The Supreme Court announced Monday it will not hear arguments about the federal government’s ability to keep under wraps details of a controversial warrant less surveillance program.
The decision is certain to be welcome news to intelligence officers and perhaps Bush Administration officials who put the Terrorist Surveillance Program into effect following the Sept. 11 attacks.
The lawyers wanted to force open paperwork to determine if the government used the TSP to monitor their communication with their clients at the Guantanamo Bay prison camp. The lawyers, who were all granted security clearances and not considered threats, have been thwarted in their efforts to find out if their communications were tapped by federal authorities.
The lawyers contend the looming threat of surveillance has chilled their representation of clients and “undermined their ability to engage in candid communications necessary to obtain evidence and investigate their clients’ cases.”
They’ve been trying to force the National Security Agency and the Justice Department to turn over documents under the Freedom of Information Act. Lower courts have blocked that request saying that even if those records do exist, something the government has refused to acknowledge, the agencies are exempts from FOIA’s disclosure requirements.
Once brought to light, the TSP was roundly criticized as outside the bounds of the Constitution and bypassed the legal procedures normally used to legitimize the government’s sensitive surveillance requests.
Even though the Bush Administration eventually ended the program, the Obama Administration’s Justice Department tried to keep the high court from taking the case. The government defended the lower court’s determination that Congress expressly exempted the NSA and DOJ from FOIA requirements so the agencies could not be forced to reveal sensitive information.
While this case touched on issues surrounding the legality of the TSP, the primary legal matter was the reach of FOIA.
Here is a statement from the Center for Constitutional Rights:
“The Obama administration has never taken a position—in this or any of the other related cases—on whether the Bush administration’s NSA surveillance program was legal. In this case they claimed that even if it was illegal, the government has the right to remain silent when asked whether or not the NSA spied on lawyers,” said Shayana Kadidal, Senior Managing Attorney of the CCR Guantánamo Global Justice Initiative. “Today the Supreme Court let them get away with it.”