Court Shields NSA Spying From Judicial Review

In a 2-1 decision, the Sixth Circuit Court of Appeals today dismissed a legal challenge to the Bush administration's warrantless surveillance program. The challenge was brought by the American Civil Liberties Union on behalf of prominent journalists, scholars, attorneys and national nonprofit organizations who say that the unchecked surveillance program is disrupting their ability to communicate effectively with sources and clients.

Even though the plaintiffs alleged a well-founded fear that their communications were subject to illegal surveillance, the court dismissed the case because plaintiffs could not state with certainty that they had been wiretapped by the National Security Agency.

The following quote can be attributed to ACLU Legal Director Steven R. Shapiro:

"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. 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.

"It is important to emphasize that the court today did not uphold the legality of the government's warrantless surveillance activity. Indeed, the only judge to discuss the merits clearly and unequivocally declared that the warrantless surveillance was unlawful.

"We are currently reviewing all of our legal options, including taking this challenge to the U.S. Supreme Court. In the meantime it is now more important than ever for Congress to engage in meaningful oversight."

On June 27, Senate Judiciary Committee Chairman Patrick Leahy issued subpoenas to the White House, Vice President and the Justice Department for documents about warrantless surveillance. The deadline for compliance is July 18. To learn more about the subpoeanas, please see the ACLU Subpoena Watch webpage.

Today's decision is online here.

More information about the ACLU v. NSA case is online here.