Supreme Court Won't Hear ACLU Wiretap Case

I Don't Believe in Imaginary Property writes "The US Supreme Court refused without comment the ACLU's appeal of a lower court ruling that prevented them from suing over the government's warrantless TSP program. The problem was a Catch-22: they lack legal 'standing' to sue over it because they can't prove that they were suspected terrorists, but neither can they find out who was actually suspected, because this is a matter of national security." Update: 02/20 00:17 GMT by KD : Removed an incorrect statement after a reader pointed out that, with the expiration of the Protect America Act this weekend, foreign surveillance will revert to oversight by the FISA court.

Re:Those of us with something to hide...

[stoolpigeon]

well, unless it is between you and at least one other person, over the phone - wiretapping isn't going to be a problem. not disagreeing that people should be concerned - but this isn't an issue for things that are "stuff that should be between me, myself, and I, and no one else."

Re:In other words

[cayenne8]

I thought this 'catch-22' type thing was the very thing that had been used to overturn laws like this? Wasn't this type of logic used for SCOTUS to overturn the marijuana tax stamp act in the 70's? That one said you couldn't legally sell pot unless you had a tax stamp, but, you couldn't get a tax stamp unless you had some pot to sell...etc. Basically you were breaking the law if you followed the law to get legal. I thought the SCOTUS said this was unconstitutional, and overturned it. (I believe it was Timothy Leary [wikipedia.org] that brought this suit). This pissed of Nixon and then they came up with the 'scheduling' of drugs act...that remains in force today.

Anyway, why would precedent on this type of law force them to look at this case?

Re:What did you expect?

[Artagel]

It takes 4 justices to grant certiorari to a case, except in certain capital punishment circumstances. http://www.law.cornell.edu/wex/index.php/Certiorari [cornell.edu] Therefore, we know that at most 3 justices were interested in hearing the case. None of them felt strongly enough about this to write a dissent from the denial of a grant of certiorari. That has happened in the anti-terrorism context, with Justice Breyer writing and Souter and Ginsburg joining. URL:www.supremecourtus.gov/opinions/06pdf/06-1195Breyer.pdf>. President Bush has appointed two out of 9. A full four, enough to grant certiorari, are liberal and often at odds with the president.

Regardless of your politics, the decision of the trial court was awful.
http://althouse.blogspot.com/2006/08/shocking-decision-in-aclu-v-nsa.html [blogspot.com] This just puts an ACLU fantasy about its reach to bed.

Justice is served.

Re:Must be a terrorist to challenge the law?

[Chris Burke]

Let me get this straight - we will have to rely on a suspected terrorist to sue for this to go forward?

Indications are that the government spied on thousands of people, and based on what the AT&T worker who installed the hardware said, it's quite possible that they gathered communications from millions of people in a way that would require a warrant. Ultimately this whole fiasco is due to the fact that the Executive's definition of "suspected terrorist" is so loose and flimsy that not even FISA, a court known for rubber-stamping anything that comes before it, would agree that the searches were warranted.

But yes, in order to have standing to sue the government, you have to be able to show that you were one of the people whose rights were violated by a warrant-less search. How on earth you're supposed to prove that is left as an exercise for the citizen. I saw this whole "standing" issue coming a mile away.

That's why the lawsuits against the telcos are so important -- the discovery phase is when evidence would be acquired as to exactly who was subject to spying, which would open the door for those people to have standing to sue the government. I don't know the specifics as to why it isn't the same issue with the telco lawsuits, but clearly the bar for suing the government is higher since the telco lawsuits weren't summarily rejected on the same grounds. This is why the retro-active immunity is so abhorrent -- no matter what they say, it's about the government covering its own ass.

Good thing TSP no longer exists

[daveschroeder]

The only problem with the submission?

TSP no longer exists, and hasn't since 17 January 2007 [nytimes.com].

ALL surveillance was happening under the guise of the Protect America Act [whitehouse.gov], which was designed exclusively to allow foreign intelligence collection without a warrant when the traffic travelled through the United States, whether incidentally or by design. Foreign intelligence collection is always allowed without court oversight; the changes explicitly allowed such collection on US soil as long as the target was reasonably believed to be a non-US person physically outside of the United States, regardless of the other end of the conversation. The change was absolutely done to make such surveillance easy.

Now the Protect America Act has expired with its automatic sunset, and ALL surveillance must again happen only via FISA [washingtontimes.com].

There is no TSP or any warrantless surveillance program. What a horrible summary.

Of course, I'm sure a bunch of people will respond, "Oh, sure, there is no warrantless surveillance...THAT WE KNOW OF." Oh, how convenient: arguing about something that we can't prove one way or another? Please, let's keep the discussion in the realm of known facts, namely, that TSP no longer exists. The article even says as much. Did the submitter not even RTFA?

