Intelligence Law School - Course 1: Lesson 3.5.2 The First Amendment


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LESSON 3: CONSTITUTIONAL LAW


3.5 The Bill of Rights


3.5.2 The First Amendment


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Annotated Lecture Transcript

3.5.2 The First Amendment

3.5.2.1 Text of the First Amendment

So, what do these 3 critical Amendments say?

Let’s start with the First Amendment.

It says:

Ø  “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”[1]

 

3.5.2.2 Relevant Rights Guaranteed by the First Amendment Generally

The First Amendment protects 5 basic individual liberty interests:

1)      Freedom of Religion;

2)     Freedom of Speech;

3)     Freedom of the Press;

4)     Right to Peaceably Assemble;

5)     Right to Petition the Government for a redress of grievances.

 

3.5.2.3 The Worthlessness of First Amendment Rights in Practical Application

The First Amendment is generally thought to be essential to the preservation of individual freedom in this country.[2]

Unfortunately, for reasons I’ll discuss in a minute, the Supreme Court has used its interpretation of Article III’s case or controversy requirement to impose onerous standing requirements on Americans wishing to challenge the targeting of their First Amendment rights.[3]

As a result, while the First Amendment provides Americans with the right of free speech and free association on paper, in practice, the FBI, Department of Defense, other agencies of the U.S. Intelligence Community, and state and local agencies can—and most certainly do—target the First Amendment activities of American citizens in comprehensive and sometimes extreme ways.

 

3.5.2.4 Prior Restraint: The Pentagon Papers Case (1971) and Snepp v. United States (1980)

One of the first issues people usually think about when they think about First Amendment rights in U.S. Intelligence Law is “prior restraint.”

The rules on prior restraint are pretty straight forward, so I’ll start there.

Ø  Prior Restraint Generally: The First Amendment ordinarily prohibits the government from stopping any publication before it’s published.[4]

o   If the speech represents a crime, tort, or contract violation then the government can seek redress through the legal system after the fact.

o   In a free society, the tiny, momentary risks posed by disclosing some piece of information to the public are always outweighed by the ubiquitous, crushing, and lasting burdens on speech that inevitably result from allowing any sort of pre-publication government censorship.

§  As a result, government officials are almost never able to stop something from being published beforehand by seeking an injunction.

§  If a disclosure turns out to have been illegal, the government has countless criminal remedies against the perpetrator after the fact.

§  We don’t allow government investigators to get into the business of thought-policing—going out into society and trying to determine who might be about to say something they see as potentially damaging to national security. 

§  It’s impossible to enforce pre-publication censorship without pervasive thought-policing of the American people, so the Supreme Court has interpreted the First Amendment generally not to allow it.

Ø  New York Times Co. v. United States (1971): This is what happened in the Pentagon Papers case.

o   In that case, the government tried to enjoin the New York Times from writing about alleged malfeasance of various Pentagon and White House officials that may have manipulated America into going to war in Vietnam with false or misleading information.

o   The government’s argument to stop publication of these stories stemmed from the fact that the malfeasance was detailed in a government report that may have been improperly disclosed to the press by a whistleblower, Daniel Ellsberg.

o   The Supreme Court ruled against the government’s request for prior restraint and the Times was allowed to publish its series of articles based on the Pentagon Papers.[5]

Ø  Snepp v. United States (1980): While pre-publication censorship is generally forbidden by the First Amendment with respect to private journalists and citizens, it is not forbidden with respect to the pre-publication review agreements signed by intelligence employees upon beginning to work for their agency.

o   The leading case on this is a case called Snepp v. United States, decided by the Supreme Court back in 1980.[6]

o   It held that the CIA can require its employees to sign a non-disclosure agreement that requires them to submit any prospective publications to the agency for pre-publication review before publishing.[7]

o   This agreement binds them even after they terminate their employment.[8]

o   The remedy for breach, however, isn’t prior restraint on publication; rather, it’s a civil action for breach of contract in the aftermath of publication disgorging all profits from the recalcitrant former employee and holding the proceeds of all sales in a constructive trust for the government.[9]

 

3.5.2.5 The Limits of Judicial Protection of First Amendment Freedoms in U.S. Intelligence Law: Laird v. Tatum (1972)

In the intelligence context, the First Amendment is very relevant, although issues decided by courts don’t arise as often as you might think they would.

