The Sixth Circuit Court of Appeals has ordered the dismissal of a lawsuit brought by the ACLU against the warrantless domestic spying that was being conducted by the National Security Agency. The order by the appeals court overturns a 2006 ruling by U.S. District Judge Anna Diggs Taylor. By a 2-1 majority, the Circuit  Court found that the plaintiff failed to demonstrate that it has standing to sue, regardless of the fact that, since the ACLU has no access to the secret records of the NSA, it cannot prove its suspicion that its members were targets of the spying.

Writing for the majority, U.S. Circuit Court Judge Alice Batchelder, an appointee of President George H.W. Bush, stated, “The plaintiffs have no evidence… that the NSA has actually intercepted (or will actually intercept) any of their conversations.” While remaining curiously silent on the fact that, because the spying program was secret, the records of who was targeted cannot be accessed by those who suspect that they were subjected to judicially unsanctioned surveillance, Bachelder sharply criticized District Judge Diggs’ original ruling from the facts, and even at one point scorned the plaintiff group, itself, by using the term “thinly veiled ruse” to describe a claim by the ACLU that the warrantless spying by the Bush Administration was an infringement on the right of free speech enshrined in the First Amendment.

Bachelder was joined, but on far narrower grounds, by U.S. Circuit Court Judge Julia Smith Gibbons, appointed by the current President, George W. Bush.

Writing in dissent, U.S. Circuit Judge Ronald Lee Gilman cited multiple court precedents in which plaintiffs were found to have standing despite defects in capacity to show personal effect of the alleged acts against them.

Although the ACLU could file a petition for grant of writ of certiorari, thus seeking release from the Circuit Court for appeal to the U.S. Supreme Court, it is unlikely that the high court would hear the case solely on its own merits since the Bush Administration claims its warrantless domestic spying program is not in operation at the present time. However, more than three dozen other cases have been brought together before the Ninth Circuit Court of Appeals. If that decision is contrary to the one just issued by the Sixth Circuit Court, the existence of conflicting precedents might compel review by the Supreme Court in order to set uniform, mandatory precedent for the entire country.