Judge Ronald Lee Gilman, who was appointed by President Bill Clinton, said he fundamentally disagreed with his colleagues' stance. He wrote that he would have chosen to uphold Judge Anna Diggs Taylor's determination last summer that the NSA program violated a 1978 law known as the Foreign Intelligence Surveillance Act, which requires court approval when wiretapping for foreign intelligence gathering is conducted inside the United States.
As for whether the plaintiffs had standing to bring the case at all, Gilman cited a string of earlier court cases that he said showed it unnecessary for the plaintiffs to provide evidence that their communications had been intercepted by the NSA. In an earlier case, "all that was required was that they demonstrate that ... they possessed a reasonable fear of harm," Gilman wrote. "This holds equally true for the attorney-plaintiffs in the present case."
The appeals court's move may come as little surprise to some who analysed Taylor's opinion last year. A handful of academics and pundits who had voiced reservations about the legality of the NSA program--including The Washington Post's editorial board -- argued that the judge's rhetoric was too angry and full of holes to make any lasting impact.
Jim Dempsey, policy director for the Center for Democracy and Technology, which has vocally opposed the warrantless surveillance program, said the court's conclusion wasn't surprising given what he called a pattern of conservative courts "steadily erecting barriers to lawsuits that challenge executive branch action" during the last few decades.
"Anybody who follows what's been going on in the courts knows that the courts are becoming increasingly reluctant to hear suits brought by citizens challenging government action," he said in a telephone interview.
Electronic Frontier Foundation attorney Lee Tien said he didn't expect the ruling to have any direct effect on his group's case against AT&T, which is slated to be argued before the 9th Circuit Court of Appeals in August. Procedurally speaking, the decisions made by one circuit set no precedent for other circuits, and besides, by suing the government directly, the ACLU was in a very different position, he said.
"We have whistleblower evidence that is very different from kinds of statements the government has made," Tien said in a telephone interview.
The latest appeals court decision arrives barely a week after the US Senate Judiciary Committee issued subpoenas to the Bush administration requesting a lengthy list of documents explaining the program's legal basis. Attorney General Alberto Gonzales and the White House have been stalwart in their defense of the once-secret program, but testimony this spring by a former Justice Department official indicated the feeling may not have been mutual throughout the agency.
Judiciary Committee Patrick Leahy called the appeals court decision "a disappointing one" because it left the question of the program's legality entirely unaddressed. He said Friday's decision makes it all the more important that Congress glean answers from the administration. At the moment, he said, "there is a dark cloud over the White House's warrantless wiretapping program."
