Court supports Bush on wiretaps

Times Staff Writer

A federal appeals court on 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 U.S. 6th 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 U.S. District Judge Anna Diggs Taylor to dismiss the case, but it did not rule on the program’s legality.

After the Sept. 11 terrorist attacks, President Bush authorized the National Security Agency to eavesdrop on phone calls and e-mails into and out of the United States involving a terrorism suspect, without obtaining warrants from a special surveillance court.

Judges Alice M. Batchelder and Julia Smith Gibbons of the 6th Circuit, both Republican appointees, said no single plaintiff could prove that he or she had been wiretapped and had therefore suffered harm -- the legal standing necessary to go to court.


If Friday’s ruling stands, it effectively would bar any challenge to what has been one of the Bush administration’s most controversial initiatives.

Several other cases challenging the surveillance program are pending before the U.S. 9th Circuit Court of Appeals in San Francisco -- all but one involving the same issue of standing. Though the 9th Circuit will have to consider Friday’s ruling, it is not bound by that decision.

The wiretapping case is one of several instances in which Bush’s critics have challenged his assertions of executive authority in the war on terrorism. Last week, the Supreme Court agreed to take up the issue of whether prisoners at the U.S. military facility in Guantanamo Bay, Cuba, have the right to challenge their detentions in federal court.

While maintaining that the Terrorist Surveillance Program was legal, federal 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, had alleged only “speculative” harm done to them, which would be insufficient standing for them 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.”)

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

The ruling presents “a Catch-22,” said Larry Diamond, a senior fellow at the Hoover Institution at Stanford University and one of the plaintiffs.


“If the court insists that a plaintiff must have certain knowledge that some of their messages were intercepted in order to have legal standing ... then no one can ever have standing because we can never know, since the program is secret,” Diamond said.

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

In the dissent, Judge Ronald L. Gilman, a Democratic appointee, said the plaintiffs had “articulated an actual or imminent harm” 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.”

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.


Taylor had found that the wiretapping program violated the 1st and 4th Amendments and the separation-of-powers doctrine and should be halted. Her ruling was stayed pending appeal.

Shortly before the 6th Circuit took up the case, the Bush administration had announced that the program would be overseen by the Foreign Intelligence Surveillance Court, which was established in 1978 in response to revelations of widespread illegal spying against hundreds of Americans.

Garre of the Justice Department had also argued that independent supervision of the program made the plaintiffs’ case moot.

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 that the appeals court had “properly determined that the plaintiffs had failed to show their claims were entitled to review in federal court.”


The ACLU said Friday that it was reviewing all of its options, including the possibility of asking a larger panel of 6th Circuit judges to rehear the case or seeking review by the Supreme Court. ACLU Legal Director Steven R. Shapiro said the plaintiffs were “deeply disappointed by today’s decision that insulates the Bush administration’s warrantless surveillance activities from judicial review and deprives Americans of any ability to challenge the illegal surveillance of their telephone calls and e-mails.”

Diamond, of Stanford, said it was a no-win situation.

“It seems reasonable on basic grounds of democracy and on legal grounds that people who had plausible reasons to believe their messages were intercepted should have sufficient grounds to raise this issue,” he said.

“If we don’t, then no one ever does.”


Constitutional scholars were, like the court, split over Friday’s ruling, with conservative law professors praising the opinion and liberals decrying it.

“This is a very carefully reasoned opinion,” said Pepperdine University law professor Douglas W. Kmiec, and the court -- while not endorsing the surveillance program -- properly applied “the settled law of standing to illustrate that in the presence of the state secrets involved in this case, the injury to the plaintiffs is far too speculative to constitute an injury capable of redress by a federal court.”

Duke University law professor Erwin Chemerinsky countered that under the ruling “it is inconceivable that anyone will ever have standing to challenge” the surveillance program.

“It is deeply troubling that the government can engage in unconstitutional and illegal secret eavesdropping and that very secrecy then prevents a legal challenge,” Chemerinsky said.


Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) said he was troubled by the ruling because it “closed the courthouse doors” without getting to the merits of the case.

“I hope the Bush administration will finally provide the information requested by Congress regarding the constitutional and legal questions about this program so that those of us who represent the American people can get to the bottom of what happened and why,” Leahy said.

The committee has issued subpoenas to the administration seeking answers about the program; responses are due July 18.



Times staff writers James Gerstenzang and Richard Simon in Washington contributed to this report.