Supreme Court Takes A Pass On Challenging Legality Of Government Surveillance Programs

from the another-cheap-win-for-government-surveillance! dept

Wed, Mar 5th 2014 1:17pm — Tim Cushing

The Supreme Court has just given the government (and the NSA's defenders) a little more breathing room on the issue of the legality of the agency's surveillance programs.

In a case very similar to a lawsuit brought by the American Civil Liberties Union (ACLU) against warrantless surveillance made “legal” by the FISA Amendments Act (FAA) of 2008, which the Supreme Court declined to grant “standing” in February 2013, the Center for Constitutional Rights (CCR) announced the Court had rejected their lawsuit against Bush-era warrantless surveillance.

“The Supreme Court’s refusal to review this case guarantees that the federal courts will never address a fundamental question: Was the warrantless surveillance program the NSA carried out on President Bush’s orders legal? The Court’s decision also guarantees that the Obama administration, which has for the last five years refused to take any position on that question, will now never have to answer either,” CCR declared.

This refusal will give those who claim the programs are "legal" another notch on the rhetoric belt, as if not discussing the legality (or illegality) of the program was the equivalent to being found legal by the highest court in the land. If the courts are unwilling to entertain surveillance-related cases, either by refusal to grant standing or refusal to hear the case at all, the defenders can continue to claim the programs are legal.

CCR has what would seem to be a pretty solid legal stake in challenging the legality of these programs, especially considering the recent revelations that the NSA signed off on the collection of privileged attorney-client communications. CCR is representing "hundreds" of Guantanamo Bay detainees, charged as "enemy combatants" and held indefinitely, each of which could be "legally" surveilled as they hold supposedly privileged conversations with their legal representation.

Lawyers have refused to take terrorism cases because they refuse to have their privacy violated by the government, and attorney have also warned their own clients that they should “self-censor” and assume they are being spied upon by the government when they communicate anything.

This is not some “speculative” issue. On February 20, the American Bar Association, which has around 400,000 members, expressed concerns about recent allegations that the “confidential communications” of American lawyers with “overseas clients” had been violated.

As the article points out, this isn't speculative. In addition to the above-mentioned leak, other evidence has been uncovered that points to the government listening in on privileged conversations. Nicolas Niarchos of The Nation reviewed classified documents related to terrorist suspect Adis Medunjanin. Medunjanin made 42 phone calls to his legal rep from mid-2009 to 2010. In the classified documents, Niarchos found a CD of these 42 phone calls.

Even if the NSA has no clear directive warning it away from attorney-client communications, it certainly should still be required to conform with the protections of the Constitution. Collecting evidence by listening in on conversations presumed to be privileged further subverts due process by giving the government access to info it normally (via any other agency) wouldn't have access to. You know, I don't want the terrorists to "win" either, but I'd rather not sacrifice my rights on the altar of "security" to achieve that goal.

The Supreme Court's disinterest in this case will only further insulate the government against the consequences of its own behavior.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: nsa, privacy, supreme court, surveillance

23 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

silverscarcat (profile), 5 Mar 2014 @ 11:44am

*Sigh*
I'm getting to the point where I want to round up everyone in government that lets this crap go on and put them in front of a firing squad.
[ link to this | view in thread ]
BentFranklin (profile), 5 Mar 2014 @ 12:19pm

These spies have no self-restraint and yet we're supposed to trust them?
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2014 @ 1:24pm

The administration has failed us.
Congress has failed us.
The Supreme Court has failed us.
This Government has failed us.

Time to replace.
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2014 @ 1:30pm

The time has come for us to stop bothering with going after the generals, congress, etc...

The real enemies are the 20 somethings that are sitting in front of a computer screen enabling the destruction of our country and many others by their actions.

Whether it is Hitler youth, or NSA youth, a gun or a computer, if they can ruin your life with it, they are the enemy.

Its time we start to cause some problems for these people, rather than waste time on some 4 star general who is so delusional he would know it if he was run over.

This level of spying could never take place without the sell outs working at the NSA in front of a screen.
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2014 @ 1:34pm

I look at the first replies and then I reflect on the idea that DHS, IRS, and the USPS, have all been purchasing ammo in bulk.

What do you think they know we don't that would require the bulk purchase of huge amounts of ammo?
[ link to this | view in thread ]
S. T. Stone, 5 Mar 2014 @ 1:34pm

Re:
With who, Ellen DeGeneres and everyone in her Oscar selfie photo?

�come to think of it, they might at least try to get some shit done.

