Hospitals & Asylums
ACLU v. NSA Vacated to the Senate HA-6-7-07
By Anthony J. Sanders
The 2-1 decision of the Court of Appeals in the
ACLU v. NSA case was that the plaintiffs do not have standing to assert
their claims in federal court. The Court vacated the order of
the district court. The case is remanded to the district court with
instructions to dismiss for lack of jurisdiction.
The
President has made a public statement, of which the court takes judicial
notice,
"the
government’s international activities strictly target al Qaeda and their known
affiliates. The government does not listen to domestic phone calls
without court approval and the government is not mining or trolling through the
personal lives of millions of innocent Americans".
The ACLU
will have to be satisfied with this promise from the President. The
Judiciary was not the correct venue for this complaint. It might have
been, but the election of Gen. Hayden Director of the CIA on May 30,
2006 by the Senate made the case too politically charged for the
judiciary to process impartially. On August 17, 2006 US District Court
Judge Anna Diggs Taylor passed judgment.
From
August 17, 2006 to July 6, 2007 Gen. Hayden held his office as Director of
the CIA in contravention to Art. 2(4) of the US Constitution that
states,
“The
President, Vice President and all civil Officers of the United States,
shall be removed from Office on Impeachment for and Conviction of Treason,
Bribery or other High Crimes and Misdemeanors”.
The
vacation of the case was desirable whereas the District Court failed to press the
conviction of Gen. Hayden and the ACLU failed to introduce a single claim of
damages for which relief could be awarded.
The ACLU could not adapt the case to the circumstances because in the
beginning of 2006 no one knew that Gen. Hayden was a candidate for office. In European Courts the case might have been
processed satisfactorily whereas they employ an inquisitorial legal system
whereby the Court leads questioning. However in the USA the adversarial
legal system relegates Judges to the role of impartial arbitrator of two
adversarial parties and the trial was over so no more evidence was introduced.
Central
to understanding the failure of the civil justice system in this case is the
State Secrets Doctrine that,
"Bars
the discovery or admission of evidence that would expose confidential matters
which, in the interest of national security, should not be divulged".
The US held
that the State Secrets Doctrine made the case un-winnable because the no
information upon which a conviction could be founded was admissible. At oral argument, Judge Gilman asked the
plaintiffs’ counsel if the court should remand for further fact-finding in
support 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. Thus under the State Secrets
Doctrine fear of the damages that could result by making confidential disclosures
prevents any individual claims for reparation of damages from being heard. This attitude is carried over into the
judiciary that does not want to entertain the political case for reasons of a
separation of powers.
The ACLU
based their case upon the anticipation that the NSA’s interception of telephone
and email communications might be detrimental to their overseas contacts, and
this perceived harm causes the plaintiffs to refrain from that
communication. The plaintiffs do not want the NSA listening to their
phone calls or reading their emails. The Court held that this failed to meet the irreducible
constitutional minimum of standing that contains three requirements. First, that there be an injury in fact, second,
causation and third, redress ability.
Art. 3
of the Constitution requires 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 under Valley Forge
Christian Coll. v. Ams. United for Sep. of Church & State, Inc. 454
U.S. 464, 472 (1982). “Injury in fact”
is a harm suffered by the plaintiff that is concrete and actual or imminent, not
conjectural or hypothetical. “Causation” is a fairly traceable connection
between the plaintiff’s injury and the complained-of conduct of the
defendant. “Redress ability” refers to
the appropriateness of compensating the plaintiffs for the damages they
suffered. An association has standing
to sue on behalf of its members when “its members would otherwise have standing
to sue in their own right, the interests at stake are germane to the
organization’s purpose, and neither the claim asserted nor the relief requested
requires the participation of individual members in the lawsuit.” Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC) Inc. 528 U.S. 167, 181 (2000).
In
Art.2 Sec. 42d (D)(1-3)1 of Attorney General Ethics (AGE) of July 4th 2007,
to deter unwarranted foreign surveillance 50USC(36)I§1809 provides for a fine of not
more than $10,000 or imprisonment for not more than five years, or both. Domestically
the first offense is entitled to appropriate injunctive relief; and a second or
subsequent offense shall be subject to a mandatory $500 civil fine for the
Recovery of Civil Damages under 18USC(119)§2520. Hospitals and Asylums Battle Mountain
Sanitarium Reserve statute likewise provides for a $1,000 fine and up to 12
months in jail for unlawful intrusion and violation of the rules and
regulations pertaining to reservations under 24USC(3)V§154.
Nowhere in the pleadings of the
ACLU or the Judgment of the District Court was this relief requested although it
is these statutes that both provide the people with the defense against unlawful
searches sought and the felony conviction of Gen. Hayden needed to remove him
from office for the conviction of felonies.
This omission is a fatal flaw.
Without these three laws the case does not merit certiorari. The criminal goes unpunished and the
statutory claim for reparation of damages is not administrated to the American
people.
The political maneuver of Gen.
Hayden unfairly raised the bar on the case.
As the result of his illegal election during what turns out to be a
felony trial the Court had to convict him precisely. It was no longer satisfactory to hit the broad side of the barn. The Court was prevented from convicting him because
the laws were never properly introduced in trial, although they were sent to
the ACLU several times. Without an
effective claim for relief the Court caved in to the same timid behavior
exhibited by all parties under the State Secret Doctrine. The availability of a statutory claim does
not relieve the plaintiffs of the need to establish constitutional standing to
litigate that claim.
Our standing
doctrine is rooted in separation-of powers concerns. The plaintiffs allege that the President, as an actor in our tripartite
system of government, exceeds his constitutional authority by authorizing the
NSA to engage in warrant less wiretaps of overseas communications under the
TSP. The Court, not unlike the President, has constitutional limits of its own
and, despite the important national interests at stake, cannot exceed its
allotted authority. Standing
limitations confine federal courts to a role consistent with a system of
separated powers. It would ill behoove us to exceed our authority in order to
condemn the President or Congress for exceeding theirs.
There is
nothing in our Nation’s history or in this Court’s decided cases, including today’s
holding that can properly be seen as giving any indication that actual or
threatened injury by reason of unlawful activities of the executive branch would
go unnoticed or un-remedied. The
President himself promises to uphold the 4th Amendment. This Case returns to the District Court with
the instruction to dismiss for lack of jurisdiction.
The
issue seems to be that Art. 2(4) does not clearly delegate any responsibility
for adjudicating officials for removal, “on Impeachment for, and Conviction of”
of crime to the Court. Art.1 Sec. 3
Clause 6 on the other hand clearly gives the Senate, “sole power to try all
Impeachments” and provides that “no member shall be convicted without the concurrence
of two thirds of Members present”. This
finding in regards to the Constitution makes the dismissal for want of
jurisdiction easy because all the District Court has to do is to refer the case
to the Senate for the conviction of Gen. Hayden and his removal from office for
the felonies above. Impeachment is what
is now wanted and the Constitution does not give this power to the Court.
American Civil Liberties Union v. National Security Agency. 6th Cir. Nos. 06-2095/2140. July 6, 2007