Surveillance

Supreme Court Doesn't Want to Hear Warrantless Electronic Surveillance Case, And Obama is Glad

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Wired has the bad news:

The Supreme Court closed a 6-year-old chapter Tuesday in the Electronic Frontier Foundation's bid to hold the nation's telecoms liable for allegedly providing the National Security Agency with backdoors to eavesdrop, without warrants, on Americans' electronic communications in violation of federal law.

The justices, without comment, declined to review a lower court's December decision (.pdf) dismissing the EFF's lawsuit challenging the NSA's warrantless eavesdropping program. At the center of the dispute was 2008 congressional legislation retroactively immunizing the telcos from being sued for cooperating with the government in a program President George W. Bush adopted shortly after the September 2001 terror attacks.

After Bush signed the legislation and invoked its authority in 2008, a San Francisco federal judge tossed the case, and the EFF appealed. Among other things, the EFF claimed the legislation, which granted the president the discretion to invoke immunity, was an illegal abuse of power.

That doesn't mean that the issues involved in the suit will never get their day in court:

…litigation on the surveillance program continues. After U.S. District Judge Vaughn Walker tossed the case against the telcos, the EFF sued the government instead. Walker dismissed that case, too, ruling that it amounted to a "general grievance" from the public and not an actionable claim. But a federal appeals court reversed, and sent it down to a trial judge in December.

Judge Margaret McKeown, of the 9th U.S. Circuit Court of Appeals, ruled that the EFF's claims "are not abstract, generalized grievances and instead meet the constitutional standing requirement of concrete injury. Although there has been considerable debate and legislative activity surrounding the surveillance program, the claims do not raise a political question nor are they inappropriate for judicial resolution."

A hearing on that case is scheduled next month in San Francisco federal court.

Guess who wants this stuff squashed? President Transparency himself, that civil liberties hero Barack Obama. Wake the f*ck up, Obama fans….

The Obama administration is again seeking it to be tossed, claiming it threatens to expose state secrets and would be an affront to national security. When the state secrets doctrine is invoked, judges routinely dismiss cases amid fears of exposing national security secrets.

I wrote for the American Conservative back in 2010 on the government's endless power and appetite for electronic surveillance of we the people. Jacob Sullum wrote on Obama's record on warrantless electronic surveillance, and this EFF suit, in April 2009.