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Federal judge dismisses government surveillance suit for lack of standing

By Matt Glenn

[JURIST] A judge for the US District Court for the Northern District of California [official website] granted summary judgment [opinion, PDF] Monday in favor of the government in CCR v. Obama [case materials], ruling that the Center for Constitutional Rights (CCR) [advocacy website] lacked standing to challenge the legality of information obtained by Bush-era warrantless surveillance programs [JURIST news archive]. CCR argued that the Terrorist Surveillance Program (TSP) and Protect America Act (POA) [S 1927 materials], which allowed the National Security Agency (NSA) [official website] to wiretap suspected terrorists without a warrant, chilled the CCR's ability to speak freely with its clients and probably intercepted communications that were subject to the attorney-client privilege. Judge Vaughn Walker, noting that the TSP was discontinued in 2007 and the POA expired in 2008 [JURIST report], ruled that CCR lacked standing to challenge the programs since it could not show its communications had actually been intercepted as required to state a claim under the Foreign Intelligence Surveillance Act (FISA) [text] or that it had suffered any harm. Walker explained: "In short, plaintiffs have not shown that they personally have suffered some actual or threatened injury as a result of the putatively illegal conduct, especially in light of the clear precedent requiring that the allegations of future injury be particular and concrete. Plaintiffs have therefore failed to establish standing for their First Amendment claim" [citations omitted]. CCR Senior Attorney Shayan Kadidal expressed displeasure with the ruling, saying [press release], "It is astonishing that President Obama's administration continues to fight to hold on to the fruits of a patently illegal surveillance program, even where that surveillance was directed at attorneys engaged in suing the government."

In October, the Supreme Court denied certiorari [JURIST report] in a case brought on behalf of CCR lawyers who sought to learn under the Freedom of Information Act (FOIA) whether the NSA had recorded their conversations with clients detained at Guantanamo Bay [JURIST news archive]. The petition for certiorari followed a 2009 decision [JURIST report] by the US Court of Appeals for the Second Circuit [official website] that a FOIA exception allows the NSA and Department of Justice (DOJ) [official website] to withhold information or confirmation of the existence of information obtained by an intelligence program. In 2009, former DOJ attorney John Yoo defended the use of warrantless wiretaps, saying laws preventing them were outdated and contributed to the government's inability to prevent the 9/11 terrorist attacks. In April 2009, the DOJ announced that it had limited [JURIST report] the NSA's electronic surveillance after finding the NSA had committed privacy violations, but maintained that the information being received was still important.

Full post as published by JURIST - The Paper Chase on February 02, 2011 (boomark / email).