Wiretap lawsuit dismissed
A federal appeals court on Friday removed a serious legal challenge to the Bush administration’s warrantless wiretapping program, overruling the only judge who held that a controversial surveillance effort by the National Security Agency was unconstitutional.
Two members of a three-judge panel of the Cincinnati-based U.S. Court of Appeals ordered the dismissal of a major lawsuit that challenged the wiretapping, which President Bush authorized secretly to eavesdrop on communications involving potential terrorists shortly after the Sept. 11, 2001, attacks.
The court did not rule on the spying program’s legality.
Instead, the decision found that the American Civil Liberties Union, academics, lawyers and journalists who brought the case did not have standing to sue, because they could not demonstrate that they had been direct targets of the clandestine surveillance.
The decision vacates a ruling in the case last August by a U.S. District Court judge in Detroit, who found that the administration’s program to monitor private communications violated the Bill of Rights and a 1970s federal law.
Friday’s action by the 6th Circuit means that the principal remaining legal challenge to the NSA’s Terrorist Surveillance Program is a group of cases pending before a U.S. District Court judge and the U.S. Court of Appeals for the 9th Circuit in California. The primary issue before that appeals court, differing somewhat from that in the Michigan case, is whether the administration may claim that a privilege covering state secrets precludes the litigation.
The eavesdropping program – first revealed by news accounts in late 2005 and the subject of intense political wrangling since then – is one aspect of a broad assertion of presidential power Bush has invoked in the past six years to justify policies meant to deter terrorism domestically and abroad.
As first devised, the Terrorist Surveillance Program allowed the NSA to intercept telephone calls and e-mail between the United States and overseas, in which at least one party was suspected to be affiliated with al-Qaida or related groups, without the court approval typically required for government wiretaps, according to administration officials.
The program prompted vehement objections from privacy advocates and many Democrats, who contended it was illegal because it bypassed a secret court, created under the 1978 Foreign Intelligence Surveillance Act, or FISA, to provide judicial oversight of clandestine surveillance within the U.S.
In January, after Democrats gained control of Congress, the administration abruptly shifted its position. Attorney General Alberto Gonzales announced that the surveillance program would start to be overseen by the FISA court.
But administration officials have not described critical details of the new approach, including whether a separate warrant is required for each instance of monitoring. Aides to Bush also have asserted that the president still retains the authority to conduct surveillance without court permission.
After the program’s change, the administration argued before the 6th Circuit that the lawsuit was moot. The two judges in the majority, both Republican appointees, did not address that issue. Judge Alice Batchelder, who wrote the 35-page main opinion, focused in a lengthy analysis on why she concluded the plaintiffs, many of whom have professional ties with people and organizations suspected of terrorism, did not have the legal standing to bring the lawsuit. She concluded that the plaintiffs could not show they had been injured directly by the surveillance.
Judge Ronald Lee Gilman, a Democratic appointee, disagreed in a dissenting opinion in which he concluded the plaintiffs were entitled to sue because they felt a need to alter their communications after the program was disclosed. Gilman also wrote that the case was not moot because “the president maintains that he has the authority to ‘opt out’ of the FISA framework at any time,” and he agreed with the lower court judge that the program violates law.