SCOTUS Says “No Thanks” to ACLU Suit–Will It Change the FISA Debate?

SCOTUS just declined to review the 6th Circuit’s dismissal of the ACLU warrantless wiretapping suit.

 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.

McJoan and Christy point to the key issue here–standing. As Glenn points out, judges have ruled that this warrantless wiretapping program was illegal, yet also ruled (at least the 6th Circuit) that no one had standing to do anything about it. 

It’s not clear whether the 9th Circuit will rule different on the majority of the 40 or so cases out there. But for now, this decision sure seems to put the immunity debate in a different light. After all, if judges won’t let any of these suits advance because no one can prove standing, then why bother with the constitutionally suspect step of having Congress intervene in the Courts?

The rub is the Al-Haramain lawsuit, where plaintiffs once had documented proof that the government had intercepted calls between one of the Charity’s members and its lawyers in the US. Only the government’s Kafkaesque games, which demand lawyers for the charity treat their own memory as classified, prevents the charity from proving standing.

Is Congress going to bigfoot into the privileges of another branch of government because one Islamic charity once had proof of the Bush Administration’s law-breaking? Or is it the threat of a differing opinion in the 9th Circuit the basis of the single-minded panic about immunity?

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46 replies
    • emptywheel says:

      We know people were spied on–everyone knows that. The question I’m asking is, if we don’t know WHICH people were spied on, then why do we need to give the telecoms immunity?

  1. Bushie says:

    Isn’t the “telecon” immunity really a smoke screen for the junta seeking retroactive immunity for all its bad actors?

  2. pseudonymousinnc says:

    Surely the process of preventing access to evidence that would constitute proof of standing is itself litigable?

    Otherwise, you have an executive that’s above the law.

  3. bmaz says:

    Well, I have got to go read Christy, McJoan and Glen I should think; but this cert denial does not surprise me in the least. How these appeals are treated often (and the this is especially true on standing and immunity/qualified immunity determinations) is much more about posture than the merits. So, yes, that is one reason that the 9th Circuit cases are so critical. For the government, they could not possibly be in a worse Circuit; they hate the 9th (and, I might proudly add, with good reason) and Walker has shown some sign of disgust and cojones. al-Haramain is indeed a huge landmine if the state secrets lid on the standing proof is lifted (which the whole world knows is really there now).

    We are at a tipping point here; if the citizenry do not force positive action out of the Democratic Congress, and they have at least shown that they are capable of paying attention, then this is all going down the rabbit hole. And while the Democratic House members showed some tiny resolve last week; trust me it is easier on them to go the other way. They need bucking up BIG TIME and now and constantly.

    • bobschacht says:

      We are at a tipping point here; if the citizenry do not force positive action out of the Democratic Congress, and they have at least shown that they are capable of paying attention, then this is all going down the rabbit hole. And while the Democratic House members showed some tiny resolve last week; trust me it is easier on them to go the other way. They need bucking up BIG TIME and now and constantly.

      What should we be urging our Congress critters to do?

      Bob in HI

      • bmaz says:

        Can the talk about immunity and demand complete answers and explanations of what has gone on in the people’s names. I don’t know if you saw this post or not, but I truly believe that understanding the financial consequences of what Bush has done might go a long way to blowing the lid off of a lot of this. It may not just be billions, could be far more than that, and I assure you the telcos already have their protection, it is the government that is at risk here.

        Actually the Hepting case is a national class action on behalf of all AT&T customers. The same is true for the cases brought against Verizon/MCI and Sprint. The statutes involved (like FISA and the Communications Act) provide for statutory damages for violations, which can run to something like $1,000 not just per person but “per violation” number which could mean per call or per email. If they are successful in proving that AT&T was been sending copies of all of its customers internet communications to the NSA in violation of law, the numbers could actually get very big.

        The numbers only get big if AT&T was violating the law in a way that affects millions of people. If it’s just 10-12 people who are talking to Al Qaeda at $1,000 per person, or even 1,000 people, the damages are insignificant to a company the size of AT&T. From the conduct of the Administration, and the panic they have shown, it is crystal clear that the scope is not so limited.

        So AT&T has to have been violating the privacy of all or substantially all of its customers to be hit with big damages and those damages were set by Congress exactly and specifically to create a disincentive for the phone companies to not do precisely what has been done here (that is why they demanded indemnification by the government and it’s treasury).

