{"id":1127,"date":"2007-09-17T20:38:36","date_gmt":"2007-07-06T11:31:39","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-07-06T11:31:39","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1127","title":{"rendered":"6th Cir. reverses domestic surveillance case on standing grounds today"},"content":{"rendered":"

The Sixth Circuit today dismissed (2-1) the ACLU’s domestic spying case on appeal from the U.S. District Court in Detroit on standing grounds. American Civil Liberties Union v. National Security Agency,<\/a> 493 F.3d 644, 2007 FED App. 0253P (6th Cir. 2007).<\/p>\n

The NY Times today reports<\/a> that the government’s brief said that the information was so sensitive that they could not tell anybody about it.<\/p>\n

The government said the case involves state secrets whose disclosure would threaten national security.<\/p>\n

“The information … is highly sensitive in nature, and goes to the heart of how the government’s foreign intelligence gathering is conducted at a time when the nation is at war with an enemy that has already inflicted devastating damage on the United States by operating through a shadowy terrorist network,” a Justice Department brief stated. <\/p><\/blockquote>\n

The majority opinion is far too complex to discuss here, but this is the comment about the Fourth Amendment claim:<\/p>\n

2. Fourth Amendment<\/em><\/p>\n

The plaintiffs allege that the NSA has, by conducting the warrantless wiretaps, violated the \u201cplaintiffs\u2019 privacy rights guaranteed by the Fourth Amendment.\u201d The district court \u2014 asserting a heretofore unprecedented, absolute rule that the Fourth Amendment \u201crequires prior warrants for any reasonable search,\u201d ACLU v. NSA,<\/em> 438 F. Supp. 2d at 775 \u2014 agreed and granted the plaintiffs\u2019 motion for summary judgment on this theory, id.<\/em> at 782. However, the Supreme Court has made clear that Fourth Amendment rights are \u201cpersonal rights\u201d which, unlike First Amendment rights, may not be asserted vicariously. See Rakas v. Illinois,<\/em> 439 U.S. 128, 133-34 (1978). The Court explained in Rakas<\/em>:<\/p>\n

Under petitioners\u2019 target theory, a court could determine that a defendant had standing [] without having to inquire into the substantive question of whether the challenged search or seizure violated the Fourth Amendment rights of that particular defendant. However, having rejected petitioners\u2019 target theory and reaffirmed the principle that the rights assured by the Fourth Amendment are personal rights, which may be enforced [] only at the instance of one whose own protection was infringed by the search and seizure, the question necessarily arises whether it serves any useful analytical purpose to consider this principle a matter of standing, distinct from the merits of a defendant\u2019s Fourth Amendment claim. … Rigorous application of the principle that the rights secured by this Amendment are personal, in place of a notion of \u2018standing,\u2019 will produce no additional situations in which evidence must be excluded. The inquiry under either approach is the same. But we think the better analysis forth-rightly focuses on the extent of a particular defendant\u2019s rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing.<\/p><\/blockquote>\n

Id.<\/em> at 138-39 (quotation marks, citations, footnotes, and edits omitted; emphasis added); see also Ellsberg v. Mitchell,<\/em> 709 F.2d 51, 65 (D.C. Cir. 1983) (\u201cAn essential element of each plaintiff\u2019s case is proof that he himself has been injured. Membership in a group of people, \u2018one or more\u2019 members of which were exposed to surveillance, is insufficient to satisfy that requirement.\u201d).<\/p>\n

The plaintiffs do not, and cannot, assert that any of their own communications have ever been intercepted. Instead, they allege only a belief that their communications are being intercepted, based on their own assessment of their overseas contacts as people who are likely to fall within the NSA\u2019s broad, public description of its targets. As acknowledged by plaintiffs\u2019 counsel at oral argument, it would be unprecedented for this court to find standing for plaintiffs to litigate a Fourth Amendment cause of action without any evidence that the plaintiffs themselves have been subjected to an illegal search or seizure. See Rakas,<\/em> 439 U.S. at 133-34.<\/p>\n

. . .<\/p>\n

VI.<\/p>\n

We hold that the plaintiffs do not have standing to assert their claims in federal court. Accordingly, we VACATE the order of the district court and REMAND this case to the district court with instructions to DISMISS for lack of jurisdiction.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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