The US Supreme Court [official website; JURIST news archive] on Monday denied certiorari [order list, PDF] in Wilner v. NSA [docket; cert. petition, PDF], in which lawyers for Guantanamo Bay [JURIST news archive] detainees were seeking disclosure of whether conversations with their clients were wiretapped by the National Security Agency (NSA) [official website]. The detainees' lawyers appealed a decision [opinion, PDF; JURIST report] by the US Court of Appeals for the Second Circuit [official website] holding that the NSA and the Department of Justice (DOJ) [official website] are not required to confirm nor deny the existence of electronic surveillance records under the Freedom of Information Act (FOIA) [text]. The case was brought on behalf of the lawyers by the Center for Constitutional Rights (CCR) [advocacy website] after the agencies invoked FOIA exceptions to information requests regarding warrantless electronic surveillance conducted pursuant to the Terrorist Surveillance Program (TSP) [JURIST news archive]. The CCR claims that the Supreme Court's refusal to hear the case has enabled the NSA and DOJ to get away with potentially illegal behavior [press release].
The intelligence agencies were given the authority to conduct warrantless wiretaps [AFP report] after the 9/11 attacks, but their existence was not known until 2005. The NSA's warrantless surveillance program has been harshly criticized since being disclosed by then-president George W. Bush. Last year, former DOJ attorney John Yoo defended [JURIST report] warrantless wiretapping practices in the Wall Street Journal, criticizing the Foreign Intelligence Surveillance Act (FISA) [text] as being obsolete and contributory in the government's failure to prevent the 9/11 attacks. In April 2009, the DOJ announced that it had limited [JURIST report] the NSA's electronic surveillance, but maintained that the information being received was still important. In February of that year, the US Court of Appeals for the Ninth Circuit [official website] denied an appeal by the DOJ seeking to stop a lawsuit [JURIST report] brought by an Islamic charity alleging it was the subject of an illegal NSA wiretap.