        If Congress is really concerned about bankrupting the phone companies they can place a cap on damages. I’m not advocating for this and it’s not something that needs to be addressed for many years, but it’s a much simpler option than granting them a free pass and closing off judicial review. Any number should be large enough to create a disincentive for the companies to break the law again, but capping damages is the answer if you are concerned about the companies having to pay out big damages. But, of course, this isn’t about that, it is about concealing the criminal and unconstitutional acts of the Bush Administration.

        This MUST be exposed and we cannot, for a variety of reasons, wait for or expect the courts to do it. However, if the threat of the courts is removed, it will kill off pretty much all inquiry. In answer to your question, keep doing what you have been doing and if you can, get the indemnification material in front of all trigger people you can (congressmembers new, whatever) and demand they ask questions about it and the scope of governmental liability for Bush’s criminal conduct.

  4. Leen says:

    Part of this Supreme Court selected this administration for the U.S….. why would they want to investigate the Bush administrations illegal activities.

    EW. If the CIA, NSA etc wiretapped U.S. citizens who were conducting illegal activities with foreign officials or a foreign government and these wiretapping programs or activities were proven to be illegal. (for instance in the Aipac Rosen espionage case)

    Would that make the evidence that was collected about these individuals null and void?

  5. GulfCoastPirate says:

    My non lawyer question – what happens if a different administration takes over? Could they decide not to contest the suits based on standing? Is it possible they could also decide to tell us all exactly what went on and to whom?

  6. pseudonymousinnc says:

    Here’s another IANAL point for mooting: if evidence that proved standing were to be made available by actions that could be prosecuted — i.e. whistleblower leaks — on what grounds of admissibility are they judged?

    I’m not calling for a martyr to the cause of privacy rights here, but I’m wondering about the abstract possibilities.

  7. phred says:

    I’m curious how SCOTUS would answer the question of what is the point of having laws governing classified activity on the part of the government, if no one can ever prove standing in a court of law to challenge the constitutionality of that activity. Seems to me they have created effective carte blanche for government actions, so long as those actions are classified.

      • phred says:

        I would love to see someone, anyone, take on the whole notion of state secrets head on. It fundamentally undermines democracy when the conduct of government affairs is hidden from the public, who in principle hold the final say on what the appropriate behavior of our elected representatives, their appointees, and civil servants should be.

        How can we literally tell the government to stop doing something, via tossing them out of office in the voting booth, if we do not know what they are doing?

          • phred says:

            Thanks for that little ray of sunshine bmaz… I think this is something we need to really start pushing hard with our Reps and Senators. It is good to know that the House is already having hearings on this subject…

        • MsAnnaNOLA says:

          My law professor friend is doing a dissertation on this in part. Torture, state secrets and what is “national security”.

          I think she is arguing that national security is an over used term. It should be far narrower than it is used.

    • cboldt says:

      I’m curious how SCOTUS would answer the question of what is the point of having laws governing classified activity on the part of the government

      They’d give a clinical answer that was deferential to the power of Congress to pass any law that didn’t offend the Constitution, even where there is no conceivable way to put effect to the law.

      The administration pretty much argues that the point of the privacy laws is to fool those who read them — to lull them into finding privacy where there isn’t any. If the government disclosed its snooping policy, that would tip off the terrorists.

      • phred says:

        Right, but if the law as passed by Congress DOES offend the Constitution, then how can it be corrected by the courts if no one has standing to press the issue? I thought that was one of the central functions of the courts in general and SCOTUS in particular, to act as a check on a Congress inclined to legislate in violation of Constitutional limits. It seems by throwing a big black curtain over certain functions of government, SCOTUS is of the opinion that anything goes.

  8. JohnJ says:

    About 20 years ago a small company I worked for had invented a technology for radar detection of humans on the ground. As the VP of the company was shopping around for a buyer, the Government (I don’t remember which branch, FBI, CIA or someone) grabbed the VP and his partner and took them up to DC for a “talk”. They were told that the Government already had that technology and it was classified so we therefore couldn’t sell it. (This was the wrong group to try to play James Bond games with, since we had ALL worked on classified technology most of our careers.)

    In short, we beat the Government’s secrecy order (I was told for the first time in history) by one factor; the technology was already in the public domain due to a published research paper on the subject. Basically the successful argument was that if it was public, it was no longer classified.

    Unless something has changed (I got out of Gov contracts a long time ago, so it’s possible) isn’t that usable to defeat the “classified” catch-22?

