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Gilman, Gibbons Differ in Warrantless-Search Ruling

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Two federal appeals court judges from Memphis figured Friday in a case that will have national and even international implications and that penetrates to the core of the ongoing debates about constitutionally ordained liberties. Judge Julia Gibbons was one of two Republican-appointed judges who were the majority in a 2-1 decision of the 6th Circuit Court of Appeals reversing a prior court's ruling against the Bush administration's domestic warrantless-search program. Judge Ron Gilman, a Clinton appointee, was the lone dissenter.

At issue was a 2006 decision by federal judge Anna Diggs Taylor in Detroit in favor of plaintiffs, including the American Civil Liberties Union, who had challenged the administration's program. Judge Taylor had ruled that provisions of the Foreign Intelligence Surveillance Act of 1978 would expressly prohibit the domestic warrantless-search program. In his dissent, Judge Gilman supported this interpretation.

In their decision to reverse, the Appeals Court majority did not address the legislative or constitutional issues per se but adjudged the plaintiff not to have proper standing in the matter.

The ACLU had filed the lawsuit on behalf of journalists, scholars, and lawyers who argued the program presented unjustified impediments to their normal communications with their regular international contacts, whether or not those contacts were under formal suspicion or legal challenge. The Appeals Court ruling states essentially that the litigants failed to demonstrate they had been subject to the surveillance.

Here’s a blogger’s take indicating the potential controversy that may ensue from the Appeals Court ruling.

--jb

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