The Supreme Court today rejected a challenge that had been filed by the Electronic Privacy Information Center against the National Security Agency’s data mining program, and while the decision not to take up the case wasn’t surprising in itself, the nature of the case was:
WASHINGTON — The Supreme Court on Monday turned away an unusual challenge to a National Security Agency surveillance program.
The Electronic Privacy Information Center filed the challenge directly with the Supreme Court, arguing that the Foreign Intelligence Surveillance Court had “exceeded its statutory jurisdiction when it ordered production of millions of domestic telephone records that cannot plausibly be relevant to an authorized investigation.”
The justices gave no reason for rejecting the group’s petition, but the unusual procedure of bypassing the lower courts probably played a role. Other, more conventional challenges to government surveillance programs are pending.
In urging the justices not to hear the case, the federal government said “the proper way” to challenge the surveillance “is to file an action in Federal District Court to enjoin the program, as other parties have done.” It cautioned, though, that “the government may assert certain threshold defenses to such a suit.” The case is In re Electronic Privacy Information Center, No. 13-58.
In February, in Clapper v. Amnesty International, the Supreme Court ruled, 5 to 4, that human rights groups, lawyers and journalists could not show they had been spied on, and so lacked standing to challenge a surveillance program.
After the recent revelations about widespread government surveillance, civil liberties groups have filed fresh challenges in federal trial courts, saying they can now show that they have standing.
I had written about this case when the suit was filed back in July and made note that the unusual procedural posture made it unlikely that the Court would grant a direct review in this particular case:
This is something of a unique issue, and indeed a unique strategy for approaching it by applying directly to the Supreme Court rather than starting down at the District Court level as other cases challenging the National Security Agency’s surveillance programs have done. Essentially, EPIC is arguing that because there is no way for them to appeal an order from a FISA Judge, their only option is to go to the Supreme Court and request what’s called a Writ of Mandamus. In layman’s language, they are essentially asking the Supreme Court to give specific direction to the FISA Court regarding the orders that it issues in these surveillance cases, specifically one that would prohibit that Court from issuing the kind of orders that allow the metadata collection. The odd thing about this argument, at least at the surface, is that these are programs that are authorized by the law so its hard to say how the FISA Court is exceeding its authority by authorizing actions by the NSA that are permitted by laws that have been been passed by Congress. Nonetheless, one has to give EPIC credit for taking such a bold legal step in going directly to the Supreme Court.
(…)
[The Supreme Court] could summarily dismiss the entire matter or rule that the Petition was not appropriately filed, meaning that EPIC would have to start back down at the District Court level. They could ignore the matter until their next conference and act on it then. Or, they could ask the government to file a response. That last action would be the best that EPIC could hope for out of the case at this point, because it would be first step in a process that might lead to a hearing on the merits of their Petition. It also, I think, happens to be the most unlikely outcome at this point, but we shall see.
As it turned out, the Court treated this matter about as I had expected. Direct appeals to the Supreme Court are highly unusual to begin with, and most often denied absent truly exigent circumstances. In this case, where EPIC had failed to proceed even at the District Court level, and thus establish the kind of factual record that ordinarily aids an appellate court in reaching its decision, it would have been even more unusual for the Court to grant the relief that was being sought here. Add in the further complicating fact that this involves a matter of intelligence gathering and national security, an area where Federal Courts have traditionally been reluctant to intervene, and the Court’s decision is not surprising at all.
None of this precludes EPIC from pursuing these claims in a the normal fashion. All they need to do is file the appropriate case in a Federal District Court and proceed in the normal fashion. There are, of course, no guarantees that they’ll succeed on the merits, but that’s true of any case that any court hears. What the Supreme Court said today, though, is that there are no short cuts in the Federal Court system.
