NSA Warrantless Surveillance Decision Overturned

As, no doubt, even Kalahari Bushmen know by now, the U.S. Court of Appeals for the Sixth Circuit overturned the decision by District Judge Anna Diggs Taylor finding the NSA intercept program unlawful by a 2-1 majority today.

Before anyone gets too overheated, either in praise or damnation of this decision, one must note that the majority does not reach the merits of the program itself. Rather, the Sixth Circuit panel ruled that the Plaintiffs lack standing to bring the suit:

The injunction in this case is predicated on the declaratory judgment (i.e., a determination that the NSA’s conduct is unlawful), so it follows that if the plaintiffs lack standing to litigate their declaratory judgment claim, they must also lack standing to pursue an injunction. The question is whether any plaintiff has standing to litigate the declaratory judgment claim….

[T]he injury that would support a declaratory judgment action (i.e., the anticipated interception of communications resulting in harm to the contacts) is too speculative, and the injury that is imminent and concrete (i.e., the burden on professional performance) does not support a declaratory judgment action.

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….

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.

The trial court opinion reviewed here was among the worst examples of judicial decisionmaking in the history of the art. It was widely derided, even by those who agreed with its conclusion, as poorly argued, excessively tautological, and unduly conclusory.* That it would be overturned on some grounds was always likely simply because, regardless of what one thinks of the program itself, it was a genuinely bad decision. Were it to stand up under appeal, it would enshrine some very, very poor reasoning into law.

People who aren’t trained in the law tend to get too wrapped up in the bottom line results of cases, without sufficient respect for the actual reasons for them. It is important, then, to keep in mind what this decision actually represents and what it does not. The Sixth Circuit’s decision today is about standing to sue, not the legality of the NSA’s international surveillance program. While there will no doubt be plenty of people who are genuinely distressed that this decision was struck down because they approved of the result, it is nevertheless in the long-term interests of the system that the standing requirements not be diluted simply to ensure a result some happen to like be upheld. Likewise, people who wanted Judge Diggs’ decision overturned (which, in the interest of full disclosure, includes me — both because of the poor quality of the trial court’s opinion and because I lean to the belief that the program is legal) should not read more into this decision than there is in it.

The case or controversy requirement of Article III of the Constitution requires that “the party who invokes the court’s authority to show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.” (See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)) The injury complained of must be “an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual and imminent, not conjectural or hypothetical.” (Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982)) Today, the Sixth Circuit ruled that the injury alleged by the plaintiffs was too speculative. And that’s pretty much it.

There is another issue hidden in the undercurrents of this case, but not, obviously, actually addressed by the decision: The matter of forum shopping. The Plaintiffs here brought their case in a Circuit in which the issue would be one of first impression. Prior to the filing of this case, the Second, Third, Fourth, Fifth, and Ninth Circuits, as well as the FISA Court of Review, had all held on that the President has the constitutional power under Article II to order warrantless surveillance for national security purposes (significantly, those cases all dealt with domestic warrantless surveillance; it was, of course, international intercepts that were at issue here). This is a matter of no small concern and is, all too often, a major weakness of the system (we see it most often in the context of personal injury suits brought in “plaintiff-friendly” jurisdictions even where another, less generous, jurisdiction would arguably be more appropriate, but it’s hardly uncommon in “public interest” litigation). Enforcing the court’s jurisdictional limitations is one the primary defenses the system has against such abuses.

Prof. Balkin (see link below) is correct that this case “is just the opening shot in what promises to be a long battle.” As of today, the Sixth Circuit has not rendered an opinion on the legality of the program. It has simply ruled that it cannot do so until a plaintiff who’s actually been harmed by it brings suit. This issue will most likely eventually make its way to the SupCt. But our system requires that it do so in the context of any actual controversy involving people who have real, not hypothetical, interests in the result.

* See, for instance, Prof. Eugene Volokh, a skeptic as to the program’s legality, who called the opinion, “not just ill-reasoned, but rhetorically ill-conceived… [a] seemingly angry, almost partisan-sounding opinion” which is “rich in generalities, platitudes… and ‘obviously’s,’ and poor in detailed discussion of some of the government’s strongest arguments.” See also, Jack Balkin, a left-leaning law professor and unremitting critic of the program, who said of the opinion, in pertinent part, “Although the court reaches the right result– that the program is illegal, much of the opinion is disappointing, and I would even suggest, a bit confused…. It is quite clear that the government will appeal this opinion, and because the court’s opinion, quite frankly, has so many holes in it, it is also clear to me that the plaintiffs will have to relitigate the entire matter before the circuit court, and possibly the Supreme Court. The reasons that the court below has given are just not good enough.”