Ø  Laird v. Tatum (1972): This is largely because of a case called Laird v. Tatum.[10]  

o   In Laird v. Tatum, the Supreme Court dismissed a case challenging a massive domestic spying operation run by Army counterintelligence in Detroit, Michigan.[11]

o   By a 5-4 majority, the Supreme Court held that the plaintiffs lacked standing to challenge the domestic spying program because they lacked standing to sue.

§  In order to have standing to bring a case, you must claim to have suffered a concrete injury caused by the defendant’s conduct.

§  Since the Army kept the records on whom it surveilled a closely guarded secret, none of the plaintiffs in the case could assert with any certainty that they themselves had been surveilled.

§  Instead, they claimed that the mere existence of the Army’s domestic spying program had a chilling effect on their willingness to exercise First Amendment freedoms in their community.

§  Undercover Army counterintelligence operatives were attending the meetings of peace activists and marching in anti-war demonstrations posing as protesters while at the same time audio and videotaping the Americans at these events.

§  The plaintiffs argued that the Army’s use of undercover agents to attend these meetings made it impossible for them to speak freely or be able to associate with others who shared their views because many of the “others” attending peace gatherings were secretly covert government agents trying to entrap peace advocates or build criminal cases against them in hopes of imprisoning them for conspiracy or any other crime at some point in the future.[12]

§  Even when incarceration of First Amendment targets was not forthcoming, these secret counterintelligence agents still maintained extensive files on any Americans who criticized Pentagon policies so the information gathered could be used by other agents on a continuing basis to try to throw these American critics in prison for any offense that might materialize.

§  It’s easy to see how an intelligence American citizen might want to forgo free association and free speech under such circumstances.

§  Still, a 5-justice majority of the Supreme Court disagreed that this chilling effect alone was sufficient to satisfy the “concrete injury” required for standing in federal courts. 

o   The dissent by Justice Douglas points out that the Department of Defense lacks any constitutional or statutory authority to establish a domestic intelligence network in existing law, and he suggest that were Congress to enact such a law granting DoD the power to establish such a program to spy on American civillians it might raise serious constitutional concerns,[13] not to mention the very serious risks to the freedom of every American.[14]

§  Justice Douglas refers to this type of domestic intelligence program as a “cancer in our body politic,”[15] and he attaches an appendix to his dissent that quotes an interview with Alexander I.  Solzhenitsyn, describing the life of a First Amendment target in the Soviet Union in 1972.[16]

§  In the end, Solzhenitsyn bemoans the incredible waste of having such a large number of otherwise talented men and women in the prime of their professional lives wasting their time collecting domestic intelligence on powerless individual citizens when they could be devoting their energy to solving genuine problems that plague humanity.

§  With well over X million employees on the government payroll in some sort of national security role, nearly one trillion dollars spent last year on the Department of Defense and security related agencies in fiscal year 2012 alone, it seems at least a few of these resources could be better spent elsewhere.

§  Zero Americans died from terrorism-related causes last year.

§  200,000 Americans died from cancer, and another 200,000 will die from cancer again this year as well.

§  The federal government spent $X for cancer research to cure this disease we know will kill 200,000 Americans this year and every following year until it is cured.

§  Compare this with the 1 trillion dollars the government spent to defend against the 0 terrorism-related deaths we suffered last year and the ten years before that.

§  It’s not hard to see Solsynetizn’s point.

o   The 5-4 majority dismissed the case without allowing it to go to a jury, claiming that this kind of chilling effect on free speech was not enough to give an American citizen standing to challenge domestic intelligence abuses.

