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The Supreme Court on Tuesday declined to take up the first legal challenge to the Bush administration’s once-secret National Security Agency program of warrantless wiretapping. Acting without comment on the case of American Civil Liberties Union v. National Security Agency, the Court in effect placed the program beyond judicial review, ACLU officials charged. “It shouldn’t be left to executive branch officials alone to determine what limits apply to their own surveillance activities and whether those limits are being honored,” said Jameel Jaffer, director of the ACLU’s national security project, in a statement. “Allowing the executive branch to police itself flies in the face of the constitutional system of checks and balances.” Soon after The New York Times revealed the program of intercepting phone communications by suspected terrorists into and out of the United States, the ACLU filed the suit on behalf of scholars, lawyers, and journalists who said their speech was chilled. They also asserted that the program had been illegally developed outside the purview of the Foreign Intelligence Surveillance Court. In response, the administration invoked the “state secrets privilege,” which allows the government to withhold national security information sought in litigation. In the meantime, in January 2007, the program was altered so that wiretaps would be subject to the approval of the surveillance court. The U.S. Court of Appeals for the 6th Circuit dismissed the suit last year for lack of standing, ruling that because of the secrets privilege, the plaintiffs could not show they had actually been wiretapped under the program. In its petition to the high court, the ACLU said that even though the program had changed, it could be started again in its extralegal form. The ACLU also said the 6th Circuit set up a sort of Catch-22 making it impossible for any lawsuit to advance, because no potential plaintiff would ever be able to learn if he or she had been targeted. In a report last year on use of the state secrets privilege, the nonpartisan Constitution Project urged judges to independently review government assertions of privilege rather than accepting them as absolute. “Judicial deference,” the report states, “seriously weakens the interests of our country and our constitutional form of government.” Other suits triggered by the surveillance program are still pending, including several against telecommunications companies for their participation. Immunizing the companies from that litigation has been a major issue in the congressional debate over renewing the Protect America Act, a bill to extend revisions to current surveillance law, which expired over the weekend.
Tony Mauro can be contacted at [email protected].

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