Some good news to partially offset the fact that this allegedly bankrupt country is now raining expensive missiles on yet another country, with no clear explanation of what we expect to accomplish or how we know we’ve done so.
On Monday, a federal appeals court reinstated a key legal challenge to that surveillance: a lawsuit filed by the ACLU and others within hours of the FISA Amendments Act (.pdf) being signed into law. The lawsuit attacks the constitutionality of the legislation, which allows the government to electronically eavesdrop on Americans without a probable-cause warrant, so long as one of the parties to the communication resides outside the United States, and is suspected of a link to terrorism.
Folks with memories might recall that Obama’s vote in favor of those Amendments was perhaps the first indication of the kind of president he would eventually be. He voted in favor, thereby giving the government and telephone companies carte blanche authority to spy on us without governmental accountability. The bill represented precisely the kind of compromise Obama seems to love. It was marginally better than the alternative, but not enough to really matter. As with so many of the compromises that Obama has arranged since, it started with the Democrats conceding almost everything as an opening gambit. I am not, by the way, saying that Obama was responsible for this compromise. He wasn’t-and he was. He didn’t negotiate it, but he backed off his promise to oppose it at a time (the summer of 2008, when he was already the party’s candidate) that his fellow Democrats might have followed his lead.
Getting back to the court’s decision, it is especially heartwarming to report that it is our own Second Circuit Court of Appeals that reinstated the ACLU’s case against the FISA Amendments. The case was thrown out by the lower court because the plaintiffs could not prove they had standing.
Standing is yet another of those legal concepts that make sense in the real world but become instruments of oppression when put to the service of the national security state. A person has “standing” to sue if he or she has suffered a legal injury as a result of the challenged conduct. To take an absurdly simple case: If John Doe slips and falls on my sidewalk, he can sue me, because he has been hurt as a result of my negligence. If Jane Roe, who wasn’t even there, but hears about the fall, decides to sue me, she lacks standing as she has not been harmed by my negligence. In the case of the wiretaps, of course, those who have standing may never know it. The court bought into the plaintiffs’ arguments that they were harmed because their justified fear that they were targets forced them to engage in expensive, evasive maneuvering to avoid the spies.
So, some good news, though the odds are good that the Supreme Court will reverse, or eventually agree with the government that if it claims it suspects someone is a terrorist, or knows a terrorist, or knows someone who knows a terrorist, or has heard of someone who knows someone who knows a terrorist, then it has sufficient cause to spy on them in every way it can conceive.
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