Page:ACLU v. NSA Opinion (August 17, 2006), US District Court, East-Michigan.djvu/24

 Rights. The three separate branches of government were developed as a check and balance for one another. It is within the court's duty to ensure that power is never "condense[d] ... into a single branch of government." Hamdi v. Rumsfeld,, 536 (2004) (plurality opinion). We must always be mindful that "[w]hen the President takes official action, the Court has the authority to determine whether he has acted within the law." Clinton v. Jones,, 703 (1997). "It remains one of the most vital functions of this Court to police with care the separation of the governing powers.... When structure fails, liberty is always in peril." Public Citizen v. U.S. Dept. of Justice,, 468 (1989) (Kennedy, J., concurring).

Because of the very secrecy of the activity here challenged, Plaintiffs each must be and are given standing to challenge it, because each of them, is injured and chilled substantially in the exercise of First Amendment rights so long as it continues. Indeed, as the perceived need for secrecy has apparently required that no person be notified that he is aggrieved by the activity, and there have been no prosecutions, no requests for extensions or retroactive approvals of warrants, no victim in America would be given standing to challenge this or any other unconstitutional activity, according to the Government. The activity has been acknowledged, nevertheless.

Plaintiffs have sufficiently alleged that they suffered an actual, concrete injury traceable to Defendants and redressable by this court. Accordingly, this court denies Defendants' motion to dismiss for lack of standing.

IV. The History of Electronic Surveillance in America
Since the Court's 1967 decision of Katz v. U.S., (1967), it has been understood that the search and seizure of private telephone conversations without physical trespass required [*25]