The Supreme Court has declined to review an appeal from the ACLU challenging the administration's warrantless wiretapping program:
The American Civil Liberties Union wanted the court to allow a lawsuit by the group and individuals over the wiretapping program. The 6th U.S. Circuit Court of Appeals dismissed the suit, saying the plaintiffs could not prove their communications had been monitored.
The government has refused to turn over information about the closely guarded program that could reveal who has been under surveillance.
ACLU legal director Steven R. Shapiro has said his group is in a "Catch-22" because the government says the identities of people whose communications have been intercepted is secret. But only people who know they have been wiretapped can sue over the program, Shapiro has said.
For the case to go forward,
a majority of the four justices had to vote in favor. Apparently in the Roberts court, there aren't four votes in favor of examining warrantless wiretapping more closely. The case was dismissed without comment by the Court, so we need to look back to the Sixth Circuit Appeals court's decision for possible reasoning on the issue of whether the groups and individuals the ACLU was representing have standing. Here's what Marty Lederman wrote about that ruling.
This is not a case in which the government's alleged unlawful conduct did not harm anyone and in which the judiciary is therefore merely being asked to sit in judgment of a coordinate branch's lawfulness -- something that arguably is better suited for the political branches. There is no doubt that many, many U.S. persons were legally injured by the TSP program (at least to the effect their statutory rights under FISA were violated). Indeed, it is almost certain that some of the plaintiffs and/or their clients were surveilled under TSP (and would not have been surveilled, certainly not to the same extent, if the NSA had complied with FISA -- see below). Therefore, even if one accepts the modern Supreme Court standing doctrine, there are some plaintiffs out there with standing to sue -- at worst, we simply can't tell who those persons are. (Moreover, such indeterminacy and uncertainty about the scope of the program actually increases the number of persons who fear such surveillance and whose speech is therefore chilled.) And it is highly likely that there are persons with standing among the plaintiffs themselves.
Where that is the case, and where the only reason we cannot identify for certain which plaintiffs were surveilled is because of the wrongdoer's own secrecy, wouldn't that argue for at least a rebuttable presumption that there are some in the plaintiff class with standing? Indeed, isn't that presumption even stronger here because the NSA is unwilling even to claim, let alone to prove, that it did not surveille any of the plaintiffs or their clients in the TSP program? (If the NSA did not, in fact, surveille any of them, I can think of no good reason -- certainly not a so-called state secrets privilege -- why the agency could not inform the court of that fact.)
We do know that there are persons with standing to sue, we don't know who they are. One avenue for finding that out has now effectively been shut down. Another avenue--aggressive Congressional investigation--is never going to happen.
So that leaves one avenue--lawsuits against the telcos who participated. As of now, those lawsuits are still viable. There are still cases pending in the 9th Circuit brought by Electronic Frontier Foundation and the ACLU. Update: for clarity's sake--because of an inadvertent document release by the government, we do know who many of the people targeted are. The standing issue is thus much stronger in these cases. But....
And these cases continue only if the House holds the line against granting the telcos retroactive amnesty. We're right back where we started.
Update: The ACLU response (via e-mail):
Jameel Jaffer, Director of the ACLU’s National Security Project:
"Congress enacted the Foreign Intelligence Surveillance Act intending to protect the rights of U.S. citizens and residents, and the president systematically broke that law over a period of more than five years. It’s very disturbing that the president’s actions will not be reviewed by the Supreme Court. It shouldn’t be left to executive branch officials alone to determine what limits apply to their own surveillance activities and whether those limits are being honored. Allowing the executive branch to police itself flies in the face of the constitutional system of checks and balances."
Steven R. Shapiro, Legal Director of the ACLU:
"Although we are deeply disappointed with the Supreme Court’s refusal to review this case, it is worth noting that today’s action says nothing about the case’s merits and does not suggest in any way an endorsement of the lower court’s decision. The court’s unwillingness to act makes it even more important that Congress insist on legislative safeguards that will protect civil liberties without jeopardizing national security."