WASHINGTON - The Supreme Court has rejected a challenge to the Bush administration's domestic spying program.
The justices' decision Tuesday includes no comment explaining why they turned down the appeal from the American Civil Liberties Union.
The ACLU appealed the case because the lower court said that the plaintiffs couldn't prove they had been spied on. The government said they couldn't reveal whether or not they had been spied on because it would compromise state security.
That's pretty much the definition of Catch-22.
So one more pillar of the American Constitution knocked away by the Bush Supreme Court.
Doesn't it make you feel all tingly?
UPDATE 1: Several commenters have pointed out that until we know why the Justices denied certiorari (i.e., hear an appeal from a circuit court of appeals), we shouldn't jump to any conclusions.
Coffeetalk makes a good point:
...[T]his case, as it came before the Court on this particular occasion, was not about whether the program was illegal. It was about who could bring a lawsuit over the program. The case does not prevent future challenges to the program by people who can show that they have been subject to the program -- if, for example, the government tries to use some of the information it obtained.
Not only that: for example, any number of the more liberal judges may have felt that it would be better NOT to hear the case and risk losing it.
Litigatormom:
I assume (see my longer post downthread) that the liberal four decided that the Sixth Circuit case wasn't a particularly strong case for a reversal, and didn't want to take it up only to have the the other five put the Supreme Court's imprimatur on the program. From their point of view, it would be better to wait for a case with "better" facts, or a stronger opinion from the District Court.
Of course, in the meantime, make sure you avoid references to "Allah" or "jihad" in your phone calls.
Yes, indeedy.
UPDATE 2: HT to mcjoan for recalling what Marty Lederman wrote earlier about this case:
[B]ecause the NSA is unwilling even to claim, let alone to prove, that it did not surveille any of the plaintiffs or their clients in the TSP program...I can think of no good reason -- certainly not a so-called state secrets privilege -- why the agency could not inform the court of that fact.
Mcjoan adds this:
We do know that there are persons with standing to sue, we don't know who they are. One avenue for finding that out has now effectively been shut down. Another avenue--agressive Congressional investigation--is never going to happen.
So that leaves one avenue--lawsuits against the telcos who participated. As of now, those lawsuits are still viable. There are still cases pending in the 9th Circuit brought by Electronic Frontier Foundation and the ACLU.
And these cases continue only if the House holds the line against granting the telcos retroactive amnesty. We're right back where we started.
UPDATE 3: SOL means "shit out of luck." I'm just saying (IJS).