July 6, 2007 1:30 PM PDT

Appeals court dismisses suit against NSA spy program

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Judge Ronald Lee Gilman, who was appointed by President Bill Clinton, said he fundamentally disagreed with his colleagues' stance. He wrote that he would have chosen to uphold Judge Anna Diggs Taylor's determination last summer that the NSA program violated a 1978 law known as the Foreign Intelligence Surveillance Act, which requires court approval when wiretapping for foreign intelligence gathering is conducted inside the United States.

As for whether the plaintiffs had standing to bring the case at all, Gilman cited a string of earlier court cases that he said showed it unnecessary for the plaintiffs to provide evidence that their communications had been intercepted by the NSA. In an earlier case, "all that was required was that they demonstrate that...they possessed a reasonable fear of harm," Gilman wrote. "This holds equally true for the attorney-plaintiffs in the present case."

The appeals court's move may come as little surprise to some who analyzed Taylor's opinion last year. A handful of academics and pundits who had voiced reservations about the legality of the NSA program--including The Washington Post's editorial board--argued that the judge's rhetoric was too angry and full of holes to make any lasting impact.

Jim Dempsey, policy director for the Center for Democracy and Technology, which has vocally opposed the warrantless surveillance program, said the court's conclusion wasn't surprising given what he called a pattern of conservative courts "steadily erecting barriers to lawsuits that challenge executive branch action" during the last few decades.

"Anybody who follows what's been going on in the courts knows that the courts are becoming increasingly reluctant to hear suits brought by citizens challenging government action," he said in a telephone interview.

Electronic Frontier Foundation attorney Lee Tien said he didn't expect the ruling to have any direct effect on his group's case against AT&T, which is slated to be argued before the 9th Circuit Court of Appeals in August. Procedurally speaking, the decisions made by one circuit set no precedent for other circuits, and besides, by suing the government directly, the ACLU was in a very different position, he said.

"We have whistleblower evidence that is very different from kinds of statements the government has made," Tien said in a telephone interview.

The latest appeals court decision arrives barely a week after the U.S. Senate Judiciary Committee issued subpoenas to the Bush administration requesting a lengthy list of documents explaining the program's legal basis. Attorney General Alberto Gonzales and the White House have been stalwart in their defense of the once-secret program, but testimony this spring by a former Justice Department official indicated the feeling may not have been mutual throughout the agency.

Judiciary Committee Patrick Leahy (D-Vt.) called the appeals court decision "a disappointing one" because it left the question of the program's legality entirely unaddressed. He said Friday's decision makes it all the more important that Congress glean answers from the administration. At the moment, he said, "there is a dark cloud over the White House's warrantless wiretapping program."

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11 comments

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Ridiculous
My father was a counter-espionage agent for the OSS. So I know
the importance of secrecy, but the NSA has gone too far. The lower
court was right, these appeals judges are in the pocket of the
administration, or they'd see what's wrong with it.

"When fascism comes to America, it will be wrapped in an American
flag." - Sen. Huey Long
Posted by ewelch (767 comments )
Reply Link Flag
Really.......
Huey Long was called the King Fish for a reason. That is a bad
quote for your argument.

While I do have questions about the legality of the program in
question it should be noted that:

1). The Judges in this case were not wrong. You have to have a
reason to bring a suit. Call it a civil tort if you want but, it
doesn't make them wrong.

2). Even though american citizens are protected from warrant-
less wire taps (with this often being extended to resident aliens),
foreign citizens are not. Under that, this is probably not illegal if
it is limited to over seas communications.

Also, in reality, the NSA knows who they are looking for. They
know who is overseas scheming and plotting. If you call one of
those people, then your right to privacy is fore fit anyway (think
how easy it would be to get a warrant if you call a known
terrorist). For everybody else, they don't really have the time to
care and could probably care less.

I know that this is more of a principle matter but, we all need to
come back to reality.

As a comment on the article and in general:
I would like to see c-net bring in more people from the other
side of the issue. They did not really interview or get statements
from anybody with opposing opinions. This is essentially yellow
journalism. If you want to be a respected news organization,
you have to give both sides of an issue, even if one side is
unpopular. Remember, it is the popular sides that set up
dictatorships, not the unpopular ones usually.
Posted by beubanks7507 (49 comments )
Reply Link Flag
Addendum
Wikipedia page on Huey Long for those of you who are sure who he
is:
<a class="jive-link-external" href="http://en.wikipedia.org/wiki/Huey_Long" target="_newWindow">http://en.wikipedia.org/wiki/Huey_Long</a>

Here is the wikipedia page for the NSA wiretapping:
<a class="jive-link-external" href="http://en.wikipedia.org/wiki/NSA_wiretapping" target="_newWindow">http://en.wikipedia.org/wiki/NSA_wiretapping</a>
Posted by beubanks7507 (49 comments )
Link Flag
The road to hell...
nt
Posted by qwerty75 (1164 comments )
Link Flag
Vacuuming Up Data
The reality is that anyone and everyone is subject to priviliged communications monitoring by systems such as ECHELON at Menwith Hill Station in the U.K. Governments bypass domestic monitoring laws by setting up reciprocal arrangements with other governments. For example, the U.S. monitors its citizens' communications from the U.K., and the U.K. monitors its citizens communications from the U.S. By doing this, no domestic surveillance laws are broken. A byproduct of civilian surveillance is the ability to intercept and exploit information related to commerce, such as manufacturing trade secrets, and intra-governmental communcations, a concern recently raised by the French regarding their employees' use of Blackberry devices. It is naive to think that a few simplistic domestic lawsuits will have any impact at all on the decades long massive military-industrial espionage complex. There are trillions of dollars worth of investments in these systems. It is the ultimate high-stakes poker game.
Posted by Stating (869 comments )
Link Flag
Fractured Court
The opinion reads as if all three judges had an end result in mind. It's not likely the current version of the Supreme Court will grant cert. if filed. However, if the ruling had upheld the lower court decision, the Supreme Court would have granted cert. It's sad but true that the Supreme Court will consistently deny addressing an issue brought to them by an individual, yet the same issue brought to them by the government due to an adverse appellate decision will be granted.
Which is why the Feds hate the Ninth Circuit.
Posted by dayebreak (27 comments )
Reply Link Flag
Say what you will
about the wire tapping and the administration, but the fact is there has been no repeats of 9/11, so far. If it is only foreign conversations, then I say go for it.
Posted by suyts (824 comments )
Reply Link Flag
Giving up our freedoms just for a bit of safety is not a bargain.
If we must shred the Constitution to keep some silly little fanatics from killing a few people, we are better of with the fanatics.

Look at the number of people killed in 9/11, then look at the number of people who are killed by drunk drivers, cigarettes (First and second hand smoke), and such.

I was very near the Oklahoma City bombing. Friends of the family were killed. They gave there lives to protect and defend the Constitution.

If we fear the terrorists, or give up our freedoms to protect ourselves from them, they have won. Fear is the true enemy.
Posted by ralfthedog (1589 comments )
Link Flag
 

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