OR: ACLU, et al v. National Security Agency, et al., 493 F.3d 644 (6th Cir. 2007) 

On November 17, 2006, the AAUP joined in an amicus brief  (.pdf) filed in the U.S. Court of Appeals for the Sixth Circuit by a large coalition of civil rights organizations in support of the American Civil Liberties Union’s case against the National Security Agency challenging the government’s warrantless wiretapping program. 

The wiretapping program, which was authorized by President Bush shortly after September 11, 2001, involves the warrantless interception of telephone and email communications between one person in the United States and one person who is, according to the NSA’s “reasonable” belief, “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 suit, which was filed in January 2006 on behalf of prominent journalists, scholars, attorneys and national nonprofit organizations who frequently communicate by phone and e-mail with people in the Middle East, argues that the wiretapping program violates the plaintiffs’ First Amendment rights by impairing their ability to obtain information from sources abroad, conduct scholarship, and engage in advocacy, as the people they would want to speak to are the types of people who might be targeted by the NSA.

In August 2006, a federal district court judge ruled that the wiretapping program violated the Fourth Amendment by operating without warrants and was therefore unconstitutional. The government appealed that decision to the Sixth Circuit Court of Appeals. The amicus brief submitted by the AAUP and other groups focuses on the historical effect of wiretapping on the civil rights movement, and the consequent chilling of speech and open communication. The brief also notes that the wiretapping program has constrained faculty and graduate students from fully pursuing research or scholarship while traveling abroad because of the legitimate fear that they or their sources will be subject to reprisal, thus inhibiting academic freedom. 

Oral arguments were held before the Sixth Circuit on January 31, 2007, at which the government argued that the case was now moot because the Attorney General had agreed to allow the secret Foreign Intelligence Surveillance Court to review the program. The ACLU argued that without court intervention, the government could resume warrantless wiretapping, and urged the appeals court to uphold the lower court’s order and unseal secret documents filed in the case by the government.

Status: In July 2007, the Sixth Circuit dismissed the case, ruling in a lengthy opinion (.doc) that because the plaintiffs could not show that they had actually been subject to the NSA wiretaps and therefore could not demonstrate that they were injured by the existence of the program, they did not have “standing” to sue. The plaintiffs were unable to provide such evidence because, under the State Secrets Doctrine, any evidence relating to specific wiretaps was privileged and therefore kept secret by the government. Because the plaintiffs were not able to demonstrate standing to sue, the court of appeals returned the case to the district court with instructions to dismiss it.