Page:ACLU v. NSA Opinion (August 17, 2006), US District Court, East-Michigan.djvu/3

 permanent injunction, alleging that they sustain irreparable damage because of the continued existence of the TSP. Plaintiffs also request a Partial Summary Judgment holding that the TSP violates the Administrative Procedures Act ("APA"); the Separation of Powers doctrine; the First and Fourth Amendments of the United States Constitution, and the statutory law.

Defendants have moved to dismiss this lawsuit, or in the alternative for Summary Judgment, on the basis of the state secrets evidentiary privilege and Plaintiffs' lack of standing.

II. State Secrets Privilege Defendants argue that the state secrets privilege bars Plaintiffs' claims because Plaintiffs cannot establish standing or a prima facie case for any of their claims without the use of state secrets. Further, Defendants argue that they cannot defend this case without revealing state secrets. For the reasons articulated below, the court rejects Defendants' argument with respect to Plaintiffs' claims challenging the TSP. The court, however, agrees with Defendants with respect to Plaintiffs' data-mining claim and grants Defendants' motion for summary judgment on that claim.

The state secrets privilege is an evidentiary rule developed to prevent the disclosure of information which may be detrimental to national security. There are two distinct lines of cases covering the privilege. In the first line of cases the doctrine is more of a rule of "non-justiciability because it deprives courts of their ability to hear suits against the Government based on covert espionage agreements." El-Masri v.Tenet, 2006 WL 1391390 at 7 (E.D.Va., 2006). The seminal decision in this line of cases is Totten v. United States. In Totten, the plaintiff brought suit against the government seeking payment for espionage services he had provided during the Civil War. In affirming the dismissal of the case, Justice Field wrote: "The secrecy which such contracts impose precludes any action for their enforcement. The publicity produced by an action would itself"

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