 

3.5.2.6 Denial of Standing to Challenge Even Admitted Domestic Intelligence Abuses: ACLU v. National Security Agency (2007)

Ø  ACLU v. NSA (2007): The holding in Laird still stands today, and it’s stance of standing is largely responsible for insulating even the most egregious domestic intelligence abuses from challenge in U.S. courts under most circumstances.

o   The ACLU’s case against the NSA’s warrantless surveillance program initially won a permanent injunction at the trial level,[17] but it was overturned on appeal to the 6th Circuit largely because of Laird v. Tatum.[18]

o   Some of the nation’s top national security lawyers went head to head in the battle between the ACLU and the NSA beginning back in 2006.[19]

o   Because of the unusual nature of the evidence divulged to the public about the NSA’s challenged activities, this case will remains an important reminder about the limits of judicial protection of individual rights even in cases where potentially unconstitutional and felonious conduct is admitted publicly by agency officials and the President.

o   The Laird decision, which takes a strict stance on what plaintiffs must be able to prove pre-discovery in order to merely avoid summary judgment—combined with the State Secrets Doctrine which anticipates zero compliance with discovery requests made of defendant intelligence agencies—make it impossible to sustain 99% of the challenges to domestic intelligence abuses that could ever be brought in U.S. courts.[20]

 

3.5.2.7 Domestic Targeting of the First Amendment Activities of Groups: “Undislosed Participation in Organizations”

For reasons we’ll discuss when we get to the Fourth Amendment, you have no expectation of privacy in anything you say to others or any groups or functions you attend in public.

So while you may have a First Amendment right to freedom of association and free speech, the government has no constitutional obligation to refrain from targeting and monitoring your First Amendment activities.

As a result the Supreme Court’s interpretation of First Amendment freedoms in cases like Laird v. Tatum, the FBI and other federal and state-level agencies in the United States are free to monitor all First Amendment activities critical of their efforts.

 

As you’ll learn in a later lesson on the Fourth Amendment, Americans have no constitutional protection from government searches and seizures in areas where they have no “reasonable expectation of privacy.”

The Supreme Court has interpreted this concept to the point where Americans have virtually no Fourth Amendment rights outside of their home.

There are a few exceptions that I’ll talk about later, but not many.

For now, just know tha outside your home, you have no constitutional protections against government surveillance in almost all circumstances.

 

A few of the Fourth Amendment cases that brought us to this point hold specifically that Americans have no Fourth Amendment rights with respect to things they communicate to other people.[21]

They can’t intercept your phone calls without a court order, but they can get around that restriction if they get the consent of a party to the conversation—which they often do through threats or paid informants.

I’ll explain all the details of the Fourth Amendment jurisprudence behind this in the next section.

For now, just know that one party’s consent is enough to waive all of your Fourth Amendement rights and allow the government to listen in[22] and record[23] everything you say to others even in a private group setting.

Warrantless videotaping is also completely legal.[24] 

All they need is a man on the inside to “consent” and everybody’s rights are gone.

 

As a result of this complete lack of constitutional rights in this area, the FBI and other agencies routinely use informants and agents to infiltrate groups. [25]

Since 9/11 the FBI has hired tens of thousands of Americans to serve as paid informants, and has trained them to spy on Americans in their communities.[26]

The consent of these paid covert agents is used by the FBI to satisfy the one-party consent requirement needed to perform warrantless surveillance of unsuspecting Americans.

This purchased consent from clandestine informants allows the FBI and other agencies to audio and video record everything said at meetings, college classrooms, peace rallies, civil rights marches, absolutely anywhere.

Wherever First Amendment activities take place, an FBI agent or informant can be there to provide the consent needed to take the attendants’ rights away vicariously.

 

The Department of Defense calls this kind of domestic spying “Undisclosed Participation in Domestic Organizations.”

It has special administrative rules in DoD Regulation 5240.1-R that set procedures for when the tactic can be used. [27]

These restrictions are not required by constitutional law, or even statutory law.

The agencies have been careful to put in place administrative rules that appear to contain binding limitations in order to keep Congress from enacting a statute that would impose these protections as a matter of law.

These internal administrative rules are regularly violated without consequence, and unless Congress enacts a comprehensive framework statute governing all 5 stages of the intelligence cycle, that is how it is going to stay.

 

3.5.2.8 Domestic Intelligence Targeting of American First Amendment Activities on Social Networks like Facebook, Twitter, and YouTube

Ø  Targeting Domestic First Amendment Activities on Social Networks: This is especially First Amendment activities communicated or carried out with others either in person or through social networks on the Internet.[28]

o   In January of 2012, the FBI announced a new program to spy on social networks like Facebook.[29]

o   Because of the Supreme Court’s pre-Information-Age interpretation of the First Amendment, this is completely constitutional.

 

3.5.2.9 The FBI’s Use of Paid Civilian Informants to Engage in Covert Spying on Local Communities and to Infiltrate Domestic First Amendment Activities

The FBI is also free to infiltrate American groups engaged in First Amendment activities—this includes civil liberties groups, college campuses, churches and mosques.

Ø  Surge in Paid FBI Informants Since 9/11: Since 9/11, the FBI has hired and trained tens of thousands of Americans to serve as covert informants.

o   These American civilians are paid to blend into American communities and spy on First Amendment activities of American groups of interest to the FBI.

o   Sometimes the FBI will sponsor extremist First Amendment activities directly, paying the so-called extremist to become known and trusted in the extremist community in question so they can spy on the Americans that are interested in the ideas in question.

 

That does it for my discussion of the First Amendment.

Next up is the Fourth Amendment.

This is where we start to get into the most important part of constitutional law for purposes of U.S. Intelligence Law—I’m talking about the practical limits imposed on our government’s searches and seizures.

 

Footnotes

[1] U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”).

[2] For an interesting take on why the First Amendment is one of the greatest forces to preserve national security, see Justice Brandeis’s concurrence in Whitney v. California. 274 U.S. 357, 375–76 (1927) (Justice Brandeis concurring) ("Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law—the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.").

[3] See generally Robert F. Nagel, How Useful is Judicial Review in Free Speech Cases?, 69 Cornell L. Rev. 302 (1984); see also Timothy Zick, Clouds, Cameras, and Computers: The First Amendment and Networked Public Places, 59 Fla. L. Rev. 1 (2007); see also Matthew Lynch, Closing the Orwellian Loophole: The Present Constitutionality of Big Brother and the Potential for a First Amendment Cure, 5 First Amend. L. Rev. 234 (2007).

[4] See Congressional Research Serv., The Constitution of the United States of America: Analysis and Interpretation, First Amendment, S. Doc. No. 108-17 (2002), available at https://intelligencelaw.com/files/pdf/law_library/crs/CRS_1st_Amendment_2002.pdf (“‘[L]iberty of the press, historically considered and taken up by the Federal Constitution, has meant, principally although not exclusively, immunity from previous restraints or censorship.’’ ‘‘Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.’’ Government ‘‘thus carries a heavy burden of showing justification for the imposition of such a restraint.’’ Under the English licensing system, which expired in 1695, all printing presses and printers were licensed and nothing could be published without prior approval of the state or church authorities.” […] “The most recent Court encounter with the doctrine in the national security area occurred when the Government attempted to enjoin press publication of classified documents pertaining to the Vietnam War and, although the Court rejected the effort, at least five and perhaps six Justices concurred on principle that in some circumstances prior restraint of publication would be constitutional. But no cohesive doctrine relating to the subject, its applications, and its exceptions has yet emerged.”).

[5] New York Times Co. v. United States, 403 U.S. 713 (1971).

[6] Snepp v. United States, 444 U.S. 507 (1980).

[7] Snepp v. United States, 444 U.S. 507 (1980).

[8] Snepp v. United States, 444 U.S. 507 (1980).

[9] Snepp v. United States, 444 U.S. 507 (1980).

[10] Laird v. Tatum, 408 U.S. 1 (1972) (5-4 decision) (Official Case Syllabus: “Prior to its being called upon in 1967 to assist local authorities in quelling civil disorders in Detroit, Michigan, the Department of the Army had developed only a general contingency plan in connection with its limited domestic mission under 10 U. S. C. § 331. In response to the Army's experience in the various civil disorders it was called upon to help control during 1967 and 1968, Army Intelligence established a data-gathering system, which respondents describe as involving the "surveillance of lawful civilian political activity."

Ø  Held: Respondents' claim that their First Amendment rights are chilled, due to the mere existence of this data-gathering system, does not constitute a justiciable controversy on the basis of the record in this case, disclosing as it does no showing of objective harm or threat of specific future harm.  Pp. 3-16.”).

