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High court stays out of NSA surveillance row

  • Story Highlights
  • American Civil Liberties Union attorney calls court's inaction "very disappointing"
  • Surveillance program was authorized in secret following 9/11 attacks
  • Appeals court ruled in July that claimants had to prove they were targeted
  • President, Justice Department have said program is vital to national security
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From Bill Mears
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WASHINGTON (CNN) -- The Supreme Court offered no explanation Tuesday for refusing to hear an appeal regarding the Bush administration's covert domestic surveillance program.

President Bush secretly instituted the National Security Agency's domestic spying program after 9/11.

The American Civil Liberties Union and other groups filed the appeal, saying they were targeted by government spying. Critics says the program violates Americans' rights to privacy.

"To us, it's very disappointing that the president's actions will go unremarked upon by the Supreme Court," said Jameel Jaffer, the ACLU's lead counsel in the case. "It should not be up to the executive branch alone to determine what limits apply to its surveillance activities."

The program was created in secret -- without congressional or judicial approval -- by President Bush following the September 11, 2001, terrorist attacks. Dubbed the Terror Surveillance Program, it was designed to electronically monitor domestic terrorist activity. Video Watch Bush explain why the program makes the U.S. safer »

The U.S. Court of Appeals for the Sixth Circuit ruled in July that a coalition of journalists, scholars, legal advocates and watchdog groups had no legal standing to pursue a claim because they could not prove they had been targeted by the National Security Agency program.

"They cannot establish they are 'aggrieved persons,' " wrote Judge Alice Batchelder for the Cincinnati, Ohio, court's 2-1 majority.

The ACLU said the ruling placed it in an untenable legal position. Jaffer said Tuesday the ruling created a Catch-22 by requiring that claimants prove they were targeted, but allowing the government to withhold information about the program.

The Justice Department has countered that the documents are constitutionally protected under the "state secrets privilege."

The July appeals ruling, said Jaffer, "entirely immunized from judicial review" decisions regarding the domestic surveillance program.

"It's important that all three branches of government have a role when civil liberties are at stake, and that's true even when we're talking about national security," Jaffer said Tuesday. "I do think today's development makes it even more important that Congress gets a commitment from this administration and future administrations to abide by the law."

With the approval of a federal judge, the surveillance program was replaced with a similar one in January 2007. All electronic surveillance conducted under the program must be approved by the Foreign Intelligence Surveillance Act court, the Justice Department said in a statement at the time.

The FISA court meets in secret. It has been in place since the 1970s and is charged with approving warrants for surveillance relating to national security. In OK'ing the Terror Surveillance Program after September 11, the government argued it was permitted to circumvent the FISA court when there was an imminent security threat.

The high court was asked to decide only whether the ACLU was able to represent the claims of people and groups who say they were spied on. The justices were not asked to address the larger questions of whether the program is legal or what the limits are regarding surveillance without a warrant.

A federal appeals court in San Francisco, California, is deciding those issues, and the Supreme Court will likely be asked to weigh in.

The NSA is presently allowed to continue its activities, including monitoring Americans' phone calls and e-mails.

The House and Senate this month passed separate bills updating the 30-year-old FISA law that regulates the intelligence community's spying practices.

The Senate version, backed by Bush, enhances the government's surveillance capabilities and provides retroactive immunity to telecommunications companies that help the government eavesdrop on Americans. The House version does not contain the immunity provision.

Civil liberties groups filed their original lawsuit in January 2006, alleging their communications with parties outside the country were monitored under the NSA wiretapping program.

The alleged surveillance disrupted "the ability of the plaintiffs to talk with sources, locate witnesses, conduct scholarship and engage in advocacy," the complaint said.

NSA-run electronic surveillance programs have been under fire since December 2005, when The New York Times reported that the government was not obtaining court orders before eavesdropping on international calls involving people in the United States suspected of links to terrorists.

While critics called it an invasion of privacy, the Bush administration defended it as a necessary tool in the war on terror.


"The country will be more vulnerable to a terrorist attack" without the program, the government argued in its appeal to the Supreme Court.

Plaintiffs included branches of the ACLU, the National Association of Criminal Defense Lawyers, the Washington and Detroit branches of the Council on American-Islamic Relations and Greenpeace. E-mail to a friend E-mail to a friend

CNN's Eliott C. McLaughlin contributed to this report.

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