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US Appeals Court Throws Out Ruling Against Eavesdropping
CHICAGO - - 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.
Copyright © 2007 AFP
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18 Comments so far
Show AllSo what else is new??
Nothing!
Exactly!
So, We_The_People cannot sue our government over their illegal secret spying on us because it's a SECRET! This is the sort of "Catch 22" that has caused some people to create their 'cummerbund' and others to create the ICC. I am wondering if Toxic George will view an impeachment as a Serious National Immergency and declare himself to be "Supreme Dictator" for life.
gameshowguy2000-
That is asking FAR too much...
"YUP"
This is just as bad as Bush commuting Libby's sentence.
And the judges said the plaintiffs couldn't prove the system's illegal? What kind of judicial system have we here?
Not only do we want an executive branch who can actually READ the Constitution, but a judicial branch that can do the same thing (and I don't mean read it aloud word for word).
This is definitely worse than the Libby thing. Libby is just another insider with special privledges. The court decision to allow illegal wiretapping affects everyone.
annabelle wrote: "The court decision to allow illegal wiretapping affects everyone." Seems to me that there is the whole point! Citizens are effected by the government's activity perpetrated in our name. WE have standing to call an administration to obey the rule of law. That this ruling again up holds this notion of being able to strike down a ruling because a plaintive has not shown, beyond citizenship, a stake is something we need to readdress. I understand, generally some of the merit in this stand. Still, usage such as this makes me want to figure out a better way.
Probably, when we are looking out through the razor wire while awaiting out turn to the showers and Zyklon B, we will be told that we are there for a perfectly good reason, but it's a secret.
The challenged governmental practices are secret, and hence their effect is inherently chilling; but because that chilling effect isn't accompanied by proof of an actual intrusion (which can't be proved because intrusions are secret) the practices can't be challenged.
Joseph Heller meet George Orwell.
I won't know I am being wiretapped illegally (and harmfully) until I am pulled out of bed in the middle of the night and flown off for "questioning" in Bulgaria, at which time I will be in a poor position to bring a lawsuit. And, if I should be so fortunate as to come back to the United States (and we have not yet learned the Israeli law practiced against the very brave Mordechai Vanunu), the courts will not be able to let me give testimony on my own behalf, because it will threaten national security to have entered into the public record that our citizens are being tortured for dissent. This government has already outed a CIA agent because her husband did not agree to lie for the sake of the Oil War. Or, at least, keep his mouth shut instead of telling the truth. When the government was caught overstepping its bounds in the early 70s, it was not dangerous criminals or terrorists they had in their cross hairs. It was political dissent.
The simple fact is that we are ALL being harmed by the wire tapping, whether targeted by it, or afraid to speak freely because of it. The very idea of democracy is undermined by it. The program is chilling free speech and it is extremely unlikely that the program is being used solely, or mostly, for the prevention of terrorism. The NSA has been caught before, spying for US corporations working out trade deals in the EU. It is obvious that they have a wide interpretation of what is "ethical". The Bush Administration has shown themselves to be entirely without ethics, firing attorneys who do not support their political leanings, for example. Firing people who uphold the LAW rather than the Republican Party. If we are not all being personally harmed by this program of spying with such untrustworthy people BEHIND the program, I cannot imagine how not. Perhaps the ruling itself is part of the program. What dirt could the Bush people have gotten, via the NSA program, on Judge Alice Batchelder or judge Julia Smith Gibbons? Hoover blackmailed people all the time, and these sorts of secret spying programs were his bread and butter. Why should we think that Mr. Bush will be any better a man than Hoover? In fact, we have no evidence to suggest he would be any better a human being. Not as bright, perhaps, but at least as vindictive and with the same low regard for law and justice.
Et tu, France? NOT "domestic eavesdropping". READ THE CONSTITUTION! Without warrant, IT'S unConstitutional and ILLEGAL, unreasonable SEARCHES AND SEIZURES.
Dah…that's what you get when you pack the courts with neocon and ziocon cronies. The system in its entirety sucks and the Constitution needs a major overhaul. Supreme court judges should be elected or appointed every 4 years to clean the house of rat packs. It is dumb to believe that a constitution that was put together more than 200 years ago can still be applied today. Very, very dumb. Even solid rocks undergo erosion and change in time.
People should not be afraid of their governments. Governments should be afraid of their people.
-V-
this ruling shows the bushie philosophy: use the strict letter of the law (you can't prove you have standing) to overturn the spirit of the law (the constitutional guarantee against illegal search & seizure; i know, it's the letter of the law too, the constitution, but the constitution has long been overshadowed by precedent and interpretation). don't get your employer discrimination lawsuit in w/in 180 days cuz you didn't know you were being discriminated against? too bad. don't get your appeal in cuz the judge in your original case mistakenly extended the time frame in which you had to file an appeal and you did'nt know better? too bad. the law is the law.
conservatism means sycophancy, bowing & scraping, before power. when they put conservatives on the bench, this is what you get.
dcbeltway wrote: "People should not be afraid of their governments. Governments should be afraid of their people."
This government IS afraid of their people! That's why the spy on them, wrongfully imprison them, smother them in the voices of Corporate Media, kick dissenting theater off of high school campuses, support the murder of Union members globally, LIE LIKE HELL ALL THE TIME, etc, etc, etc. The Constitution itself was based on fear of the majority. Fear that the majority would resent the amassed wealth and power of the likes of James Madison and legislate away that wealth and power. And the Bill of Rights is the people's fear of the Constitution. Notice that the Bill of Rights (except the right to keep guns and shoot one another) is under constant assault from Bush and his Supreme Courtesans. Fear us? There is no doubt that they fear us.
So in other word's American's can to pay communication company's to be violated and there isn't anything that can or will be done about it.
O'er the land of the free and the home of the brave!