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US Supremes reject challenge to warrantless wiretapping

ACLU complains of a Catch-22

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The US Supreme Court has refused to hear a challenge to the Bush Administration's warrantless wiretapping program.

The American Civil Liberties Union and others, representing reporters, lawyers and Muslim groups, argued in court documents that the surveillance program violated constitutional guarantees to privacy. They also said it chilled the free speech of journalists who regularly communicated with people being tracked by the program.

Last July, the US Court of Appeals for the Sixth Circuit ruled that the plaintiffs had no legal standing to sue because they could not prove they had been targeted by the National Security Agency-conducted program. The ACLU asked the Supreme Court to overturn the 2-1 decision so the case could continue.

Without comment, the Supreme Court declined to hear the case, effectively allowing the lower-court ruling to stand.

The ACLU complains the rulings put it in a Catch-22 by requiring critics to show proof they were spied on but allowing the US government to keep key details secret. The government counters that evidence in the case is protected under "states secret privilege".

President Bush created the program in secret, and with no oversight from Congress or the courts, following the September 11 terrorist attacks. It allowed government agents to intercept phone calls and emails coming into or out of the US if there was a "reasonable basis" to believe they had a link to Al Qaeda. The program permitted the NSA to carry out the wiretaps without the approval of any court.

The program first came to light in December, 2005, when The New York Times, citing anonymous sources, reported international calls involving people on US soil were being spied on without court warrants.

While the Supreme Court's rejection effectively ends the lawsuit, a related case making its way through the courts could give opponents another chance to mount a legal challenge. A federal judge in San Francisco rejected claims by government attorneys that the suit jeopardizes national security, and let the case proceed. The case was filed against AT&T, which is accused of furthering the violation of privacy by cooperating with the surveillance program.

The decision could still by overturned on appeal, and even barring that, there is the possibility AT&T could be immunized from any liability by an act of Congress. The US Senate has already passed a bill that would retroactively immunize telecommunications companies that helped the government eavesdrop on US citizens. So far, Democrats in the House of Representatives have opposed a similar provision in a bill they are considering. ®

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