NEWS MEDIA UPDATE · SIXTH CIRCUIT · Newsgathering · July 11, 2007
Appeals court throws out surveillance lawsuit
July 11, 2007 · A panel of appeals court judges in Michigan ruled last week that a group of journalists, attorneys and academic professionals led by the American Civil Liberties Union did not have the legal standing to challenge the Bush administration’s warrantless domestic surveillance program.
The court reasoned that the lawsuit had to be dismissed because none of the plaintiffs could prove that they were actually subject to government eavesdropping.
The plaintiffs argued that they had standing to sue the government in part because of a reasonable belief that their communications were being monitored, based on their sources and methods of contact with certain individuals.
This knowledge, they said, made them unable to openly communicate via telephone and Internet, which in turn damaged their ability to perform their jobs.
The plaintiff journalists are reporters who regularly cover “Middle East, Africa, and Asia, and must communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations,” according to the U.S. District Court opinion.
The journalists involved are freelancer and former ABC producer James Bamford, freelancer Christopher Hitchens, and Tara McKelvey of The American Prospect.
The ACLU and the plaintiffs were initially successful in the lower court in August, when U.S. District Judge Anna Diggs Taylor determined that the spying program violated the First Amendment. Taylor also ruled that the program violated the Foreign Intelligence Surveillance Act and the Fourth Amendment.
Later that year, the NSA appealed that decision to the federal appeals court in Cincinnati (6th Cir.). The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief before the appeals court, saying that if the NSA could continue its wiretapping program, “journalists will no longer be able to offer good faith promises of confidentiality to their international sources.”
After the appeal was filed, the Bush administration announced in January that all wiretapping warrants would be approved by the Foreign Intelligence Surveillance Act administrative court. The NSA asked that the appeals court dismiss the lawsuit as moot.
But the court never reached the issue of mootness nor decided the legality of the program because they found the plaintiffs did not have standing to sue.
However, a dissenting judge, U.S. Circuit Judge Ronald Lee Gilman, said the plaintiffs could sue in court and said he would find the program unconstitutional.
In a statement, ACLU Legal Director Steven R. Shapiro said that the group was “deeply disappointed” by the decision. Shapiro also said that it “is important to emphasize that the court today did not uphold the legality of the government’s warrantless surveillance activity,” but rather dismissed the case because of the plaintiffs’ situations.
Shapiro said that the ACLU is “currently reviewing all of our legal options, including taking this challenge to the U.S. Supreme Court.”
(American Civil Liberties Union v. National Security Agency, Media Counsel: Ann Beeson, American Civil Liberties Union, New York) — ES