Government Deftly Wielding Secrecy To Elude Scrutiny Of NSA Extra-Legal Warrantless Surveillance Program (CATCH ALL)

The program is secret, so the plaintiffs were unable to prove they had been spied upon.

And in the next NSA extra-legal surveillance cases before the U.S. Court of Appeals, the government will be deploying the "State Secrets" privilege to bar discovery of relevant details of the program.

A divided federal appeals court yesterday dismissed a case challenging the National Security Agency's program to wiretap without warrants the international communications of some Americans, reversing a trial judge's order that the program be shut down.

The majority in a three-judge panel of the United States Court of Appeals for the Sixth Circuit, in Cincinnati, ruled on a narrow ground, saying the plaintiffs, including lawyers and journalists, could not show injury direct and concrete enough to allow them to have standing to sue.

Because it may be impossible for any plaintiff to demonstrate injury from the highly classified wiretapping program, the effect of the ruling was to insulate it from judicial scrutiny. Thus, the program's secrecy is proving to be its best legal protection.

The majority did not rule on the merits of the case, though the appeals court judge who wrote the lead opinion, Judge Alice M. Batchelder, said the case had provoked "a cascade of serious questions." She listed five, including whether the program violated a 1978 law, the Foreign Intelligence Surveillance Act, along with the First and Fourth Amendments to the Constitution. ...

A number of other challenges to the program have been consolidated before a federal judge in San Francisco, and the federal appeals court there, the Ninth Circuit, will hear an appeal from one of the judge's preliminary rulings next month.

Some of the plaintiffs in that case contend that they have been personally injured by the program, which if proved could give them standing to sue, even under yesterday's ruling. Those plaintiffs, an Islamic charity and two of its lawyers, say they have seen a classified document confirming that their communications were actually intercepted. ...

The plaintiffs were represented by the American Civil Liberties Union.

"We are deeply disappointed," the group's legal director, Steven R. Shapiro, said in a statement, "by today's decision that insulates the Bush administration's warrantless surveillance activities from judicial review and deprives Americans of any ability to challenge the illegal surveillance of their telephone calls and e-mails."

Mr. Shapiro said the A.C.L.U. was weighing its options, including the possibility of appealing to the Supreme Court.

Yesterday's action in the 6th Circuit means that the principal remaining legal challenge to the NSA surveillance program is a group of cases pending before a U.S. District Court judge and the U.S. Court of Appeals for the 9th Circuit in California. The primary issue before that appeals court, differing somewhat from that in the Michigan case, is whether the administration may claim that a privilege covering state secrets precludes the litigation.