A divided federal appeals court yesterday 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 may be impossible for any plaintiff to demonstrate injury from the highly classified wiretapping program, the effect of the ruling was to insulate it from judicial scrutiny. Thus, the program’s secrecy is proving to be its best legal protection.
The majority did not rule on the merits of the case, though the appeals court judge who wrote the lead opinion, Judge Alice M. Batchelder, said the case had provoked "a cascade of serious questions." She listed five, including whether the program violated a 1978 law, the Foreign Intelligence Surveillance Act, along with the First and Fourth Amendments to the Constitution.
A number of other challenges to the program have been consolidated before a federal judge in San Francisco, and the federal appeals court there, the Ninth Circuit, will hear an appeal from one of the [District Court] judge’s preliminary rulings next month.
Some of the plaintiffs in that case contend that they have been personally injured by the program, which if proved could give them standing to sue, even under yesterday’s ruling. Those plaintiffs, an Islamic charity and two of its lawyers, say they have seen a classified document confirming that their communications were actually intercepted.
A second Sixth Circuit judge, Judge Julia Smith Gibbons, concurred in the judgment dismissing the case yesterday 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 "the 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.
In his dissent 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 were lawyers did have standing.
Those lawyers said they had had to change the way they communicated with clients in the Middle East because they feared that their discussions would not be confidential.
Judge Batchelder was appointed by the first 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."