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Court dismisses suit challenging domestic spying

  • Story Highlights
  • Court: Plaintiffs can't prove they were targets, have no legal standing to sue
  • Plaintiffs said they had no access to electronic records to prove it
  • ACLU challenged president's program that allows wiretaps without court order
  • Administration secretly instituted program after September 11, 2001, attacks
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From Bill Mears
CNN Washington Bureau
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WASHINGTON (CNN) -- A federal appeals court Friday ordered the dismissal of an ACLU lawsuit challenging President Bush's domestic surveillance program.

President Bush secretly instituted the National Security Agency's domestic spying program after 9/11.

The plaintiffs -- a group of journalists, scholars and legal advocates -- had no legal standing to pursue their claims because they could not show they were targeted by the National Security Agency's warrantless spying program, the court decided in a 2-1 vote.

"They cannot establish they are 'aggrieved persons,'" wrote Judge Alice Batchelder, of the 6th U.S. Circuit Court of Appeals in Cincinnati.

The ACLU argued it was in a legal tightrope, trying to prove its members were being spied on without access to electronic records that could support the claim.

The court ordered a federal judge in Detroit to formally dismiss the lawsuit, which was filed in January 2006. This was the first appeals ruling to address the program. The ruling did not address the larger constitutional questions of whether the NSA program is legal, or the limits on permissible warrantless surveillance.

The administration secretly instituted the program after the September 11, 2001, attacks on New York and Washington. It gives the NSA authorization to conduct wiretaps without a court order.

Judge Anna Diggs Taylor struck down the program last August, saying it violated the rights to free speech and privacy under the First and Fourth amendments. She said is also violated the Foreign Intelligence Surveillance Act, or FISA, which Congress passed in 1978.

The 6th Circuit allowed the program to continue, giving the government time to appeal. The appeals court's ruling allows the NSA to continue its activities, including monitoring Americans' phone calls and e-mails without warrants.

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Electronic surveillance programs run by the NSA have been under fire since December 2005, when The New York Times disclosed that the government was listening in on international phone calls involving people suspected of having ties to terrorists.

Some legal scholars said the program is an illegal and unwarranted intrusion on Americans' privacy, but the Bush administration has defended it as necessary in the battle against the al Qaeda terrorist network.

A special federal court, which meets in secret, has been in place since the 1970s to decide whether to approve warrants for national security surveillance. The government argues that it has the right to bypass that FISA court when there is an imminent security threat.

The plaintiffs in the dismissed case alleged that their communications with parties outside the country were being monitored by the NSA's wiretapping program. The original complaint said the NSA's surveillance disrupts "the ability of the plaintiffs to talk with sources, locate witnesses, conduct scholarship, and engage in advocacy."

Plaintiffs in this case included branches of the ACLU, the National Association of Criminal Defense Lawyers, the Washington and Detroit branches of the Council on American-Islamic Relations and Greenpeace.

"We are deeply disappointed by today's decision," said ACLU Legal Director Steven R. Shapiro. "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."

Sen. Patrick Leahy, D-Vermont, also criticized the decision, calling it "a disappointing one that was not made on the merits of the case, yet closed the courthouse doors to resolving it."

He added a plea for the Bush administration to supply information Congress has asked for relating to the surveillance program.

"There is a dark cloud over the White House's warrantless wiretapping program, and a full response to the outstanding subpoena from the Senate Judiciary Committee by this administration would be a good start to clearing the air," he said.

Both the White House and the Justice Department welcomed the decision. "The Court of Appeals properly determined that the plaintiffs had failed to show their claims were entitled to review in federal court," said Tony Fratto, deputy White House press secretary.

The ACLU and its supporters now have the option of going to the Supreme Court. E-mail to a friend E-mail to a friend

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