American Civil Liberties Union v. National Security Agency (2007)

Issue

Whether the National Security Agency NSA Terrorist Surveillance Program TSP of data mining and warrantless interception of international telephone and email communications of persons within the United States violates the free speech and free association clauses of the First Amendment, privacy rights guaranteed by the Fourth Amendment, Administrative Procedures Act APA, Title III of the Omnibus Crime Control and Safe Streets Act, the Foreign Intelligence Surveillance Act FISA, and exceeds Executive authority under Article II of the United States Constitution.

Facts

Sometime after the September 11, 2001 terrorist attacks, then-president George W. Bush authorized the National Security Agency to begin the Terrorist Surveillance Program. The TSP intercepted international telephone and internet communications of persons and organizations within the United States without obtaining warrants, and therefore possibly operating outside the parameters set by the Foreign Intelligence Surveillance Act of 1978.

After the discovery of the NSA’s TSP, the plaintiffs – including journalists, academics, and lawyers – filed suit because they believed they had reasonable suspicion and “well founded belief” that the types of people they were in contact with in the Middle East would have been monitored and tapped by the NSA. Because of the possibility of warrantless surveillance, the plaintiffs claimed they were subject to conditions that constituted irreparable harm.

The Court Below

The United States District Court for the Eastern District of Michigan was the first to hear the case on August 17, 2006. The court ruled in favor of the ACLU because the NSA’s TSP violated the First Amendment, Fourth Amendment, and the separation of powers doctrine. See opinion below:

American Civil Liberties Union v. National Security Agency, 438 F.Supp.2d 754 E.D. Michigan, 2006

The ACLU and NSA appealed to the Sixth Circuit, which reversed and remanded the district court’s decision, holding that the NSA’s actions were not subject to FISA and the plaintiffs did not demonstrate specific applicability of Title III and FISA. See opinion below:

American Civil Liberties Union v. National Security Agency, 493 F.3d 644 6th Cir., 2007

The ACLU petitioned for writ of certiorari to the Supreme Court of the United States. The Supreme Court of the United States denied the petition. See opinion below:

American Civil Liberties Union v. National Security Agency, 128 S.Ct. 1334 U.S., 2008

Question before the Court

“The question is whether any plaintiff has standing to litigate the declaratory judgment claim.

…

[T]he critical question in this case is not whether the attorney-plaintiffs have actually been surveilled – because, as the lead opinion aptly notes, a wiretap by its nature is meant to be unknown to its targets – but whether the “reasonableness of the fear” of such surveillance is sufficient to establish that they have suffered actual, imminent, concrete, or particularized harm from the government’s alleged unlawful action.”

Center for Constitutional Jurisprudence filed an amicus curiae brief in support of the National Security Agency

Summary:

To briefly summarize the argument, the Founders bestowed upon the President both inherent and expressed constitutional authority over the Nation’s foreign affairs powers, knowing the importance of providing the executive with adequate authority to protect the nation from foreign attack. Next, the Supreme Court precedent supports the President’s authorization of the NSA surveillance program, having recognized that the President is the sole organ of the nation in its external relations. And last, Congress has lent its own authority to the exercise of executive power at issue, authorizing the President use all necessary and appropriate force.

The Founders bestowed upon the President both inherent and expressed constitutional authority over the Nation’s foreign affairs powers, knowing the importance of providing the executive with adequate authority to protect the nation from foreign attack.  In Article II of the United States Constitution, the Founders designed a unitary executive and conferred upon the office the entire “executive power” of the United States of America, including “Commander in Chief of the Army and Navy.” The President is expressly provided by the Constitution an inherent power to act with the secrecy and dispatch necessary to protect the United States from foreign attacks. In the wake of the 9/11 terrorist attacks, President Bush defended the NSA surveillance program as necessary to detect conversations and prevent new attacks. It would then be foolish to revoke that ability to act with secrecy and dispatch in a time when it is most necessary. 

Next, the Supreme Court precedent supports the President’s authorization of the NSA surveillance program, having recognized that the President is the sole organ of the nation in its external relations. Presidents have appropriately tended to view United States v. Curtiss – Wright as establishing “the principle that under the Constitution, the President is vested with all the authority traditionally available to any head of state in his foreign relations, except insofar as the Constitution limits that authority or places it in Congress.” The NSA surveillance program is more properly viewed as an exercise of the external affairs and war-making powers inhered in the office of the President because the NSA program specifically targets “international communications into and out of the United States of persons linked to al Qaeda or related terrorist organizations.”

And last, Congress has lent its own authority to the exercise of executive power at issue, authorizing the President use all necessary and appropriate force. Immediately after the 9/11 attacks, Congress authorized the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” This gave the President Authorization for Use of Military Force. And history has demonstrated that surveillance of the enemy is every bit as much a fundamental incident of waging war. Therefore, the President’s use of the NSA surveillance program is not merely an exercise of the office’s Article II powers but also in concert with Congress’ additing its own authority to that power.

Regarding the NSA surveillance program, the President was operating within the office’s constitutional rights to wage war and the sole organ for international affairs, established by Article II of the United States Constitution. That right has support from the Supreme Court’s precedent that the office of the President has conferred “authority traditionally available to any head of state in his foreign relations, except insofar as the Constitution limits that authority or places it in Congress.” And Congress lent its own authority to the executive branch immediately after the 9/11 terrorist attacks to use all necessary and appropriate force.

Final Outcome

The Sixth Circuit Court ruled unanimously to reverse and remand the district court’s decision, holding that the NSA’s actions were not subject to FISA and the plaintiffs did not demonstrate specific applicability of Title III and FISA. The ACLU petitioned for writ of certiorari to the Supreme Court of the United States. The Supreme Court of the United States denied petition for writ of certiorari. The Sixth Circuit’s holding is consistent with CCJ’s position.