Appeals Court Dismisses Lawsuit Challenging Warrantless Wiretaps
Terry Trippany on Jul 06 2007 at 2:01 pm | Filed under: ACLU, Feature Article, Linkfest, The War on Terror
The ACLU has lost another bid to undermine the security of the United States for the time being as the U.S. Court of Appeals For The 6th Circuit vacated a lower courts decision that the Bush administration’s Terrorist Surveillance Program was unconstitutional.
The decision hinged on the court’s opinion that the plaintiffs had no standing to sue since they could not prove that they were the subject of any surveillance. The ruling was delivered this afternoon by a 2-1 margin, with 2 Republican appointees in the majority and a Democrat appointee in the dissent.
U.S. Circuit Judge Julia Smith Gibbons, one of the two Republican appointees who ruled against the plaintiffs, said they failed to show they were subject to the surveillance and therefore do not have standing for their claims.
U.S. Circuit Judge Ronald Lee Gilman, a Democratic appointee, disagreed, saying he felt the plaintiffs were within their rights to sue and that it was clear to him that the surveillance program violated the Foreign Intelligence Surveillance Act of 1978
The plaintiffs brought the lawsuit on the basis of “beliefs”, i.e. they feel they may have been listened in on.
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.
This is hogwash and the court agreed.
But even though the plaintiffs’ beliefs — based on their superior knowledge of their contacts’ activities — may be reasonable, the alternative possibility remains that the NSA might not be intercepting, and might never actually intercept, any communication by any of the plaintiffs named in this lawsuit.
Thus no infringement of rights.
But is gets better.
By claiming six causes of action, the plaintiffs have actually engaged in a thinly veiled, though perfectly acceptable, ruse. To call a spade a spade, the plaintiffs have only one claim, namely, breach of privacy, based on a purported violation of the Fourth Amendment or FISA — i.e., the plaintiffs do not want the NSA listening to their phone calls or reading their emails. That is really all there is to it. On a straightforward reading, this claim does not implicate the First Amendment. The problem with asserting only a breach-of-privacy claim is that, because the plaintiffs cannot show that they have been or will be subjected to surveillance personally, they clearly cannot establish standing under the Fourth Amendment or FISA. The plaintiffs concede as much. In an attempt to avoid this problem, the plaintiffs have recast their injuries as a matter of free speech and association, characterized their claim as a violation of the First Amendment, and engaged the First Amendment’s relaxed rules on standing. This argument is not novel, but neither is it frivolous; it warrants consideration, analysis, and an a full explanation by this court. At this point, it becomes apparent that my analysis of whether the plaintiffs have standing diverges at a fundamental level from that of the concurring and dissenting opinions. They each employ a single, broad, all-encompassing analysis, with which they attempt to account for all of the plaintiffs’ alleged injuries, requested remedies, and legal claims. As much as I would prefer that resolution of this question were so simple, I believe the law demands a particularized analysis of the plaintiffs’ three alleged injuries, six asserted legal claims, and two requested forms of relief. See Cuno, 126 S. Ct. at 1867 (“[A] plaintiff must demonstrate standing for each claim he seeks to press.”); Laidlaw, 528 U.S. at 185 (“[A] plaintiff must demonstrate standing separately for each form of relief sought.”). Therefore, I believe the complexity of this case calls for a far more specific a comprehensive analysis than that offered by my colleagues.
A comprehensive analysis of all six claims in a single opinion, however, invites some overlap of legal doctrine, precedent, and reasoning. Such overlap similarly invites ambiguity, confusion, and misapplication. To avoid this pitfall, I define the plaintiffs’ alleged injuries precisely, confine each cause of action to its own section, and take special care to ensure that I do not improperly carry precedent or legal doctrine from one cause of action to another. The benefit of precision will, I hope, outweigh any annoyance created by strict compartmentalization or redundancy.
After going over each claim separately the decision is rendered as follows:
Based on the evidence in the record, as applied in the foregoing analysis, none of the plaintiffs in the present case is able to establish standing for any of the asserted claims. At oral argument, we asked the plaintiffs’ counsel if we should remand for further proceedings on the issue of standing. Counsel asserted that the plaintiffs’ injuries were clear and undisputed in the record and there was no need to remand for a hearing or admission of additional evidence on this issue. But even to the extent that additional evidence may exist, which might establish standing for one or more of the plaintiffs on one or more of their claims, discovery of such evidence would, under the circumstances of this case, be prevented by the State Secrets Doctrine. See, e.g., Reynolds, 345 U.S. at 10-11; Tenenbaum, 372 F.3d at 777; Halkin v. Helms, 690 F.2d 977, 981 (D.C. Cir. 1982).
V. The district court dismissed the data mining aspect of the plaintiffs’ claim, finding that the plaintiffs could not establish a prima facie case without resorting to privileged information. ACLU v. NSA, 438 F. Supp. 2d at 765. The plaintiffs press this issue as a cross-appeal. A thorough review of the complaint, the district court opinion, and the arguments presented on appeal, makes it clear that the plaintiffs allege no separate injury in connection with the alleged data-mining aspect of the TSP. Therefore, this standing analysis applies equally, and the plaintiffs’ cross-appeal must be dismissed for lack of jurisdiction. See Steel Co., 523 U.S. at 109-10.
VI. 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.
This is another lesson in the importance of the courts and who is making the appointments.
The whole 65 page order can be read here.
See Also: Captain’s Quarters
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Trackposted to Blog @ MoreWhat.com, Faultline USA, stikNstein… has no mercy, Right Truth, Adam’s Blog, Pirate’s Cove, Stuck On Stupid, Cao’s Blog, and Right Voices, thanks to Linkfest Haven Deluxe.
Terrorist Surveillance Program, U.S. Circuit Judge Julia Smith Gibbons, U.S. Circuit Judge Ronald Lee Gilman, NSA, al Qaeda, warrantless surveillance
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