FILED UNDER: Blogosphere, Intelligence, Law and the Courts, National Security, Supreme Court, US Constitution, , , , , , ,
Dodd Harris
About Dodd Harris
Dodd, who used to run a blog named ipse dixit, is an attorney, a veteran of the United States Navy, and a fairly good poker player. He contributed over 650 pieces to OTB between May 2007 and September 2013. Follow him on Twitter @Amuk3.


  1. one bit shy says:

    I understand the logic of the decision, but by applying standing in this fashion, the State Secrets Doctrine makes it impossible for anybody to establish standing. Doesn’t that seem a bit problematic?

  2. Billy says:

    I’m also a bit concerned that there is simply no conceivable plaintiff who would have standing to sue here. The government has effectively created a catch-22 situation in which anyone whose rights might actually be violated really have no way of finding that out. Actual harm may well follow from such a violation without any way for a viable plaintiff to ascertain their own proper standing.

    Despite that unnerving fact, the ACLU did not pursue a correct avenue for challenge. I’m not sure if there is a correct avenue, but they should have either looked for one or made a better case with a plaintiff who might at least have colorable standing.

  3. Dodd says:

    Possibly, but not necessarily. It definitely creates a difficult bar, since it requires dismissal whether the evidence made unavailable by it favours the plaintiffs or the defendants, but one can conceive of a set of circumstances in which it would not act as a bar to a suit.

    It’s worth noting, also, that the panel specifically asked the Plaintiffs’ advocates if a rehearing on standing would be useful and they expressly stated that the publicly available information (on which this ruling rests) was sufficient to supprot their argument. That may well have been a long-term strategic decision (a favourable ruling on this set of facts would certainly be useful for their line of work) but in this case it may have been a poor tactics (or perhaps not, since the panel seems to believe that any such evidence would also be barred).

  4. Grewgills says:


    You said that one can conceive of a set of circumstances in which standing would not be a bar to the suit. Can you share with us a circumstance that might pass this courts test? I can’t think of one that doesn’t involve a whistle blower.

  5. jpe says:

    Prior to the filing of this case, the Second, Third, Fourth, Fifth, and Ninth Circuits, as well as the FISA Court of Review, had all held on that the President has the constitutional power under Article II to order warrantless surveillance for national security purposes

    I’ll assume this is a good faith mistake. All these decisions were prior to FISA or prior to relevant amendments of FISA, and thus quite irrelevant from a legal standpoint. They were mooted by Congress.

    They all ask the same question: does the President have the power to do X in the absence of legislation. Once there’s legislation barring X, the legal calculus changes dramatically. Per Jackson’s concurrence in Youngstown, the President very rarely gets his way when Congress has spoken.

  6. Dodd says:

    I’ll assume this is a good faith mistake. All these decisions were prior to FISA or prior to relevant amendments of FISA, and thus quite irrelevant from a legal standpoint. They were mooted by Congress.

    I appreciate your willingness to assume that what you perceive as error on my part was in good faith. That represents a welcome change from the usual run of responses.

    I am not, however, in error – at least not to the degree that you suggest. Some of the cases to which that statement refers were indeed decided prior to the enactment of FISA. But not all. And even those that were were not “mooted” by Congress.

    Regarding the first point, at least two of the cases to which I refer were quite obviously handed down after FISA. U.S. v. Duggan 743 F.2d 59 (2nd Cir. 1984). Here the Second Circuit upheld the Constitutionality of FISA and stated, in pertinent part:

    Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment.

    I do not read the Second Circuit’s opinion as to the Constitutionality of the requirements set forth in FISA that follows as ruling otherwise.

    And, of course, the FISA Court of Review’s opinion in Sealed Case No. 02-001 obviously postdates FISA. In that case, the Court of Review unequivocally endorsed the aforementioned decisions predating FISA:

    The Truong court [Fourth Circuit], as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

    The precise boundaries of the power in question may be debated, naturally. But the long and the short of it is that, Justice Jackson’s solo concurrence in Youngstown notwithstanding, if the Executive has a certain power under the Constitution, Congress cannot “moot” that power by enacting legislation.

  7. Armin says:

    is just the opening shot in what promises to be a long battle.” … This is always the same: “will the future President change this or that, when he gets elected?” And then, when he is elected, the president gets forced by the congress to stop or start this or that… In Germany this is the same, only the names change, -just replace “congress” with “Bundestag”.

    Best regards, Armin

  8. floyd says:

    Could you please explain in simple terms, why these real people had no standing, yet a totally nonexistent person like Jane Roe did.
    Does this mean that real injury inflicted on a non-existent person has more standing in court than indirect[perhaps collateral] injury suffered by real people?

  9. jpe says:

    Inherent authority only means the President could act in the absence of congressional authorization, and none purport to claim that the President can defy Congressional prohibition. So the passages you cite back me up here.

  10. jpe says:

    sorry, you’re absoluteley right about the sealed case decision. I’ll bite the bullet, though: that decision is wrong.