Court turns away FISA challenge

The Supreme Court yesterday refused to review a legal challenge by the American Civil Liberties Union to President Bush’s domestic terrorist surveillance program but did not rule on several key issues, including whether the government could intercept international phone calls and e-mails.

With questions remaining on whether Congress will reauthorize the Foreign Intelligence Surveillance Act (FISA) program, legal scholars said, the court might have opted to let pending legislation in Congress run its course. They noted that the court only issued an order in the case and that none of the justices wrote an opinion.

“Some justices may have been persuaded by the 6th Circuit ruling that found plaintiffs lacked standing and were content to let that ruling stand,” said Carl Tobias, a law professor at the University of Richmond. “Other justices may have been persuaded by the government argument that the court should stay its hand while FISA legislation is pending in Congress and may pass.”

The ACLU brought the case on behalf of journalists, scholars, lawyers and nonprofit groups who said the National Security Agency program disrupted their ability to communicate with sources and clients.

The high court’s decision let stand a ruling by the 6th U.S. Circuit Court of Appeals in Cincinnati, which said the plaintiffs could not show with certainty that they had been wiretapped by the government.

“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,” said ACLU legal director Steven R. Shapiro.

“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,” he said.

House Democrats allowed a temporary update of FISA to expire Saturday, rather than meet White House demands that the law include retroactive immunity for telecommunications companies that aided the surveillance program after the September 11 attacks.

At least 40 civil rights lawsuits are pending against the telephone companies. Bush administration officials say those lawsuits and the potential for more discourages the companies from voluntarily participating in future counterterrorism programs.

The Democrat-led Congress passed the temporary measures in August to modernize the 1978 FISA law and eliminate the need for the secret FISA court to oversee wiretaps of foreign communications. The temporary update did not address the immunity issue.

The standoff has Democrats and Republicans accusing each other of playing political games with national security. The debate is expected to continue next week when Congress returns from a weeklong break.

In July, an appeals court panel dismissed the ACLU lawsuit in a 2-1 ruling, but did not rule on the legality of the surveillance program. It also vacated a 2006 order by a lower court in Detroit that found the post-September 11 program unconstitutional.

The Justice Department called the surveillance program “an essential tool for the intelligence community” in the nation’s war on terror.

The court also:

• Refused to intervene in lawsuits by Hurricane Katrina victims that seek to force insurers to pay for damages from the flooding that followed the failure of New Orleans’ levees.

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