[11] See Laird v. Tatum, 408 U.S. 1, 26-27 (1972) (Douglas, J, dissenting) (5-4 decision) (“The present controversy is not a remote, imaginary conflict.  Respondents were targets of the Army's surveillance. First, the surveillance was not casual but massive and comprehensive.  Second, the intelligence reports were regularly and widely circulated and were exchanged with reports of the FBI, state and municipal police departments, and the CIA.  Third, the Army's surveillance was not collecting material in public records but staking out teams of agents, infiltrating undercover agents, creating command posts inside meetings, posing as press photographers and newsmen, posing as TV newsmen, posing as students, and shadowing public figures.”).

[12] Not all Justices agreed with the majority’s lack of concern about the the impact of domestic military surveillance on the free exercise of First Amendment rights by the American civilians being monitored. See Laird v. Tatum, 408 U.S. 1, 24-25 (1972) (Douglas, J, dissenting) (5-4 decision) (“The claim that respondents have no standing to challenge the Army's surveillance of them and the other members of the class they seek to represent is too transparent for serious argument.  The surveillance of the Army over the civilian sector -- a part of society hitherto immune from its control -- is a serious charge.  It is alleged that the Army maintains files on the membership, ideology, programs, and practices of virtually every activist political group in the country, including groups such as the Southern Christian Leadership Conference, Clergy and Laymen United Against the War in Vietnam, the American Civil Liberties Union, Women's Strike for Peace, and the National Association for the Advancement of Colored People.  The Army uses undercover agents to infiltrate these civilian groups and to reach into confidential files of students and other groups.  The Army moves as a secret group among civilian audiences, using cameras and electronic ears for surveillance. The data it collects are distributed to civilian officials in state, federal, and local governments and to each military intelligence unit and troop command under the Army's jurisdiction (both here and abroad); and these data are stored in one or more data banks. Those are the allegations; and the charge is that the purpose and effect of the system of surveillance is to harass and intimidate the respondents and to deter them from exercising their rights of political expression, protest, and dissent "by invading their privacy, damaging their reputations, adversely affecting their employment and their opportunities for employment, and in other ways.").

[13] See Laird v. Tatum, 408 U.S. 1, 16 (1972) (Douglas, J, dissenting) (5-4 decision) (“If Congress had passed a law authorizing the armed services to establish surveillance over the civilian population, a most serious constitutional problem would be presented.  There is, however, no law authorizing surveillance over civilians, which in this case the Pentagon concededly had undertaken.  The question is whether such authority may be implied.  One can search the Constitution in vain for any such authority.").

[14] See generally Laird v. Tatum, 408 U.S. 1, 24 (1972) (Douglas, J, dissenting) (5-4 decision) (“The act of turning the military loose on civilians even if sanctioned by an Act of Congress, which it has not been, would raise serious and profound constitutional questions.  Standing as it does only on brute power and Pentagon policy, it must be repudiated as a usurpation dangerous to the civil liberties on which free men are dependent.  For, as Senator Sam Ervin has said, "this claim of an inherent executive branch power of investigation and surveillance on the basis of people's beliefs and attitudes may be more of a threat to our internal security than any enemies beyond our borders." Privacy and Government Investigations, 1971 U. Ill. L. F. 137, 153.").

[15] See Laird v. Tatum, 408 U.S. 1, 28-29 (1972) (Douglas, J, dissenting) (5-4 decision) (“This case involves a cancer in our body politic.  It is a measure of the disease which afflicts us.  Army surveillance, like Army regimentation, is at war with the principles of the First Amendment. Those who already walk submissively will say there is no cause for alarm.  But submissiveness is not our heritage. The First Amendment was designed to allow rebellion to remain as our heritage. The Constitution was designed to keep government off the backs of the people. The Bill of Rights was added to keep the precincts of belief and expression, of the press, of political and social activities free from surveillance. The Bill of Rights was designed to keep agents of government and official eavesdroppers away from assemblies of people.  The aim was to allow men to be free and independent and to assert their rights against government.  There can be no influence more paralyzing of that objective than Army surveillance. When an intelligence officer looks over every nonconformist's shoulder in the library, or walks invisibly by his side in a picket line, or infiltrates his club, the America once extolled as the voice of liberty heard around the world no longer is cast in the image which Jefferson and Madison designed, but more in the Russian image, depicted in Appendix III to this opinion.”)

