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Appeals court dismisses suit against NSA spy program

By Anne Broache

Fri Jul 06, 2007

In a setback for foes of a controversial Bush administration wiretapping program, a federal appeals court on Friday threw out an American Civil Liberties Union lawsuit that alleged illicit snooping on Americans' calls and e-mails.

In a 2-1 decision (PDF), the 6th Circuit Court of Appeals in Cincinnati dismissed a federal district court ruling from last August that found the National Security Agency's Terrorist Surveillance Program violated the U.S. Constitution and ordered it to stop. The majority's ruling did not address the legality of the program; rather, it tossed out the case on narrow procedural grounds.

The move marked the first time an appeals court has weighed in on the numerous pending challenges to the spy program. Friday's decision isn't expected to have any direct impact on two related cases pending in the 9th Circuit Court of Appeals and more than 40 others that have been consolidated for consideration in a San Francisco district court.
"It is important to emphasize that the court today did not uphold the legality of the government's warrantless surveillance activity."
--Steven Shapiro, ACLU legal director

The U.S. Department of Justice was quick to praise Friday's decision, which it said "confirms that plaintiffs in this case cannot seek to expose sensitive details about the classified and important Terrorist Surveillance Program."

The agency already succeeded last July in shutting down another ACLU suit, which accused AT&T of illegally divulging the telephone records of its customers to government spies, by asserting that allowing the case to move forward would imperil national security. (By contrast, a federal judge in California hasn't allowed that argument to halt another suit against AT&T involving the Electronic Frontier Foundation.)

ACLU Legal Director Steven Shapiro said his organization had not ruled out petitioning the U.S. Supreme Court for another look at the 6th Circuit's action.

"As a result of today's decision, the Bush administration has been left free to violate the Foreign Intelligence Surveillance Act, which Congress adopted almost 30 years ago to prevent the executive branch from engaging in precisely this kind of unchecked surveillance," Shapiro said in a statement. "It is important to emphasize that the court today did not uphold the legality of the government's warrantless surveillance activity."

The ACLU and the journalists, scholars, criminal defense attorneys and Islamic-Americans it represented had argued that the NSA program, which came to light in a November 2005 New York Times report, was trampling on federal laws and the plaintiffs' constitutional rights to free speech and privacy.

Their arguments rested on what they called a "well-founded belief" that the government was tapping their regular overseas communications--some of which, because of the nature of the plaintiffs' professions, they have an ethical duty to keep confidential--without the necessary court approval.

Judges Alice Batchelder and Julia Smith Gibbons, both appointed by President Ronald Reagan, concluded in separate opinions that the parties that sued the NSA didn't have standing to bring their case in the first place. They ordered that the suit be sent back to a lower court and roundly dismissed.

The two judges' reasoning, which differs at times, boils down to one general result: the parties that sued the NSA hadn't shown adequate evidence that they have been "personally" subject to the eavesdropping program. Even if the plaintiffs had wanted to supply evidence to back such a claim, they would have been stymied by the government's assertion of its "state secrets" privilege, which permits the derailing of lawsuits that might otherwise lead to the disclosure of military secrets.

"Evidence arguably protected by the state secrets privilege may well be relevant to the reasonableness of the plaintiffs' fear," Gibbons wrote. "Whether that evidence is favorable to plaintiffs or defendants, its unavailability requires dismissal (of the case)."

Judge Ronald Lee Gilman, who was appointed by President Bill Clinton, said he fundamentally disagreed with his colleagues' stance. He wrote that he would have chosen to uphold Judge Anna Diggs Taylor's determination last summer that the NSA program violated a 1978 law known as the Foreign Intelligence Surveillance Act, which requires court approval when wiretapping for foreign intelligence gathering is conducted inside the United States.

As for whether the plaintiffs had standing to bring the case at all, Gilman cited a string of earlier court cases that he said showed it unnecessary for the plaintiffs to provide evidence that their communications had been intercepted by the NSA. In an earlier case, "all that was required was that they demonstrate that...they possessed a reasonable fear of harm," Gilman wrote. "This holds equally true for the attorney-plaintiffs in the present case."

The appeals court's move may come as little surprise to some who analyzed Taylor's opinion last year. A handful of academics and pundits who had voiced reservations about the legality of the NSA program--including The Washington Post's editorial board--argued that the judge's rhetoric was too angry and full of holes to make any lasting impact.

Jim Dempsey, policy director for the Center for Democracy and Technology, which has vocally opposed the warrantless surveillance program, said the court's conclusion wasn't surprising given what he called a pattern of conservative courts "steadily erecting barriers to lawsuits that challenge executive branch action" during the last few decades.

"Anybody who follows what's been going on in the courts knows that the courts are becoming increasingly reluctant to hear suits brought by citizens challenging government action," he said in a telephone interview.

Electronic Frontier Foundation attorney Lee Tien said he didn't expect the ruling to have any direct effect on his group's case against AT&T, which is slated to be argued before the 9th Circuit Court of Appeals in August. Procedurally speaking, the decisions made by one circuit set no precedent for other circuits, and besides, by suing the government directly, the ACLU was in a very different position, he said.

"We have whistleblower evidence that is very different from kinds of statements the government has made," Tien said in a telephone interview.

The latest appeals court decision arrives barely a week after the U.S. Senate Judiciary Committee issued subpoenas to the Bush administration requesting a lengthy list of documents explaining the program's legal basis. Attorney General Alberto Gonzales and the White House have been stalwart in their defense of the once-secret program, but testimony this spring by a former Justice Department official indicated the feeling may not have been mutual throughout the agency.

Judiciary Committee Patrick Leahy (D-Vt.) called the appeals court decision "a disappointing one" because it left the question of the program's legality entirely unaddressed. He said Friday's decision makes it all the more important that Congress glean answers from the administration. At the moment, he said, "there is a dark cloud over the White House's warrantless wiretapping program."