A federal appeals court has thrown out a Detroit judge's ruling that the NSA warrantless wiretapping program was unconstitutional, saying (as expected) that the ACLU and its clients don't have standing to pursue the case.
Why do they lack standing? Because they can't prove they had been subjected to surveillance under the program.
As I've noted before, this sort of logic drives me nuts. Standing is an important legal concept, which helps ensure that someone bringing suit has a relevant interest in the case. It's a key defense against frivolous lawsuits, and keeps people, organizations and the government from intruding where they don't belong.
But in a case involving secret eavesdropping, in which the government (reasonably enough) refuses to say who or what it is monitoring, how can someone ever prove standing? By this logic, the government can have every case thrown out as long as it keeps the names of its subjects secret.
That's nonsensical. To quote my earlier rant:
It seems to me, though, that in important cases like this there should be available a broader form of standing, one that allows a court opinion to be rendered without requiring proof that the plaintiff has been specifically targeted. It would be a class-action suit of sorts, following the logic that "we're all affected by this program, either directly or indirectly, so we all have standing to question it.
That's pretty much the tack the ACLU was pursuing, so maybe they'll appeal to the Supreme Court and hope for the best. Seems like a bit of a long shot, though.
Meanwhile, a companion case out of Oregon is still alive.
Update: A detailed discussion of the case -- and the whole issue of standing -- over at Althouse.
terrorism, NSA, ACLU, politics, midtopia
5 comments:
I think what the mindless judges say is that there is that no one is harmed because all the plaintiffs can show is that everyone is done harm. Great day for conservatives I must say
GK
Great day for America, actually. Can you just imagine if Sean's "a broader form of standing" was the rule? That would mean that women in general could have sued President Clinton for treating the women he used like tissue paper. After all, it was an afront to all women. It would mean that any policy of a Democrat President I didn't agree with, I could sue and claim it was harming me in some way.
You've got elected officials in the Congress and Senate representing you. THEY are the ones charged with overseeing such programs. The Intelligence Committees and other top Congressional and Senatorial Committees have SEEN the details of these programs. And obviously they do NOT think it's breaking any laws or harming anyone.
JP5
Can you just imagine if Sean's "a broader form of standing" was the rule? That would mean that women in general could have sued President Clinton for treating the women he used like tissue paper.
That would be true if I was arguing for a broader interpretation of standing in general. I was not. I was simply saying cases that affect all of us but where individual standing is impossible to prove even if it exists should have a broader standard.
You've got elected officials in the Congress and Senate representing you. THEY are the ones charged with overseeing such programs. The Intelligence Committees and other top Congressional and Senatorial Committees have SEEN the details of these programs. And obviously they do NOT think it's breaking any laws or harming anyone.
There is serious question whether they've actually been shown everything. And in any event, often times individual lawsuits move far faster than Congress in addressing issues like this.
As Vice-Chairman of the Senate Intelligence Committee, Senator Jay Rockefeller was briefed by VP Cheney, Hayden and Tenet in July of 2003 on the program.
So, if the Dems' hearing on this starting on Monday is not a another game of "gotcha" I would expect to see Rockefeller to be supoenaed as well. While they've got him under oath, I'd like to see them ask him if HE or his staff are the ones who leaked this Highly Classified program to the press.
JP5
JP5: That's an excellent example. Immediately after that briefing, Rockefeller wrote a letter to Dick Cheney outlining the problems with the briefing. #1, there was no way to know whether they had been given complete info; #2, because they were prohibited from discussing the program with the rest of the committee, there was no way Congress could address the propriety or constitutionality of the program. The administration had tied their hands. Only when the program's existence leaked out could it actually be considered.
So if Rockefeller was the one who leaked about the program, more power to him.
But he probably wasn't the leaker. The original story quotes its anonymous sources saying Rockefeller had expressed concern about the program, which at least implies that Rockefeller wasn't one of the sources. And the story also mentions that many members of Congress declined to comment or did not return phone calls. It specifically names Rockefeller as one of the people who declined to comment.
I'll bet money the leak didn't come solely from Congress.
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