than their judgment is fallible.
Nonsense? C’mon now, it’s not like we’re talking about spilt coffee here.
At face value, this program clearly violates the FISA and Electronic Eavesdropping statutes. I’m well aware that the president has broad powers that may very well trump those statutes, but I hope we can at least agree that the balance of power between congress and the executive needs to analyzed and defined to whatever extent possible.
I’m sure by now, Bush has already implemented every program that he thinks is warranted, so please don’t construe this as a rant against him. I’m looking forward and we all know that, human nature being what it is, the next president is likely to push the envelope even further unless some boundaries are set.
Out of curiosity, where do you draw the line on executive power? Describe a “national security” program that you think we be outside of the president’s authority, assuming he hasn’t received an explicit approval from congress.
Why do conservatives approve of unchecked Executive power?
Conservatives don’t actually approve of unchecked Executive Power. That’s one of the reasons we dislike Democrats so much!
Seriously though, what conservatives object to is the whole notion that this is unchecked executive power. I’m sure you’ll
find this didn’t happen in a void, that it was vetted through a process, in secret, that included members of congress from
both parties. Typical of Democrats, now that it’s public they’re running from it. And I think you’ll find that these wiretaps don’t normally occur in a void either. There is a system in place. Can abuses occur? It’s government, of course abuse can occur. But I’d be
willing to bet my liberties are still safely in tact.
Ok, let’s examine that.
The constitution outlines just one process for “vetting” government programs. There was no specific legislation authorizing this program, so it’s fair to say that the standard checks and balances didn’t apply.
The administration argues that the AUMF is all the authorization they need. Now, they believe the AUMF also authorizes things like the permanent detention (without due process) of legal residents who were nowhere near anything that could remotely be considered a battlefield, so it’s fair to say they have a pretty broad interpretation that piece of legislation. If they’re correct, that would amount to a lot of “executive power”.
Now let’s examine the checks & balances of the process they used.
1. “Key members of congress” were “briefed”. Mr. Gonzalez specifically avoided saying “members of both parties”, so it’s quite possible that “key members” means nothing more than a couple Republican chairmen. Also, “briefed” is a one-way conversation, not a “vetting process”.
2. They attempted and failed to get authorization from the acting AG (who serves at the pleasure of the president, btw)
3. They attempted and failed to get authorization from a drugged John Ashcroft (who also serves at the pleasure of the president, btw)
4. They replaced Mr. Ashcroft with a man who they knew supported the program
And, oh yeah, they wrapped the whole thing up in the “state secret privilege”.
I see the broad executive power part and I don’t see any meaningful checks, so tell me again why you don’t consider this “unchecked executive power”??
If you’re of the mind that your liberties are intact until someone directly abridges them, you’re probably right. That’s a pretty superficial perspective, though. Your liberties lose any and all meaning at the very moment when a precedent is set that those liberties can be unilaterally stripped.
Jeff–
Your four “logical possibilities” have nothing to do with what I was arguing — that the conduct of the PLAINTIFFS, not the NSA, raised reasonable suspicions.
Your four points were actually taken apart in the opinion and what you have done in your analysis is confirm what Judge Batchelder saw as one of the huge problems with these particular plaintiffs claimed. Read the excerpts from the opinion I provided in the post.
“I just had to refute Glib’s ridiculous implication the government only watches the “bad guysâ€.
Wow. For someone who prides himself in the use of precise language and holds others to account when they make assumptions not explicit in the text, this certainly is a leap. Where did I say that Jeff? I wrote about these plaintiffs specifically. I despise federal government power and intrusion and DO NOT trust the Bush Administration about much any more, but this program (immediately intercepting OVERSEAS communications to/from suspected terrorists into/out of the US) seems so reasonable that I have to wonder what anyone who didn’t chat with jihadis would be worried about. If this program were expanded beyond that, then we can have a conversation, but before that, we should address why the plaintiffs think it is absolutely vital that they be allowed to speak with terror suspects (From the ACLU’s original complaint: “talk with sources, locate witnesses, conduct scholarship and engage in advocacyâ€) for the conduct of their business.
“It can’t end like this, though. This would create an incredible precedent that the executive branch can do anything it damn well pleases as long as it can paint all relevant evidence as a “state secret.â€
This is NOT a ruling about unchecked executive power, but a ruling saying that unaggrieved parties can’t just waltz into court whenever they get a wild hair to dismantle programs that may be a vital element in protecting the American people against easily foiled terror plots. The judges had access to classified information on the program and determined it sufficient to invoke “state secrets.” It probably should end here.
