Aclu v. National Sec. Agency

• Decision Date: 06 July 2007
• Docket Number: No. 06-2140.,No. 06-2095.,06-2095.,06-2140.
• Citation: 493 F.3d 644
• Parties: AMERICAN CIVIL LIBERTIES UNION, et al., Plaintifs-Appellees/Cross-Appellants, v. NATIONAL SECURITY AGENCY, et al., Defendants-Appellants/Cross-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

493 F.3d 644

AMERICAN CIVIL LIBERTIES UNION, et al., Plaintifs-Appellees/Cross-Appellants, v. NATIONAL SECURITY AGENCY, et al., Defendants-Appellants/Cross-Appellees.

No. 06-2095.

No. 06-2140.

United States Court of Appeals, Sixth Circuit.

Argued: January 31, 2007.

Decided and Filed: July 6, 2007.

ARGUED:

Gregory G. Garre, United States Department of Justice, Washington,

D.C., for Appellants. Ann Beeson, American Civil Liberties Union Foundation, New York, New York, for Appellees.

ON BRIEF:

Gregory G. Garre, Thomas M. Bondy, Douglas N. Letter, Anthony A. Yang, United States Department of Justice, Washington, D.C., for Appellants. Ann Beeson, Jameel Jaffer, Melissa Goodman, American Civil Liberties Union Foundation, New York, New York, Michael J. Steinberg, Kary L. Moss, American Civil Liberties Union Fund of Michigan, Detroit, Michigan, Randal L. Gainer, Davis Wright Tremaine LLP, Seattle, Washington, for Appellees. Andrew G. McBride, Wiley Rein LLP, Washington, D.C., Paul D. Kamenar, Washington Legal Foundation, Washington, D.C., Paul J. Orfanedes, Meredith L. DiLiberto, Judicial Watch, Inc., Washington, D.C., John C. Eastman, Chapman University School of Law, Orange, California, Jay A. Sekulow, American Center for Law and Justice, Washington, D.C., Larry J. Saylor, Saul A. Green, Miller, Canfield, Paddock & Stone, Detroit, Michigan, Association of the Bar of the City of New York, Donald B. Verrilli Jr., Jenner & Block, Washington, D.C., Kathleen M. Sullivan, Stanford Law School, Stanford, California, Lucy A. Dalglish, Reporters Committee for Freedom of the Press, Arlington, Virginia, Richard M. Corn, New York, New York, for Amici Curiae.

Before: BATCHELDER, GILMAN, and GIBBONS, Circuit Judges.

BATCHELDER, J., delivered the judgment of the court. GIBBONS, J. (pp. 688-93), delivered a separate opinion concurring in the judgment only. GILMAN, J. (pp. 693-720), delivered a separate dissenting opinion.

OPINION

ALICE M. BATCHELDER, Circuit Judge.

The United States National Security Agency ("NSA") appeals from the decision of the District Court for the Eastern District of Michigan that granted summary judgment against the NSA and imposed a permanent injunction. The plaintiffs are a collection of associations and individuals led by the American Civil Liberties Union, and they cross-appeal. Because we cannot find that any of the plaintiffs have standing for any of their claims, we must vacate the district court's order and remand for dismissal of the entire action.

I.

Sometime after the September 11, 2001, terrorist attacks, President Bush authorized the NSA to begin a counter-terrorism operation that has come to be known as the Terrorist Surveillance Program ("TSP"). Although the specifics remain undisclosed, it has been publicly acknowledged that the TSP includes the interception (i.e., wiretapping), without warrants, of telephone and email communications where one party to the communication is located outside the United States and the NSA has "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." See Press Briefing by Att'y Gen. Alberto Gonzales and Gen. Michael Hayden, Principal Deputy Dir. for Nat'l Intelligence (Dec. 19, 2005), available at http://www.whitehouse.gov/news/releases/2005/12/print/20051219-1.html (last visited July 2, 2007).¹

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.

The plaintiffs filed suit in the Eastern District of Michigan, seeking a permanent injunction against the NSA's continuation of the TSP and a declaration that two particular aspects of the TSP — warrantless wiretapping and data mining — violate the First and Fourth Amendments, the Separation of Powers Doctrine, the Administrative Procedures Act ("APA"), Title III of the Omnibus Crime Control and Safe Streets Act ("Title III"), and the Foreign Intelligence Surveillance Act ("FISA"). Both sides moved for summary judgment. The district court dismissed the data mining aspect of the plaintiffs' claim, but granted judgment to the plaintiffs regarding the warrantless wiretapping. See ACLU v. NSA, 438 F.Supp.2d 754, 782 (E.D.Mich.2006).

