## Facts

- After September 11, 2001, the President authorized the NSA’s Terrorist Surveillance Program (TSP), involving warrantless interception of certain international telephone and email communications where one party is in the United States and the other is believed connected to al Qaeda or affiliates.
- Organizational and individual plaintiffs (including journalists, scholars, attorneys, and advocacy organizations) frequently communicated with persons in the Middle East and alleged their communications were likely monitored.
- Plaintiffs claimed the TSP chilled speech and professional activity and forced costly precautions to avoid surveillance.
- Plaintiffs sought declaratory and injunctive relief, alleging violations of the First and Fourth Amendments, separation of powers, and statutory limits including FISA and Title III.
- The district court granted summary judgment to plaintiffs, declared the TSP unlawful and unconstitutional, and entered a permanent injunction (stayed pending appeal).
- The government appealed; plaintiffs cross-appealed.

## Issues

1. Whether plaintiffs had Article III standing where they could not present concrete evidence that their own communications were intercepted under the TSP.
2. If standing existed, whether the TSP violated constitutional provisions and surveillance statutes (not reached).

## Decision

- The court vacated the district court’s judgment and permanent injunction and remanded with instructions to dismiss for lack of jurisdiction.
- The lead opinion concluded none of the plaintiffs established standing because they failed to show an injury in fact that was concrete, particularized, and actual or imminent.
- Alleged injuries based on “likely” monitoring depended on speculation about whom the NSA surveilled and whether plaintiffs’ communications were intercepted.
- Claimed chilling effects and precautionary costs were treated as self-inflicted responses to perceived risk, insufficient without evidence of actual surveillance or an objectively imminent, personalized threat.
- The court resolved the case on standing rather than the state secrets privilege and did not reach the constitutional or statutory merits.
- A concurrence agreed with dismissal on standing grounds while cautioning against unnecessary merits-adjacent statements; a dissent would have found standing and reached the merits.

## Legal Principles

- Federal courts lack jurisdiction absent Article III standing: plaintiffs must show (1) injury in fact, (2) causation, and (3) redressability.
- In challenges to secret surveillance programs, generalized allegations and probabilistic fears are insufficient without non-speculative, individualized evidence of actual or imminent surveillance.
- Subjective chill and voluntary precautions, without a concrete and particularized injury fairly traceable to the defendant’s conduct, do not establish standing.
- When standing is absent, courts must dismiss without deciding the legality of the challenged program.

## Conclusion

The Sixth Circuit dismissed the challenge to the TSP for lack of standing, holding that plaintiffs’ alleged harms from possible surveillance and resulting self-censorship were too speculative to satisfy Article III, leaving the program’s legality unresolved in that case.


Am. Civil Liberties Union v. Nat'l Sec. Agency, 493 F.3d 644 (6th Cir. 2007)