Spy Program Still Open to Future Challenges

July 6, 2007 — -- A federal appeals court decision Friday dismissing a lawsuit that challenged the Bush administration's warrantless wiretapping program is a significant victory for the White House, but it hasn't closed the door to further legal challenges to the program.

The 2-1 ruling to dismiss the lawsuit, which was filed by the American Civil Liberties Union, did not touch on the merits of the program nor whether the wiretapping was constitutional. The appeals court instead embraced a threshold argument made by the administration: that a group of lawyers and professors did not have legal grounds to challenge the program because they couldn't show they'd been put under surveillance.

The court also said the program's challengers couldn't get access to classified information about the program to determine whether they had been monitored. The ruling, the first for a federal appeals court, could make it more difficult for outsiders to challenge other similar programs.

The Bush administration has vigorously defended the domestic surveillance program, even though the wiretap requests are now run through a court that considers requests under the Foreign Intelligence Surveillance Act.

Expressing disappointment about the ruling, ACLU legal director Steven Shapiro said in a statement that the decision "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," Shapiro said.

But Justice Department spokesman Brian Roehrkasse said in a statement that the program "was always subject to rigorous oversight and review," and that the opinion "confirms that plaintiffs in this case cannot seek to expose sensitive details about the classified and important Terrorist Surveillance Program."