Author:International Law Group

In suit complaining of NSA's program of intercepting overseas communications with suspected al Qaeda members and affiliates, Sixth Circuit finds that Plaintiffs who communicated with Members of suspect class do not have standing to bring lawsuit.


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After the September 11, 2001, terrorist attacks, the National Security Agency (NSA) began a counter-terrorism program known as the Terrorist Surveillance Program (TSP). President Bush authorized the TSP and the specifics remain undisclosed. The NSA, however, has publicly admitted certain aspects of the program. The TSP involves the warrant less interception by wiretapping of telephone and e-mail 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, a member of an organization affiliated with, or working in support of , al Qaeda.

The Plaintiffs in this federal action include the ACLU on behalf of 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 likely to have the TSP monitor them. The allege violations of 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).

The district court found the TSP unconstitutional and enjoined its operation. The NSA appealed. The U.S. Court of Appeals for the Sixth Circuit remands with instructions to dismiss the action for lack of standing.

The Court first addresses the Constitutional claims under the requirements of the constitutional minimum for standing: injury in fact, causation, and redressability. Addressing the First Amendment claim, the court found that there was no injury in fact deciding that, "the Plaintiffs here do not assert that they personally anticipate or fear any direct reprisal by the United States government, or that the TSP data is being widely circulated or misused. Indeed, the district court stated that, to date, no one hasPage 118 been exposed or prosecuted based on information collected under the TSP." [Slip op. 15].

Likewise the Court fi nds no causation. "[I]t is possible that the overseas contacts' refusal to communicate with the Plaintiffs has no relation to the putatively illegal government action of wiretapping without FISA compliance." [Slip op. 23]. Finally, the Court concludes that redressability was lacking; it reasoned that, "the Plaintiff s'...

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