Supreme Court Bugs Out On Bugging

Space shuttle Endeavour on the launch pad at Cape Canaveral, Fla., July 12, 2009. Nasa space station STS-127 NASA TV

The Supreme Court refused Monday to be drawn into a dispute over the boundaries of a law giving the government broader surveillance authority after the Sept. 11 terrorist attacks.

The American Civil Liberties Union and other organizations wanted the justices to consider when the government should be allowed to monitor someone's telephone conversations and e-mail, then use the information to prosecute them.

The Bush administration has argued the surveillance, and a special court that oversees sensitive domestic espionage tactics, are indispensable tools in the war on terror.

The Supreme Court dodged the issue entirely by declining to hear the case, says CBSNews.com Legal Analyst Andrew Cohen, so anyone wanting to challenge the practice will have to wait for someone to be prosecuted based upon this information. That may take years, or it may occur quite soon.

The ACLU used an unusual maneuver to get the case to the Supreme Court, filing an appeal on behalf of people who don't even know they're being monitored. The justices would have had to give special permission to allow it. They refused, without comment.

The action was not a ruling on the merits of the ACLU's challenge, and the issue is expected to return to the high court later.

In other action Monday:
  • The Court said Monday it will consider the scope of police power to arrest all occupants of a car during a traffic stop, agreeing to look at a case in which everyone in a car denied knowledge of drugs and a roll of cash found inside. The case from Maryland continues a line of Supreme Court cases clarifying when officers have probable cause and can apprehend someone without a warrant. Twenty states, including Ohio, had urged the court to hear the case.

  • The Supreme Court rejected an appeal Monday over contested rules for competition for telephone and Internet services. The appeal had essentially become moot because the contested rules were being overhauled by the Federal Communications Commission, the Bush administration told the court. New rules were approved last month.
No one thinks that the debate on surveillance will end here, with a procedural move by the Supreme Court, says Cohen. Virtually everyone involved, on both sides of the fight, believes that the Supreme Court is going to have to resolve the issue one way or the other.

The administration has aggressively defended its use of wiretaps approved by the super-secret Foreign Intelligence Surveillance Court, or "spy court," which deals with intelligence requests involving suspected spies, terrorists and foreign agents.

Even the spy court had reservations about that aggressiveness. Last May, the court ruled that the USA Patriot Act passed by Congress after the terrorist attacks did not justify the use of certain investigative techniques proposed by the administration.

Attorney General John Ashcroft appealed to a review court which had never met or issued a decision during the spy court's 25-year existence. That court sided with the administration and said government officials did not have to limit their monitoring to foreign intelligence. That means law enforcement officers can use the information to build cases for prosecution.

The review court decision "opens the door to surveillance abuses that seriously threatened our democracy in the past," justices were told in the filing by the ACLU, the National Association of Criminal Defense Lawyers, the American-Arab Anti-Discrimination Committee and the Arab Community Center for Economic and Social Services.

To get a warrant from the spy court, the government must show that a suspect probably is a "foreign power or agent of a foreign power." Law enforcement must meet a higher standard — probable cause that a crime was committed — to get an ordinary criminal warrant for wiretapping or other electronic intrusion.

The administration did not respond to the ACLU's appeal. Any of the nine justices could have demanded a response, but none did.

The spy court has approved thousands of warrants since it was established by Congress in 1978, and it only rarely turns down the government.

The case is one of two at the Supreme Court involving issues related to the terrorist attacks. The other challenges the government's holding of closed deportation hearings after the attacks.

Ashcroft has approved more than 170 emergency domestic spying warrants, triple the number used in the previous 23 years.

The emergency warrants, which are authorized under the Foreign Intelligence Surveillance Act, permit authorities to tap telephones and fax numbers and conduct physical searches for up to 72 hours before they are subject to review by the special, secret Foreign Intelligence Surveillance Court.

In testimony to Congress earlier this month, Ashcroft said there were more than 1,000 applications for FISA warrants in 2002, including the emergency warrants.

The ACLU had filed challenges in Michigan and New Jersey, on behalf of media organizations seeking access to hearings involving foreigners swept up in the terrorism probes.

The 3rd U.S. Circuit Court of Appeals in Philadelphia ruled that the attorney general has the right to close the hearings for reasons of national security. The ACLU appealed the decision. The government has until next month to appeal an appeals court decision that went the other way.

"The courts continue to have a critical role in ensuring that the government's efforts to protect national security are done in a manner that is consistent with protecting civil liberties," said Steven Shapiro, the ACLU's legal director.
  • Lloyd Vries

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