[16] See Laird v. Tatum, 408 U.S. 1, 37-38 (1972) (Douglas, J, dissenting) (5-4 decision) (“APPENDIX III TO OPINION OF DOUGLAS, J., DISSENTING Alexander I.  Solzhenitsyn, the noted Soviet author, made the following statement March 30, 1972, concerning surveillance of him and his family (reported in the Washington Post, Apr. 3, 1972): ‘A kind of forbidden, contaminated zone has been created around my family, and to this day, there are people in Ryazan [where Solzhenitsyn used to live] who were dismissed from their jobs for having visited my house a few years ago.  A corresponding member of the Academy of Sciences, T. Timofeyev, who is director of a Moscow institute, became so scared when he found out that a mathematician working under him was my wife that he dismissed her with unseemly haste, although this was just after she had given birth and contrary to all laws . . . It happens that an informant [for his new book on the history of prerevolutionary Russia] may meet with me.  We work an hour or two and as soon as he leaves my house, he will be closely followed, as if he were a state criminal, and they will investigate his background, and then go on to find out who this man meets, and then, in turn, who that [next] person is meeting. Of course they cannot do this with everyone.  The state security people have their schedule, and their own profound reasoning.  On some days, there is no surveillance at all, or only superficial surveillance. On other days, they hang around, for example when Heinrich Boll came to see me [he is a German writer who recently visited Moscow].  They will put a car in front of each of the two approaches [to the courtyard of the apartment house where he stays in Moscow] with three men in each car -- and they don't work only one shift.  Then off they go after my visitors, or they trail people who leave on foot. And if you consider that they listen around the clock to telephone conversations and conversations in my home, they analyze recording tapes and all correspondence, and then collect and compare all these data in some vast premises -- and these people are not underlings -- you cannot but be amazed that so many idlers in the prime of life and strength, who could be better occupied with productive work for the benefit of the fatherland, are busy with my friends and me, and keep inventing enemies.’”).

[17] United States District Court Judge Anna Diggs Taylor of the Eastern District of Michigan in Detroit decided the case at the trial level, finding that the NSA’s warrantless surveillance program known as the “TSP” violated the First Amendment, the Fourth Amendment, the constitutional doctrine of the separation of powers, as well as the Administrative Procedure Act and the Foreign Intelligence Surveillance Act. See ACLU v. NSA, 438 F. Supp. 2d 754, 782 (ED Mi 2006) (“For all of the reasons outlined above, this court is constrained to grant to Plaintiffs the Partial Summary Judgment requested, and holds that the TSP violates the APA; the Separation of Powers doctrine; the First and Fourth Amendments of the United States Constitution; and the statutory law. Defendants' Motion to Dismiss the final claim of data-mining is granted, because litigation of that claim would require violation of Defendants' state secrets privilege. The Permanent Injunction of the TSP requested by Plaintiffs is granted inasmuch as each of the factors required to be met to sustain such an injunction have undisputedly been met. The irreparable injury necessary to warrant injunctive relief is clear, as the First and Fourth Amendment rights of Plaintiffs are violated by the TSP. See Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965). The irreparable injury conversely sustained by Defendants under this injunction may be rectified by compliance with our Constitution and/or statutory law, as amended if necessary. Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution.”).

