Almost a year ago, U.S. District Judge Anna Diggs Taylor in Detroit became the first judge to strike down the president’s warrantless-domestic search program. “In this case, the President has acted, undisputedly, as FISA forbids. FISA is the expressed statutory policy of our Congress,” Taylor wrote. “The presidential power, therefore, was exercised at its lowest ebb and cannot be sustained.”
Today, in a 2-1 ruling, the 6th Circuit Court of Appeals reversed the ruling and dismissed the lawsuit. The ruling wasn’t based on the merits, but rather, whether the plaintiffs had standing to file suit.
U.S. Circuit Judge Julia Smith Gibbons, one of the two Republican appointees who ruled against the plaintiffs, said they failed to show they were subject to the surveillance.
The dissenting judge, Democratic appointee Ronald Lee Gilman, believed the plaintiffs were within their rights to sue and that it was clear to him the program violated the Foreign Intelligence Surveillance Act of 1978.
Although the Bush administration said in January the program is now overseen by a special federal intelligence court, opponents said that without a court order, the president could resume the spying outside judicial authority at any time. The Justice Department has said the case is moot.
The American Civil Liberties Union filed the lawsuit on behalf of journalists, scholars, and lawyers who argued the program made it difficult for them to do their jobs. They have international contacts they speak with regularly by phone, and these contacts are likely targets of Bush’s NSA program.
To the two Republican-appointed judges on the 6th Circuit, it apparently didn’t matter.
Looking at the big picture, today’s ruling is a setback, not only for the specific litigants, but to getting any kind of answers. Is the surveillance program legal? The court didn’t say. Were the plaintiffs’ calls monitored? The court didn’t say.
Who does have standing to challenge the legality of the program? Not only did the court not say, but it leads to a deeper problem.
To hear the 6th Circuit tell it, you can’t file suit unless you know you’ve been subject to the surveillance. And how do you know if you’ve been spied on? You’d have to get that information from the Bush administration, which keeps all of that information secret.
So how is it even possible for anyone to challenge the legality of the program? As lambert explained, it’s a bit of a Catch 22.
To grossly oversimplify:
Bush regime: “We’re going to secretly surveil all green people without a warrant, because we don’t need no steenkin’ court system.”
The ACLU says: “Fine! That gives Kermit the Frog, here, standing to sue to get his Fourth Amendment rights back!”
Bush regime: “Oh, no you don’t! Kermit may be green, but he still has to personally prove he was spied on!”
The ACLU: “It’s a secret program! Kermit can’t do that!”
Bush regime: “And your point is?”
The ACLU is considering an appeal to the Supreme Court. Stay tuned.