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In a rare victory for President Bush, the U.S. Court of Appeals for the 6th Circuit ordered the dismissal of a major lawsuit challenging the administration’s warrantless wiretapping program. The Washington Post reports the decision overruled a single judge who held that a controversial surveillance effort by the National Security Agency was unconstitutional. The other two members of the three-judge panel disagreed, dismissing the lawsuit that challenged the wiretapping. President Bush supports secret eavesdropping on communications involving potential terrorists.  

The Post’s Amy Goldstein writes:

The court did not rule on the spying program’s legality. Instead, it declared that the American Civil Liberties Union and the others who brought the case — including academics, lawyers and journalists — did not have the standing to sue because they could not demonstrate that they had been direct targets of the clandestine surveillance. The decision vacates a ruling in the case made last August by a U.S. District Court judge in Detroit, who ruled that the administration’s program to monitor private communications violated the Bill of Rights and a 1970s federal law.

Yesterday’s action in the 6th Circuit means that the principal remaining legal challenge to the NSA surveillance program is a group of cases pending before a U.S. District Court judge and the U.S. Court of Appeals for the 9th Circuit in California. The primary issue before that appeals court, differing somewhat from that in the Michigan case, is whether the administration may claim that a privilege covering state secrets precludes the litigation. The eavesdropping program — first revealed by news accounts in late 2005 and the subject of intense political wrangling since then — is one aspect of a broad assertion of presidential power by Bush in the past six years to justify policies meant to deter terrorism here and abroad. 

As first devised, the program allowed the NSA to intercept telephone calls and e-mail between the United States and overseas in which at least one party was suspected to be affiliated with al-Qaeda or related groups, without the court approval typically required for government wiretaps, administration officials said. The program prompted vehement objections from privacy advocates and many Democrats, who contended that it was illegal because it bypassed a secret court, created under the 1978 Foreign Intelligence Surveillance Act (FISA), to provide judicial oversight of clandestine surveillance within the United States. 

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Tony Fratto, the deputy White House press secretary, expressed satisfaction with the decision, “We have always believed that the district court’s decision declaring the Terrorist Surveillance Program unconstitutional was wrongly decided,” Mr. Fratto said in a statement. “The court of appeals properly determined that the plaintiffs had failed to show their claims were entitled to review in federal court.”  

The plaintiffs, represented by the American Civil Liberties Union, were “deeply disappointed.” Steven R. Shapiro, the organization’s legal director said, “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.” 

The Justice Department’s contends that the surveillance is “an essential tool for the intelligence community” in the nation’s war on terror, calling the program “a critical tool that ensures we have in place an early warning system to detect and prevent a terrorist attack.” “In the ongoing conflict with al Qaeda and its allies, the president has the primary duty under the Constitution to protect the American people,” the department said. “The Constitution gives the president the full authority necessary to carry out that solemn duty, and we believe the program is lawful and protects civil liberties.”

Conservative websites are hailing the decision a victory. While the left end of the political spectrum decries it as yet another step in the creep towards fascism. Officials at the Department of Justice must be breathing a sigh of relief, even if it is only a brief respite from the beating Attorney General Gonzalez and the Deaprtment have been taking in the press. But this win will probably not diminish the increasing popular and covert pressure on Gonzalez to resign. He’s on his way out. It’s just a matter of time.

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