The domestic spying case ends quietly as the justices issue a one-line order dismissing the ACLU challenge of the Bush program.
By David G. Savage, Los Angeles Times, Feb. 19, 2008
WASHINGTON -- The Supreme Court today dismissed the first legal challenge to President Bush's warrantless wiretapping order, but without ruling on any of the key issues.
Since Congress is now fighting with the White House over new rules for wiretapping, the court may have chosen to stand aside from the controversy.
Lawyers for the American Civil Liberties Union had argued that this dispute went beyond whether the nation's spy agency could intercept international phone calls and e-mails. It raised the question of whether the president must abide by the law, they said.
The Foreign Intelligence Surveillance Act of 1978, a Cold War-era compromise, said the president could order secret wiretapping within the United States, but only with the specific approval of a special court.
But after the terrorist attacks of Sept. 11, 2001, President Bush issued a secret order to the National Security Agency that authorized it to intercept phone calls or e-mails coming into or going out of this country if there was a "reasonable basis" to believe there was a link to Al Qaeda. More significantly, the NSA did not need the approval of the FISA court to conduct this spying, according to the order.
When Bush's order was revealed in 2005, the president defended his decision as necessary for protecting against another attack within the United States. He also argued that the president, as commander in chief of the armed services, had the constitutional authority to act in the national interest, even if a law stood in the way.
The ACLU's lawyer urged the courts to take up the issue and rule that the law must be followed. "The president is bound by the laws that Congress enacts. He may disagree with those laws, but he may not disobey them," the ACLU said in the appeal to the Supreme Court.
But their lawsuit faced several hurdles before it could yield a ruling. They did not have proof that anyone in the United States had had calls or e-mails intercepted. They sued on behalf of several lawyers and journalists who had regular contact with people who were being investigated in terrorism-related cases. The lawyers said they did not feel free to contact their clients.
Last July, however, the U.S. appeals court in Cincinnati threw out the lawsuit and ruled that these people did not have standing to sue. This 2-1 decision reversed a strongly worded ruling by a judge in Detroit who declared Bush's order unconstitutional.
The argument over standing is especially frustrating for the civil libertarians. They say secret spying is illegal without a judge's order, but they cannot challenge the policy in court because they cannot prove one of their clients has been spied on.
In October, the ACLU asked the Supreme Court to take up their appeal and to rule that the Constitution does not give the president the power to ignore the laws. Administration lawyers said the disputed program is being revised in Congress, and they urged the justices to defer any decision on how it works.
The case ended quietly today when the justices issued a one-line order turning down the case of ACLU vs. NSA.