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Last week a divided panel of the U.S. Court of Appeals for the 6th Circuit dismissed the American Civil Liberty Union’s challenge to the National Security Agency warrantless surveillance program, saying the plaintiffs had no standing to challenge the program. The court remanded the case to U.S. District Court Judge Anna Diggs Taylor of the Eastern District of Michigan — who had ruled the program unconstitutional in August 2006 — with instructions to dismiss the case. In a 2-1 decision, the 6th Circuit found that the plaintiffs had failed to show they were subject to the surveillance and therefore do not have standing for their claims. “A federal court [may] act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court,” Judge Alice Batchelder wrote for the majority. She was joined by Judge Julia Gibbons, who wrote a separate concurring opinion. Batchelder is a George H.W. Bush appointee, Gibbons is a George W. Bush appointee. Judge Ronald Lee Gilman, a Clinton appointee, dissented, saying it was clear that the surveillance program, aimed at uncovering terrorist activity, violated the Foreign Intelligence Surveillance Act of 1978. When ruling for the ACLU, Taylor said that public statements by government officials had provided enough information about the program for the suit to go forward without forcing the government to disclose state secrets. And she found the ACLU plaintiffs, a group of reporters, lawyers, and scholars with overseas contacts, had demonstrated sufficient injury to sue.
Nathan Carlile can be contacted at [email protected].

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