A federal appeals court removed a serious legal challenge to the Bush administration’s warrantless wiretapping program yesterday, overruling the only judge who held that a controversial surveillance effort by the National Security Agency was unconstitutional, the Washington Post reports.
Two members of a three-judge panel of the Cincinnati-based U.S. Court of Appeals for the 6th Circuit ordered the dismissal of a major lawsuit that challenged the wiretapping, which President Bush authorized secretly to eavesdrop on communications involving potential terrorists shortly after the Sept. 11, 2001, attacks.
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.