Supreme Court Denies Cert To NSA Case, Allows State Secret Privilege To Roll On Unaltered
While we're waiting to see if the Trump-stocked Supreme Court is going to end the internet as we know it, the nation's top court has been rejecting, without comment, other essential cases that really could have used another set of judicial eyes.
On Wednesday, we covered one of the Supreme Court's passes - this one involving parody, police, and qualified immunity. The Sixth Circuit granted immunity to Parma, Ohio police officers who raided a local man's house, seized a bunch of electronics, and arrested him for the supposed crime of disrupting police service" - all because he had created a parody Parma PD Facebook page that announced local cops were driving around in a van offering abortions and hosting Pedophile Reform" events.
Most people saw it for what it was: not particularly subtle satire. The officers, however, weren't laughing, so they decided to violate the page creator's First Amendment rights. The Appeals Court took two swings at this one, the first one denying immunity because of the obvious First Amendment violations. For some reason during the second review, the judges reversed course and decided there was just enough probable cause to allow the officers to walk away from the suit. The Supreme Court, by denying certification, said basically the same thing: it's ok for cops to engage in obvious First Amendment violations as long as there's some law laying around that might very tenuously support an arrest warrant.
The same order list [PDF] contains another rejection by the Supreme Court that's only going to encourage more dubious government behavior. In the list of things the Supreme Court can't be bothered to review is the long-running Wikimedia v. NSA lawsuit - one prompted by the Snowden leaks that sought to hold the government accountable for warrantless domestic surveillance. (h/t Jon Brodkin/Ars Technica)
Certori denied" is all the order says. With those two words, the federal government is allowed to continue chanting state secrets" any time it wishes to exit a lawsuit over its surveillance activities. Despite Wikimedia offering up one of the NSA's own documents - one that appeared to show the online, crowd-sourced encyclopedia was one of the agency's many, many targets - the Fourth Circuit Appeals Court decided the NSA's national security work was too important to allow further examination, much less a ruling in favor of the surveilled.
That terminates a lawsuit that was imitated nearly eight years ago. The denial makes it far less likely any current or future lawsuits over bulk domestic surveillance will survive judicial review because there is currently no circuit in the country willing to wholly reject the government's state secrets privilege, even when evidence appears to show the government has engaged in illegal surveillance. What could have been a chance to limit the invocation of government secrecy to dodge litigation has been discarded without comment by this Supreme Court. That means the government wins without having to show its cards, even after the plaintiffs ante'd up on every litigation round.
Given the amount of time and money it takes to challenge the federal government in court, this rejection is going to deter victims of unlawful surveillance from taking their case to court. And that works out just fine for the Executive Branch, which historically hasn't seen much in the way of checks and balances from an entity explicitly created to do exactly that.