July 6, 2007 1:30 PM PDT

Appeals court dismisses suit against NSA spy program

In a setback for foes of a controversial Bush administration wiretapping program, a federal appeals court on Friday threw out an American Civil Liberties Union lawsuit that alleged illicit snooping on Americans' calls and e-mails.

In a 2-1 decision (PDF), the 6th Circuit Court of Appeals in Cincinnati dismissed a federal district court ruling from last August that found the National Security Agency's Terrorist Surveillance Program violated the U.S. Constitution and ordered it to stop. The majority's ruling did not address the legality of the program; rather, it tossed out the case on narrow procedural grounds.

The move marked the first time an appeals court has weighed in on the numerous pending challenges to the spy program. Friday's decision isn't expected to have any direct impact on two related cases pending in the 9th Circuit Court of Appeals and more than 40 others that have been consolidated for consideration in a San Francisco district court.

"It is important to emphasize that the court today did not uphold the legality of the government's warrantless surveillance activity."
--Steven Shapiro, ACLU legal director

The U.S. Department of Justice was quick to praise Friday's decision, which it said "confirms that plaintiffs in this case cannot seek to expose sensitive details about the classified and important Terrorist Surveillance Program."

The agency already succeeded last July in shutting down another ACLU suit, which accused AT&T of illegally divulging the telephone records of its customers to government spies, by asserting that allowing the case to move forward would imperil national security. (By contrast, a federal judge in California hasn't allowed that argument to halt another suit against AT&T involving the Electronic Frontier Foundation.)

ACLU Legal Director Steven Shapiro said his organization had not ruled out petitioning the U.S. Supreme Court for another look at the 6th Circuit's action.

"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," Shapiro said in a statement. "It is important to emphasize that the court today did not uphold the legality of the government's warrantless surveillance activity."

The ACLU and the journalists, scholars, criminal defense attorneys and Islamic-Americans it represented had argued that the NSA program, which came to light in a November 2005 New York Times report, was trampling on federal laws and the plaintiffs' constitutional rights to free speech and privacy.

Their arguments rested on what they called a "well-founded belief" that the government was tapping their regular overseas communications--some of which, because of the nature of the plaintiffs' professions, they have an ethical duty to keep confidential--without the necessary court approval.

Judges Alice Batchelder and Julia Smith Gibbons, both appointed by President Ronald Reagan, concluded in separate opinions that the parties that sued the NSA didn't have standing to bring their case in the first place. They ordered that the suit be sent back to a lower court and roundly dismissed.

The two judges' reasoning, which differs at times, boils down to one general result: the parties that sued the NSA hadn't shown adequate evidence that they have been "personally" subject to the eavesdropping program. Even if the plaintiffs had wanted to supply evidence to back such a claim, they would have been stymied by the government's assertion of its "state secrets" privilege, which permits the derailing of lawsuits that might otherwise lead to the disclosure of military secrets.

"Evidence arguably protected by the state secrets privilege may well be relevant to the reasonableness of the plaintiffs' fear," Gibbons wrote. "Whether that evidence is favorable to plaintiffs or defendants, its unavailability requires dismissal (of the case)."

CONTINUED: Dissenting opinion…
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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 )
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