Federal Appeals Court Says Warrantless Wiretaps Can Continue

A divided federal appeals court today dismissed a case challenging the National Security Agency’s program to wiretap without warrants the international communications of some Americans, reversing a trial judge’s order that the program be shut down.

The majority in a three-judge panel of the United States Court of Appeals for the Sixth Circuit, in Cincinnati, ruled on a narrow ground, saying the plaintiffs, including lawyers and journalists, could not show injury direct and concrete enough to allow them to have standing to sue.

Because it is extremely difficult to show concrete injury from the highly classified program, the effect of the ruling was to insulate the program from judicial scrutiny in ordinary federal courts.

All this and more from Adam Liptak of the New York Times.

The majority did not rule on the merits of the case, though the appeals judge who wrote the lead opinion, Alice M. Batchelder, said the case provoked “a cascade of serious questions.” Those questions included whether the program violated a 1978 law, the Foreign Intelligence Surveillance Act, along with Constitution’s First and Fourth Amendments.

But Judge Batchelder was implicitly critical of the decision last year by Judge Anna Diggs Taylor of the Federal District Court in Detroit, whose ruling striking down the program was stayed during the appeals. “The district court answered all of these questions in the affirmative,” Judge Batchelder wrote, “and imposed an injunction of the broadest possible scope.”

A second appeals court judge, Julia Smith Gibbons, concurred in the judgment dismissing the case but did not join in Judge Batchelder’s extensive and technical discussion of whether the plaintiffs had standing to sue. Judge Gibbons agreed, however, that the case turned “upon the single fact that the plaintiffs have failed to provide evidence that they are personally subject to the program.”

This is what's become of our "justice system". If you can't prove they're spying on you, you have no right to challenge them for spying on other people.

This warrantless spying program is clearly illegal, and the president has proclaimed his intention of continuing it regardless of any ruling from any court. Where does he get the legal standing to do that?

And meanwhile, nobody else has legal standing to challenge him? And all because the illegal warrantless spying program is so highly classified?

The most ridiculous aspect of this travesty is often overlooked: FISA warrants -- the warrants the president insists on doing without -- are easy to get! The government can even apply for the warrant after they start the wiretap. So when the president says he needs to work outside the FISA structure, he's blowing smoke.

But FISA warrants leave a paper trail, and that's one of the things the president is trying to avoid. The other thing he's trying to avoid is any form of accountability under the law. And he's getting away with it -- on what amounts to not much more than a technicality.

Another fine thought for a Friday afternoon.