Tuesday, February 19, 2008

SCOTUS Rejects ACLU Challenge to Warrantless Wiretaps

The Supreme Court announced today it will not hear the appeal of the ACLU in its warrantless wiretapping case. They gave no reason, but it would have taken 4 justices to agree to hear the case.

"The ACLU sued on behalf of itself, other lawyers, reporters and scholars, arguing that the program was illegal and that they had been forced to alter how they communicate with foreigners who were likely to have been targets of the wiretapping. A federal judge in Detroit largely agreed, but the 6th U.S. Circuit Court of Appeals dismissed the suit, saying the plaintiffs could not prove their communications had been monitored and thus could not prove they had been harmed by the program." The ACLU appealed the dismissal and that's what was rejected today. These are the ACLU's comments today.

Marty Lederman wrote this excellent article on the 6th Circuit's opinion last July. Only one judge ruled on the actual merits and it's clear the program violates FISA. The other two judges dismissed on standing and that's a very tricky question here. It's not clear who was targeted and only those who were have standing to sue. That's a crappy catch-22.

Glenn Greenwald writes more on this topic in The courts and Congress affirmatively conceal and protect lawbreaking. "This decision does mean, however, that EFF's pending lawsuits in San Francisco against AT&T, Verizon and the other telecoms are now the sole remaining vehicle for finding out what the Bush administration actually did when spying on Americans for years without warrants, and as importantly, is the last hope for obtaining a judicial ruling as to whether the President broke the law and violated the Constitution when doing so. If Jay Rockefeller and Dick Cheney have their way and retroactive amnesty is granted to these telecoms, those lawsuits will be forever dismissed and Americans will remain indefinitely in the dark about how our own Government spied on us, and will forever lose the opportunity to have a court rule whether the Government broke the law and violated our Constitutional rights."

"When high political officials here are accused of breaking the law, they need not defend themselves. Congress acts to protect and immunize them. The courts refuse even to hear the lawsuits. And executive branch officials are completely shielded from the most basic mechanics of the rule of law."

"In a minimally functioning Republic, when our political leaders are accused of concealing wrongdoing, Congress investigates, uncovers what happens, and informs the American people. When political leaders are accused of breaking the law, courts decide whether that occurred. None of the branches of government do that any longer. They do the opposite: they not only fail to perform those functions, but they affirmatively act to block investigations, help the conduct remain concealed, and ensure that there is no adjudication. When it comes to ensuring that the NSA spying scandal specifically remains forever uninvestigated, secret, and unexamined, telecom amnesty will be the final nail in this coffin, but it is merely illustrative of how our political culture now functions."

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