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MELISSA BLOCK, host:

From NPR News, this ALL THINGS CONSIDERED. I'm Melissa Block.

The federal appeals court in Cincinnati today handed a legal victory to the Bush administration. A divided panel of judges dismissed the ACLU lawsuit, challenging President Bush's warrantless domestic spying program.

NPR's Ari Shapiro reports.

ARI SHAPIRO: The problem with this lawsuit, according to today's ruling, is that none of the plaintiffs know the government spied on them without a warrant. They just suspect it.

The ACLU represents a group of academics, journalists, defense lawyers and others, who think they were targeted by the National Security Agency's surveillance program. They said those wiretaps violated their privacy rights and limited their free speech.

But the exact list of targets is a state secret, so the plaintiffs can't say for certain that the government spied on them. Judge Julia Smith Gibbons wrote, without this evidence, the plaintiffs cannot establish standing for any of their claims. For civil liberties groups, the decision was a letdown.

Ms. MELISSA GOODMAN (Lawyer, American Civil Liberties Union): It's the quintessential Catch-22.

SHAPIRO: Melissa Goodman is an ACLU lawyer who worked on the case.

Ms. GOODMAN: The court was saying, you know you haven't shown you're actually wiretapped. But, by the way, because who they are actually wiretapping is a state secret, you can never show that your communications have been intercepted. So it's difficult to understand who precisely could challenge the government's illegal surveillance under that kind of logic.

SHAPIRO: The Justice Department praised the decision. In a statement, spokesman Brian Roehrkasse noted that the president put this program under court oversight six months ago. But he said even before that, quote, "the terrorist surveillance program was a vital intelligence program that helped detect and prevent terrorist attacks." He said it was always subject to rigorous oversight and review.

Civil liberties groups are not satisfied with the promise of current court oversight because the president reserves the right to take the spying program back out of the court in the future.

One of the three judges hearing this case said he would have upheld the lower court ruling and sided with the ACLU. Judge Ronald Lee Gilman said he believes the groups were harmed by the wiretaps whether or not they were personally targeted. Further, he said, he believes the program violates the laws governing domestic spying.

There are other cases like this one working their way through the courts. Paul Kamenar of the Washington Legal Foundation filed a friend of the court brief for the government in the case decided today, and he thinks this ruling gives other judges a roadmap.

Mr. PAUL KAMENAR (Senior Executive Counsel, Washington Legal Foundation): I think the other case that's pending that sort of consolidated all these other actions will go the same way on a lot of these kinds of issues.

SHAPIRO: The ACLU's Melissa Goodman sadly agreed.

Ms. GOODMAN: The court's decision today makes it incredibly difficult for people who are victimized by illegal surveillance to come to court and to have independent judges review the conduct of the executive branch.

SHAPIRO: But there's one possible exception, one place where plaintiffs might be able to show that they personally were the target of wiretaps.

Mr. KAMENAR: If everybody were to follow the Six-Circuit ruling we'd be the last man standing. I think that's pretty clear.

SHAPIRO: In Portland, Oregon, Tom Nelson represents an Islamic charity accused of funding Chechen terrorists. What makes this case interesting is that the government accidentally gave Nelson's legal team a secret document.

Mr. TOM NELSON (Legal Counsel for Soliman al-Buthe): The document is a log or description of the content of wiretap conversations.

SHAPIRO: And this log is, as far as we know in the entire universe of national security agency lawsuits, the only hard proof of a particular individual being spied on through this program?

Mr. NELSON: Yes, very definitely. It is objective, firm, demonstrable proof that there was wiretapping going on. And therefore, it overcomes the standing objection, in my opinion.

SHAPIRO: The government argues that a judge should exclude the document from the trial altogether and that decision may make the difference between whether the Portland case stands or falls as the case in Cincinnati did today.

Ari Shapiro, NPR News, Washington.

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