Tuesday, February 19, 2008


The courts and Congress affirmatively conceal and protect lawbreaking

by Glenn Greenwald

In August, 2006, Judge Anna Diggs Taylor became the first federal judge ever to rule on the legality of the Bush administration's NSA warrantless spying program, and she ruled that the NSA program violated both statutory law as well as multiple rights guaranteed by the U.S. Constitution. The case was brought by the ACLU on behalf of numerous Muslim lawyers, journalists and others, who argued that the existence of the warrantless eavesdropping program rendered them unable to perform their jobs.

The Bush administration appealed that decision to a three-judge panel of the Sixth Circuit. In July of last year, two of the three appellate judges voted to reverse Judge Diggs Taylor's ruling, not because they disagreed with her conclusions about the program's legality. Instead, they found that the plaintiffs lacked "standing" to challenge the legality of the program -- and courts were therefore barred from ruling on their claims -- because the plaintiffs were unable to prove that they were actually subjected to the warrantless eavesdropping (due to the absolute secrecy under which the program operates).

The third member of the appellate panel, Judge Gilman, dissented from that finding, holding that plaintiffs were permitted to proceed with the lawsuit, and then proceeded to find that the NSA program was illegal. Thus, even to date, the only two judges ever to rule on the legality of Bush's NSA program -- District Judge Diggs Taylor and the Sixth Circuit's Judge Gilman -- have both ruled that it was illegal.

The ACLU appealed the Sixth Circuit's procedural ruling to the U.S. Supreme Court, asking the Court to hear the appeal. Today, the Court announced that it would not hear the appeal, thus bringing an end to the ACLU's legal challenge to the NSA program (even though no judge has ever ruled the program legal):

The justices' decision, issued without comment, is the latest setback to legal efforts to force disclosure of details of the warrantless wiretapping that began after the Sept. 11 attacks.

The Supreme Court accepts only a tiny percentage of cases for appeal, and under its long-standing rules, a refusal to hear a case does not constitute agreement with the lower court's decision. It simply means that the Court, for whatever reasons, will not decide the appeal.

This decision does mean, however, that EFF's pending lawsuits in San Francisco against AT&T, Verizon and the other telecoms are now the sole remaining vehicle for finding out what the Bush administration actually did when spying on Americans for years without warrants, and as importantly, is the last hope for obtaining a judicial ruling as to whether the President broke the law and violated the Constitution when doing so. If Jay Rockefeller and Dick Cheney have their way and retroactive amnesty is granted to these telecoms, those lawsuits will be forever dismissed and Americans will remain indefinitely in the dark about how our own Government spied on us, and will forever lose the opportunity to have a court rule whether the Government broke the law and violated our Constitutional rights.

read the rest here:

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