Facial Challenges

The Supreme Court just rejected a court challenge to the Bush Administration's warrantless wiretapping program. And they did so in the most Kafka-esque way possible.

The American Civil Liberties Union wanted the court to allow a lawsuit by the group and individuals over the wiretapping program. The 6th U.S. Circuit Court of Appeals dismissed the suit, saying the plaintiffs could not prove their communications had been monitored.

The government has refused to turn over information about the closely guarded program that could reveal who has been under surveillance.

ACLU legal director Steven R. Shapiro has said his group is in a "Catch-22" because the government says the identities of people whose communications have been intercepted is secret. But only people who know they have been wiretapped can sue over the program, Shapiro has said.

This fits with the demise of "facial challenges," motions that a law is unconstitutional on its face. The 9th Circuit upheld the state secrets privilege last year even when the Islamic charity who sued had TRANSCRIPTS of their own conversations, which were inadvertently handed to them by the government.

We have, in addition to an extremely conservative Supreme Court, a national security state where official secrecy trumps Constitutional violations.