A U.S. appeals court has ordered that a lawsuit against the U.S. National Security Agency (NSA) for a wiretapping program be dismissed because the plaintiffs haven't been hurt by the agency's actions.
A divided three-judge panel for the U.S. Court of Appeals for the Sixth Circuit ruled Friday that the lawsuit, brought by the American Civil Liberties Union (ACLU) and a group of journalists, lawyers, and academics, be sent back to a district court judge to be dismissed. In August 2006, Judge Anna Diggs Taylor of the U.S. District Court for the Eastern District of Michigan ruled the NSA program, which monitored telephone and Internet communications without court-ordered warrants, was illegal.
The appeals court ruled that the plaintiffs didn't prove they'd been affected by the NSA's Terrorist Surveillance Program, authorized by President George Bush in 2002. The program allowed the NSA to monitor communications between U.S. residents and people in other countries with suspected ties to terrorist group al Qaeda.
The plaintiffs argued, among other things, that the program violated the U.S. Constitution's Fourth Amendment, protecting U.S. citizens against unreasonable search and seizure. But none of the plaintiffs could prove their Fourth Amendment rights had been violated, wrote appeals court Judge Alice Batchelder.
"The plaintiffs cannot show they have been or will be subject to surveillance personally," Batchelder wrote.
The plaintiff's attempts to sue for other reasons, including violation of their First Amendment, free-speech rights, are a "thinly veiled ruse," the judge added. None of the plaintiffs has shown that their speech has been hindered, she wrote.
The U.S. Department of Justice (DOJ), which appealed the lower court ruling on behalf of the NSA, said it was pleased with the decision. The NSA program was "a vital intelligence program that helped detect and prevent terrorist attacks," Brian Roehrkasse, the DOJ's acting director of public affairs, said in a statement.
In January, the closed-door U.S. Foreign Intelligence Surveillance Court authorized the U.S. government to wiretap phone and Internet communications involving suspected terrorists, and the court-approved program replaced the NSA program.
The ACLU said it was "deeply disappointed" with the appeals court decision and will consider appealing to the U.S. Supreme Court.
"As a result of today's decision, the Bush administration has been left free to violate the Foreign Intelligence Surveillance Act (FISA), which Congress adopted almost 30 years ago to prevent the executive branch from engaging in precisely this kind of unchecked surveillance," ACLU legal director Steven Shapiro said in a statement.
Judge Ronald Lee Gilman disagreed with the two-judge majority, arguing that the NSA program violates FISA, which establishes wiretapping procedures, including warrants. "When faced with the clear wording of FISA ... the conclusion becomes inescapable that [the program] was unlawful," he wrote.
The appeals court decision leaves opponents of the NSA program in a difficult position, said Jim Dempsey, policy director of the Center for Democracy and Technology, a civil liberties group that has opposed the program.
The appeals court ruled that the plaintiffs could not sue because they can't prove they were affected by the program and at the same time ruled that details about the program, including who was targeted, are state secrets.
"We still don't know how many people were affected," Dempsey said.
If the courts aren't willing to challenge presidential authority, and Congress is unable to move ahead with its investigation of the NSA program, "then the president really is unchallenged," Dempsey added. "A democratic system should have checks and balances, and this decision says the judiciary will not play a role in that."
The appeals court decision does not affect another lawsuit still pending in California, in which the Electronic Frontier Foundation has sued AT&T, which allegedly participated in the NSA program.
This story was updated on July 6, 2007.