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