More than one, one

There have been three recent Supreme Court decisions I have found troubling for different reasons. The first is well-known, the others likely less so and decided within the past couple of days.

The first is the one everyone has heard by now: the Supreme Court's refusal to hear an appeal from a 6th Circuit Court of Appeals decision that ruled by a 2-1 majority that people suing the Bush administration over its illegal wiretapping had no standing to sue because they couldn't prove they had been wiretapped. (The Supreme Court rejected the appeal without comment. The full decision of the Appeals Court, including the dissent, can be found at this link.)

The suit was brought by the ACLU "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." In response, the Shrub gang invoked the "state secrets privilege," under which it claims the authority to withhold information supposedly related to national security. The power is virtually unchecked and unlimited because courts almost never challenge the claim or even insist it be justified. That set up the Catch-22 created by the Appeals Court where you can't sue unless you can prove you were spied on which you can't prove because you can't sue to get the information. The decision effectively immunizes any secret government program from judicial review because its very secrecy prevents anyone from having standing. That is, by the simple act of calling a program "secret," the White House puts it beyond the reach of the courts.

Now, in fairness, the Appeals Court did address that argument. It quoted a 1974 Supreme Court decision (United States v. Richardson), which said:

It can be argued that if respondent is not permitted to litigate this issue, no one can do so. In a very real sense, the absence of any particular individual or class to litigate these claims gives support to the argument that the subject matter is committed to the surveillance of Congress, and ultimately to the political process. ... [T]hat the Constitution does not afford a judicial remedy does not,of course, completely disable the citizen.... Lack of standing within the narrow confines of Art. III jurisdiction does not impair the right to assert his views in the political forum or at the polls.

Interestingly, Richardson was another national security-related case; it revolved around the contention that keeping the CIA budget secret was in violation of the Constitutional requirement on Congress that a "regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time." And just as in so many others before and since, the Court ran away screaming by finding Richardson lacked standing to sue.

So what the Supreme Court said there and the Appeals Court echoed here was, in effect, "No chance for judicial review of illegal, unconstitutional actions by the president? BFD - take it to Congress and who knows, maybe someday someone will do something about it." Short version: Talk to the hand.

In the ACLU's press release on the Supreme Court's decision in the present case (linked above), Jameel Jaffer, director of the group's National Security Project, said the Court's failure to act is "allowing the executive branch to police itself[, which] flies in the face of the constitutional system of checks and balances.”

Still, two quick notes should be kept in mind if only for the sake of maintaining one's sanity. One is that just like standing is a legal technicality, so is declining review. Which means that the Supreme Court did not rule on the merits of the case, not even on the issue of standing. And by denying standing, the 2-1 majority of the Appeals Court did not rule on the NSA program, only on the plaintiffs ability to bring the suit. In fact, as Glenn Greenwald noted last July when the Appeals court's decision came down, only two judges have issued opinions on the wiretapping: The dissenter in the Appeals Court ruling and the original District Court judge - and both called the program flatly illegal.

Oh, and a third note: The might be a plaintiff with standing. From Jeff Stein at Congressional Quarterly last month:

U.S. intelligence tapped the telephone calls of Lawrence Wright, the Pulitzer Prize-winning author of The Looming Tower, starting in 2002. ...

One of his intelligence sources had revealed to him that he had “read a summary of a telephone conversation that I had from my home with a source in Egypt.” ...

In 2002 Wright was visited by two FBI agents after placing calls in the course of researching The Looming Tower, his Pulitzer Prize-winning account of the rise of al Qaeda and U.S. responses to it, as well as an article on al Qaeda’s number two leader, Ayman al-Zawahiri.

“They were members of the Joint Terrorism Task Force,” he recounted. “They wanted to know about phone calls made to a solicitor in England” who was upset that I was talking to some of her clients, who were jihadis, former members of Zawahiri’s terror organization in Egypt, and they wanted to know what we were talking about.”

It's important to note that Wright made the calls, so it could not even be a case of him being called by some targeted person outside the US. Listening to a call by Wright was supposed to require a warrant - and there is no discernible grounds on which one could have been obtained.

Maybe Wright could be a plaintiff in a new suit. Except, of course, I see some other judge denying him standing by declaring that "the mere invasion of privacy, standing alone, is not sufficient to prove actual harm" and so even though he had proved he had been monitored, he still didn't have standing. Never doubt the creativity of a court wanting to avoid challenging the executive on "national security" issues.