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Opinion Concurring in the Judgment Only RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 07a0253p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________ AMERICAN CIVIL LIBERTIES UNION, et al., X Plaintiffs-Appellees/ - Cross-Appellants, - - Nos. 06-2095/2140 - v. > , - NATIONAL SECURITY AGENCY, et al., - Defendants-Appellants/ - Cross-Appellees. - - N Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 06-10204—Anna Diggs Taylor, District Judge. Argued: January 31, 2007 Decided and Filed: July 6, 2007 Before: BATCHELDER, GILMAN, and GIBBONS, Circuit Judges. _________________ COUNSEL ARGUED: Gregory G. Garre, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Ann Beeson, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Appellees. ON BRIEF: Gregory G. Garre, Thomas M. Bondy, Douglas N. Letter, Anthony A. Yang, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Ann Beeson, Jameel Jaffer, Melissa Goodman, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Michael J. Steinberg, Kary L. Moss, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Detroit, Michigan, Randal L. Gainer, DAVIS WRIGHT TREMAINE LLP, Seattle, Washington, for Appellees. Andrew G. McBride, WILEY REIN LLP, Washington, D.C., Paul D. Kamenar, WASHINGTON LEGAL FOUNDATION, Washington, D.C., Paul J. Orfanedes, Meredith L. DiLiberto, JUDICIAL WATCH, INC., Washington, D.C., John C. Eastman, CHAPMAN UNIVERSITY SCHOOL OF LAW, Orange, California, Jay A. Sekulow, AMERICAN CENTER FOR LAW AND JUSTICE, Washington, D.C., Larry J. Saylor, Saul A. Green, MILLER, CANFIELD, PADDOCK & STONE, Detroit, Michigan, ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, Donald B. Verrilli Jr., JENNER & BLOCK, Washington, D.C., Kathleen M. Sullivan, STANFORD LAW SCHOOL, Stanford, California, Lucy A. Dalglish, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, Arlington, Virginia, Richard M. Corn, New York, New York, for Amici Curiae. BATCHELDER, J., delivered the judgment of the court. GIBBONS, J. (pp. 36-40), delivered a separate opinion concurring in the judgment only. GILMAN, J. (pp. 41-64), delivered a separate dissenting opinion. 1 Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al. Page 2 _________________ OPINION _________________ ALICE M. BATCHELDER, Circuit Judge. The United States National Security Agency (“NSA”) appeals from the decision of the District Court for the Eastern District of Michigan that granted summary judgment against the NSA and imposed a permanent injunction. The plaintiffs are a collection of associations and individuals led by the American Civil Liberties Union, and they cross-appeal. Because we cannot find that any of the plaintiffs have standing for any of their claims, we must vacate the district court’s order and remand for dismissal of the entire action. I. Sometime after the September 11, 2001, terrorist attacks, President Bush authorized the NSA to begin a counter-terrorism operation that has come to be known as the Terrorist Surveillance Program (“TSP”). Although the specifics remain undisclosed, it has been publicly acknowledged that the TSP includes the interception (i.e., wiretapping), without warrants, of telephone and email communications where one party to the communication is located outside the United States and the NSA has “a reasonable basis to conclude that 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.” See Press Briefing by Att’y Gen. Alberto Gonzales and Gen. Michael Hayden, Principal Deputy Dir. for Nat’l Intelligence (Dec. 19, 2005), available at http://www. whitehouse.gov/news/releases/2005/12/print/20051219-1.html (last visited July 2, 2007).1 1 In Hepting v. AT&T Corp., the District Court for the Northern District of California collected and documented certain publicly available information, which provides some background and context for the present case: “The New York Times disclosed the [TSP] on December 16, 2005. (James Risen and Eric Lichthlau, Bush Lets U.S. Spy on Callers Without Courts, The New York Times (Dec 16, 2005)). The following day, President George W Bush confirmed the existence of a ‘terrorist surveillance program’ in his weekly radio address: ‘In the weeks following the [September 11, 2001] terrorist attacks on our Nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to Al Qaeda and related terrorist organizations. Before we intercept these communications, the Government must have information that establishes a clear link to these terrorist networks.’ “[Transcript] available at http://www.whitehouse.gov/news/releases/2005/12/print/20051217.html (last visited July 19, 2006). The President also described the mechanism by which the program is authorized and reviewed: ‘The activities I authorized are reviewed approximately every 45 days. Each review is based on a fresh intelligence assessment of terrorist threats to the continuity of our Government and the threat of catastrophic damage to our homeland. During each assessment, previous activities under the authorization are reviewed. The review includes approval by our Nation’s top legal officials, including the Attorney General and the Counsel to the President. I have reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for as long as our Nation faces a continuing threat from Al Qaeda and related groups. ‘The NSA’s activities under this authorization are throughly reviewed by the Justice Department and NSA’s top legal officials, including NSA’s General Counsel and Inspector General. Leaders in Congress have been briefed more than a dozen times on this authorization and the activities conducted under it. Intelligence officials involved in this activity also receive extensive training to ensure they perform their duties consistent with the letter and intent of the authorization.’ “Id. “Attorney General Alberto Gonzales subsequently confirmed that this program intercepts ‘contents of communications where . one party to the communication is outside the United States’ and the government has ‘a reasonable basis to conclude that 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.’ [Press Briefing] available at http://www. Nos. 06-2095/2140 Am. Civil Liberties Union, et al. v. Nat’l Sec. Agency, et al. Page 3 The plaintiffs in this action include journalists, academics, and lawyers who regularly communicate with individuals located overseas, 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. From this suspicion, and the limited factual foundation in this case, the plaintiffs allege that they have a “well founded belief” that their communications are being tapped. According to the plaintiffs, the NSA’s operation of the TSP — and the possibility of warrantless surveillance — subjects them to conditions that constitute an irreparable harm. The plaintiffs filed suit in the Eastern District of Michigan, seeking a permanent injunction against the NSA’s continuation of the TSP and a declaration that two particular aspects of the TSP — warrantless wiretapping and data mining — violate the First and Fourth Amendments, the Separation of Powers Doctrine, the Administrative Procedures Act (“APA”), Title III of the Omnibus Crime Control and Safe Streets Act (“Title III”), and the Foreign Intelligence Surveillance Act (“FISA”). Both sides moved for summary judgment. The district court dismissed the data mining aspect of the plaintiffs’ claim, but granted judgment to the plaintiffs regarding the warrantless wiretapping. See ACLU v. NSA, 438 F. Supp. 2d 754, 782 (E.D. Mich. 2006). The NSA had invoked the State Secrets Doctrine2 to bar the discovery or admission of evidence that would “expose [confidential] matters which, in the interest of national security, should not be divulged.” See United States v. Reynolds, 345 U.S. 1, 10 (1953). The NSA argued that, without the privileged information, none of the named plaintiffs could establish standing. The district court applied the state secrets privilege, but rejected the NSA’s argument, holding instead that three publicly acknowledged facts about the TSP — (1) it eavesdrops, (2) without warrants, (3) on international telephone and email communications in which at least one of the parties is a suspected al Qaeda affiliate — were sufficient to establish standing.3 Moreover, the district court whitehouse.gov/news/releases/2005/12/print/20051219-1.html (last visited July 19, 2005). The Attorney General also noted, ‘This [program] is not about wiretapping everyone. This is a very concentrated, very limited program focused at gaining information about our enemy.’ Id. at 5. The President has also made a public statement, of which the court takes judicial notice, that 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 White House, President Bush Discusses NSA Surveillance Program (May 11, 2006), [available at] http://www.whitehouse.gov/news/releases/2006/05/ 20060511-1.html (last visited July 19, 2005).” Hepting v. AT&T Corp., 439 F. Supp. 2d 974, 986-87 (N.D. Cal. 2006) (certain citation forms altered). 2 The State Secrets Doctrine has two applications: a rule of evidentiary privilege, see United States v. Reynolds, 345 U.S. 1, 10 (1953), and a rule of non-justiciability, see Tenet v. Doe, 544 U.S. 1, 9 (2005). The present case implicates only the rule of state secrets evidentiary privilege. The rule of non-justiciability applies when the subject matter of the lawsuit is itself a state secret, so the claim cannot survive.
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