Page:ACLU v. NSA Opinion (August 17, 2006), US District Court, East-Michigan.djvu/13

 involve plaintiffs challenging the legality of warrantless wiretapping, a key distinction can be drawn. Unlike Halkin or any of the cases in the Reynolds progeny, Plaintiffs here are not seeking any additional discovery to establish their claims challenging the "TSP".

Like Judge Walker in Hepting, this court recognizes that simply because a factual statement has been made public it does not necessarily follow that it is true. Hepting, 2006 WL 2038464 at 12. Hence, "in determining whether a factual statement is a secret, the court considers only public admissions or denials by the [G]overnment." Id. at 13. It is undisputed that Defendants have publicly admitted to the following: (1) the TSP exists; (2) it operates without warrants; (3) it targets 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. As the Government has on many occasions confirmed the veracity of these allegations, the state secrets privilege does not apply to this information.

Contrary to Defendants' arguments, the court is persuaded that Plaintiffs are able to establish a prima facie case based solely on Defendants' public admissions regarding the "TSP". Plaintiffs' declarations establish that their communications would be monitored under the TSP. Further, Plaintiffs have shown that because of the existence of the TSP, they have suffered a real and concrete harm. Plaintiffs' declarations state undisputedly that they are stifled in their ability to [*14]