NYT: Justices Reject Challenge to N.S.A. Program

http://www.nytimes.com/2013/11/19/us/justices-reject-challenge-to-nsa-program.html

November 18, 2013

Justices Reject Challenge to N.S.A. Program

By ADAM LIPTAK

WASHINGTON -- The Supreme Court on Monday turned away an unusual challenge [1] to a National Security Agency surveillance program.

The Electronic Privacy Information Center filed the challenge [2] directly with the Supreme Court, arguing that the Foreign Intelligence Surveillance Court had "exceeded its statutory jurisdiction when it ordered production of millions of domestic telephone records that cannot plausibly be relevant to an authorized investigation."

The justices gave no reason for rejecting the group's petition, but the unusual procedure of bypassing the lower courts probably played a role. Other, more conventional challenges to government surveillance programs are pending.

In urging the justices not to hear the case, the federal government said [3] "the proper way" to challenge the surveillance "is to file an action in Federal District Court to enjoin the program, as other parties have done." It cautioned, though, that "the government may assert certain threshold defenses to such a suit." The case is In re Electronic Privacy Information Center, No. 13-58.

In February, in Clapper v. Amnesty International, [4] the Supreme Court ruled, 5 to 4, that human rights groups, lawyers and journalists could not show they had been spied on, and so lacked standing to challenge a surveillance program.

After the recent revelations about widespread government surveillance, civil liberties groups have filed fresh challenges in federal trial courts, saying they can now show that they have standing.

Last month, federal prosecutors opened another avenue [5] for possible court review of a surveillance program by telling a criminal defendant in a terrorism case, Jamshid Muhtorov, that evidence against him came from a warrantless wiretap. That notification allows Mr. Muhtorov to seek to suppress the evidence by arguing that it was derived from unconstitutional surveillance. Given the government's acknowledgment, there would seem to be no issue on standing.

[1] http://www.nytimes.com/2013/07/08/us/privacy-group-to-ask-supreme-court-to-stop-nsas-phone-spying-program.html

[2] http://epic.org/EPIC-FISC-Mandamus-Petition.pdf

[3] https://epic.org/privacy/nsa/in-re-epic/13-58-SG-Brief.pdf

[4] http://www.supremecourt.gov/opinions/12pdf/11-1025_ihdj.pdf

[5] http://www.nytimes.com/2013/10/27/us/federal-prosecutors-in-a-policy-shift-cite-warrantless-wiretaps-as-evidence.html