APPEALS COURT ON WARRANTLESS-SEARCH CASE….Almost a year ago, U.S. District Judge Anna Diggs Taylor struck 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.
The ACLU 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 — the ACLU’s clients couldn’t prove they’d been spied on, so they couldn’t challenge the program.
Of course, that leads to an inconvenient hurdle, doesn’t it? 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.