On Appeal: NSA v. ACLU

I have made a significant amount of noise regarding this case for quite some time now, largely because it became the test case for my paper on the judiciary's role in the War Powers doctrine. At the end of January the Sixth Circuit hear oral arguments in the case's appeal from the Eastern District of Michigan. You can find the recording of the oral argument from the Court's website here (right click, save-as to download).

The argument scopes over two primary issues raised on appeal. The first deals with a variety of procedural distinctions that would prevent the Court from rendering a substantive decision. Among other things, the government argues that the complainants lack standing to challenge the program and that the lower court erred in determining that it did not have to violate the state's secret privilege to review the facts of the case. The second issue deals with the legally substantive challenges to the Terrorist Surveillance Program's constitutional validity under the First and Fourth Amendments.

The Court moved through the first argument fairly quickly, almost presuming the complaining parties had standing to sue. This could be a significant issue for several reasons. Initially, the mootness argument asserted by the government argued that the Attorney General's decision to submit the TSP to the FISA Courts renders the issue moot. The primary argument against the state's contention is that this issue could constitute a continuing harm that evades review. The government rightfully points out that this exception to the doctrine of mootness only applies to these plaintiffs in this given situation. However, courts have applied the concept broadly to other parties not affiliated with law suits in Free Speech cases. The standing arguments could also pose a problem to the plaintiff's case because there isn't a way to demonstrate concrete harm without violating the state secrets privilege. Since this is a civil liberties case and not part of a criminal appeal, the state secrets privilege would provide a fairly substantial road block to the substantive disposition of this case.

The Court did attempt to spend more time dealing with the substantive issues in the case under the Fourth and First Amendments. Here, the complainants argue that the program chills their speech because they are less inclined to contact people out of the country for fear of prosecution for being a terrorist. The Fourth Amendment claims target the unconstitutionality of the wire-taps in general because they subvert the warrant requirement imposed upon the government.

Overall, it appears that the Court may address the substantive issues involved in the case, but it is unclear which way they will decide. Clearly, the TSP runs afoul of the Fourth Amendment, but whether there is enough concrete injury to support the First Amendment claim remains dubious. Regardless, this is a case we should all keep an eye on.