    Couldn’t the case of the NSA taking back released documents and claiming the recipient can’t use it as evidence, be beaten next time by simply PUBLISHING the document (in the public domain) and therefore declassifying it? Or have the rules changed?

    • bmaz says:

      Naw, they can even classify crap after the fact; in fact, the Bushies have been going to town reclassifying all kinds of stuff that had been released. Doesn’t make it right, but they can do it.

  9. JohnLopresti says:

    I am away from my usual archive, so, lack the instantaneous possibility of rereading Clement’s brief in 07-468 aclu v nsa easily. The other thread’s link to the Sebock article was excellent; but as near as I can tell law dot com is only as current as a TGoldstein article a month ago which seemed to aspire to an inapposite framework of chilled speech, which was an argument of the academics in the brief in Taylor’s court. Recalling the process of consolidation which LDenniston seemed to cheer from his scotusblog vantage the AkinG sc goldstandard site, and academics variously bemoaned, speaking of the ripeness issue here as considered opinion writing fully footnoted, those dynamics comprise the principal retrospective that informs my current understanding of today’s sc “decision” to deny cert, which I have yet to find published to the web at the sc site, nor linked from elsewhere. It is reminscent of the 2000FL recount sc opinion in the sense that sc has shuttered the windows and warned it might wax political if cert were granted, which is why these judges were nominated. Congress, being closer to pecuniary currents than scotus, it seems the denial of cert could provide congress yet another way of examining the minimization issue, though businesspeople and academics with work in the warzone broadly likely are in for a rough ride, as if in competition with the government entities that are performing parallel research, kind of a constricting of the font of information, as it were. A more solid majority in the 111th congress might make for some interesting humanizing of these business and research opportunities for nongovernmental entities and persons; meanwhile, the neoFIsa rewrite needs to leave room to examine how scotus was so beset with concern that it opted for a ‘political question’ evasion maneuver, though without divulging its inner diversity of reactions to the appeal.

  10. sailmaker says:

    At Dkos a poster named Bouldergeist posted the following:

    Injuries to constitutional rights can be vindicated in court even in the absence of damages. Carey v. Piphus, 435 U.S. 247 (1978).

    http://www.dailykos.com/commen…..691/60#c60

    I am not a lawyer, but I believe Bouldergeist to be one. Can (and why wouldn’t ) this case be used to cover those who have been wiretapped illegally, secretly?

    Am I just slow to accept that State Secrets trumps everything else?

    • bmaz says:

      There is a universe of difference between “is it theoretically possible” and “does it stand a chance in hell of working in court for you”; trial lawyers know the difference…..

  11. Ishmael says:

    Sometimes, the cases that SCOTUS decides to take on review are as interesting as those which they decline. See todays NY Times, “Supreme Court Takes Case on Excluding Evidence”:

    In this case, the police relied on advice from a neighboring county that the appellant had an outstanding warrant against him for failing to appear in court. Relying on the advice that there was a live warrant, the police pulled him over and arrested him. A search turned up some methamphetamine in the appellant’s pocket and a pistol under the front seat of his truck. All this took place within 10 or 15 minutes, but it was then discovered that the purported warrant was inactive, the arrest unlawful, but the discovery was made only after arrest and the search incident thereto had produced the evidence. The case has gone all the way to SCOTUS, with judges at each level admitting the gun and meth relying on the well-recognized “good faith” belief exception to the exclusionary rule, that the police had acted in good faith that the warrant was active.

    Pretty unremarkable facts, and as it was simply an application of well-recognized precedent, why would SCOTUS decide to hear the appeal? Because they thought the defendant had been treated unjustly? Doubtful. More likely, it is as police-friendly a set of facts that you will ever find to expand the “good faith” exception. The MO of the Roberts’ Court, like the whole conservative movement, is stealth, and this will push the envelope on conduct that triggers the good faith exception to the exclusionary rule, just like the decisions on standing have made it more difficult to seek justice from the courts.

