By Amy Goldstein
Washington Post Staff Writer
Saturday, July 7, 2007
A federal appeals court removed a serious legal challenge to the Bush administration's warrantless wiretapping program yesterday, 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 for the 6th Circuit 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, it declared that the American Civil Liberties Union and the others who brought the case -- including academics, lawyers and journalists -- did not have the 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 made last August by a U.S. District Court judge in Detroit, who ruled that the administration's program to monitor private communications violated the Bill of Rights and a 1970s federal law.
Yesterday's action in the 6th Circuit means that the principal remaining legal challenge to the NSA 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 by Bush in the past six years to justify policies meant to deter terrorism here and abroad.
As first devised, the 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-Qaeda or related groups, without the court approval typically required for government wiretaps, administration officials said.
The program prompted vehement objections from privacy advocates and many Democrats, who contended that it was illegal because it bypassed a secret court, created under the 1978 Foreign Intelligence Surveillance Act (FISA), to provide judicial oversight of clandestine surveillance within the United States.
In January, after Democrats gained control of Congress, the administration abruptly shifted its position. Attorney General Alberto R. Gonzales announced that the surveillance program would be overseen by the FISA court. But administration officials have not described critical details of the new approach, including whether a separate warrant would be required for each instance of monitoring. Aides to Bush have asserted that the president retains the authority to conduct surveillance without court permission.
With the change in the program, the administration argued before the 6th Circuit that the case is moot. The two judges who made up the majority, both Republican appointees, did not address that issue. Judge Alice M. Batchelder, who wrote the 35-page main opinion, focused her lengthy analysis on why she concluded that the plaintiffs -- many of whom have professional ties with people and organizations suspected of terrorism -- do not have the legal standing to bring the lawsuit. She said the plaintiffs could not show that they had been injured directly by the surveillance.
Judge Ronald Lee Gilman, a Democratic appointee, disagreed. In a dissenting opinion, he concluded that the plaintiffs are entitled to sue because they felt a need to alter their communications after the program was disclosed. Gilman also wrote that the case is 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 federal law.
Administration officials lauded the 6th Circuit's decision. Deputy White House press secretary Tony Fratto called the lower court's finding that the program was unconstitutional "wrongly decided." Fratto said the appellate court "properly determined that the plaintiffs had failed to show their claims were entitled to review in federal court."
Steven R. Shapiro, the ACLU's legal director, said: "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." He said the ACLU is examining its options, including the possibility of an appeal to the Supreme Court.
Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) called the court decision "a disappointing one that was not made on the merits of the case, yet closes the courthouse door to resolving it." The panel has been conducting an investigation into the warrantless wiretapping program. Last month, it issued subpoenas to the administration, seeking documents related to the program's "authorization and legal justification."
The two lawsuits pending before the 9th Circuit include Al-Haramain Islamic Foundation, Inc. v. Bush, in which the plaintiffs, an Oregon branch of a Saudi charity that has been investigated for alleged terrorist ties and others, contend that they have a document proving they were a direct target of NSA surveillance. The other case, Hepting v. AT&T Corp., has been brought on behalf of a group of AT&T customers who allege that the company intercepted their phone calls and e-mails and disclosed them to the NSA.
The two cases are scheduled to be heard Aug. 15.
Staff writer Ellen Nakashima contributed to this report.