Split Decision and Barbed Comments Show a Court Deeply Divided on Wiretapping

An appellate court decision revealed deep and lingering divisions among a dozen judges over the government’s wiretapping powers and the courts’ ability to regulate them.

Deadlocked by a 6-to-6 vote, the United States Court of Appeals for the Second Circuit cleared the way for a lower court to hear a challenge to the constitutionality of broadened wiretapping powers that Congress approved in 2008 at the urging of the George W. Bush administration. The Justice Department wanted the entire appellate court to reconsider an earlier ruling allowing the case to move forward, but the split vote means the prior ruling will stand for now. As significant as the decision itself were the sometimes barbed comments of the appellate judges, as they clashed over whether Amnesty International, the American Civil Liberties Union and other groups should be allowed to challenge the constitutionality of the wiretapping powers. Among those suing the government are lawyers for detainees at Guantánamo Bay, journalists who cover foreign affairs, human rights advocates and others who said that they had reason to fear that intelligence officials would use their expanded wiretapping authorities to intercept their international phone calls and e-mails. Some of the plaintiffs say they meet clients or sources only in person now as a result.