CHICAGO (AFP) – A US federal appeals court on Friday struck down a lower court’s order against the US government’s domestic eavesdropping program, launched in the wake of the September 11, 2001 attacks.
The ruling allowed President George W. Bush’s administration to continue its controversial program of wartime spying on communications between US and foreign locations in suspected terror cases without first seeking a warrant.
The appeals court, in a 2-1 decision, said the plaintiffs should not have won an injunction against the National Security Agency’s surveillance program because they failed to show that they were personally affected by it.
The two judges ruling against the plaintiffs did not rule, however, on the legality of the controversial program, known as the Terrorist Surveillance Program, or TSP.
“Because we cannot find that any of the plaintiffs have standing for any of their claims, we must vacate the district court’s order and remand for dismissal of the entire action,” wrote Judge Alice Batchelder.
The surveillance program permitted the security agency to intercept e-mails and telephone conversations between the United States and terror suspects abroad.
“We have to have a reasonable basis to conclude that one party to the communication is a member of Al-Qaeda, affiliated with Al-Qaeda, or a member of an organization affiliated with Al-Qaeda, or working in support of Al-Qaeda,” Attorney General Alberto Gonzalez said of the program in 2005.
But in August 2006, a district court judge in Detroit, Michigan imposed an injunction against the program, arguing that Bush had overstepped his authority. Her ruling was suspended while it was under appeal.
The US Department of Justice welcomed the ruling, saying it protected “a vital intelligence program that helped detect and prevent terrorist attacks,” according to spokesman Brian Roehrkasse.
Lawyers, journalists and professors represented by the American Civil Liberties Union had argued that their communications risked being eavesdropped on because they were in frequent contact with people in the Middle East.
However, Friday’s ruling noted that “the plaintiffs do not allege as injury that they … anticipate or fear any form of direct reprisal by the government, such as criminal prosecution, deportation, administrative inquiry, civil litigation, or even public exposure.”
In addition, the plaintiffs were unable to prove that any of them had “actually been wiretapped,” and any declaration of injury was therefore “too speculative,” the ruling said.
The plaintiffs “allege only a subjective apprehension and a personal (self-imposed) unwillingness to communicate.”
The court also said the plaintiffs’ case fell short because they challenged the TSP’s ability to eavesdrop without warrants.
“Because all wiretaps are secret, neither the plaintiffs nor their overseas contacts would know — with or without warrants — whether their communications were being tapped.
“The secret possession of a warrant would have no more effect on the subjective willingness or unwillingness of these parties to ‘freely engage in conversations and correspond via email’ than would the secret absence of that warrant.”
The dissenting judge, Ronald Gilman, said he believed the plaintiffs were within their rights to sue and the TSP was “unlawful” because it violated the Foreign Intelligence Surveillance Act (FISA) of 1978, which defined since 1978 the rules of telephone spying.
In January, Gonzalez attempted to silence critics of the TSP by announcing that a special court created by FISA would oversee the program, though the details of the agreement remained secret.
Last month, a US Senate Committee slapped subpoenas on the White House and Vice President Dick Cheney’s office, seeking documents relating to the wiretap program. The administration has until July 18 to respond.