ACLU vs NSA

Welcome to the Berkman Center Wiki for the ACLU vs. NSA wiretapping appeal discussion at HLS.

Co-Sponsored by the Berkman Center for Internet & Society and OPIA/Heyman Fellowship Program

ACLU v. NSA: Lunch Discussion

Join Harvard Law Professor Mark Tushnet; HLS Lecturer James Baker, a national security and FISA expert and currently a Fellow at the Institute of Politics; Ann Beeson, ACLU Associate Legal Director; and HLS Lecturer James Flug for a discussion of last week's Sixth Circuit oral arguments in the ACLU v NSA wiretapping case. Listen to the audio of the oral arguments (1 hour, 5 minutes) on your own ahead of time (see link below) and then come to the dicussion at 12:15, or come at 11:15 and listen together immediately before the discussion.

Pizza and refreshments will be served.

When: Wednesday, February 7, 2007, 11:15 a.m. to 1:15 p.m.

Where: Room 332, Pound Hall, Harvard Law School

ACLU v. NSA: Background

In January 2006, the American Civil Liberties Union (“ACLU”) filed suit in the Eastern District of Michigan against the National Security Agency (“NSA”), alleging that the NSA’s warrantless “Terrorist Surveillance Program” (“TSP”) and alleged call detail database are unconstitutional and in violation of federal law. The government argued both that plaintiff lacked standing and that the case was barred by state secrets privilege.

On August 17, 2006, Judge Anna Diggs Taylor held that plaintiffs had alleged sufficient injury under Article III to have standing and that the NSA’s practice of warrantless surveillance was both unconstitutional and in violation of the Foreign Intelligence Surveillance Act (“FISA”) and ordered the program halted immediately. Judge Taylor refrained from ruling on the issue of the alleged call detail database, citing state secrets privilege. Defendants immediately appealed and plaintiffs cross-appealed. Judge Taylor stayed the injunction pending appeal.

Oral argument was held before a three-judge panel of the Sixth Circuit Court of Appeals on January 31, 2007. The panel consisted of Judges Alice Batchelder, Ronald Gilman, and Julia Smith Gibbons. Ann Beeson represented the ACLU and Deputy Solicitor General Greg Garre represented the government. Central to the oral argument was the issue of whether plaintiffs, a group of scholars, journalists and attorneys who could not demonstrate that they were targets of surveillance, have standing to challenge the NSA.

Oral Argument Audio

Listen to the argument by clicking here (or right-click to save) or via the ACLU blog

Legal Documents

• Government Appeal Brief
• ACLU Appeal Brief
• Government Reply Brief
• ACLU Reply Brief
• Goverment's Supplemental Submission on the Subject of Mootness
• ACLU's Response to the Government's Supplemental Submission on the Subject of Mootness
• District Court Opinion by Judge Taylor
• Additional documents from the trial and appellate proceedings, including Amicus Briefs

Additional Resources

• ACLU pages on the case
• NSA Public Information Statement on the TSP

Related Articles by HLS Faculty

Bush Stomps On Fourth Amendment, Boston Globe Op-ed by Laurence H. Tribe

The Case for Surveillance, Boston Globe Op-ed by Charles Fried

Other Related Articles

Why the NSA Surveillance Program is Unlawful, Geoffrey R. Stone, Professor of Law at University of Chicago Law School

Special Thanks to Berkman Center Clinical Program students Chris Walsh and Amanda Devereux for preparing these background materials and creating the event wiki.