ESPIONAGE

The act of securing information of a military or political nature that a competing nation holds secret. It can involve the analysis of diplomatic reports, publications, statistics, and broadcasts, as well as spying, a clandestine activity carried out by an individual or individuals working under a secret identity for the benefit of a nation's information gathering techniques. In the United States, the organization that heads most activities dedicated to espionage is the Central Intelligence Agency.

No Standing to Challenge Government Spying

In July 2007, a split panel of the U.S. Circuit Court of Appeals for the Sixth Circuit vacated the judgment of a federal district court and ruled that plaintiffs challenging government spying under the National Security Agency (NSA) lacked legal standing to sue. The NSA operated a program providing for interception (monitoring, wiretapping) of communications involving any individuals with suspected ties to al Qaeda (a terrorist organization widely held as being a key player in attacks against the United States) without first getting a courtissued warrant. In February 2008, the U.S. Supreme Court denied review of the appellate court's decision. ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007).

According to facts summarized in the Sixth Circuit's opinion, sometime after the terrorist attacks upon the United States on September 11, 2001, President Bush authorized the NSA to commence a counter-terrorism operation ultimately referred to as the Terrorist Surveillance Program (TSP). Specifics of the program were classified and therefore undisclosed. Notwithstanding, it was publicly acknowledged that the TSP included interception (e.g., wiretapping), without warrants, of telephone and Internet email communications, where one party to the communication “is 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.” Another aspect of the program was “data-mining,” or collecting telephone call data, such as numbers called and length of calls, etc.

The original case was filed in federal circuit court in Detroit, Michigan by the American Civil Liberties Union (ACLU), representing a conglomerate plaintiff group that included journalists, academics, and lawyers. Together, they charged that their writings and research often caused them to visit or search Internet Web sites that used keyword searches that could be construed as suspicious under government surveillance programs. Moreover, they often placed or received international telephone calls to and from clients or colleagues in geographic locations that would also flag their communications for possible interception or surveillance. As stated in the Sixth Circuit opinion, the persons to or from whom communications were carried on with, were those “who the plaintiffs believe are the types of people the NSA suspects of being al Qaeda terrorists, affiliates, or supporters, and are therefore likely to be monitored under the TSP.” Importantly, noted the Sixth Circuit, the plaintiffs alleged that they had a “well-founded belief” that their communications were being tapped.

Plaintiffs sought a permanent injunction against the NSA's continued operation of the TSP program. They also charged that two aspects of the TSP, warrantless wiretapping and data mining, violated the First and Fourth Amendments of the U.S. Constitution, the Separation of Powers Doctrine, the Foreign Intelligence Surveillance Act (FISA), and several other cited legislative provisions.

The NSA had invoked the State Secrets Doctrine (established in previous and longstanding Supreme Court decisions) that barred the discovery or admission of evidence that would “expose [confidential] matters which, in the interest of national security, should not be divulged.” United States v. Reynolds, 345 U.S. 1, 73 S. Ct. 528, 97 L. Ed. 727 (1953). The doctrine had two components, a rule of evidentiary privilege, and a rule of non-justiciability (where the subject matter of the lawsuit itself is a state secret, such that a claim cannot survive). In the present case, the NSA argued that, without the privileged evidentiary information, none of the plaintiffs could establish standing to sue. (The NSA did provide the district court an opportunity to review certain secret documents, in camera and under seal, in support of their invoking of the state secrets privilege.)

The district court, however, agreed with plaintiffs and condemned the government's position , stating, “There are no hereditary kings in America and no powers not created by the Constitution.” The court ruled that the NSA program violated the Fourth Amendment's prohibition against unreasonable searches and seizures because it set up a system of warrantless interception entirely outside of judicial review or oversight. The district court also held that the program violated the First Amendment because such government spying tended to have a chilling effect on free speech. Individuals fearing government monitoring might curtail otherwise protected political or legal speech or activity. The district court also granted a permanent injunction against continued operation of the TSP.

But the Sixth Circuit vacated the decision, particularly noting that the district court had premised its entire ruling on the three publiclyacknowledged facts about NSA operations, (i.e., that it eavesdropped, without warrants, on international communications suspected of involving al Qaeda) without considering the individual plaintiffs. While acknowledging that the case presented “a number of serious issues,” the appellate court further noted that none of these substantive issues could be addressed without a preliminary determination that the plaintiffs had standing to litigate those issues.

The appellate court went on to mention that standing was an aspect of justiciability, meaning that there must first be a careful judicial examination of whether any plaintiff (only one needed) had standing that would entitle him or her to an adjudication of the substantive claims. The court found that no plaintiff was able to show that he or she had actually been subjected to alleged NSA surveillance, but had merely premised the lawsuit on a subjective “well-founded belief.” Therefore, the plaintiffs lacked standing to sue. Further, the court found the plaintiffs had not claimed any separate injury specifically tied to the alleged NSA datamining program, making that claim unjusticiable as well. Having found that plaintiffs lacked standing to sue, all claims fell and the appellate court vacated the district court's decision and remanded with instructions to dismiss plaintiffs' claims.

The Sixth Circuit did not reach the issue of whether the lawsuit was moot after the Bush Administration announced in January 2007 that a FISA court had approved the communication interception program. (The original district court decision was in 2006.)