High court rejects wiretap suit

Times Staff Writer

The Supreme Court on Tuesday dismissed a challenge to President Bush’s order authorizing the interception of some phone calls and e-mails within the United States, dealing another defeat to civil libertarians who say the president violated the law.

The court’s refusal to hear the case is a victory for the White House and the president’s bold use of his powers as commander in chief. Though not a ruling on the legality of Bush’s wiretapping policy, it all but forecloses a successful legal attack on it before the president leaves office early next year. In the meantime, Congress and the White House are negotiating new rules for electronic eavesdropping.

From the beginning, this dispute has turned not on whether phone calls or e-mails can be intercepted but on whether a judge must approve it. The Foreign Intelligence Surveillance Act of 1978 said the president may order secret wiretapping within the United States to catch foreign agents or terrorists, but only with the approval of a special court.


Shortly after the Sept. 11 attacks, Bush secretly bypassed this law and ordered the National Security Agency to intercept messages coming into or going out of this country if it “reasonably believed” they were linked to terrorism. The president said he did so to protect the nation from another attack, and he did not inform the FISA judges of the new policy. Bush also argued that his authority as commander in chief gave him the power to act on his own in the nation’s defense.

Lawyers for the American Civil Liberties Union went to court, hoping to win a ruling declaring that Bush had overstepped his powers. “The president is bound by the laws that Congress enacts. He may with disagree with those laws, but he may not disobey them,” they said in the appeal to the Supreme Court.

But Bush’s lawyers successfully invoked two legal doctrines making it difficult to challenge the government’s anti-terrorism policies.

First, they said, challengers must show that they had their phone calls or e-mails intercepted. Otherwise, they have no “standing” to sue because they have no injury to complain of. Second, the government said, the entire program was secret, and under the “state secrets privilege,” plaintiffs cannot obtain information on whether they were targeted for surveillance. When combined, the two doctrines make it almost impossible for most challengers to win a hearing in court.

“They say you need certain information to proceed. And that is exactly the information the government won’t give you,” said Jameel Jaffer, director of the ACLU’s National Security Program. “If you accept these doctrines, this program is entirely immune from judicial review. It’s hard to be optimistic today.”

One legal expert said it made perfect sense for the court to refuse the case. “This is not a surprise,” said Douglas W. Kmiec, a law professor at Pepperdine University who served in the Reagan administration. “The program under review no longer exists, Congress is in the midst of reauthorizing the new version of it, and the Supreme Court already has a docket full of tough cases,” such as the appeals of Guantanamo detainees.


Tuesday’s ruling was only the latest defeat for those fighting the Bush administration in court.

In October, the high court turned away an ACLU challenge to the “state secrets” doctrine on behalf of a German car salesman, Khalid el-Masri, who said he was wrongly abducted, imprisoned and tortured by the CIA in a case of mistaken identity.

The U.S. 9th Circuit Court of Appeals in November rejected a legal challenge to NSA wiretapping from the Al-Haramain Islamic Foundation.

The ACLU filed its suit against the wiretapping policy in Detroit and cited as plaintiffs lawyers and journalists who had regular contact with persons under investigation by the government. The lawyers argued that they could not contact their clients for fear of being overheard.

Acting on this suit, a judge in Detroit declared Bush’s policy unconstitutional in a strongly worded opinion.

Last July, however, the U.S. appeals court in Cincinnati overturned that ruling and threw out the lawsuit in a 2-1 decision. The majority said the plaintiffs did not have standing to sue because they could not show they were targeted for surveillance.


In October, the ACLU appealed the issue to the Supreme Court.

U.S. Solicitor Gen. Paul D. Clement urged the justices to dismiss the case in part because Congress and the president were negotiating new legal rules for wiretapping. There is no need to “wade into such sensitive issues in light of the facts that petitioners have failed to establish standing and that the program they seek to enjoin . . . no longer exists,” Clement said.

The case ended quietly Tuesday when the justices issued a one-line order turning down the case of ACLU vs. NSA.