Saturday, July 07, 2007

Federal Appeals Court Panel Dismisses Suit Challenging NSA Wiretaps

July 7, 2007

Panel Dismisses Suit Challenging Secret Wiretaps

New York Times

A divided federal appeals court yesterday dismissed a case challenging the National Security Agency’s program to wiretap without warrants the international communications of some Americans, reversing a trial judge’s order that the program be shut down.

The majority in a three-judge panel of the United States Court of Appeals for the Sixth Circuit, in Cincinnati, ruled on a narrow ground, saying the plaintiffs, including lawyers and journalists, could not show injury direct and concrete enough to allow them to have standing to sue.

Because it may be impossible for any plaintiff to demonstrate injury from the highly classified wiretapping program, the effect of the ruling was to insulate it from judicial scrutiny. Thus, the program’s secrecy is proving to be its best legal protection.

The majority did not rule on the merits of the case, though the appeals court judge who wrote the lead opinion, Judge Alice M. Batchelder, said the case had provoked “a cascade of serious questions.” She listed five, including whether the program violated a 1978 law, the Foreign Intelligence Surveillance Act, along with the First and Fourth Amendments to the Constitution.

“The district court answered all of these questions in the affirmative,” Judge Batchelder wrote, “and imposed an injunction of the broadest possible scope.”

That statement might have been an implicit criticism of the decision under review, issued last year by Judge Anna Diggs Taylor of Federal District Court in Detroit. Judge Taylor’s ruling, which was stayed during the appeal, had attracted criticism from across the political spectrum. Legal experts said it overlooked important precedents, failed to engage some of the government’s arguments and relied on novel constitutional arguments where more straightforward ones were available.

A number of other challenges to the program have been consolidated before a federal judge in San Francisco, and the federal appeals court there, the Ninth Circuit, will hear an appeal from one of the judge’s preliminary rulings next month.

Some of the plaintiffs in that case contend that they have been personally injured by the program, which if proved could give them standing to sue, even under yesterday’s ruling. Those plaintiffs, an Islamic charity and two of its lawyers, say they have seen a classified document confirming that their communications were actually intercepted.

A second Sixth Circuit judge, Judge Julia Smith Gibbons, concurred in the judgment dismissing the case yesterday but did not join in Judge Batchelder’s extensive and technical discussion of whether the plaintiffs had standing to sue. Judge Gibbons agreed, however, that the case turned “upon the single fact that the plaintiffs have failed to provide evidence that they are personally subject to the program.”

She added that “the plaintiffs are ultimately prevented from establishing standing because of the state secrets privilege,” a legal doctrine that requires courts to limit or dismiss cases when allowing them to proceed would disclose information harmful to national security. Judge Batchelder did not discuss the privilege.

In his dissent yesterday, Judge Ronald Lee Gilman wrote that the issue of the plaintiffs’ standing presented “the closest question in this case.” But he wrote that at least the plaintiffs who were lawyers did have standing.

Those lawyers said they had had to change the way they communicated with clients in the Middle East because they feared that their discussions would not be confidential.

“To my mind,” Judge Gilman wrote, “the attorney-plaintiffs have articulated an actual or imminent harm” because the program “puts them in the position of abrogating their duties under applicable professional-responsibility rules if they communicate with clients and contacts via telephone and e-mail.”

Standing, Judge Gilman wrote, is the hard part. “Once past that hurdle,” he said, “the rest gets progressively easier.”

Judge Gilman also put some distance between his views and those of Judge Taylor. “Without expressing an opinion concerning the analysis of the district court,” he wrote, “I would affirm its judgment.”

In January, not long before the appeal was argued, the White House announced that it would submit the N.S.A. program for supervision by a secret court, the Foreign Intelligence Surveillance Court. Judge Gilman, the only judge to address the significance of that move, discounted it. He said that the administration had reserved the right to resume surveillance without warrants and that the appeal was therefore not moot.

Judge Batchelder was appointed by the first President George Bush, Judge Gibbons by President George W. Bush and Judge Gilman by President Bill Clinton. Judge Taylor, the district court judge, was appointed by President Jimmy Carter.

Tony Fratto, the deputy White House press secretary, expressed satisfaction with the decision.

“We have always believed that the district court’s decision declaring the Terrorist Surveillance Program unconstitutional was wrongly decided,” Mr. Fratto said in a statement. “The court of appeals properly determined that the plaintiffs had failed to show their claims were entitled to review in federal court.”

The plaintiffs were represented by the American Civil Liberties Union.

“We are deeply disappointed,” the group’s legal director, Steven R. Shapiro, said in a statement, “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.”

Mr. Shapiro said the A.C.L.U. was weighing its options, including the possibility of appealing to the Supreme Court.

Legal experts said the standing question was a substantial and difficult one.

“It’s probably right,” Orin S. Kerr, a law professor at George Washington University, said of the appeals court’s decision. “The day this lawsuit was filed most people would have predicted this result.”

Cass R. Sunstein, a law professor at the University of Chicago, said courts often relied on doctrines like standing “to avoid entering into politically hot controversies.”

“This, for at least two of the judges, was a very sensitive, substantive issue,” Professor Sunstein added, referring to the legality of the N.S.A. program, “which, once they get into it, is an uphill fight for the government.”

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