Appeals Court Panel Supports Bush’s Wiretap Program
DETROIT _ A Detroit judge’s decision to scuttle the Bush administration’s program of eavesdropping without warrants was dealt a major setback Friday by a federal appeals court panel, but experts predict that the legal battle is far from over.
Despite the 2-1 ruling by the U.S. 6th Circuit Court of Appeals, which said the American Civil Liberties Union and its co-plaintiffs lack legal standing to challenge the antiterrorism program, experts predicted that the plaintiffs would take the fight to the entire appeals court, or ask the U.S. Supreme Court to hear the case.
“The ACLU has devoted a lot of resources to this case, and I expect they will continue fighting,” said Carl Tobias, a University of Richmond law professor who has followed the lawsuit. But Tobias and other experts said the ACLU’s efforts might be doomed by the conservative slant of the U.S. 6th Circuit and the U.S. Supreme Court.
ACLU officials said they were disappointed, but stopped short of announcing their next move.
“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,” said ACLU Legal Director Steven Shapiro.
Shapiro stressed that the decision didn’t uphold the legality of the program, only whether the ACLU and other organizations and individuals involved in the suit had legal standing to challenge the program, which the Bush administration created to combat terrorism after the Sept. 11, 2001, attacks.
Under the program, the government monitored international phone calls and e-mails of Americans suspected of communicating with al-Qaida operatives.
The White House cheered Friday’s decision.
“We have always believed that the district court’s decision declaring the terrorist surveillance program unconstitutional was wrongly decided,” said spokesman Tony Fratto.
In January, the administration announced that it had abandoned the warrantless phase of the program and was seeking warrants from the Foreign Intelligence Surveillance Court in Washington, D.C. It remained unclear whether Friday’s ruling would prompt the administration to resume eavesdropping without warrants.
In the ruling, Circuit Judge Alice Batchelder, a Republican appointee, said the groups lacked standing to sue the National Security Agency because they couldn’t prove the program had harmed them, making them eligible to sue. She said the state secrets doctrine, which the government invoked to keep details of the program under wraps, blocked the disclosure of any evidence that might have helped the plaintiffs.
Although the plaintiffs said the eavesdropping program had a chilling effect on their ability to communicate with people overseas, Batchelder stressed: “The alternative possibility remains that the NSA might not be intercepting, and might never actually intercept, any communication by any of the plaintiffs named in the lawsuit.”
Another Republican appointee, Judge Julia Smith Gibbons, issued a concurring opinion.
Judge Ronald Lee Gilman, a Democratic appointee, dissented, saying the so-called Terrorist Surveillance Program was illegal. He said U.S. District Judge Anna Diggs Taylor of Detroit was correct in declaring the program unconstitutional last August. He said the government argued that, even though the White House had suspended the program, it could be restarted at any time.
Unless the ACLU appeals, the case will be sent back to Taylor for dismissal.
The program came to light in December 2005 following a series of stories in the New York Times.
Soon thereafter, the administration acknowledged that it was eavesdropping on overseas phone calls and e-mails involving those suspected of being al-Qaida operatives.
In January 2006, the ACLU, the Council on American-Islamic Relations, Greenpeace, the National Association of Criminal Defense Lawyers, and individuals, including lawyers, scholars and journalists sued the NSA on the grounds that the program was hurting their ability to communicate with clients, conduct research and engage in advocacy. They asked Taylor to declare the program unconstitutional.
Taylor, a Democratic appointee, did so, permanently barring the government last August from eavesdropping without first obtaining a warrant from the Foreign Intelligence Surveillance Court. She said the program violated Americans’ free speech and privacy rights, their right against unreasonable searches and seizures and the separation of powers doctrine of the Constitution, which created checks and balances among the executive, legislative and judicial branches.
The 1978 law that created the Foreign Intelligence Surveillance Court gives the administration the authority to eavesdrop for up to 15 days without requesting a warrant, or up to a year if the attorney general certifies in writing and under oath that the surveillance is directed solely at a foreign power. The law also lowered the amount of evidence required to get a warrant.
Between 1978 and 2004, the government submitted nearly 19,000 surveillance requests to the Foreign Intelligence Surveillance Court, which denied only four applications and granted 180 with modifications.
The Bush administration insisted that the warrantless spying program was a vital tool in the war on terror and appealed Taylor’s decision to the U.S. 6th Circuit Court of Appeals, a court in Cincinnati that handles appeals from Michigan. The appeals court stayed Taylor’s decision until it could review it.
Experts like Robert Sedler, a constitutional law professor at Wayne State University, predicted that the battle is over.
“I think this is the end of the matter,” Sedler said. “I tell my students that no matter how good your claim is, if you don’t have standing, you won’t get it litigated.”
He said the ACLU is facing long odds or persuading the full 6th Circuit to overturn the decision or the U.S. Supreme Court to hear the case given the White House’s announcement that it now is obtaining warrants to eavesdrop on terrorism suspects.
But Sedler said Taylor’s decision was important because it helped persuade the administration to obtain warrants.
Rep. John Conyers, D-Mich., said Friday’s decision underscores “the critical need for congressional oversight” on such programs.
Conyers, who chairs the House Judiciary Committee, said the dismissal wasn’t a complete disappointment because the case helped force the administration to change its strategy regarding the terrorist surveillance program.
“We’re still trying to learn what they did before and what they’re doing afterward,” the Detroit Democrat said.
Last week, the Senate Judiciary Committee issued subpoenas to obtain documents about the program. The administration has until July 18 to comply.
Dawud Walid, head of the Michigan branch of the Council on American- Islamic Relations, a nonprofit civil rights and advocacy group that was co-plaintiff, said: “It’s a shame that the court overturned the decision . . . What the executive branch was doing was unconstitutional.”
“We’re not against surveillance,” he said, but against the way the program was conducted.
Another co-plaintiff, Nabih Ayad, a lawyer who said the program has hampered his ability to confer with overseas clients, said: “This is a sad day for our justice system. . . . We pride ourselves in this country on being a beacon of freedom and a beacon of civil liberties. How can we set an example for the world when we’re not even holding up our own Constitution?”
Detroit attorney William Swor, another plaintiff, said he was pleased that “at least one judge understood the arguments” of the plaintiffs.
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