February 20, 2008 in Nation/World

Court rejects wiretap challenge

David G. Savage Los Angeles Times

WASHINGTON – 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 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, 2001, 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 argued also that his authority as commander in chief gave him the power to act in the nation’s defense.

Lawyers for the American Civil Liberties Union went to court, hoping to win a ruling declaring Bush had overstepped his powers. “The president is bound by the laws that Congress enacts. He may 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 to make it difficult to challenge the government’s anti-terrorism policies.

First, they said the 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,” the 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.”

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