Just last week in ACLU v. NSA, the sixth circuit Court of Appeals struck down the ACLU’s suit against the NSA’s warrantless-wiretapping authority. In a 2-1 decision, two concurring opinions were published meaning that not one of the judges agreed with another’s methodology. Lets take a look at this case and its potential implications.
The authority under question is the NSA’s Terrorist Surveillance program. The TSP allows the NSA to conduct a wiretap so long as there is a “a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda.” The plaintiffs in this case are a group of citizens who have frequent contact with individuals abroad and thus believe that they are the subjects of wiretapping. The mere threat of being victim to wiretapping is enough to ‘constitute an irreparable harm’ (Court’s opinion.)
Judge Alice M. Batchelder authored the opinion for the court. She outlines an idea known as the ‘State Secrets Doctrine’ and applies that to the case. The State Secrets Doctrine grants the state two spheres of deference: evidentiary privilege and non-justiciability. Evidentiary privilege allows the state to claim that exposing evidence would reveal a state secret that must be kept. The rule of non-justiciability protects the state in the event that the suit itself would require the divulgence of a state-held secret. In this case, only evidentiary privileged is called upon by the NSA. According to the NSA, it is impossible for the government to disclose the evidence that proves that the plaintiffs have been the subject of wiretapping and the plaintiffs subsequently cannot establish standing. The district court accepted the NSA’s privilege but ruled that the mere fact that the NSA had conducted wiretaps was enough for the plaintiffs to bring suit with their claims. The district court also held that First Amendment rights were violated alongside the obvious Fourth Amendment protections.
The plaintiffs in this case bring up three different harms. The first is an inability to “communicate with their overseas contacts by telephone or email due to their self-governing ethical obligations.” According to the plaintiffs, they are unable unable to engage in communications necessary by law for their field or profession because of “their subjective belief that the NSA might be intercepting their communications.” The second harm is a ‘chilling effect’ on their overseas clients who are unwilling to divulge important information because of a fear of NSA wiretapping. The third, to the best of my understanding, is the “violation of their legitimate expectation of privacy in their overseas telephone and email communications.”
Judge Batchelder’s analysis comes in Part III.
“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.”
I agree with Judge Batchelder’s conclusion. She was absolutely correct in applying the Supreme Court’s Laird precedent to this case. In Laird, the Court held that the mere presence of government surveillance was not enough prove a ‘substantive chill’ if the individual act surveillance on a plaintiff could not be proven. The precedent from that case squashes the Free Speech Chill claims. The Judge goes into great detail rebuking each of the plaintiffs other claims.
I think this case is an interesting reminder for everyone involved in law and politics. The courts should not be used as a method of reversing every piece of legislation that one party or another deems ‘unconstitutional.’ The courts are undoubtedly not the only body of government that is subject to the constraints of the government. The government has a legitimate claim to certain privileges and whether or not they are using them properly in this case is certainly debatable. If a citizen were able to prove that they were the subject of a warrant-less wiretap, this type of case would be more than appropriate. The problem with this case, however, is that the plaintiffs can only establish that they think they might be subject to a wiretap and that just isn’t enough to establish even the slightest shred of standing.