Legal Commentary

Supreme Court Refuses Review of NSA Wiretapping Case

By Jeralyn

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.

Full post as published by TalkLeft on February 19, 2008 (boomark / email).