On January 17, 2006, the American Civil Liberties Union (ACLU) on its own behalf, and on the behalf of three other organizations and five individuals, sued the National Security Agency (NSA) in the United States District Court for the Eastern District of Michigan, seeking declaratory judgment and injunctive relief arguing the TSP was unconstitutional and a violation of federal law.

The government argued that the lawsuit should be dismissed or alternatively be granted summary judgment based on the State Secrets Privilege and the plaintiffs' lack of standing.

On August 17, 2006, District Court Judge Anna Diggs Taylor granted summary judgment for the plaintiffs, ruling that the TSP specifically involving "international telephone and internet communications of numerous persons and organizations" within the United States of America, was unconstitutional and illegal, and ordered that it be halted immediately.

The Court emphasized, however, that FISA and Title III are the exclusive means by which electronic surveillance is permitted and that no other authorization can comply with the law.

On February 19, 2008, the United States Supreme Court, without comment, turned down an appeal from the ACLU to let it pursue a lawsuit against the program that began shortly after the September 11th terrorist attacks.

The plaintiffs include the ACLU, the Council on American–Islamic Relations, the National Association of Criminal Defense Lawyers, and Greenpeace[4] along with five individuals who are authors and journalists: Christopher Hitchens, James Bamford, Tara McKelvey, democracy scholar Larry Diamond of Stanford University and the Hoover Institution, and Afghanistan scholar Barnett Rubin of New York University.

[5] They stated in their complaint that they all have a history of communicating with people in or from the Middle East and on that basis they had a "well founded belief" of having been targeted by the TSP, based on the available public information regarding the program.

23–24] [I]t is important to note that if the court were to deny standing based on the unsubstantiated minor distinctions drawn by Defendants, the President's actions in warrantless wiretapping, in contravention of FISA, Title II, and the First and Fourth amendments, would be immunized from judicial scrutiny.

The White House issued a statement saying: The Terrorist Surveillance Program is firmly grounded in law and regularly reviewed to make sure steps are taken to protect civil liberties.

[9] ACLU Executive Director Anthony Romero stated: President [George W.] Bush may believe he can authorize spying on Americans without judicial or Congressional approval, but this program is illegal and we intend to put a stop to it...

A basic familiarity with this case and with the rules of civil procedure—both of which many of her critics clearly lacked—would reveal that Judge Taylor's opinion was infinitely more sound than the conventional wisdom (thanks to many of these law professors) now holds that it was.

[12] Still others, such as Harvard constitutional law professor Laurence Tribe, took an intermediate position: Judge Taylor's [opinion is an] unusually casual and surprisingly breezy way of dispatching the Bush administration's legal defense of its NSA warrantless surveillance program....

In the three-paragraph ruling, the court explained that it decided to grant the government's motion to stay after balancing the likelihood an appeal would succeed, the potential damage to both sides, and the public's interest in final judicial decree.

The problem with asserting only a breach-of-privacy claim is that, because the plaintiffs cannot show that they have been or will be subjected to surveillance personally, they clearly cannot establish standing under the Fourth Amendment or FISA.

(Footnotes omitted) On February 19, 2008, the U.S. Supreme Court denied the ACLU's petition for a writ of certiorari, declining to hear an appeal in the case.