Supreme Court Refuses Review of NSA Wiretapping Case

Update: McJoan at Daily Kos and the ACLU has just issued a press release.

The Supreme Court today declined to review a case by the ACLU and other groups and individuals, including criminal defense lawyers, over Bush's warrantless NSA wiretapping. A lower court had dismissed the case holding the ACLU and other plaintiffs hadn't established they were directly affected by the wiretapping.

The high court's action means that Bush will be able to disregard whatever legislative eavesdropping restrictions Congress adopts as there will be no meaningful judicial review, the ACLU attorneys said.

The Sixth Circuit decision in ACLU v. NSA is here (pdf). Some explanatory quotes are below:

The basics of the lawsuit, from the opinion:

The plaintiffs in this action include journalists, academics, and lawyers who regularly communicate with individuals located overseas, who the plaintiffs believe are the types of people the NSA suspects of being al Qaeda terrorists, affiliates, or supporters, and are therefore likely to be monitored under the TSP. From this suspicion, and the limited factual foundation in this case, the plaintiffs allege that they have a “well founded belief” that their communications are being tapped. According to the plaintiffs, the NSA’s operation of the TSP — and the possibility of warrantless surveillance — subjects them to conditions that constitute an irreparable harm.

The plaintiffs filed suit in the Eastern District of Michigan, seeking a permanent injunction against the NSA’s continuation of the TSP and a declaration that two particular aspects of the TSP — warrantless wiretapping and data mining — violate the First and Fourth Amendments, the Separation of Powers Doctrine, the Administrative Procedures Act (“APA”), Title III of the Omnibus Crime Control and Safe Streets Act (“Title III”), and the Foreign Intelligence Surveillance Act (“FISA”). Both sides moved for summary judgment. The district court dismissed the data mining aspect of the plaintiffs’ claim, but granted judgment to the plaintiffs regarding the warrantless wiretapping. See ACLU v. NSA, 438 F. Supp. 2d 754, 782 (E.D. Mich. 2006).

The ruling:

Based on the evidence in the record, as applied in the foregoing analysis, none of the plaintiffs in the present case is able to establish standing for any of the asserted claims.

The Supreme Court, in denying review today, did so without comment.

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  • Display: Sort:
    NPR gave a quick analysis for us (5.00 / 1) (#8)
    by sarcastic unnamed one on Tue Feb 19, 2008 at 11:44:41 AM EST
    non-lawyers this AM.

    They said that because there are no individuals who can show proof or evidence, even, that they were wiretapped, there is no one who can bring suit against the gvt for being wiretapped.

    And no one can show evidence because the gvt won't/doesn't have to release it's wiretapping records, ie., the evidence.

    It's a weird world we live in.

    is (none / 0) (#1)
    by elim on Tue Feb 19, 2008 at 10:11:19 AM EST
    such a right to communicate with overseas terror enshrined in our constitution.  I hope, during WWII, we would have monitored communications which our citizens had with Germany.  today, apparently that would be beyond the pale.  

    Gosh (5.00 / 2) (#5)
    by Steve M on Tue Feb 19, 2008 at 10:52:22 AM EST
    I don't think anyone opposes wiretapping of communications with the enemy.  The concern is with warrantless wiretapping of U.S. citizens.

    Since we're not at war with a country, you can't make a rule as simple as "all communications with Germany are subject to wiretapping."


    Huh huh (none / 0) (#6)
    by manys on Tue Feb 19, 2008 at 10:52:51 AM EST
    Good one, Beavis.

    Does this require a majority vote (none / 0) (#2)
    by joanneleon on Tue Feb 19, 2008 at 10:13:24 AM EST
    on the court and are the voting positions disclosed?

    No. (5.00 / 2) (#4)
    by scribe on Tue Feb 19, 2008 at 10:43:11 AM EST
    The vote is on "whether to grant the writ of certiorari", in other words, an affirmative vote in favor of review.  The "default position", as it were, is to not grant review.

    The vote for a writ of certiorari requires four of the nine justices to vote in favor of granting review.

    So, in short, this petition did not garner four of the nine justices.

    That in and of itself means nothing in legal/lawyer terms, other than that there was not enough "interest" on the Court in hearing the case.  And that lack of interest can stem from any number of things.  That would include, but not be limited to,

    • this is the first time the issue has arisen, and the Court wants to see how the other circuits will address it (in other words, let the law develop below so they get a better view of the issues in different contexts);
    • the four minority (more liberal) justices did not want to vote for it, knowing that there was a likely conservative bloc of five which would make things even worse for plaintiffs once review was granted.

    And, many many more reasons.  This is prime territory for fruitlessly spending time reading tea leaves, so let's leave it at that.

    Very interesting (none / 0) (#3)
    by larryharriet on Tue Feb 19, 2008 at 10:18:50 AM EST
    Thats very interesting. It just shows you that the SC is conservative.