The US government, through the National Security Agency, has been tapping phone lines without court warrants since shortly after the terrorist attacks in the US of September 2001. The till-then secret programme was revealed by the New York Times in 2005.
The government claims that the actions were legal but has made all details of the programme classified. This causes problems for the ACLU since only those who have been wiretapped can sue, but the information about who has been tapped is kept secret.
Jameel Jaffer, director of the ACLU's national security project, said that the case raised worries about the unchecked power of the president who, as the executive arm, is just one branch of government.
"It’s very disturbing that the president’s actions will not be reviewed by the Supreme Court. It shouldn’t be left to executive branch officials alone to determine what limits apply to their own surveillance activities and whether those limits are being honoured," he said. "Allowing the executive branch to police itself flies in the face of the constitutional system of checks and balances.”
The ACLU had tried to appeal a verdict of a US Court of Appeal which ruled that it could not prove that its communications had been monitored, and so could not prove that the programme had harmed any party to the case. It had sued on behalf of itself, journalist and scholars.
Separate law suits are being conducted in the US against the telecommunications companies that allowed the surveillance to happen without court-issued warrants.
There are also political struggles over amendments to US law that would allow warrantless wiretaps of non-US citizens in the US who are communicating with people overseas.
A temporary measure expired over the weekend and the Democrat-controlled Congress refused to make the law permanent.
That law included controversial immunity for telecoms companies. Congress has proposed a law that does extend wiretapping but does not grant telcos immunity from prosecution for their actions.
"The court’s unwillingness to act makes it even more important that Congress insist on legislative safeguards that will protect civil liberties without jeopardizing national security," said Steven Shapiro, the ACLU's legal director.