In finding that the plaintiffs had standing, the District Court distinguished Laird by recognizing that the plaintiff journalists were not simply claiming a chill on their First Amendment activities based on an unsubstantiated fear that they might be personally surveilled under the NSA’s warrantless surveillance program. These journalists were asserting that it was their sources who were chilled. Because of the NSA’s program, sources were no longer willing to speak with the plaintiff journalists which caused a concrete injury to their ability to function effectively as journalists. The District Court found this to be a sufficient injury to overcome Laird, especially given that the President of the United States had confirmed the existence of the challenged program on national television thereby reducing the evidentiary problems that typically plague suits against intelligence agencies. See ACLU v. NSA, 438 F. Supp. 2d 754, 768-769 (ED Mi 2006) ("Although Laird establishes that a party's allegation that it has suffered a subjective "chill" alone does not confer Article III standing, Laird does not control this case. As Justice (then Judge) Breyer has observed, "[t]he problem for the government with Laird . . . lies in the key words ' without more.'" Ozonoff v. Berzak, 744 F.2d 224, 229 (1st Cir. 1984). This court agrees with Plaintiffs' position that "standing here does not rest on the TSP's 'mere existence, without more.'" The Plaintiffs in this case are not claiming simply that the Defendants' surveillance has "chilled" them from making international calls to sources and clients. Rather, they claim that Defendants' surveillance has chilled their sources, clients, and potential witnesses from communicating with them. The alleged effect on Plaintiffs is a concrete, actual inability to communicate with witnesses, sources, clients and others without great expense which has significantly crippled Plaintiffs, at a minimum, in their ability to report the news and competently and effectively represent their clients. See Presbyterian Church v. United States, 870 F.2d 518 (1989) (church suffered substantial decrease in attendance and participation of individual congregants as a result of governmental surveillance). Plaintiffs have suffered actual concrete injuries to their abilities to carry out their professional responsibilities. The direct injury and objective chill incurred by Plaintiffs are more than sufficient to place this case outside the limitations imposed by Laird.”) (emphasis added).

[18] ACLU v. National Security Agency, 493 F.3d 644 (6th Cir. 2007) (“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.”).

[19] It’s important to know who the top intelligence lawyers are, just in case you have an important case come across your desk in practice and need to know whom to consider bringing in as a consultant. Here’s a list of the talented lawyers who were involved in this landmark litigation on both sides.

DISTRICT COURT CASE - ACLU v. National Security Agency, 438 F. Supp. 2d 754, 782 (ED Mi 2006)

COUNSEL:  

Ø  Plaintiffs

o    For American Civil Liberties Union;

o    American Civil Liberties Union Foundation;

o    Council on American-Islamic Relations;

o    Council on American-Islamic Relations Michigan;

o    Greenpeace, Incorporated;

o    National Association of Criminal Defense Lawyers;

o    James Bamford;

o    Larry Diamond;

o    Christopher Hitchens;

o    Tara McKelvey;

o    Barnett R. Rubin.

Ø  Lawyers

o    ACLU (New York)

§  Ann Beeson

§  Jameel Jaffer

o    ACLU Fund of Michigan (Detroit)

§  Kary L. Moss;

§  Michael J. Steinberg.

o    Dykema Gossett (Detroit)

§  Margaret A. Costello.

Ø  Amici

o    For National Association For The Advancement of Colored People, American-Arab Anti-Discrimination Committee, Asian American Legal Defense, Education Fund, The League of Japanese American Citizens League:

§  Saul A. Green, Miller, Canfield, (Detroit), Detroit, MI.

o    For The Association of the Bar of the City of New York, Amicus:

§  Larry J. Saylor, Miller, Canfield, (Detroit), Detroit, MI.

o    For Certain Members of Congress, Amicus:

§  Hugh M. Davis, Jr., Constitutional Litigation Associates, Detroit, MI.

o    For Washington Legal Foundation, Amicus:

§  Richard A. Samp, Washington Legal Foundation, Washington, DC US.

o    For Louis Fisher and William G. Weaver, Amicus:

§  Andrew A. Nickelhoff, Sachs Waldman (Detroit), Detroit, MI. 

Ø  Defendants

o    Defendants

§  For National Security Agency/Central Security Service, Keith B. Alexander, Lieutenant General, in his capacity as Director of the National Security Agency and Chief of the Central Security Service, Defendants:

o    Lawyers

§  Andrew Tannenbaum (USDOJ) U.S. Department of Justice (Federal Programs), Washington, DC US.

§  Anthony J. Coppolino (USDOJ) U.S. Department of Justice (Federal Programs), Washington, DC US.

 

6th CIRCUIT CASE - ACLU v. National Security Agency, 493 F.3d 644 (6th Cir. 2007).

COUNSEL: ARGUED:

Ø  Gregory G. Garre, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants.

Ø  Ann Beeson, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Appellees.

