Illegal wiretaps ruled OK
Chicago Tribune
By Henry Weinstein
Tribune Newspapers: Los Angeles Times
Published July 7, 2007

A sharply divided federal appeals court in Cincinnati handed the Bush administration's warrantless surveillance program a major legal victory Friday, ruling that the American Civil Liberties Union and several other plaintiffs did not have standing to challenge the program.

The 2-1 decision by the 6th U.S. Circuit Court of Appeals sent the case back to a federal trial judge in Detroit and ordered her to dismiss the case, reversing a ruling the judge had issued last year that the program was unconstitutional.

Justice Department lawyers had urged the panel to throw out the case, saying that a full-fledged review of the government initiative launched after the Sept. 11, 2001, attacks would violate the "state secrets" doctrine. Established in 1953, it bars the discovery or admission of evidence that would expose information that the government maintains would harm national security.

At oral arguments in late January, Justice Department lawyer Gregory Garre argued that without such privileged information, none of the plaintiffs could establish standing to sue.

U.S. District Judge Anna Diggs Taylor had rejected the argument, saying that three publicly acknowledged facts about the government's surveillance program were sufficient to establish standing.

Taylor noted that the government had acknowledged, after the program was disclosed in a New York Times article in 2005, that it was eavesdropping on international telephone and e-mail communications in which at least one of the parties was suspected of having ties to Al Qaeda and that the surveillance was being conducted without warrants.

Taylor also ruled that the 4th Amendment prohibition against illegal searches and seizures was an absolute rule that required the government to obtain a warrant before conducting such surveillance.

But the 6th Circuit Court ruled that the plaintiffs had failed to show that they had been individually injured by the program, and therefore did not have standing to challenge the program in court.

Judge Alice Batchelder said the plaintiffs, who also included several lawyers and writers, could not "produce any evidence that any of their own communications have ever been intercepted" by the National Security Agency under the surveillance program.

Rather, Batchelder said, the plaintiffs had asserted "a mere belief" that their overseas contacts were the types of people being targeted by the NSA and consequently they had been subjected to illegal eavesdropping, and that the surveillance had led the NSA to discover and possibly disclose privileged information.

Justice Department lawyers also argued that the program was legal. They contended that when Congress authorized the use of military force after Sept. 11, it clearly contemplated that the president could conduct counterintelligence surveillance of the type used in the NSA program.

Garre asserted at the Jan. 31 oral argument in the 6th Circuit Court that it would be unprecedented for a U.S. court to say that a president did not have such power.

The plaintiffs said they had been injured by the surveillance program in three ways. They said it had hampered their ability to communicate with their overseas contacts because of their fear that the illegal surveillance might harm such contacts. The plaintiffs, particularly lawyers, said that made communicating with clients overseas more burdensome and costly, requiring them to travel overseas to meet with their contacts or to refrain from talking to them at all.

The plaintiffs also said the program had a "chilling effect" on their overseas contacts' willingness to talk to them.

And the plaintiffs asserted that the NSA had directly invaded their privacy.

But Batchelder, joined by Judge Julia Gibbons, said the plaintiffs conceded that "no single plaintiff can show [that he or she had been wiretapped]."

"Moreover, due to the State Secrets Doctrine, the proof needed ... to make such a showing is privileged," and therefore unavailable to the plaintiffs, Batchelder wrote.

The majority also rejected the plaintiffs' claims that their 1st Amendment rights had been violated. Judge Ronald Gilman dissented.

In a concurring opinion, Gibbons said the plaintiffs "can show nothing more than a fear [of] being subject to a government policy of surveillance." But Gilman's dissent said that the attorney plaintiffs in the case had "articulated an actual or imminent harm" flowing from the surveillance program. The 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."

ACLU legal director Steven Shapiro said the organization was "deeply disappointed by [Friday'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 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."

Brian Roehrkasse, a Justice Department spokesman, said the department was pleased with the ruling, "which confirms that plaintiffs in this case cannot seek to expose sensitive details about the classified and important" surveillance program.

The White House also applauded the ruling, saying the administration had believed all along that Judge Taylor in Detroit had "wrongly decided the case."

Sen. Patrick Leahy (D-Vt.), chairman of the Judiciary Committee, said he was troubled by the ruling.

"The court's decision is a disappointing one that was not made on the merits of the case, yet closed the courthouse doors to resolving it," he said. "I hope the Bush administration will finally provide the information requested by Congress regarding the constitutional and legal questions about this program so that those of us who represent the American people can get to the bottom of what happened and why."

Several other cases challenging the program are pending in federal court in San Francisco.

Copyright © 2007, Chicago Tribune

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