your connection to The Boston Globe

Court gives Bush win on surveillance

Reverses ruling that found program illegal

WASHINGTON -- A federal appeals court yesterday reversed a district court ruling that President Bush's warrantless surveillance program was illegal, delivering a major victory to the administration in one of the most significant constitutional disputes to arise in the war on terrorism.

By a 2-to-1 vote, an appeals court in Cincinnati ruled that a group of plaintiffs, led by the American Civil Liberties Union, had no legal standing to challenge the National Security Agency's surveillance program. Because the decision to dismiss the case was based on that legal technicality, the court did not take a position on the legality of the program.

Still, the decision erased the only judicial repudiation of the White House's claim that Bush has the wartime power to bypass a law that forbids the government from eavesdropping on Americans' phone calls and e-mails without a judge's permission. Last August, a federal district judge in Detroit had ruled that the warrantless spying program was illegal and must be shut down.

Moreover, yesterday's decision bolstered the administration's position in this and similar cases that any courtroom discussions of the program would jeopardize "state secrets," and so lawsuits challenging the program must be dismissed -- an argument that the district judge in Detroit had rejected in her ruling last summer.

"We are pleased with the Court's decision today, which confirms that plaintiffs in this case cannot seek to expose sensitive details about the classified and important Terrorist Surveillance Program," said Brian Roehrkasse , a Justice Department spokesman.

ACLU legal director Steve Shapiro called the ruling "deeply disappointing."

"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," he said.

Shapiro also said the ruling means Congress must push forward with its own probe of the NSA surveillance program. Last month, the Senate Judiciary Committee subpoenaed the White House and the Justice Department for documents related to the spy program.

The administration has not yet responded, and some analysts predict that it will assert executive privilege to avoid turning the documents over. Yesterday, Senate Judiciary Committee chairman Patrick Leahy , Democrat of Vermont, urged the White House to comply with the subpoenas in light of the "disappointing" appeals court decision.

"There is a dark cloud over the White House's warrantless wiretapping program," Leahy said.

The surveillance program dated to the weeks after the terrorist attacks of Sept. 11, 2001. Bush secretly signed an order directing the NSA -- an agency run by the Pentagon -- to intercept Americans' international phone calls and e-mails without warrants if it believed one of the participants was linked to terrorism.

In March 2004, the program -- whose existence was not yet public -- led to a dramatic confrontation within the administration.

A group of Justice Department attorneys had reviewed the surveillance and decided that it violated the rule of law because of the Federal Intelligence Surveillance Act. According to recent congressional testimony by former deputy attorney general James Comey, then-attorney general John Ashcroft, FBI director Robert Mueller, and other Justice officials threatened to resign because Bush reauthorized the NSA program despite the department's conclusion that it was illegal.

To avoid the spectacle of mass resignations, Bush agreed to modify the program in ways Comey did not specify.

The New York Times revealed the program's existence in a front-page article in December 2005. The Senate Judiciary Committee subsequently launched an investigation, but the White House declined to turn over information the committee wanted to see. The disclosure also prompted the ACLU to file its lawsuit.

The ACLU's clients included a group attorneys, journalists, and scholars who communicate regularly with people in the Middle East. They argued that the mere existence of the program violates their rights by making them reluctant to phone and e-mail their overseas contacts -- a chilling effect that gives them legal standing to challenge the government.

Last August, District Court Judge Anna Diggs Taylor agreed that they had standing to sue, then ruled that the program was illegal.

But the appeals court declared that the plaintiffs could not challenge the program unless they had specific evidence that the government had spied on them. The court also held that it would be impossible for the plaintiffs to obtain such evidence without forcing the government to divulge classified "state secrets," so the case must be dismissed.

The two judges in the majority were Julia Gibbons , whom Bush nominated to the bench, and Alice Batchelder , who was selected by Bush's father, former President George H.W. Bush. Appellate Judge Ronald Gilman , appointed by former President Bill Clinton , cast the dissenting vote.

The legal analysis by Taylor -- whom former President Jimmy Carter nominated to the court -- was controversial from the beginning. Many legal specialists on both sides of the NSA surveillance dispute had predicted that her judgment might not stand on appeal.

Some had also predicted that the appellate court might instead dismiss the case on the grounds that it was moot after Attorney General Alberto Gonzales announced in January 2007 that the warrantless surveillance program had been changed.

Gonzales said the administration had negotiated a complex deal with the Foreign Intelligence Surveillance Act Court, which issues warrants for wiretapping aimed at spies and terrorists under normal circumstances. The deal would bring all government surveillance under the court's oversight again, but the details of the new arrangement remain secret.

David Rivkin , a former associate White House counsel in the George H.W. Bush administration and a frequent defender of the current president's policies in the war on terrorism, called yesterday's decision "remarkably sound" and an example of courts showing "proper restraint" and deference to the executive branch.

But Georgetown law professor Martin Lederman , a frequent critic of the administration's legal theories, said that yesterday's opinion is important because "it prevents a court from ruling on the broader constitutional theories of this administration, which is unfortunate."