Appeals Court OK's Warrantless Wiretapping

The federal government may spy on Americans’ communications without warrants and without fear of being sued, a federal appeals court ruled Tuesday in a decision reversing the first and only case that successfully challenged President George W. Bush’s once-secret Terrorist Surveillance Program.

“This case effectively brings to an end the plaintiffs’ ongoing attempts to hold the executive branch responsible for intercepting telephone conversations without judicial authorization,” a three-judge panel of the 9th U.S. Circuit Court of Appeals wrote. (.pdf)

The case concerned a lower court decision in which two American attorneys — who were working with the now-defunct al-Haramain Islamic Foundation — were awarded more than $20,000 each in damages and their lawyers $2.5 million in legal fees after a tortured legal battle where they proved they were spied on without warrants.

They sued under domestic spying laws Congress adopted in the wake of President Richard M. Nixon’s Watergate scandal. The government appealed their victory, and the appeals court Tuesday dismissed the suit and the damages.

Jon Eisenberg, the lawyer for the two attorneys, said he may request the court to reconsider its decision with a larger panel of judges, or petition the Supreme Court.

The Bush spy program was first disclosed by The New York Times in December 2005, and the government subsequently admitted that the National Security Agency was eavesdropping on Americans’ telephone calls without warrants if the government believed the person on the other end was overseas and associated with terrorism. The government also secretly enlisted the help of major U.S. telecoms, including AT&T, to spy on Americans’ phone and internet communications without getting warrants as required by the 1978 Foreign Intelligence Surveillance Act, the law at the center of the al-Haramain dispute.