ON BRIEF:

Ø  Gregory G. Garre, Thomas M. Bondy, Douglas N. Letter, Anthony A. Yang, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants.

Ø  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.

AMICI

Ø  Andrew G. McBride, WILEY REIN LLP, Washington, D.C.,

Ø  Paul D. Kamenar, WASHINGTON LEGAL FOUNDATION, Washington, D.C.,

Ø  Paul J. Orfanedes, JUDICIAL WATCH, INC.,

Ø  Meredith L. DiLiberto, JUDICIAL WATCH, INC., Washington, D.C.,

Ø  John C. Eastman, CHAPMAN UNIVERSITY SCHOOL OF LAW, Orange, California,

Ø  Jay A. Sekulow, AMERICAN CENTER FOR LAW AND JUSTICE, Washington, D.C.,

Ø  Larry J. Saylor,

Ø  Saul A. Green, MILLER, CANFIELD, PADDOCK & STONE, Detroit, Michigan,

Ø  ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, 

Ø  Donald B. Verrilli Jr., JENNER & BLOCK, Washington, D.C.,

Ø  Kathleen M. Sullivan, STANFORD LAW SCHOOL, Stanford, California,

Ø  Lucy A. Dalglish, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, Arlington, Virginia,

Ø  Richard M. Corn, New York, New York, for Amici Curiae.

[20] See generally Edward C. Liu, Congressional Research Serv., The State Secrets Privilege: Limits on Litigation Involving Classified Information (2009), available at https://intelligencelaw.com/files/pdf/law_library/crs/R40603_5-28-2009.pdf (“The state secrets privilege is a judicially created evidentiary privilege that allows the government to resist court-ordered disclosure of information during litigation, if there is a reasonable danger that such disclosure would harm the national security of the United States. The Supreme Court first described the modern analytical framework of the state secrets privilege in the 1953 case of United States v. Reynolds. In its opinion, the Court laid out a two-step procedure to be used when evaluating a claim of privilege to protect state secrets. First, there must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. Second, a court must independently determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect. If the privilege is appropriately invoked, it is absolute and the disclosure of the underlying information cannot be compelled by the court.”).

[21] See Hoffa v. United States, 385 U.S. 293 (1966).

[22] On Lee v. United States, 343 U.S. 747 (1952).

[23] Lopez v. United States, 373 U.S. 427 (1963).

[24] See United States v. Sherman, 990 F.2d 1265 (9th Cir. 1993) (upholding introduction of evidence gained through warrantless video surveillance of public places); see also United States v. Taketa, 923 F.2d 665 (9th Cir. 1991).

[25] Bill Press, Privacy Takes Another Hit with Return of Junior G-Men, Baltimore Sun, Aug. 1, 2007, at 11A (detailing the FBI's plan to recruit 15,000 covert informants inside the United States).

[26] Bill Press, Privacy Takes Another Hit with Return of Junior G-Men, Baltimore Sun, Aug. 1, 2007, at 11A (detailing the FBI's plan to recruit 15,000 covert informants inside the United States).

[27] See e.g. U.S. Dep't of Defense, Reg. No. 5240.1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect U.S. Persons, ¶ C10.3 (Dec. 1982), available at https://intelligencelaw.com/html-only/law_library/admin/current/agency_rules/dodr_5240-1-R_1982.html (“Except as permitted herein, employees of DoD intelligence components may participate on behalf of such components in organizations within the United States, or in organizations outside the United States that constitute United States persons, only if their affiliation with the intelligence component concerned is disclosed to an appropriate official of the organization in accordance with section C10.4., below. Participation without such disclosure is permitted only if it is consistent with the limitations set forth in paragraph C10.3.1., below, and has been approved in accordance with paragraph C10.3.2., below.”).

[28] For a discussion of government surveillance of First Amendment activities in networked places, see Timothy Zick, Clouds, Cameras, and Computers: The First Amendment and Networked Public Places, 59 Fla. L. Rev. 1 (2007).

[29] See Antony Savvas, FBI to Build Social Network Spy App: App Would Crawl Twitter and Facebook, ComputerWorldUK, Jan. 12, 2012, available at http://www.computerworlduk.com/news/security/3332999/fbi-to-build-social-network-spy-app/.

 


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