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Originally published July 7, 2007 at 12:00 AM | Page modified July 7, 2007 at 2:04 AM

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Court rejects domestic spying challenge

A federal appeals court ruled that plaintiffs who had challenged the Bush administration's domestic-spying program did not have legal standing to do so.

Los Angeles Times

The program

The National Security Agency's

Terrorist Surveillance Program was revealed by a series of stories in The New York Times in late 2005. President Bush authorized the program soon after the Sept. 11 attacks, allowing 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-Qaida or related terrorist groups, without the court approval typically required for government wiretaps. The government has kept details of the program confidential, saying it involves state secrets whose disclosure would threaten national security.

Seattle Times news services

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A federal appeals court Friday handed the Bush administration a major victory, ruling that plaintiffs who had challenged its domestic-spying program did not have legal standing to do so.

The 2-1 decision by the 6th U.S. Circuit Court of Appeals in Cincinnati sent the case back to a judge in Detroit, who last year ruled the program unconstitutional. The panel ordered District Court Judge Anna Diggs Taylor to dismiss the case but did not rule on the program's legality.

After the Sept. 11 attacks, President Bush authorized the National Security Agency (NSA) to monitor phone calls and e-mails between people in the United States and terrorism suspects abroad without obtaining warrants from a special surveillance court.

If Friday's ruling stands all the way through a possible Supreme Court review, it effectively would bar any challenge to what has been one of the Bush administration's most controversial initiatives.

There are several other cases challenging the surveillance program pending before the 9th U.S. Circuit Court of Appeals in San Francisco, all but one of which involve the same issue of legal standing. While the 9th Circuit will have to consider Friday's ruling, it is not bound by that decision.

The Terrorist Surveillance Program (TSP) prompted vehement objections from privacy advocates and many Democrats, who contended 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.

While maintaining that the surveillance program was legal, government lawyers in January urged the appellate court to throw out the case on technical grounds.

Justice Department attorney Gregory Garre argued that the plaintiffs, including the American Civil Liberties Union (ACLU), had alleged only "speculative" harm done to them, which would be insufficient to grant them standing to sue.

The only way the plaintiffs could find out whether they had been the targets of wiretapping, he said, was if they obtained information about the surveillance program, in violation of the "state secrets" privilege.

Established in 1953, the privilege bars the disclosure of information in court proceedings when "there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged."

But ACLU lawyer Ann Beeson asserted her clients had suffered "concrete harm" by having to forgo conversations with individuals who they reasonably believed might be the targets of government surveillance.

Judges Alice Batchelder and Julia Smith Gibbons of the 6th Circuit — both Republican appointees — agreed with the government, saying no single plaintiff could prove that he or she had been wiretapped and therefore had suffered the harm needed to go to court.

"The plaintiffs do not — and because of the State Secrets Doctrine cannot — produce any evidence that any of their communications have ever been intercepted by the NSA, under the TSP, without warrants," Batchelder wrote.

Rather, she said, the plaintiffs had asserted "a mere belief" that their overseas contacts were the types of people being targeted by the NSA.

Judge Ronald Gilman, a Democratic appointee, dissented, saying the plaintiffs had "articulated an actual or imminent harm" flowing from the surveillance program and thus were entitled to their day in court.

That 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."

Detroit's Taylor last year had rejected the state-secrets argument, saying Bush and other administration officials had acknowledged the program's existence after it was first revealed by The New York Times in December 2005.

Instead, Taylor had found that the wiretapping program violated the First and Fourth Amendments and the separation-of-powers doctrine and should be halted. Her ruling was stayed pending appeal.

In January, after Democrats gained control of Congress, the administration said it had abandoned the warrantless phase of the program and was seeking warrants from the Foreign Intelligence Surveillance Court in Washington.

It remained unclear whether Friday's ruling would prompt the administration to resume eavesdropping without warrants.

On Friday, Justice Department spokesman Brian Roehrkasse praised the ruling, saying it confirmed that the plaintiffs "cannot seek to expose sensitive details about the classified and important" surveillance program.

White House spokesman Tony Fratto agreed, saying the appeals court had "properly determined that the plaintiffs had failed to show their claims were entitled to review in federal court."

The ACLU on Friday said it was reviewing all of its options, including the possibility of asking a larger panel of 6th Circuit judges to re-hear the case or seeking review by the Supreme Court.

"This is a Catch-22," said Steven Shapiro, legal director of the ACLU.

"I think what in effect they're saying is that we can't tell you whether you have been wiretapped because that's a secret. And unless you know you've been wiretapped, you can't challenge that program."

Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., called the decision "a disappointing one that was not made on the merits of the case, yet closes the courthouse door to resolving it."

The committee has been conducting an investigation into the warrantless-wiretapping program.

Last month, the panel issued subpoenas to the administration, seeking documents related to the program's "authorization and legal justification."

The two lawsuits pending before California's 9th Circuit include Al-Haramain Islamic Foundation v. Bush, in which the plaintiffs, an Oregon branch of a Saudi Arabian charity that has been investigated for alleged terrorist ties, claim they have a document proving they were a direct target of NSA surveillance.

The other case, Hepting v. AT&T, has been brought on behalf some AT&T customers who allege that the telecommunications company intercepted their phone calls and e-mails and disclosed them to the NSA.

Some of the plaintiffs in that case contend they have been personally injured by the program, which if proved could give them standing to sue, even under Friday's ruling.

The two cases are scheduled to be heard Aug. 15.

Associated Press, Washington Post and Detroit Free Press material is included in this report.

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