[Infowarrior] - Appeals Court Tosses Anti-NSA Spying Suit

[Richard Forno]

Appeals Court Tosses Anti-NSA Spying Suit
By Ryan Singel EmailJuly 06, 2007 | 11:29:19 AMCategories: Privacy,
Surveillance, The Courts

http://blog.wired.com/27bstroke6/2007/07/appeals-court-t.html

A federal appeals court threw out a ruling that the government's
warrant-free spy program was unconstitutional Friday, finding that the
ACLU's plaintiffs had no standing to bring suit against the National
Security Agency program since they couldn't prove they were spied upon.

That program, revealed in December 2005 by the New York Times, eavesdropped
on certain emails and phone calls that involved Americans on American soil
conversing internationally with persons the government said it had some
reason to suspect had ties to terrorism.

The Administration ran the program, dubbed the Terrorist Surveillance
Program, outside the purview of the secret court set up to watch over
foreign intelligence wiretaps that involve Americans or happen on U.S. soil,
an end run that many civil libertarians called illegal.  The Administration
says the president's wartime powers allow him to wiretap anyone
unilaterally.

The Sixth Circuit Court of Appeals decision (.pdf)reverses a controversial
ruling from last August by Detroit U.S. District Court judge Anna Diggs
Taylor.  Taylor ruled the spying program "violates the Separation of Powers
doctrine, the Administrative Procedures Act, the First and Fourth Amendments
to the United States Constitution, the Foreign Intelligence Surveillance Act
and Title III (of the Constitution)."

While civil liberties groups were publicly ecstatic with Diggs Taylor's
August ruling, privately they conceded that the decision had legal flaws and
would face tough scrutiny upon appeal.

The plaintiffs in the case, which included civil rights lawyers and
journalists such as James Bamford -- the nation's premier chronicler of the
ultra-secret NSA -- argued that it was likely that their calls had been
spied on and that the possibility their conversations might be snooped on
produced a "chilling effect" -- essentially making them self-censor
themselves.

The Sixth Circuit's 2-1 majority decision, written by Judge Alice
Batchelder, says that's not enough for the plaintiff's to have the right to
sue the government over the program, and sent the case back down to the
district court for dismissal.

    By refraining from communications (i.e., the potentially harmful
conduct), the plaintiffs have negated any possibility that the NSA will ever
actually intercept their communications and thereby avoided the anticipated
harm ‹ this is typical of declaratory judgment and perfectly permissible.
Therefore, the injury that would support a declaratory judgment action
(i.e., the anticipated interception of communications resulting in harm to
the contacts) is too speculative, and the injury that is imminent and
concrete (i.e., the burden on professional performance) does not support a
declaratory judgment action.

Judge Ronald Lee Gilman dissented, finding not only that the plaintiffs had
standing, but that the surveillance program was illegal:

    The closest question in this case, in my opinion, is whether the
plaintiffs have the standing to sue. Once past that hurdle, however, the
rest gets progressively easier. Mootness is not a problem because of the
government¹s position that it retains the right to opt out of the FISA
regime whenever it chooses. Its AUMF and inherent-authority arguments are
weak in light of existing precedent and the rules of statutory construction.
Finally, when faced with the clear wording of FISA and Title III that these
statutes provide the ³exclusive means² for the government to engage in
electronic surveillance within the United States for foreign intelligence
purposes, the conclusion becomes inescapable that the TSP was unlawful.

The ACLU is likely to appeal for a hearing by a full panel of Sixth Circuit
judges and if that fails then up to the Supreme Court.

Standing is also an issue in the more than 50 lawsuits pending in a San
Francisco District Court against the nation's telecoms, but at least one
suit still ongoing against the government may be able to clear that hurdle.

Wendell Belew, a lawyer who represented a now banned Ashland, Oregon Muslim
charity, says the government accidentally provided him with proof his
conversations were eavesdropped on without a warrant.  His case has a
hearing in the Ninth Circuit Court of Appeals in August.  The government
wants his, and all the other cases, thrown out, arguing they endanger
national security.

Analysis: Orin Kerr; Jonathan Adler; Marty Lederman

Updated to reflect that the ACLU can appeal for a full hearing in the Sixth,
before appealing to Supreme Court