- The Washington Times - Monday, July 9, 2007

ANALYSIS/OPINION:

By a two to one margin, the Sixth Circuit Court of Appeals on Friday reversed a widely pilloried ruling by U.S. District Judge Anna Diggs Taylor against the National Security Agency’s Terrorist Surveillance Program (TSP), specifically the practice of intercepting phone and e-mail communications. The circuit court, which had stayed the district court’s injunction pending appeal, ruled that the plaintiffs, a collection of academics, journalists and lawyers represented by the American Civil Liberties Union, lacked standing to bring the challenge to the Bush administration’s important national security program.

The issue of standing hinges on the fact that, as Judge Alice Batchelder wrote for the majority, “the plaintiffs do not — and because of the State Secrets Doctrine cannot — produce any evidence that any of their… communications have ever been intercepted by the NSA, under the TSP, or without warrants.” Judge Batchelder’s opinion addresses each of the ALCU’s three constitutional and three statutory claims; Judge Julia Gibbons concurred in the judgment, but argued simply that “[t]he disposition of all of the plaintiffs’ claims depends upon the single fact that the plaintiffs have failed to provide evidence that they are personally subject to the TSP.”

The plaintiffs don’t dispute this fact. Indeed, not a single member of the group has any proof that any of its communication had been monitored. But in Judge Taylor, appointed to the court by President Carter, they found a judge willing to consider that point with less rigor.

The ACLU also charged that the program violated the constitutional principle of separation of powers because it exceeds both the president’s executive authority and the limits imposed by Congress through the Foreign Intelligence Surveillance Act. Judge Taylor agreed, adding in her opinion that “[t]here are no hereditary Kings in America.” To bring this claim, like their other constitutional claims, the plaintiffs would need to have shown resulting injury — injury that is “distinct and palpable, and not abstract or conjectural,” according to the Supreme Court — and that standard was not met.

In a noteworthy rebuke, Judge Batchelder wrote that “this court, not unlike the President, has constitutional limits of its own and, despite the important national interests at stake, cannot exceed its allotted authority… It would ill behoove us to exceed our authority in order to condemn the President or Congress for exceeding theirs.”

That the Sixth Circuit overturned Judge Taylor’s roundly criticized decision is not a surprise, but it is nonetheless tremendously important for the NSA program.

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