A key part of the argument in the ACLU case against the NSA (which failed in the 6th circuit court of appeals) was that the government was eavesdropping without a warrant.
http://www.ca6.uscourts.gov/...
The problem was, the ACLU and plaintiffs could not prove it, because NSA invoked State Secrets. And while it was probable that there were not warrants, it could not be proved. The secrecy of the Bush Administration was to blame, not the law itself.
The plaintiffs do not contend — nor could they — that the mere practice of wiretapping (i.e., eavesdropping) is, by itself, unconstitutional, illegal, or even improper. Rather, the plaintiffs object to the NSA’s eavesdropping without warrants, specifically FISA warrants with their associated limitations and minimization requirements. (See 50 U.S.C. §§ 1804-06.) According to the plaintiffs, it is the absence of these warrants that renders the NSA’s conduct illegal and unconstitutional. But the plaintiffs do not — and because of the State Secrets Doctrine cannot — produce any evidence that any of their own
communications have ever been intercepted by the NSA, under the TSP, or without warrants.
Instead, they assert a mere belief, which they contend is reasonable and which they label a "well founded belief," that: their overseas contacts are the types of people targeted by the NSA; the plaintiffs are consequently subjected to the NSA’s eavesdropping; the eavesdropping leads the NSA to discover (and possibly disclose) private or privileged information; and the mere possibility of such discovery (or disclosure) has injured them in three particular ways.
The Supreme Court refused to hear the ACLU's appeal. The reason? There was no reason to claim that the plaintiffs were injured in any way. In particular, these plaintiffs claimed in ACLU v. NSA that the fear of reprisals led them to refrain from communicating with their overseas contacts.
Thus, in crafting their declaratory judgment action, the plaintiffs have attempted (unsuccessfully) to navigate the obstacles to stating a justiciable claim. By refraining from communications (i.e., the potentially harmful conduct), the plaintiffs have negated any possibility that the NSA will ever actually intercept their communications and thereby avoided the anticipated harm — this is typical of declaratory judgment and perfectly permissible.
If, on the other hand, the plaintiffs had communicated with these overseas contacts, and the plaintiffs (or their contacts overseas) experienced some sort of reprisal, or harrassment, or adverse consequences, then they would have had a case.
To call a spade a spade, the plaintiffs have only one claim, namely, breach of privacy, based on a purported violation of the Fourth Amendment or FISA — i.e., the plaintiffs do not want the NSA listening to their phone calls or reading their emails. That is really all there is to it.
It's sour grapes. The 6th Circuit makes that point clearly. There was no injury. There was no reasonable proof that they were suffering adverse consequences. In fact, there was no proof that they were being spied on or that their communications were being intercepted. So, even if you grant that the communications were being intercepted, you still have the issue of injury. And there is no evidence of injury, other than the feeling of being intimidated.
"The irreducible constitutional minimum of standing contains three requirements": "[1] injury in fact, [2] causation, and [3] redressability." [Steel Co., 523 U.S. at 102-03 (citations and footnotes omitted)].
Feeling "chilled" doesn't count as an injury, because the government is not the cause of this. There is nothing forbidding or preventing me from writing this blog, although I know I might get criticized for it. But if someone attacks me physically or financially, or I start getting imminent threats of harm, then they have crossed the boundary into injury. So, the response to the ACLU v. NSA complaint could be summarized by saying, "It's all in your head. No one is hurting you. Just get over it. If you have a real problem, the court will be here to protect you."
It is in light of this that the evidence given in the recent Boumediene v. Bush decision is so important. When we discover that people are being detained at Gitmo, without habeus corpus, without charges, without any recourse to the Geneva Convention or any other higher claim, then the Supreme Court rightly stepped in and said, "No. You can't do that, President Bush. No more military courts. MCA isn't good enough. They need habeus corpus. It doesn't matter if they're citizens or not. You cannot deprive them of liberty without due process."