On July 6, a divided Sixth Circuit Court of Appeals vacated a 2006 federal district court finding that the National Security Agency's (NSA) Terrorist Surveillance Program (TSP) violated the Foreign Intelligence Surveillance Act (FISA), the Fourth Amendment's protection against unreasonable searches and seizures and the First Amendment's protection of free speech. Without ruling on the constitutionality of the TSP, the judges dismissed the case based on the plaintiffs' lack of standing.

The TSP was first revealed by the New York Times in December 2005. The Times reported that President Bush authorized NSA to eavesdrop on domestic phone calls and e-mails without a wiretapping warrant.

The American Civil Liberties Union (ACLU) brought a suit on behalf of several journalists, lawyers and academics who stated they were unable to continue freely communicating with people in the Middle East due to the chilling effect caused by the TSP. In August 2006, Judge Anna Diggs Taylor of the U.S. Court for the Eastern District of Michigan ruled that the TSP violated the First Amendment because of the program's restricting effect on communications between U.S. citizens and people in Middle Eastern countries. Taylor also found the program to be in violation of the Fourth Amendment because Internet and telephone communications were seized without a warrant or court approval. This was also in violation of FISA.

The government immediately appealed the decision and received a stay from the Sixth Circuit on Judge Taylor's decision to shut down the program. The White House, however, shut the program down in January 2007 after repeated calls from Congress for additional oversight and amidst multiple lawsuits making headway in the courts.

The Sixth Circuit decided 2-1 that the plaintiffs could not demonstrate that they were harmed by the program. Because the government invoked state secrets privilege, the court and the plaintiffs were unable to access details about the program, which may have more clearly demonstrated harm to the plaintiffs in the form of monitored communications.

Judge Alice Batchelder wrote in the majority opinion, "None of the plaintiffs in the present case is able to establish standing for any of the asserted claims. … But even to the extent that additional evidence may exist, which might establish standing for one or more of the plaintiffs claims, discovery of such evidence would, under the circumstances of this case, be prevented by the State Secrets Doctrine." Hence, the court ruled that since the plaintiffs could not demonstrate harm from the program, the lower court's decision had to be dismissed.

In a dissenting opinion, Judge Ronald Lee Gilman argued that the attorney-plaintiffs had satisfied the requirements for standing in that the TSP interfered with the relations with their clients in the Middle East. "The closest question, in my opinion, is whether the plaintiffs have the standing to sue. Once past that hurdle, however, the rest gets progressively easier." Gilman stated that he would have upheld the conclusions of the federal district court on the constitutionality of the TSP.

In response, ACLU Legal Director Steven Shapiro stated, "We are deeply disappointed by today's decision that insulates the Bush administration's warrantless surveillance program from judicial review." Shapiro went on to note, "It is important to emphasize that the court today did not uphold the legality of the government's warrantless surveillance activity."

Shapiro stated the plaintiffs are considering appealing the case to the U.S. Supreme Court but that no final decision has been made. There are several other cases making their way through the legal system. In particular, the Sixth Circuit decision is expected to have little impact on a consolidated Ninth Circuit case, in part because specific evidence of surveillance in that case may buttress the plaintiffs' claims.