In American Civil Liberties Union v. National Security Agency/Central Security Service (E.D. Mich. 2006), U.S. District Judge Anna Diggs Taylor issued an injunction against the so-called terrorist surveillance program (TSP), implemented by the National Security Agency (NSA) with President George W. Bush’s approval after the al-Qaida attacks of Sept. 11, 2001.

Both sides agreed, however, that the program would remain in place until a decision by the court of appeals.

Case examined legality of NSA surveillance program

This highly anticipated decision, based on First and Fourth Amendment issues, was the first to address the legality of the secret program involving the warrantless tapping of conversations between individuals in the United States and individuals abroad believed to be connected with terrorism.

Taylor agreed with the government that it could use the state-secrets privilege — barring disclosures detrimental to national security — in prohibiting the plaintiffs from forcing the NSA to disclose its efforts at “data-mining” telephone data, which the government had not officially acknowledged.

She also held, however, that the state-secrets privilege did not bar journalists, professors, and attorneys from challenging the program because Bush had already acknowledged instituting a warrantless surveillance program outside current laws; no privilege therefore needed to be breached to determine this.

Taylor ruled that the plaintiffs had established standing by showing that individuals with whom they previously had contact were now deterred from talking with them over phone lines. The program thus had a chilling effect on First Amendment rights. The plaintiffs had also challenged the program on Fourth Amendment grounds.

In reviewing the history of electronic surveillance in the United States, Taylor observed that United States v. U.S. District Court (1972) had established a Fourth Amendment requirement to obtain prior warrants for domestic security matters.

Under the Foreign Intelligence Surveillance Act (FISA), Congress had crafted exceptions for dealing with emergencies, but Bush had not pursued these options.

Connection between the First and Fourth Amendments

Taylor further explored the connection between the First and Fourth Amendments by noting that both were in part reactions against British abuses under the Star Chamber. Citing United States v. U.S. District Court, she wrote, “Historically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure power.”

Taylor further relied chiefly on Youngstown Sheet and Tube v. Sawyer (1952) to establish the framers’ balancing of presidential power against that of the other two branches.

Taylor did not agree with the government’s argument that Congress’s passage of the Authorization for Use of Military Force (AUMF) against Afghanistan after Sept. 11 exempted or intended to exempt the president from FISA requirements. Contrasting the elective presidency with hereditary kings, Taylor argued “all ‘inherent powers’ must derive from that Constitution.”

She further cited Ex parte Milligan (1866) for the principle that the “Constitution of the United States is a law for rulers and people, equally in war and in peace.” She ended with a citation to United States v. Robel (1967), offering that “national defense” should not lead to “the subversion of ... those liberties ... which makes the defense of the Nation worthwhile.”

6th Circuit vacates injunction; Supreme Court decides against hearing appeal

In 2007 the Sixth Circuit Court of Appeals (493 F. 3d 644) vacated this decision and remanded it to the district court to dismiss for lack of jurisdiction.

The circuit court observed that the plaintiffs had argued that they were restraining their phone conversations with foreigners, and foreigners with them, for fear that such exchanges might be wiretapped, and that even if a warrant requirement were added, such fears might continue. Thus, any effects on freedom of speech were largely speculative.

The Supreme Court left this decision in place when it denied certiorari on Feb. 19, 2008.

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