West Law Report

Sixth Circuit Denies Standing To Challenge Terrorist Surveillance Program

Harvard Law Review case summary (Issue 121, Jan 2008): ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007) (.pdf) (8 pages)

The Terrorist Surveillance Program (TSP) offers a conundrum for the courts and would-be challengers. Many experts have argued that the program was illegal on the grounds that it ignored the warrant requirement congress prescribed in the Foreign Intelligence Surveillance Act of 19781 (FISA) and that it might have violated the Fourth Amendment. But the state secrets doctrine has prevented potential plaintiffs from obtaining proof that they were among the group surveilled under the TSP.3 In a recent decision, ACLU v. NSA, the Sixth Circuit accordingly held that a group of plaintiffs lacked standing to challenge the TSP because they could not show that they personally were injured by it. The judges relied on a strict construction of standing for Fourth Amendment injuries, one developed in cases where plaintiffs sought to challenge individual searches of other people. In the context of secret surveillance programs by the government, the reality is that no plaintiff will be in a position to establish injury with anything approaching certainty. Hence, a more appropriate approach would be to allow standing where plaintiffs can show even a low level of probability they have been or will be among the injured.

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One Response

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  1. Susan Mix said, on May 19, 2008 at 11:20 am

    Fat chance any individual can stand up to tyranny.


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