( – promoted by buhdydharma )
in rejecting ACLU vs. NSA today.
A number of good folks in the blogosphere are huffing and puffing over the Supreme Court’s rejection of the ACLU’s Petition for Certiori in the case of ACLU v. NSA. They don’t need to.
WASHINGTON — The Supreme Court today dismissed the first legal challenge to President Bush’s warrantless wiretapping order, but without ruling on any of the key issues.
It is traditional and expected in our Federal system that the Supreme Court wait until a controversial legal issue is litigated in more than one of the lower Circuits before creating a binding precedent. This way, the Supreme Court both allows for a broader range of opinion and ensures that a greater number of arguments and issues are considered before the Court decides the final law.
In ACLU vs. NSA, the Sixth Circuit Court of Appeals had the first bite at the apple on unwarranted wiretapping, and spit out a Bushie worm. Yet the sour 6th is not the only Circuit with a say about whether our government can secretly spy on us.
Most of the other domestic spying law suits have since been consolidated into the 9th Circuit’s Hepting v. AT&T, initially brought by Electronic Frontier Foundation (EFF). The 9th is where the real action is, not only because of the consolidation but also because, unlike the ACLU, EFF has tangible evidence (in the form of schematics and eye witness testimony) of the actual wire tapping apparatus and procedures the government and AT&T are using to spy on us (click on the link to see the evidence for yourself).
So while the unfortunate 6th Circuit decision still technically stands as legal precedent, the Supreme Court’s rejection of the case signals to the 9th that is not compelled to accept, as mandatory or even persuasive authority, the 6th’s cramped interpretation of the 4th Amendment.
In short, the Supreme Court’s rejection of the 6th Circuit’s ACLU v NSA decision means that the case will have little, if any, practical affect on the decisions of the 9th Circuit – where most of the big legal issues about domestic spying are now likely to be decided. (Assuming, of course, we can keep Jay R and George W from shutting the case down.)
Bottom line: for those of us who value our Liberty, it’s better that the Supreme Court stayed out of this one. NSA v. ACLU was a very bad decision for our side, and we would likely not have been happy with the outcome had the Supreme Court decided to feature this case as the leading precedent on this extremely important Constitutional issue.
By rejecting the 6th Circuit case, the Supreme Court is telling the 9th to carry on unimpeded with its own case, which, given the facts and the makeup of the 9th Circuit, leaves us on far more favorable ground than we probably would have been had the Supreme Court accepted the 6th Circuit case today.
Update: Thanks for the bump buhdy!