Not in This Court

Saturday, July 7, 2007

A FEDERAL appeals court decision yesterday rejecting a challenge to the administration's warrantless wiretapping program is sensible, carefully crafted and ultimately unsatisfying.

By a 2 to 1 vote, the U.S. Court of Appeals for the 6th Circuit concluded that neither the American Civil Liberties Union nor any of the journalists, lawyers or academics who lodged the complaint had a right to challenge the program, which was created by the National Security Agency to intercept international telephone or Internet communications involving suspected al-Qaeda affiliates. Because the court threw out the case at this early juncture, it had no reason to take up the plaintiffs' argument that the wiretapping program is unconstitutional.

The reason for the court's decision to toss the case: The plaintiffs can't prove they have been spied on. Instead, the attorneys among the plaintiffs argued they had curtailed or eliminated telephone and e-mail communications with certain overseas clients for fear the government would intercept the communications. This "chill" in attorney-client communication, they claimed, was a palpable harm, giving them the right to proceed to the next level of the case and challenge the program's constitutionality.

Judge Alice M. Batchelder, writing for the majority, rightfully concluded that this showing of "harm" was not legally up to snuff. The law, Judge Batchelder wrote, placed on the plaintiffs the burden of proving that they had been spied on and that the spying resulted in a "concrete and actual injury." The plaintiffs failed on this front -- and no wonder. Unlike in most court cases, where plaintiffs are entitled to glean information from a defendant, the plaintiffs in this case were handicapped from the start. The Bush administration understandably -- and as far as we know, properly -- invoked the state secrets doctrine, allowing it to withhold from public scrutiny information it deemed critical to national security. In this case, that was evidence of whom it had surveilled or was continuing to


What this means is that the courts aren't likely to be the forum where we'll learn anything more about the propriety of the program. That makes all the more compelling the need for Congress to closely monitor the program -- and for the administration, as it has since the beginning of the year, to submit such wiretapping requests to the Foreign Intelligence Surveillance Court.

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