In the first appeals court ruling on the Bush Administration’s controversial electronic spying program, a divided Sixth Circuit Court on Friday ordered the case dismissed, finding that none of the challengers had proved they were personally subjected to the surveillance. The decision thus did not address the constitutionality of the program that sometimes reaches inside the U.S., although the dissenting judge found the program would have been invalid under the Foreign Intelligence Surveillance Act of 1978. Even so, the case does appear headed for the Supreme Court.

The American Civil Liberties Union, which filed the challenge, said in a statement that it was “currently reviewing all of our legal options, including taking this challenge to the U.S. Supreme Court.”

The case is American Civil Liberties Union, et al., v. National Security Agency, et al. (Circuit dockets 06-2095 and 06-2140). The opinion can be found here.

The controlling opinion was written by Circuit Judge Julia Smith Gibbons, whose concurring views were narrower in scope than either the 35-page lead opinion or the 24-page dissent; she joined the result only. The key to Judge Gibbons’ five-page opinion was that, because of the “state secrets privilege,” those who sued cannot gather the evidence that would show that they were targeted by the spying that sometimes reaches inside the U.S. — that is, the evidence necessary to show they have “standing” to sue.

“Under any understanding of constitutional standing,” Judge Gibbons wrote, those who sued “are ultimately prevented from establishing standing because of the state secrets privilege…The state secrets privilege operates as a bar to the admission of evidence to which the privilege attaches, and the plaintiff must proceed without the benefit of such evidence…Where the privilege prevents the plaintiff from producing sufficient evidence to establish his or her prima facie case, the court must dismiss the claim….The court cannot avoid the state secrets privilege.”

The concurring judge did not go along with a key part of the lead opinion written by Circuit Judge Alice M. Batchelder. In that opinion, Judge Batchelder indicated that those who sued could show standing to assert a First Amendment claim only if they could prove “that he or she is regulated, constrained, or compelled directly by the government’s actions, instead of by his or her own subjective chill.” Judge Gibbons said that, under that strict approach, no one would have been allowed to sue even if they had evidence that the spying program applied to their calls or e-mails. It was apparent she did not accept the Bachelder approach.

Judge Batchelder said the ruling depended solely upon publicly available information about the program, and noted that she had reviewed secret documents supplied by the government, but in no way relied upon them in writing the lead opinion. She said the case did not involve, at this stage, the validity of the government claim of a “state secrets privilege.” Both she and Judge Gibbons, though, considered it in discussing the standing question.

Judge Batchelder commented that the “possibility remains that the NSA might not be intercepting, and might never actually intercept, any communication by any of the plaintiffs named in this lawsuit.” (emphasis in original)

The NSA spying program, set up secretly by President Bush without court approval soon after the Sept. 11, 2001, terrorist attacks, targeted telephone and e-mail communications where one party in the monitored exchange was outside the U.S. and the NSA believed one of the parties was a terrorist tied to Al Qaeda. The President and other administration officials insisted that the program was essential to fight terrorism but, after widespread controversy over it, the program as originally carried out was dropped, and a new system of monitoring was begun with approval by a special federal court that sits at the Justice Department. The scope of that approval, and of the program now going on, remains secret.

The original program was challenged in federal court in Detroit by a group of journalists, academics and lawyers who regularly communicate with contacts overseas, and who fear those contacts have been monitored under the NSA program. U.S. District Judge Anna Diggs Taylor struck down the program last August, leading to cross-appeals in the Sixth Circuit. While Judge Taylor barred the program, the Sixth Circuit postponed that order while the appeal proceeded. Judge Taylor has now been ordered to dismiss the case for lack of jurisdiction.

After the secret Foreign Intelligence Surveillance Court issued new orders authorizing the NSA program in some still-unknown form, the Justice Department urged the Sixth Circuit to dismiss the challenge as moot. The Court did not rule on that issue, since it found no standing to bring the case at all. Contrary to the narrower tack taken by Judge Gibbons, Judge Batchelder’s lead opinion discussed dismissively the actual legal claims made in the lawsuit. While the lawsuit made six claims of illegal or unconstitutional action, they actually “have only one claim, namely, breach of privacy, based on a purported violation of the Fourth Amendment and FISA — i.e., the plaintiffs do not want the NSA listening to their phone calls or reading their emails. That is really all there is to it.” But, she went on, the plaintiffs, unable to show standing under the Fourth Amendment or FISA, recast their injuries “as a matter of free speech and association.” While finding that alternative argument not frivolous, her opinion ultimately rejected it.

The judge said her opinion was lengthy because she felt obliged to make “a far more specific and comprehensive analysis” than that offered by either the concurrence or dissent. “I believe the law demands a particularized analysis” of all claims separately, she said, rather than “a single, broad, all-encompassing analysis” of the type each of her colleagues supposedly employed.

In dismissing the challengers’ First and Fourth Amendment claims, Judge Batchelder said there was no proof that the harms claimed by the lawsuit either would occur, or that they would be remedied by blocking the warrantless eavesdropping.

The separation of powers claim, based on an argument that President Bush set up the program outside limits imposed by Congress, was rejected by Judge Batchelder on the premise that those suing could not show that Bush’s actions had caused them any injury, because there was no proof these individuals or groups were being monitored.

Batchelder dismissed an argument made by Judge Taylor that, if there were no standing in this case, perhaps no court could review the NSA spying program. The lead opinion said that the remedies of political response would still be available. The Court, Batchelder said, had constitutional limits of its own. “It would ill behoove us to exceed our authority in order to condemn the President or Congress for exceeding theirs,” she wrote.

Her opinion also rejected claims of standing to sue under three federal laws — the Administrative Procedure Act, the domestic wiretap law, and the Foreign Intelligence Surveillance Act.

Judge Gibbons’ separate, and ultimately controlling, opinion discussed only the question of standing under Article III — constitutional standing. Thus, she said, it was unnecessary for her to discuss any of the claims of standing under federal statutes. Much of her opinion was aimed at the dissent. In every case cited by the dissent to show standing, Gibbons wrote, the suing party was clearly found to be subject to the conduct that had been challenged. Because of the state secrets privilege’s restriction on evidence to show whether the individuals in the NSA case had been targeted, the concurring judge said standing could not be established.

Judge Ronald Lee Gilman dissented, finding standing to exist for the attorneys who were parties in the lawsuit. There was proof, Judge Gilman found, that the NSA program did not follow the requirements of the FISA to protect privileged discussions between lawyers and clients. The program, he wrote, forces the attorneys “to decide between breaching their duty of confidentiality to their clients and breaching their duty to provide zealous representation.” They must travel in order to avoid the risk of surveillance, he said.

Rejecting Judge Gibbons’ point about the state secrets privilege, Judge Gilman said no additional facts needed to be developed to show that the attorneys had suffered harm sufficient to give them a right to challenge the spying.

The dissenting opinion rejected the government’s claim that the case had become moot because the original program has been stopped, and electronic spying is now done under FISA court orders. “If we could be satisfied that the [program] would never be reinstituted, then the government’s argument would have merit,” he wrote. But, he said, the government continues to insist that the program was legal and constitutional. Government lawyers, he noted, conceded that the President believes he could opt out of the FISA law’s framework and return to the original program.

On the merits, Gilman said he would uphold the part of Judge Taylor’s ruling that the program as it existed violated FISA and the domestic wiretap law — Title III of the Safe Streets Act. He also said he agreed with Taylor that the President does not have inherent constitutional authority to conduct the program as it existed, and that Congress did not give him the authority to do so under the post-9/11 Resolution.

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