The program was organized correctly tot start with. It was not different from many other programs, in scope, that we have used during war throughout our history.
FISA was reformed to respond effectively to the technical needs of the program and the program was placed under it.
Congress was fully informed throughout its life of its scope, use and results, and the Congress members involved were OK with it.
The real question is how lefties, who are so convinced that Libby, who leaked nothing illegal or secret, is a traitor, while the people who leaked this program, the CIA air transport program, and the money wiring surveillance, which were properly secret, were important anti-terror tools, and was done maliciously and deliberatley in time of war, should not be punished even more?
Yes, they do. The actions of the plaintiffs are dependent upon their understanding of the NSA’s actions. You stated that they admitted they are “cozy with some jihadis” by believing “they were good candidates for communication interception”. That could only be true if you believed #1 or #2. #3 and #4 show that a person can be a “good candidate” without actually being “cozy with some jihadis”.
I was generalizing for a third-party, but you’re right; I was being uncharacteristically and inappropriately nonspecific. I’ll happily retract and restate.
I just had to refute [your] ridiculous implication these individuals must be ‘cozy with jihadis’ if they fear the government is likely to watch them.
I agree with all but two words of your statement: “suspected terrorists”. You’re willing to let the executive be the sole arbiter of who’s a “suspected terrorist”. Since “suspected terrorist” can turn into “illegal enemy combatant, subject to indefinite detainment” with a stroke of the pen, I don’t think I’m being unreasonable by asking for just a little judicial oversight. And it really is just a little judicial oversight. FISA has historically handed out warrants like they’re candy, so I can’t imagine the burden of proof is very high there.
I have absolutely no respect for the “If you have nothing to hide…” argument. I don’t remember the last time I called anyone in Canada (I’m only 20 miles from the border), let alone overseas, yet I most definitely care about the principles and precedents related to this program.
I disagree. I think that statement shows a callous disregard for the first ammendment.
Your spin aside, I know this ruling was about “standing”, not the merits of the case. In fact, I said so in comment #8, paragraph 4.
I’ll ask you the same question I asked Jay. Where do you draw the line on executive power? Describe a “national security†program that you think we be outside of the president’s authority, assuming he hasn’t received an explicit approval from congress. Furthermore, how would you fight such a program assuming that the “state secrets” privilege is sufficient to quash legal arguments?
Sorry, I forgot to come back to this one. I’m not sure which words are Batchelder’s, but I’ll assume it’s your second-to-last excerpt.
Again, the ruling comes down to “standing”. Personally, I think the plaintiffs made a mistake by not “alleg[ing] personal fear of our government.” The government has already shown a willingness to declare legal residents to be “enemy combatants”, so if I were the domestic party to such a phone call, I would be very worried that I might be accused of “providing material support” to the other party.
BTW, I just came across a very thorough analysis.
http://www.salon.com/opinion/greenwald/index.html
One more note, apparently there is a similar case involving a plaintiff who was subject to the surveillance.
http://www.usnews.com/usnews/news/articles/060321/21oregon.htm
The President has the duty of waging war. In modern warfare the collection of intelligence is not only important it is an integral part of waging war. We cannot take down terrorists by doing nothing. Keep in mind that even under Clinton there was a surveillance program. The term domestic surveillance is not appropriate in this case. The monitoring is of international calls. NSA is not interested in anyone’s personal life. They are interested in catching terrorists. That is call waging war.
Thanks for the talking points, Brujo. I hadn’t heard those before.
Your entire argument rests on a blatant fallacy. A false dichotomy, to be specific. Even more specifically, you presume our choices are “do what W did” and “do nothing”.
Your doublethink is very impressive, because you even went on to refer to the missing third option: Do what Clinton (and every other administration of the past few decades) did: USE FISA!
It’s such a simple process. FISA hands out warrants like they’re candy. You can even get them retroactively, no problem. BTW, the administration changed its course and has been using FISA for more than 6 months now. Guess what? We’re all still alive.
The 6th Circuit Court is one of the better one in my experience. Most errors they have made have been on the side of allowing the legislature decide and that is better than legislating from the bench.