A federal appeals court panel in Cincinnati today dismissed a lawsuit challenging President Bush's domestic terrorist surveillance program, ruling that those who brought the suit led by the American Civil Liberties Union did not have the legal authority to do so.
In a 2-1 decision, the U.S. Circuit Court of Appeals for the 6th Circuit panel did not rule on the legality of the surveillance program but vacated a 2006 order by a lower court in Detroit that found the post-September 11 program to be unconstitutional, violating rights to privacy and free speech and the separation of powers.
The majority opinion was written by Appeals Court Judge Alice Moore Batchelder, who recently was considered by Mr. Bush as a potential nominee for a U.S. Supreme Court seat that ultimately went to Justice Samuel A. Alito Jr. She was named to the bench by the first President Bush in June 1991.
Judge Batchelder was joined by Appeals Court Judge Julie Smith Gibbons, named to the bench in 2002 by Mr. Bush.
Both said the plaintiffs had failed to show that they were subject to the surveillance.
The dissenting vote was cast by Appeals Court Judge Ronald Lee Gilman, nominated to the bench in 1997 by President Clinton, who said the plaintiffs were within their rights to sue and it was clear to him the program violated the Foreign Intelligence Surveillance Act of 1978.
The case will be sent back to U.S. District Judge Anna Diggs Taylor in Detroit for dismissal.
Sen. Patrick J. Leahy, Vermont Democrat and chairman of the Senate Judiciary Committee, called the ruling "disappointing."
"There is a dark cloud over the White House"s warrantless wiretapping program, and a full response to the outstanding subpoena from the Senate Judiciary Committee by this administration would be a good start to clearing the air and moving forward in ways that allow us to better protect against terrorists while honoring the rule of law and the liberties of law-abiding Americans," Mr. Leahy said.
In August, U.S. District Judge Anna Diggs Taylor in Detroit ruled the president's domestic terrorist surveillance program unconstitutional, agreeing with a challenge from the ACLU and a group of lawyers, academics and journalists.
"The irreparable injury necessary to warrant injunctive relief is clear, as the First and Fourth Amendment rights of plaintiffs are violated" by the surveillance program, the judge said. "The irreparable injury conversely sustained by defendants under this injunction may be rectified by compliance with our Constitution.
"The public interest is clear in this matter," said the judge, who was appointed in 1979 by President Carter. "It is the upholding of our Constitution." The judge granted a permanent injunction halting the program but delayed implementing her order pending the outcome of the Justice Department's appeal, which was filed immediately.
The Justice Department said the National Security Agency's terrorist surveillance program, authorized by Mr. Bush, was "an essential tool for the intelligence community" in the nation's war on terror. It called the program "a critical tool that ensures we have in place an early warning system to detect and prevent a terrorist attack.
"In the ongoing conflict with al Qaeda and its allies, the president has the primary duty under the Constitution to protect the American people," the department said. "The Constitution gives the president the full authority necessary to carry out that solemn duty, and we believe the program is lawful and protects civil liberties."
Attorney General Alberto R. Gonzales has described the program's scope as "very narrow," saying it focuses only on communications with al Qaeda. He said that it has been "very effective" in protecting America and that reviews of it by lawyers at the Department of Justice and the NSA found it to be legal.
The ACLU had challenged the legality of the NSA program, saying it intercepted "without benefit of warrant or other judicial approval" the international telephone and Internet communications of numerous people and organizations in the U.S. It said the program had substantially chilled and impaired its clients' constitutionally protected communications.
Critics of the program have argued that the administration should use the powers granted it under FISA.