The NSA had invoked the State Secrets Doctrine² to bar the discovery or admission of evidence that would "expose [confidential] matters which, in the interest of national security, should not be divulged." See United States v. Reynolds, 345 U.S. 1, 10, 73 S.Ct. 528, 97 L.Ed. 727 (1953). The NSA argued that, without the privileged information, none of the named plaintiffs could establish standing. The district court applied the state secrets privilege, but rejected the NSA's argument, holding instead that three publicly acknowledged facts about the TSP — (1) it eavesdrops, (2) without warrants, (3) on international telephone and email communications in which at least one of the parties is a suspected al Qaeda affiliate — were sufficient to establish standing.³ Moreover, the district court found these three facts sufficient to grant summary judgment to the plaintiffs on the merits of their claims, resulting in a declaratory judgment and the imposition of an injunction. These three facts constitute all the evidence in the record relating to the NSA's conduct under the TSP.

In deciding the merits, the district court construed the Fourth Amendment as an absolute rule that "requires prior warrants for any reasonable search," ACLU v. NSA, 438 F.Supp.2d at 775, and announced that "searches conducted without prior approval by a judge or magistrate were per se unreasonable," id. at 771. Having found that the NSA was operating without warrants, the district court concluded without further explanation that President Bush had "undisputedly violated the Fourth [Amendment] . . . and accordingly ha[d] violated the First Amendment Rights of these Plaintiffs as well." Id. at 776. Proceeding from this conclusion, the court deemed the TSP unconstitutional and issued an order enjoining its further operation entirely:

IT IS HEREBY ORDERED that Defendants [i.e., NSA], its agents, employees, representatives, and any other persons or entities in active concert or participation with Defendants, are permanently enjoined from directly or indirectly utilizing the Terrorist Surveillance Program (hereinafter `TSP') in any way, including, but not limited to, conducting warrantless wiretaps of telephone and internet communications, in contravention of the Foreign Intelligence Surveillance Act (hereinafter `FISA') and Title III;

IT IS FURTHER ORDERED AND DECLARED that the TSP violates the Separation of Powers doctrine, the Administrative Procedures Act, the First and Fourth Amendments to the United States Constitution, the FISA and Title III[.]

ACLU v. NSA, E.D. Mich. Dist. Court, No. 2:06-CV-10204, "Judgment and Permanent Injunction Order" (Aug. 17, 2006). The NSA moved for a stay of the injunction pending appeal, which the district court denied. Meanwhile, the NSA appealed, arguing that the plaintiffs lacked standing and that the State Secrets Doctrine prevented adjudication on the merits. This court stayed the injunction pending the outcome of this appeal. See ACLU v. NSA, 467 F.3d 590, 591 (6th Cir.2006).⁴

II.

This appeal presents a number of serious issues,⁵ none of which can be addressed until a determination is made that these plaintiffs have standing to litigate them. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (stating that there is no "doctrine of hypothetical jurisdiction"). "Every federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review, even [if] the parties are prepared to concede it. . . . When the lower federal court lacks jurisdiction, we have jurisdiction on appeal, not of the merits but merely for the purpose of correcting the error of the lower court in entertaining the suit." Id. at 95, 118 S.Ct. 1003 (quotation marks, citations, and edits omitted).

Standing is an aspect of justiciability, Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), and "a plaintiff must demonstrate standing for each claim he seeks to press," Daimler-Chrysler Corp. v. Cuno, 547 U.S. ___, 126 S.Ct. 1854, 1867, 164 L.Ed.2d 589 (2006); accord Lac Vieux Desert Band of Lake Superior Chippewa Indians v. Mich. Gaming Control Bd., 172 F.3d 397, 407 (6th Cir.1999) (requiring proof of standing for each individual claim). "[T]he standing inquiry requires careful judicial examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted." Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (emphasis added).

The "particular plaintiffs" to this action are a diverse group of associations and individuals, and it would require a rigorous undertaking to assure that each has standing to litigate. However, for purposes of the asserted declaratory judgment — though not necessarily for the requested injunction⁶ — it is only necessary that one plaintiff has standing. See Bowsher v. Synar, 478 U.S. 714, 721, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986) (deciding a challenge to the constitutionality of a...