The Trial

In a scenario only Kafka could write, the US 6th Circuit Court of Appeals yesterday ordered a dismissal of the ACLU lawsuit against the President's warrantless wiretapping program, which a federal judge earlier ruled unconstitutional, because of lack of standing.

So, the appeals court is saying that, because the plaintiffs could not show that they were subject to surveillance, they could not bring suit. When the plaintiffs tried to determine from the government if their were being spied upon, the government claimed official secrecy. So you can't sue for having your civil rights violated through spying unless you KNOW that the government is spying on you. Which defeats the purpose of SPYING.

The government through the Congress can still investigate the spying program, but the President can cite executive privilege. And it doesn't seem like they can, as Jonathan Turley suggested, investigate it as a crime, since it's a crime without standing.

This is a casualty of the national security state, as official secrecy has been built out (and the courts have become very deferential), and what the courts are really saying here is that any program conducted in secret is by default legal, because nobody can prove that it exists. Is this how we want our American principles and ideals to be carried forward? If this ruling stands, the American experiment is actually over. It provides a blueprint for any successive Administration to perform any action that impinges on the rights and liberties of citizens: just don't tell anybody about it.

The ACLU has vowed to continue the fight, and they make a couple good points in the service of futility:

"We are deeply disappointed by today's decision that insulates the Bush administration's warrantless surveillance activities from judicial review and deprives Americans of any ability to challenge the illegal surveillance of their telephone calls and e-mails. As a result of today's decision, the Bush administration has been left free to violate the Foreign Intelligence Surveillance Act, which Congress adopted almost 30 years ago to prevent the executive branch from engaging in precisely this kind of unchecked surveillance.

"It is important to emphasize that the court today did not uphold the legality of the government's warrantless surveillance activity. Indeed, the only judge to discuss the merits clearly and unequivocally declared that the warrantless surveillance was unlawful.

"We are currently reviewing all of our legal options, including taking this challenge to the U.S. Supreme Court. In the meantime it is now more important than ever for Congress to engage in meaningful oversight."

Which is all true, but the recent Extreme Makeover: Federalist Society Edition of the Supremes means that this argument of standing is likely to hold water with them, and so it doesn't matter if the judiciary doesn't uphold the legality of the wiretapping progam. It's certainly not ILLEGAL if it's unable to be stopped.

And, I would add that, as Glenn Greenwald says, the appeals court decision was legally sound.

But the fact that the decision's result is so unfair does not mean, unfortunately, that it was wrongly decided. The role of the judge is to apply the law as it exists, and a judge is not free -- nor should we want them to be free -- to disregard binding legal doctrine whenever the judge decides that doing so is necessary to avoid unfair results. In a society that exists under the rule of law, the solution to bad laws and bad legal doctrines is to change those laws democratically, not to empower judges unilaterally to disregard the law in order to produce (what the individual judge perceives to be) better results.

As technical-seeming as it is, "standing" is a critically important constitutional limitation on the power of the judiciary. Independently, whether one believes in the merits of this doctrine or not, it is a requirement that must be fulfilled before the Constitution permits a court to rule on any matter. And there is good reason for that.

Courts are not omnipotent, free-floating bodies that exist in order to resolve all disputes. If courts had the power to resolve every abstract political and legal dispute, courts themselves would be omnipotent, or at least supreme. The Constitution thus limits the power of courts by narrowing the circumstances in which courts are empowered to act ("The judicial Power shall extend to all Cases . . . [and] to Controversies to which the United States shall be a Party"). Rightly or wrongly, the Supreme Court over the years has interpreted that provision to require (roughly speaking) direct and unique injury by the party who is suing, and the Sixth Circuit judges were required to apply that doctrine.

This is essentially a crack in the Constitutional system that the Bush Administration has managed to exploit because of the accumulated buildup of the national security state and the continuing reverence for official secrecy. The Bush Administration never tries to make an argument that their spying program is legal, just that nobody has a right to challenge it. They understand that other branches of government will constrain themselves to the powers granted to them by the Constitution, even if they won't.

Here's the solution, as expressed by Greenwald:

There are ways for Congress to act here in order to enable or even compel a court to rule on the legality of the NSA warrantless eavesdropping program. Regardless of one's views on the legality of this program, obtaining a judicial ruling is urgently necessary. It should require little mental energy to contemplate the dangers of allowing our government leaders to spy on us (or take other actions against us) in secret and then simultaneously block any and all processes to determine whether they have broken the law.

Exactly. And Congress needs to act as quickly as possible. The powers of the executive have been constantly expanding over 230 years, and it's time for that process to stop.