CINCINNATI A U.S. appeals court ruled on Friday a lawsuit challenging the domestic spying program created by President George W. Bush after the September 11 attacks must be dismissed, in a decision based on narrow technical grounds.
The appeals court panel ruled by a 2-1 vote that the groups and individuals who brought the lawsuit, led by the American Civil Liberties Union, did not have the legal right to bring the challenge in the first place.
The surveillance program was authorized by Bush to monitor the international phone calls and e-mails of U.S. citizens, without first obtaining a court warrant. A lower court had ruled in August 2006 that the program was unconstitutional.
The Bush administration appealed, and the appeals court in Cincinnati set aside the decision.
The appeals court did not decide the merits of the lawsuit challenging the program as illegal and unconstitutional. It just held that the plaintiffs did not have standing or the legal right to sue.
The ACLU plaintiffs included lawyers who said they could not defend clients accused of terrorism because the government, under the wiretapping program, could listen into attorney-client conversations.
But the two judges in the majority opinion said the plaintiffs had failed to prove they were under surveillance.
"The plaintiffs allege that they have a 'well founded belief' that their overseas contacts are likely targets of the (National Security Agency) and that their conversations are being intercepted. The plaintiffs have no evidence, however, that the NSA has actually intercepted (or will actually intercept) any of their conversations," Judge Alice Batchelder said in the ruling.
ACLU lawyer Melissa Goodman said the decision effectively protects the wiretapping program from any judicial review.
"The Bush administration is basically left free to violate an act of Congress with impunity -- the Foreign Intelligence Surveillance Act, which Congress adopted over 30 years ago to prevent the executive from engaging in precisely this kind of unchecked surveillance," Goodman said.
"They are effectively saying you can't show that you've been wiretapped and you'll never be able to show that you've been wiretapped because the whole thing is so secret."
ACLU officials said they are reviewing all legal options, including appealing to the U.S. Supreme Court.
White House spokesman Tony Fratto said the administration was pleased by the ruling. "The court of appeals properly determined that the plaintiffs had failed to show their claims were entitled to review in federal court," he said.
In the previous ruling, a U.S. district judge in Detroit ruled the program violated the Constitution and a 1978 law prohibiting surveillance of U.S. citizens on U.S. soil without the approval of the special surveillance court.
The two judges in the majority, Julia Smith Gibbons and Batchelder, are Republican appointees, named by Bush and his father, respectively.
Judge Ronald Lee Gilman, appointed by President Bill Clinton, a Democrat, dissented. Gilman said he would uphold the ruling last year on the grounds that the program violated the 1978 law.
The surveillance program caused a political uproar among Democrats and some Republicans, as well as civil rights activists. The Bush administration abandoned the program in January, putting it under court review.
(Additional reporting by James Vicini and Matt Spetalnick in in Washington)
(Editing by David Wiessler; Reuters Messaging: firstname.lastname@example.org; +1 513 699 0045; email@example.com))