Hooray for wiretapping

The 6th circuit court of appeals threw out last years ruling that the NSA program was unconstitutional:

A sharply divided federal appeals court in Cincinnati handed the Bush administration's warrantless surveillance program a major legal victory today, ruling that the American Civil Liberties Union and several other plaintiffs did not have standing to challenge the program.

The 2-1 decision by the U.S. 6th Circuit Court of Appeals sent the case back to a federal trial judge in Detroit and ordered her to dismiss the case, reversing a ruling the judge had issued last year that the program was unconstitutional.

The rationale?

Judge Alice Batchelder said the plaintiffs, who also included several lawyers and writers, could not "produce any evidence that any of their own communications have ever been intercepted" by the National Security Agency under the surveillance program.

Which is silly, because the government has basically acknowledged that they're doing what the plaintiffs are accusing them of doing--but won't say who their targets are. Pretend this was a free speech issue: A handful of people get together to say they believe the government is infringing upon their free speech rights. The government basically admits that they do indeed engage widely in certain specific forms of speech repression, but refuses to say exactly against whom. A judge says that the government may continue to engage in those activities until a verifiable victim comes forward to complain. And, as if protected by fire-proofing, the Constitution somehow does not disappear into a red-hot puff of irrelevance.

So nothing can happen unless the plaintiffs can prove that the government is wiretapping the specific people who filed the suit. I don't know enough about how this sort of internal espionage works, but it seems that the former ruling will only be upheld if a civil rights group with long fingers (ACLU maybe?) were to find a person who has evidence that the government snagged their phone calls without their knowledge. Which, excluding people who are already Gitmo'd, and therefore out of touch, seems extremely unlikely.

Anyhow, here's the government's argument, which seems to have very little to do with the reason their program was restored.

Justice Department lawyers had urged the panel to throw out the case, saying that a full-fledged review of the government initiative launched after the Sept. 11 attacks would violate the "state secrets" doctrine. Established in 1953, it bars the discovery or admission of evidence that would expose information that the government maintains would harm national security.

Basically, the government should be able to keep secrets from you when it thinks it should be able to keep secrets from you. That, kids, is how we take an ax to the tree of liberty.

Comments

[JimPortlandOR]

Yep, Bu$hCo chops down George Washington's cherry tree, and the courts pee on the stump.

This 'standing' thing has become the tool of choice for conservative courts to prevent citizens from seeking redress from government or corporate wrongs.

The Congress, if the GOP would stop fiibuster threats in the Senate, could easily fix these issues with a few pithy sentences added to the laws in question.

Where's Tom Jefferson when you need him?

[jmc]

While the word is tossed around too much, I think that this rationale can be fairly called "Kafkaesque". Not because the ACLU woke up in the form of a giant cockroach, but because there is a serious epistemologically question as to whether anybody could ever prove that they had been unlawfully monitored when that monitoring is admitted but held a state secret. Let's call it "known unknowns".

There was a serious rationale that the lawyers involved had to change their method of communication and impair their ability to help clients because of the fear that they would be monitored, but the court apparently didn't care.

Basically, the administration is the only one with the capacity to incriminate itself, and that's not going to happen anytime soon.

Sigh.