Sunday, July 08, 2007

Yet Another Judicial Travesty

Appeals Court Blocks Challenge to
NSA's Warrantless Wiretapping Program

Score another win for the fascist police state, another devastating body blow to the protections the US Constitution used to provide the citizen. From the ACLU (via C&L):
CINCINNATI - In a 2-1 decision, the Sixth Circuit Court of Appeals today [Friday, July 6] dismissed a legal challenge to the Bush administration’s warrantless surveillance program. The challenge was brought by the American Civil Liberties Union on behalf of prominent journalists, scholars, attorneys and national nonprofit organizations who say that the unchecked surveillance program is disrupting their ability to communicate effectively with sources and clients.

Even though the plaintiffs alleged a well-founded fear that their communications were subject to illegal surveillance, the court dismissed the case because plaintiffs could not state with certainty that they had been wiretapped by the National Security Agency.
Of course they couldn't state that they had been wiretapped - exactly who is under surveillance having their fourth amendment rights trampled is a STATE SECRET. It's the classic catch 22. For a good legal analysis, go to Glenn Greenwald's post on the matter. This site's comments are very informative as well, since his threads attract lawyers like a whiplash victim.
The Sixth Circuit Court of Appeals yesterday, by a 2-1 decision, vacated last August's Order from District Court Judge Anna Diggs Taylor which enjoined the Bush administration from eavesdropping without warrants. Judge Taylor had found that the President's NSA warrantless eavesdropping program violates both the Constitution as well as federal law (FISA).

Yesterday's ruling (.pdf) had absolutely nothing to do with the merits of the case -- i.e., whether the NSA program is illegal or not -- but instead rested only on the narrow, technical (though important) issue of whether the particular plaintiffs in this case are entitled to sue over the warrantless eavesdropping program.
Not being a lawyer, I am of course bewildered by the ruling. Judge Anna Diggs Taylor ruled last August that the program was not only unconstitutional but criminal. The problem I saw then was that the judge ordered that the wiretapping be halted immediately, then was somehow bullied into accepting a stay of that order. I think that stay was a horrible mistake. What kind of message does it send? "I find you to be breaking the law (punishable by a $10,000 fine per offense, BTW, and up to 5 years in jail), but I will allow you to continue doing so." Besides, you don't have to issue an order to a rapist, burglar, bank robber or drug dealer to cease and desist. The fact of a criminal law being on the books is presumably an order for all within your jurisdiction to refrain from said behaviour. Sheesh!

Not being a lawyer, I am even more bewildered by the game of rock, paper, scissors carried out to determine the predominance of the various branches of law. Elements of this case include constitutional law, criminal law, and procedural law. One would think that the Constitution would come out on top, or at least the relevant criminal statute, but instead it is a question of procedure (in this case, the issue of standing) that determines the outcome. If the Constitution is the supreme law of the land, why is it allowed to be bullied in the very courts expected to enforce it?

Greenwald anticipated my reaction to this with uncanny accuracy. "This is one of those types of legal outcomes which -- understandably so -- can drive laypersons, along with conscientious lawyers, crazy. The result, on its face, is grotesquely unfair, outrageously so."

It's important to point out here that this is not about the government being able to use surveillance in its efforts against domestic terrorism. The question is whether it can do so free of the judicial oversight mandated by FISA, a law that was specifically written to guard against the kinds of abuses committed by the Nixon administration. In that light, it is absurd to claim that the law doesn't apply to the President, whether by any inherent authority, or any special authority invested by the AUMF. It was written just for this situation, almost tailor made for just the kind of president George W. Bush has shown himself to be.

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