Re:Only 95% onerous

[IIH]

When it comes down to it, this ruling (and the ruling of the lower court) isn't 100% onerous, because a US citizen who is tried using evidence obtained in this manner would finally have standing to contest the government's actions.

Tried? Who said anything about a trial?. From past actions, if they thought they had reason to act against someone due to these wiretaps, the person in question would be declared an enemy combatant, kept in custody without legal access, and if even was innocent, be forced to take a plea bargain which included a stipulation not to sue for the illegal wiretaps.

If a person isn't practically affected in their ability to conduct legal day-to-day activities, then it's a reasonable conclusion (whether or not it's a correct one) that they were not damaged and therefore have no standing to sue

If a person isn't affected, they can't sue. If the person is affected, they'll be arrested/detained so they lose the right to sue. If that's not an accurate example of a catch 22, I don't know what is.

Bonus points: spot problems in the following "logic":

• Law says: terrorists can be monitored at any time
• Law says: that people can be monitored unless they object
• Law says: people who object are suspicious and must be monitored

In a sheep world, how many of the above would be objected to? Even though, as a whole, it means that everyone gets monitored, but the sheep think it's only used against the "bad people"

Re:Far too much power

[Martin Blank]

Federal judges are appointed for life. A president cannot remove them after appointment; only Congress may do so through impeachment proceedings, and a rash of such proceedings would look like a raw power grab of the judiciary by the Democrats and hurt them in the next elections.

TSP has been gone for over a year

[daveschroeder]

The Terrorist Surveillance Program has not existed for over a year, since 17 January 2007 [nytimes.com]. All foreign intelligence collection in the meantime has occurred under the guise of FISA and the temporary and recently-sunset FISA modifications provided by the Protect America Act [whitehouse.gov]. With the expiry of the Protect America Act, ALL foreign SIGINT collection reverts to the 30-year old FISA rules [washingtontimes.com].

If someone could point out the warrantless surveillance program that is known to exist today, I'd appreciate it. And yes, the burden of proof is on you, as simply asserting that one must exist doesn't quite cut it. Remember how TSP came to light: leaks to the New York Times. The government simply cannot keep such controversial programs secret. There is no evidence of any current, ongoing "warrantless" surveillance.

The other important thing to remember is that foreign intelligence collection never requires a warrant or court oversight of any kind; the FISA modifications were designed to enable easy foreign intelligence collection via assets on US soil or traffic that may travel physically through the United States. It does not matter in the least if the other end of the conversation is a US person on US soil, as long as they are not the target of such collection.

Such collection is always legal and allowable without a warrant if the collection occurs outside of the United States and the US person is not the target of such surveillance. Special and very extensive measures are undertaken to conceal the identity of US persons in such collection.

The main difference with what became known as TSP, and refined in the Protect America Act, was the provision to enable such collection via means to which we have easy and routine access; namely, the massive amounts of communication traffic flowing through equipment under US control. Whether or not you may agree with that is a different issue entirely. The purpose was never to target US citizens without a warrant. The purpose was to collect foreign intelligence via US assets. Currently (after PAA expiration), if traffic travels through the United States, even if BOTH ends are non-US persons physically outside of the United States, the Intelligence Community is prohibited from collection without a warrant. That's the "Intel Gap" [archive.org] we wanted to close.

Re:Not quite

[StopKoolaidPoliticsT]

Which is pretty much happened with Stevens (Ford), Kennedy (Reagan/but only to a lesser extent, more of a swing vote than a pure liberal vote) and Souter (Bush 41). Of the nine justices, 4 are considered conservative(Scalia, Thomas, Roberts and Alito), 4 are considered liberal(Stevens, Souter, Ginsburg and Breyer) and 1 (Kennedy) is the tossup. Seven of them were appointed by Republicans (Stevens, Scalia, Kennedy, Souter, Thomas, Roberts and Alito) and only two by Democrats (Ginsburg and Breyer).

Holding stock options IS a "financial interest".

[Futurepower(R)]

"So why again does Bush and Cheney want the price of oil to rise?"

See these stories, for example:

Cheney's Halliburton Options Up 3,281% Last Year [corpwatch.org]

Cheney: "I cut all ties to Halliburton years ago." Congressional Research Service: "Cheney made $8,000,000 from Haliburton while in office." [reddit.com]

Quote from one of the comments in that story: "The Congressional Research Service has concluded that holding stock options while in elective office DOES constitute a "financial interest" whether or not the holder of the options donates the proceeds to charities, and deferred compensation is also a financial interest." [My emphasis]

Also, in general Cheney and Bush have shown that they don't believe any rules apply to them. So, there may be hidden bank accounts in Dubai [hrw.org], for example, which is where the head office of Halliburton is located [yahoo.com] now.