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ACLU Asks Supremes to Hear Warrantless-Surveillance Case
A new Supreme Court term, a new chance for a legal challenge to the Bush administration's warrantless surveillance efforts. Today the ACLU asked the Court to take up a case it brought last year against the administration by American citizens who suspect that their communications were unlawfully monitored.
Last year, District Judge Anna Diggs Taylor ordered an injunction on the surveillance in response to the case, an order that led to the Bush administration placing the program(s) under the Foreign Intelligence Surveillance Court (well, for the time being). The Justice Department objected, saying the plaintiffs in the case -- a collection of "prominent journalists, scholars, attorneys and national advocacy organizations" -- couldn't prove they had been surveilled, since the administration wasn't revealing who it spied upon. Circuit Court Judge Alice Batchelder sided with the government in July.
The ACLU is now asking the Court to take up two questions. First, whether the non-disclosure of surveillance targets is an inappropriate grounds to deny standing to those with a reasonable suspicion that they've been monitored -- Batchelder's ruling, in other words. Then there's the core issue: "Whether the President possesses authority under Article II of the Constitution to engage in intelligence surveillance within the United States that Congress has expressly prohibited." You can read the ACLU's filing here (pdf).
No word yet on whether the Court will take the case.
Comments (5)
AngryAmerican wrote on October 3, 2007 11:33 AM:Of course they won't take the case. Unless it is to make the crimes of bush/vader legal.
litigatormom wrote on October 3, 2007 12:24 PM:The recent case out of Oregon found the lack of notice to surveillance targets to be one of the elements of the TSP that violates the Fourth Amendment. Normally, where surveillance follows the issuance of a warrant based on a showing of probable cause, the target learns after the fact that the surveillance or search has taken place, giving him an opportunity to challenge the issuance of the warrant and the use of the evidence obtained. (In the Oregon case, the target KNEW, because he was subsequently jailed, that he had been the object of a FISA/Patriot Act search/surveillance.) In addition, the Oregon judge found the Patriot Act's amendment of FISA to permit surveillance of US persons, pursuant to a FISA warrant rather than a regular warrant, to violate the Fourth Amendment because the FISA court issued such warrants without a showing of either probable cause or that foreign intelligence gather was the PRIMARY purpose of the surveillance. The government is appealing to the Ninth Circuit.
Now, the Supreme Court is not obligated to grant certiorari in the Sixth Circuit case. It could, because the case involves an "important issue" under the Constitution and federal statutes. But there is no assurance that it would reverse even if it took the case. The four liberal justices could vote to take the case (you only need 4 votes to grant cert) and then Justice Kennedy could gum up the words by siding with the conservatives. The Supreme Court's decisions on military detention were issued when O'Connor was still on the Court.
lambert strether wrote on October 3, 2007 1:10 PM:Tell me again why we regard the Bush Court and its decisions as legitimate?
The Bush court only exists because of Bush v. Gore, and that was written with the outcome in mind, not the law (just as the Justice Department brings suits with election outcomes in mind, not the law). Every decision that the Bush Court has made and will make is fruit of that poisonous tree.
habanero wrote on October 3, 2007 5:21 PM:Granting cert would be the battle of the titans. I suspect the creativity of the most right leaning members of the SCOTUS would present an exhibition of legal intercourse that would strain even Justice Scalia's ability to write something that would stand the test of time. (That means you cannot plagiarize our former chief justices work product such as "All The Laws But One.")
For once I want to see the middle ground justices and Justice Kennedy serve them their behind.
melior wrote on October 4, 2007 1:53 AM:One thing that seems certain: if Roberts' SCOTUS agrees to hear this case, the 5-4 majority will find reason to declare that it is a one-off decision that applies solely to President Cheney in this situation, and should not be applied as a precedent.