Saturday, July 07, 2007

Compassionate Conservativism

Further proof that under George W. Bush, the U.S. Military is no match for South Waziristan.

1 comment:

ptr said...

Good news!

Appeals Court Rejects Lawsuit on Surveillance


A divided federal appeals court today dismissed a case challenging the National Security Agency’s program to wiretap without warrants the international communications of some Americans, reversing a trial judge’s order that the program be shut down.

The majority in a three-judge panel of the United States Court of Appeals for the Sixth Circuit, in Cincinnati, ruled on a narrow ground, saying the plaintiffs, including lawyers and journalists, could not show injury direct and concrete enough to allow them to have standing to sue.

Because it is extremely difficult to show concrete injury from the highly classified program, the effect of the ruling was to insulate the program from judicial scrutiny in ordinary federal courts.

The majority did not rule on the merits of the case, though the appeals judge who wrote the lead opinion, Alice M. Batchelder, said the case provoked “a cascade of serious questions.” Those questions included whether the program violated a 1978 law, the Foreign Intelligence Surveillance Act, along with the Constitution’s First and Fourth Amendments.

But Judge Batchelder was implicitly critical of the decision last year by Judge Anna Diggs Taylor of the Federal District Court in Detroit, whose ruling striking down the program was stayed during the appeals. “The district court answered all of these questions in the affirmative,” Judge Batchelder wrote, “and imposed an injunction of the broadest possible scope.”

A second appeals court judge, Julia Smith Gibbons, concurred in the judgment dismissing the case but did not join in Judge Batchelder’s extensive and technical discussion of whether the plaintiffs had standing to sue. Judge Gibbons agreed, however, that the case turned “upon the single fact that the plaintiffs have failed to provide evidence that they are personally subject to the program.”

She added that “plaintiffs are ultimately prevented from establishing standing because of the state secrets privilege,” a legal doctrine that requires courts to limit or dismiss cases when allowing them to proceed would disclose information harmful to national security. Judge Batchelder did not discuss the privilege.

A number of other challenges to the program have been consolidated before a federal judge in San Francisco, and the federal appeals court in California, the United States Court of Appeals for the Ninth Circuit, will hear an appeal from one of the judge’s preliminary rulings next month.

Some plaintiffs in that case contend that they can prove standing even under the Sixth Circuit majority’s analysis. Those plaintiffs, an Islamic charity and two of its lawyers, say they have seen a classified document confirming that their communications were actually intercepted.

In dissent on the Detroit case yesterday, Judge Ronald Lee Gilman wrote that the issue of the plaintiffs’ standing presented “the closest question in this case.” But he wrote that at least the plaintiffs who are lawyers did have standing.

Those lawyers said they have had to change the way they communicate with clients in the Middle East because they feared that their discussions would not be confidential.

“To my mind,” Judge Gilman wrote, “the attorney-plaintiffs have articulated an actual or imminent harm” because the program “puts them in the position of abrogating their duties under applicable professional-responsibility rules if they communicate with clients and contacts via telephone and e-mail.”

Standing, Judge Gilman wrote, is the hard part. “Once part that hurdle,” he said, “the rest gets progressively easier.”

Judge Gilman also put some distance between his views and those of Judge Taylor. “Without expressing an opinion concerning the analysis of the district court,” he wrote, “I would affirm its judgment.”

In January, not long before the appeal was argued, the White House announced that it would submit the N.S.A. program for supervision by a secret court, the Foreign Intelligence Surveillance Court. Judge Gilman, the only judge to address the significance of that move, discounted it. He said the administration has reserved the right to resume warrantless surveillance and that the appeal was therefore not moot.

Judge Batchelder was appointed by President George Bush, Judge Gibbons by President George W. Bush and Judge Gilman by President Bill Clinton. Judge Taylor, the district court judge, was appointed by President Jimmy Carter.

The plaintiffs were represented by the American Civil Liberties Union.

“We are deeply disappointed,” the group’s legal director, Steven R. Shapiro, said in a statement, “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.”

Mr. Shapiro said the group is weighing its options, including the possibility of appealing to the United States Supreme Court.