  12. Leen says:

    MSM starting to touch the Sibel Edmonds story . So how can the wiretapping that “may” have taken place in regard to the illegal sales of nuclear plans (Marc Grossman) be effected in the FISA “retroactive immunity” debacle?

    http://www.dallasnews.com/shar…..b446a.html

  13. Ishmael says:

    And the hits just keep on coming – SCOTUS lets stand the decision of the 5th Circuit that denied coverage to Katrina victims on the basis that it was flood damage excluded by the policy – this decision may very well be correct on the merits or the wording of the policy, but part of the toxic legacy of Bush v. Gore is that every decision SCOTUS makes now is tainted as being results-driven, especially in favour of corporate or security-state interests. I could not believe that Scalia would be giving speeches on how much torture is REALLY torture, and how much is just good old “fraternity-style” hazing from the CIA, like a Skull & Bones initiation. The idea that a judge in Canada would be so…. injudicious is simply amazing to me when he may still rule on cases before the court on the very topic.

    • bmaz says:

      I agree with the merits part; the problem is that the carriers pulled all kinds of fraudulent crap in getting almost all damage declared to be “flood damage”, even that caused by other forces such as wind, looting, fire, etc.

    • phred says:

      SCOTUS, Congress, and the President all acting in concert to preserve the power of the established political/corporate elite. Who needs checks and balances to interfere with the harmonius whole… Now if the peasants would just do as they’re told ; )

  14. Mary says:

    10 – Could they decide not to contest the suits based on standing?

    Better still, they could respond to the FOIA reqquests and let people know if they were spied upon.

    12 – If Congress is really concerned about bankrupting the phone companies they can place a cap on damages.

    Here’s my proposal – give immunity to the telecoms, but not to the telecom directors and officers who made the decisions. Give immunity to anyone for calls where a foreign power (or agent) was on at least one-half of the call.

    Granted, the officers and directors of the telecoms directly involved may not have enough money to pay off all claims, but the telecoms aren’t bankrupted (just bad actors and only if they are bad actors ) and no one has to worry about any kind of liability for helping out when al-Qaeda was calling.

    I’d go even this much further – immunity for the period of time between 9/11 and the first Patriot Act passage.

    So now you are talking about the liability of telecom execs, after the initial panic period (or possibly before ) and only where no foreign power(agent) was involved in the call.

    And, in those settings, we already know that there is immunity if there was a warrant or a qualifying AG certification too – so there you go.

    22 – Am I just slow to accept that State Secrets trumps everything else?

    No and on paper it shouldn’t – but in practice it has been a depressing deference but, IMO, an understandable deference in some ways when the Executive is so corrupt. This Executive Branch and this DOJ has no real squeamishness about telling courts to kiss their ass and asserting, strongly, that the President can do whatever he wants with no legal check. If the courts disagree – what can they do to enforce their orders with this kind of a criminal Executive Branch? It comes down to individual and personal bravery/foolhardiness/pokerskills of an individual judge.

    You know, bmaz mentioned case posture and the ACLU case is not in the best posture and is also not the best “on the facts” case for the SUp Ct to hear. I’m not necessarily upset that it didn’t take cert, or wouldn’t be if we were preRoberts and preAlito. Now – I’m not so sure whether there is a decision to both wait for a better case and also wait out the immunity issue and also wait out the election – things a prudent court wanting to protect its power by issuing an opinion during the Presidency of a President who is not as likely to just defy and to issue that opinion on more solid facts and less conjecture might do – is a possibility or if is just more of the seepage of political sewage.

    I don’t think there is any question at all that criminal behaviour can not be protected as a “state secret” and yet – how do you ever get the facts to first prove the crime when the facts themselves are hidden as state secrets too? Add on a criminally corrupt or whipped or self-interested DOJ, with an AG who has made it indubitably clear that his function is to protect criminals in the whitehouse from ever having to be responsible for their crimes – and where do you go from there?

    As long as the prosecutors are all so uniformly corrupted and in line behind an AG who is in the criminals’ pocket – what then?

    • Ishmael says:

      Mary – I’m intrigued by the concept of some judges on SCOTUS essentially “filibustering” the release of a decision, either by making sure that the case did not get the necessary 4 votes in conference to grant cert, by horsetrading or convincing enough judges that better facts will always come along, or alternatively dragging out the decision process until a new Executive (I hope!) is sworn in – if 40 Republican Senators can stop anything, perhaps 4 somewhat not as far to the right Supreme Court Justices could do the same.

    • sailmaker says:

      As long as the prosecutors are all so uniformly corrupted and in line behind an AG who is in the criminals’ pocket – what then?

      Special Prosecutor??

  15. Mary says:

    42 – I’m enamored of it, but in the same way I am enamored of Discworld. I love thinking and reading about it, but I don’t really deep down believe in it.

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