In a defeat for journalists, the Sixth Circiut Court of Appeals has rejected an ACLU challenge to the Bush administration's warrantless wiretap program.
The court vacated a lower court finding that the National Security Agency's Terrorist Surveillance Program (TSP)-- a program that monitors phone calls inside the U.S. from parties outside the country--was illegal.
The Bush administration justifies the program by arguing it is gathering foreign--not domestic-- intelligence and is a necessary weapon in the war on terror.
ACLU had represented journalists, attorneys, and others in challenging the policy. They argue it is illegal and impedes their ability to communicate with, and thus assure confidentiality to, their sources and clients.
The ACLU had won summary judgement against the program from a district judge, who had agreed the program had a chilling effect on speech and concluded that the administration had "violated the First Amendment rights of the paintiffs."
NSA appealed in federal court and a three-judge panel of the Sixth Circuit vacated that judgment 2 to 1. They said the ACLU had not had the standing to bring the initial suit because it could not show that any of the plaintiffs had actually been wiretapped.
The case did not go to the merits of the wiretapping program, though the dissenting judge weighed in saying the ACLU had standing and the TSP was illegal.
"We are deeply disappointed 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," said ACLU Director Steven Shapiro in a statement. "As a result of today’s decision, 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."
The group said it may appeal the decision to the Supreme Court, but it is also looking to greater congressional oversight. Senate Judiciary Committee Chairman Patrick Leahy has issued subpoenas to the White House and Justice for information on the warrantless surveillance program with a July 18 deadline for turning over the material.