Supremes Take A Pass On Surveillance Review

Telecom Policy Report, Feb 25, 2008

In Part One of Telecom Policy Report's update on the state of FISA today, we examine the bipartisan and House/Senate fight over whether to include immunity to telecom providers if they have participated in government requests for warrantless wiretapping. We now take a look at the fallout resulting from a decision made Feb. 19 by justices at the U.S. Supreme Court.

The judges, without comment, turned down an appeal from the American Civil Liberties Union (ACLU) to let it pursue a lawsuit against warrantless wiretapping that began shortly after 9/11.

The ACLU says it launched the suit "on behalf of prominent journalists, scholars, attorneys and national nonprofit organizations who say that the unchecked surveillance program is disrupting their ability to communicate effectively with sources and clients (TelecomWeb news break, May 6, 2006). The court's decision today lets stand an appeals court's ruling on narrow grounds that plaintiffs could not show with certainty that they had been wiretapped by the National Security Agency (NSA)."

"Congress enacted the Foreign Intelligence Surveillance Act (FISA) 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," commented Jameel Jaffer, director of the ACLU's National Security Project, upon hearing the decision last week. "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."

Added Steven R. Shapiro, the ACLU's legal director, "Although we are deeply disappointed with the Supreme Court's refusal to review this case, it is worth noting that (the) 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."

The Original Court Decision

A federal district court sided with the ACLU in August 2006 (TelecomWeb news break, Aug. 17, 2006) , ruling that warrantless wiretapping by the NSA violated Americans' rights to free speech and privacy under the First and Fourth Amendments of the Constitution, ran counter to the FISA passed by Congress, and violated the principle of separation of powers. The court rejected the government's argument that the president has the authority to ignore laws that regulate his ability to collect intelligence. Stating that there are "no hereditary kings in America and no power not created by the Constitution," Judge Anna Diggs Taylor ordered the president to shut down the illegal program and to comply with the law.

The Bush administration appealed the ruling, and a three-judge panel of the Sixth Circuit Court of Appeals dismissed the case in July 2007. However, the court did not uphold the legality of the government's warrantless surveillance activity and the only judge to discuss the merits of the case clearly and unequivocally declared that the warrantless surveillance was unlawful.

"The president has claimed the power to disregard any law that, in his view, infringes on his ability to collect intelligence," noted the ACLU's Shapiro at the time. "The government should not be able to avoid scrutiny of its surveillance activities simply by refusing to identify the victims of its unlawful behavior."

The History

Beginning in 2001, President Bush secretly authorized the NSA to conduct electronic surveillance of people within the United States, including U.S. citizens, without a warrant. The Administration acknowledged the existence of the program in late 2005, after the New York Times uncovered the program. In its defense, the White House said such monitoring was necessary because the FISA left "dangerous gaps" in the government's eavesdropping authority.

In August of 2007, Congress granted the Bush administration broad new surveillance powers in the "Protect America Act." In doing so, Congress ratified a program that is even more expansive than the one challenged by the ACLU's 2006 lawsuit.

The program has been fraught with problems and legal challenges. In 2006, former U.S. Attorney General Alberto Gonzales told a Senate committee that President Bush blocked official inquiries into the NSA program of wiretapping and surveillance of telephone call traffic without warrants (Telecom Policy Report, June 26, 2006).

According to Gonzales, in April 2006, the president personally interceded in a proposed internal U.S. Department of Justice examination of the NSA - a review that was pushed strongly by Democrats in the Senate and House at the time - and DoJ lawyers in the Office of Professional Responsibility couldn't get the security clearances needed to conduct the inquiry.