Appeals Court Tosses Anti-NSA Spying Suit

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 plaintiffs 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 government’s position that it retains the right to opt out of the [Foreign Intelligence Surveillance Act] regime whenever it chooses. Its [Authorization to Use Military Force] 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 [ed. note: domestic, criminal wiretaps] that these statutes provide the “exclusive means” for the government to engage in electronic surveillance within the United States for foreign intelligence purposes, the conclusion becomes inescapable that the [Terrorist Surveillance Program] 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