Circuit Won’t Take a New Look at Wiretap Case

(CN) - After tossing a challenge to the National Security Agency's now-defunct warrantless wiretapping program, the 9th Circuit refused Friday to hold an en banc rehearing.

The plaintiffs in this action were the Center for Constitutional Rights and four clients, some of whom are Muslim foreign nationals detained after the Sept. 11, 2001 terrorist attacks.

They claimed to have been illegally spied upon by the government's warrantless surveillance program, called the Terrorist Surveillance Program, which ended in 2007.

The Patriot Act, passed in 2001 and reauthorized in 2006, amended the Foreign Intelligence Surveillance Act to create a warrantless surveillance program of U.S. citizens from libraries and Internet service providers.

Under Section 702, which President George W. Bush added with passage of the FISA Amendments Act in 2008, the government legalized that program and gave the government virtually unchecked authority to listen to the international phone calls and emails of U.S. citizens.

After a federal judge dismissed the case in 2011, a three-judge panel of the 9th Circuit affirmed this past June.

The three-page order cited the U.S. Supreme Court's recent ruling in Clapper v. Amnesty International , which held that plaintiffs in a similar warrantless wiretapping challenge lacked standing because they had "no actual knowledge of the government's ... targeting practice."

This is also true for the Center for Constitutional Rights, although the firm "might have a slightly stronger basis for fearing interception" because the Foreign Intelligence Surveillance Court was not involved, according to the ruling.

"CCR's asserted injury relies on a different uncertainty not present in Amnesty Int'l, namely, that the government retained 'records' from any past surveillance it conducted under the now-defunct TSP," the panel wrote.

"In sum, CCR's claim of injury is largely factually indistinguishable from, and at least as speculative as, the claim rejected in Amnesty Int'l."

A one-page order denying the petition for rehearing was filed Friday, though it is dated Oct. 3.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit