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Court orders dismissal of U.S. wiretapping lawsuit

Divided appeals court says plaintiffs weren't harmed by surveillance program

By Grant Gross
July 6, 2007 12:00 PM ET

IDG News Service - WASHINGTON -- A U.S. appeals court has ordered the dismissal of a lawsuit against the U.S. National Security Agency for a wiretapping program because it said 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 today that the lawsuit, brought by the American Civil Liberties Union 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 had been affected by the NSA's Terrorist Surveillance Program, authorized by President Bush in 2002. The program allowed the NSA to monitor communications between U.S. residents and people in other countries with suspected ties to the 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, 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, 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.

Reprinted with permission from Story copyright 2014 International Data Group. All rights reserved.
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