A federal appeals court handed the Bush administration a major victory yesterday, ruling 2-1 that plaintiffs who had challenged its domestic spying program did not have legal standing to do so.
The decision by the U.S. 6th Circuit Court of Appeals in Cincinnati sent the case back to a judge in Detroit, who ruled last year that the program - run by the National Security Agency - was unconstitutional. The panel ordered district court Judge Anna Diggs Taylor to dismiss the case, but it did not rule on the program's legality.
After the Sept. 11 terrorist attacks, President Bush authorized the NSA to eavesdrop on phone calls and e-mails between people in the United States and terrorism suspects abroad without obtaining warrants from a special surveillance court.
If yesterday's ruling stands, it would effectively bar any challenge to what has been one of the Bush administration's most controversial initiatives.
There are several other cases challenging the surveillance program pending before the U.S. 9th Circuit Court of Appeals in San Francisco - all but one of which involve the same issue of legal standing. While the 9th Circuit will have to consider yesterday's ruling, it is not bound by that decision.
The wiretapping case is one of several instances in which critics of the "war on terror" have challenged Bush's assertions of executive authority. Last week, the Supreme Court agreed to take up the issue of whether prisoners at the U.S. military facility in Guantanamo Bay, Cuba, have the right to challenge their detentions in federal court.
While maintaining that the Terrorist Surveillance Program was legal, government lawyers urged the appellate court in January to throw out the case on technical grounds.
Justice Department attorney Gregory Garre argued that the plaintiffs, including the American Civil Liberties Union, had alleged only "speculative" harm done to them, which would be insufficient to grant them standing to sue. The only way the plaintiffs could find out whether they had been the targets of wiretapping, he said, was if they obtained information about the surveillance program - in violation of the "state secrets" privilege.
Established in 1953, the privilege bars the disclosure of information in court proceedings when "there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged."
But ACLU lawyer Ann Beeson asserted her clients had suffered "concrete harm" by having to forgo conversations with individuals who they reasonably believed might be the targets of government surveillance.
Judges Alice M. Batchelder and Julia Smith Gibbons of the 6th Circuit - both Republican appointees - agreed with the government, saying no single plaintiff could prove that he or she had been wiretapped and therefore had suffered the harm needed to go to court.
"The plaintiffs do not - and because of the State Secrets Doctrine cannot - produce any evidence that any of their communications have ever been intercepted by the NSA, under the TSP, without warrants," Batchelder wrote. Rather, she said, the plaintiffs had asserted "a mere belief" that their overseas contacts were the types of people being targeted by the NSA.
Judge Ronald L. Gilman, a Democratic appointee, dissented, saying the plaintiffs had "articulated an actual or imminent harm" flowing from the surveillance program and thus were entitled to their day in court. That program, Gilman wrote, "forces them to decide between breaching their duty of confidentiality to their clients and breaching their duty to provide zealous representation. Neither position is tenable."
Taylor had rejected the state secrets argument last year, saying Bush and other administration officials had acknowledged the program's existence after it was first revealed by The New York Times in December 2005.
Instead, Taylor had found that the wiretapping program violated the First and Fourth Amendments and the separation of powers doctrine and should be halted. Her ruling was stayed pending appeal.
Shortly before the 6th Circuit took up the case, the Bush administration announced that the program would be overseen by the Foreign Intelligence Surveillance Court - established in 1978 in response to revelations of widespread illegal spying against hundreds of Americans. Garre argued for the Justice Department that independent supervision of the program also made the plaintiffs' case moot.
Yesterday, Justice Department spokesman Brian Roehrkasse praised the ruling, saying it confirmed that the plaintiffs "cannot seek to expose sensitive details about the classified and important" surveillance program. White House spokesman Tony Fratto agreed, saying the appeals court had "properly determined that the plaintiffs had failed to show their claims were entitled to review in federal court."
The ACLU said it was reviewing all of its options, including the possibility of asking a larger panel of 6th Circuit judges to rehear the case or seeking review by the Supreme Court.
ACLU legal director Steven R. Shapiro said the plaintiffs were "deeply disappointed by today's decision that insulates the Bush administration's warrantless surveillance activities from judicial review and deprives Americans of any ability to challenge the illegal surveillance of their telephone calls and e-mails."
The ruling presents "a Catch-22," said Larry Diamond, a senior fellow at the Hoover Institute at Stanford University and one of the plaintiffs.
"If the court insists that a plaintiff must have certain knowledge that some of their messages were intercepted in order to have legal standing ... then no one can ever have standing because we can never know, since the program is secret," Diamond said.
Henry Weinstein writes for the Los Angeles Times.