The Supreme Court did the right thing…

( – 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!


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  1. Groups like EFF and ACLU are the ones who really need the contributions.

    • DWG on February 20, 2008 at 18:30

    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.

    You told me everything I needed to understand about the decision in one straightforward sentence.  Thank you.  I was all set to fume when I read your essay.  

  2. if your not a lawyer or a real wonk it’s so confusing. I watch Johnathan Turlows face for clues to try and figure out how bad any constitutional hanky panky is. This is better.  

  3. I’ve had to change the scale on my Outrage-o-meter so many times, the numbers are starting to become meaningless.

    It feels good to step back from the edge (for a change).

  4. Nightowl,

    I like the way you explain it, much better than I did.

    I wrote this as a comment on the BT yesterday in a diary by dada.

    Immunity must not be passed.

    Re: FISA: Another Brick in the Wall (4.00 / 5)

    “dada, my take,

    If the court takes it up & a ruling reached or decided, that`s the end.

    By not taking it up, they leave it open for a lower court to make a ruling letting the supremes to rule on it later. I think there is a flaw somewhere (no kidding) where the supremes don`t want to be involved, yet by refusing to hear it at this time, if the telecom immunity passes, they have clean shorts.

    I think the best thing to do is to make absolutely sure the immunity does not pass. Otherwise, it`s all over but the crying.

    The torches & pitchforks are next, but maybe only years from now.

    The general public do not know what is going on.

    The media should be impeached.”

    Atheism is a non-prophet organization

    • dada on February 20, 2008 at 23:14

    l can’t disagree that the lack of a ruling by the supremes decision may not create a binding precedent. however, it does allow the decision of the 6th circuit to stand as a precedent, providing the groundwork for a similar decision from the 9th. even given their proclivity to more liberal rulings, the probability of them ever hearing it, imo, are slim and none, and slim’s lunching with elvis.

    this decision, or lack of, doesn’t catapult the issue to EFF v. ATT etal, but to the congress.  bottom line: when…not if, l’m sorry to predict…the congress passes teleCON amnesty/immunity, the gambit is successful.

    no disclosure, no accountability, no punishment, and carte blanche to do whatever the hell else they want for the next 335 days…and into the future.

    imo, the reality of the implication inherent in this decision is that the only arena left to defend the ‘rule of law’ is the political. which is why it’s so important to get on and stay on the reps and the senators. they are going to, ultimately, decide this question, not the courts.

    contact info for the house, speaker pelosi, the senate, and majority leader reid is available HERE

    my 2ยข

    • documel on February 21, 2008 at 15:33

    Are you saying that the Supremes are waiting for the 9th Circuit decision because they might side with the ACLU in that one?   Why the optimism?  Isn’t it possible that their siding with the telecoms in that case will be more protective for these forces of evil?

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