On October 4, 2006, a three judge panel of the United States Court of Appeals for the Sixth Circuit stayed a District Court's ruling which declared the nation's "Terrorist Surveillance Program" (TSP) unconstitutional.
The TSP, which until fairly recently had been a secret, was instituted by the National Security Agency (NSA) in the wake of the September 11, 2001 attacks, and targets international phone calls coming into or out of the U.S. when one of the parties on the call is a suspected Al Qaeda or affiliated terrorist.
In response to reports that the NSA had conducted warrantless surveillance of telephone calls and internet communications involving innocent Americans, the American Civil Liberties Union (ACLU), joined by three other organizations and five individuals, filed a lawsuit in a United States District Court in the Eastern District of Michigan claiming that the TSP substantially chilled and impaired their "constitutionally protected communications."
The plaintiffs requested that the TSP be found unconstitutional, violative of federal law, and that all future activities be barred. The government countered that the case needed to be dismissed on the basis of national security concerns and other technical grounds.
On August 17, 2006, in ACLU v. NSA, District Court Judge Anna Diggs Taylor ruled that the TSP violates the Foreign Intelligence Surveillance Act (FISA) as well as the First and Fourth Amendments of the United States Constitution, and "permanently enjoined [the NSA] from directly or indirectly utilizing the terrorist surveillance program in any way, including, but not limited to, conducting warrantless wiretaps of telephone and internet communications."
Only hours after the decision was issued, the government filed an appeal with the U.S. Court of Appeals of the Sixth Circuit and applied for a stay of the District Court's decision pending the appeal. Government officials also went on the offensive and publicly defended the TSP, observing that it has prevented terrorist attacks and thus saved American lives, that it is carefully administered and targeted in scope, and, that it is firmly grounded in law. A White House statement, dated August 17, 2006, noted as follows:
The Terrorist Surveillance Program has proven to be one of our most critical and effective tools in the war against terrorism, and we look forward to demonstrating on appeal the validity of this vital program.Upon review of the government's request for a stay, the Court of Appeals balanced what it termed to be the "traditional factors governing injunctive relief," namely, the likelihood an appeal would succeed, potential injury to either party, and the public interest. The three paragraph opinion elaborated on the likelihood of success factor by noting that '"more than a possibility of success [on appeal] must be shown,'" and even if the government could demonstrate "irreparable harm" that outweighed any potential harm to the plaintiffs, the government was "'still required to show, at a minimum, serious questions going to the merits.'"
Finding these factors to have been satisfied, the Circuit Court granted the government a stay pending appeal. This permits the NSA to continue its monitoring activities while the case is pending. Undeniably, the challenge will be to strike a delicate balance between preserving our national security interests while preventing unwarranted government infringement of individual liberties.
How will the appellate court rule?
For the moment, that's a secret.
For a copy of the Circuit Court of Appeals's Order:
For a copy of the District Court's Memorandum Opinion:*
For a copy of the White House press statement, "Statement on the Terrorist Surveillance Program," dated August 17, 2006, please click on the following link:
For a copy of the White House press statement, "Setting the Record Straight: Democrats Continue to Attack Terrorist Surveillance Program," dated January 22, 2006, please click on the following link:
Note: The official cite: ACLU v. NSA / Cent. Sec. Serv., 438 F. Supp.2d 754