TOSS THE BUMS OUT AND LET�S ORDER PIZZA!
[ link to this | view in thread ]
art guerrilla (profile), 5 Mar 2014 @ 1:47pm

Re: Re:
i've said this before, and i want you to know i am SERIOUS:
we -as the 99%- would be BETTER SERVED if we had a retard in the white house...
yes, SERIOUSLY...

here's why:
1. i think *most* retards who are still minimally functional, actually have admirable innate morals and ethics which they follow...
(scumbag politicians have the morals of psychopaths)
2. the decisions made by the administration go AGAINST the wants and needs of the 99% approximately 99% of the time...
EVEN IF we replaced the president with a coin toss, that would increase decisions made in our favor to approximately 50% ! ! !
3. barring undue influence by said psychopathic political leaders, i think a retard would make decisions to benefit us 99% *MORE* than 50% of the time, maybe even 90-99% ! ! !

when we only have 1% of the decisions going our way, ANYTHING would be better...
[ link to this | view in thread ]
kenichi tanaka (profile), 5 Mar 2014 @ 2:02pm

The U.S. Supreme Court has just given Americans the explanation that the U.S. Supreme Court is just as corrupt as the Obama Administration (where it concerns constitutional rights that are guaranteed to every American).
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2014 @ 2:05pm

WTF is wrong with those guys? Are they avoiding this of purpose? I mean they can't be that STUPID to not realize the government has been abusing its surveillance power and are not telling the truth, can they?
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2014 @ 2:08pm

Re: *Sigh*
yes, we need to do that.
[ link to this | view in thread ]
That One Guy (profile), 5 Mar 2014 @ 2:17pm

'Legal by default' doesn't count
So more and more it's looking like their claims of 'The programs are legal!' are based upon their pet judges ruling so(based upon faulty and/or insufficient information), and the fact that no court up to and including the Supreme Court wants to touch the issue(and I can't possibly imagine why... /s).
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2014 @ 2:19pm

what were the specific reasons for not hearing this case, other than preferring to bend over and lift their 'frocks' for the NSA and the government? i cannot believe that the Supreme Court did this unless they too are actually in agreement of the spying or have been given some subtle but specific warnings of the consequences, eg removing them from office, reducing their salary, having surveillance put on their families. you know, nothing too drastic!!
[ link to this | view in thread ]
TheResidentSkeptic (profile), 5 Mar 2014 @ 2:23pm

Hi Guys
... there's a case coming up about how legal our data collection efforts are ... you might want to think about what data we have on you before you think about taking on that case.

Just sayin'

you know who...
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2014 @ 2:41pm

Re:
The supreme court were told not to rock the boat five years ago ... apparently they listened
[ link to this | view in thread ]
Edward Teach, 5 Mar 2014 @ 2:58pm

Re: Hi Guys
Indeed.

Justice Thomas is almost certainly already compromised:
http://thinkprogress.org/progress-report/the-clarence-thomas-scandal/#

Yes, I know that's "Think Progress", but you can find it in the NY Times, too.
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2014 @ 3:06pm

No audience means no precedent
Given the current crop of idiots serving in the US Supreme Court, perhaps this is a blessing in disguise?
[ link to this | view in thread ]
John Fenderson (profile), 5 Mar 2014 @ 3:54pm

Re:
Don't forget about Congress and both major political parties. The corruption is thick in every direction you look.
[ link to this | view in thread ]
AC, 5 Mar 2014 @ 4:36pm

Psycho
You know all people of major power, ( Politicians, fortune 500 company CEO's Bank CEO's and such ) Are all psychopaths as this is a proven. Only a psycho could lay off 3000 people to make a bigger bonus, or spy on his/her constituents with not batting an eye.

The only way to fix this is a new revolution.
[ link to this | view in thread ]
Anon, 6 Mar 2014 @ 12:32am

Re:
Yea right, like that will happen.

Americans are just like goldfish... wait 7 seconds and they forget about everything.
[ link to this | view in thread ]
Anonymous Coward, 6 Mar 2014 @ 2:56am

and this shit is slopping over the boarders of the
US and stuffing up the rest of the world, The US remains Number 1 at only one thing.
[ link to this | view in thread ]
I'm_Having_None_Of_It, 6 Mar 2014 @ 8:15am

Re: Re: Re:
Dare I mention George "Dubya" Bush? Remember how that worked out? He was like Peter Griffin from Family Guy, and as a matter of fact, his morals and ethics made him easy to manipulate. Remember the "Let Freedom Reign!" note he passed to Dr. Condoleezza Rice at the opening session of a NATO summit in 2004?

He believed that what he was doing to "those folks" was the right thing, and when he thought he was right, he didn't care what anyone else thought.

President Obama, who comes across as being smarter, claims purity of heart for his actions, too.

Sorry, it just wouldn't work.
[ link to this | view in thread ]
Anonymous Coward, 6 Mar 2014 @ 2:23pm

If Larry Klayman's case looses on appeal, and the Supreme Court refuses to hear it. We'll then know for sure, that the Judicial Branch of the American Government is exercising their powers as a corrupt authority.
[ link to this | view in thread ]
John Smith, 6 Mar 2014 @ 10:11pm

I look at the first replies and then I reflect on the idea that DHS, IRS, and the USPS, have all been purchasing ammo in bulk. What do you think they know we don't that would require the bulk purchase of huge amounts of ammo?
Seriously? Ammo prices are back where they were. Take off your tin foil hat.
[ link to this | view in thread ]