[Infowarrior] - SCOTUS Rejects ACLU Challenge to Wiretaps

[Richard Forno]

Court Rejects ACLU Challenge to Wiretaps

The Associated Press
Tuesday, February 19, 2008; 12:41 PM

http://www.washingtonpost.com/wp-dyn/content/article/2008/02/19/AR2008021901
111_pf.html

WASHINGTON -- The Supreme Court rejected a challenge Tuesday to the Bush
administration's domestic spying program.

The justices' decision, issued without comment, is the latest setback to
legal efforts to force disclosure of details of the warrantless wiretapping
that began after the Sept. 11 attacks.

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.

The 9th U.S. Circuit Court of Appeals last year ruled against an Islamic
charity that also challenged the program, concluding that a key piece of
evidence is protected as a state secret.

In that case, the Oregon-based U.S. arm of the Al-Haramain Islamic
Foundation alleged the National Security Agency illegally listened to its
calls. The charity had wanted to introduce as evidence a top-secret call log
it received mistakenly from the Treasury Department.

A separate lawsuit against telecommunications companies that have cooperated
with the government is pending in the San Francisco-based appeals court. A
U.S. district court also is examining whether the warrantless surveillance
of people in the United States violates the law that regulates the
wiretapping of suspected terrorists and requires the approval of a secret
court.

A federal judge in Detroit declared the spying program unconstitutional in
2006, saying it violated the rights to free speech and privacy and the
separation of powers. The appeals court decision that the Supreme Court
upheld Tuesday resulted from the judge's ruling.

Several months after the judge in Detroit ruled against the Terrorist
Surveillance Program, the administration announced in January 2007 that it
would put intercepts of communications on U.S. soil under the oversight of
the secret court, the Foreign Intelligence Surveillance Court.

The ACLU, in urging the justices to consider its case, said that because the
administration voluntarily ended the warrantless wiretapping, it could
easily restart it.

"There is a real risk that the president could decide he is not subject to
the law," said Jameel Jaffer, director of the ACLU's national security
project.

The administration acknowledged the existence of the program in late 2005,
after the New York Times published an article about it.

The White House said the monitoring was necessary because the 1978 Foreign
Intelligence Surveillance Act left dangerous gaps in the government's
eavesdropping authority.

Last August, Congress made temporary changes to FISA that made the
warrantless wiretapping legal in some instances and also extended immunity
from lawsuits to telecommunications companies that help with the intercepts.

Those changes expired over the weekend, amid disagreements between
congressional Democrats and President Bush over the immunity issue.

Existing wiretaps can continue and any new surveillance the government wants
to institute has to follow the FISA rules, which could require court
warrants.

The case is ACLU v. NSA, 07-468.

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