Supreme Court Won't Hear ACLU's Domestic Spying Lawsuit

Posted by Christy Hardin Smith, Firedoglake at 12:12 PM on February 19, 2008.

AP (via MSNBC) reports that the SCOTUS rejected the ACLU's challenge in the 6th circuit to the Bush Administration's warrantless wiretapping through NSA means on "standing" grounds. (ACLU v. National Security Agency, 07-468.) AP reports:

The American Civil Liberties Union wanted the court to allow a lawsuit by the group and individuals over the wiretapping program. The 6th U.S. Circuit Court of Appeals dismissed the suit, saying the plaintiffs could not prove their communications had been monitored.

The government has refused to turn over information about the closely guarded program that could reveal who has been under surveillance.

ACLU legal director Steven R. Shapiro has said his group is in a "Catch-22" because the government says the identities of people whose communications have been intercepted is secret. But only people who know they have been wiretapped can sue over the program, Shapiro has said.

"Standing" means that the person suing must be able to prove that they have a legitimate claim of right for damages or other harm -- and must be able to prove that they were, in fact, touched by the actions of the person being sued (in this case, the US government). SCOTUSblog has more here. And they have a fantastic case summary here, including:

Scarcely a month after the disclosure of the NSA program in the media, the ACLU brought suit in the U.S. District Court for the Eastern District of Michigan along with a host of scholars, journalists, attorneys, and other organizations whose work required them to communicate with individuals overseas thought to be likely targets of NSA surveillance. Moving for summary judgment, the plaintiffs submitted declarations from numerous criminal lawyers for accused terrorists, who, due to the possibility of government surveillance, asserted that they felt compelled to cease communicating by phone and e-mail with their clients and certain witnesses - or that such individuals were no longer willing to communicate with them.

Invoking the state secrets doctrine, as it has with all other challenges to the NSA program, the federal government argued that disclosing whether the plaintiffs themselves had been subject to surveillance could harm national security. Though finding the privilege to have been properly invoked, U.S. District Judge Anna Diggs Taylor nonetheless found - on the basis of information government officials had publicly disclosed - that the program violated not only FISA, but separation-of-powers principles and the First and Fourth amendments.

Meanwhile, the administration announced a suspension of the program in January 2007 after receiving approval to conduct identical surveillance from a judge on the Foreign Intelligence Surveillance Court. Then, over the summer, a divided panel of the U.S. Court of Appeals for the 6th Circuit reversed the district court's finding. Writing separately, Judges Alice Batchelder and Julia Smith found that the plaintiffs - whose injuries they deemed conjectural, self-imposed, and likely to persist even if the NSA was required to obtain warrants - lacked standing to challenge the program.

Ultimately, it looks as though SCOTUS found the standing argument compelling enough here not to delve more deeply into the issues involved which, sadly, is not at all a surprise considering this particular court's record on national security cases.

This decision does not, however, negate the pending case(s) in San Francisco in which the EFF and ACLU, among others, represent the interests of plaintiffs who discovered their phones had been monitored through whistleblower information that the government inadvertently produced in discovery -- those cases are ongoing.

A quick ACLU fact sheet on the case is here. Government's response brief is available online here. John Dean had a fantastic discussion of "state secrets" and why it shouldn't be used to cloak potential wrongdoing in this case.

More as I get it on this...

UPDATE: Because comic relief is essential to sanity maintenance, I had to share this.

UPDATE #2: Just got statementsfrom the ACLU:

The following is from Jameel Jaffer, Director of the ACLU's National Security Project:

"Congress enacted the Foreign Intelligence Surveillance Act intending to protect the rights of U.S. citizens and residents, and the president systematically broke that law over a period of more than five years. It's very disturbing that the president's actions will not be reviewed by the Supreme Court. It shouldn't be left to executive branch officials alone to determine what limits apply to their own surveillance activities and whether those limits are being honored. Allowing the executive branch to police itself flies in the face of the constitutional system of checks and balances."

The following is from Steven R. Shapiro, Legal Director of the ACLU:

"Although we are deeply disappointed with the Supreme Court's refusal to review this case, it is worth noting that today's action says nothing about the case's merits and does not suggest in any way an endorsement of the lower court's decision. The court's unwillingness to act makes it even more important that Congress insist on legislative safeguards that will protect civil liberties without jeopardizing national security."

No link on this yet as it came via e-mail, but will add one when I get one. NOTE: Here's the promised link to the ACLU press release on this.

Tagged as: supreme court, aclu, domestic spying, warranteless wiretapping

Christy Hardin Smith is a former attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review.