[lbo-talk] US govt surveillance protected by Catch 22

Michael Pollak mpollak at panix.com
Sat Jul 7 10:50:33 PDT 2007


http://www.latimes.com/news/nationworld/nation/la-na-spying7jul07,1,77388.story?coll=la-headlines-nation

July 7, 2007

Los Angeles Times

Court supports Bush in wiretap suit

Because plaintiffs can't prove they were targets of the secret program,

they can't sue, according to the federal appellate ruling.

By Henry Weinstein

Times Staff Writer

<snip>

Judges Alice M. Batchelder and Julia Smith Gibbons of the 6th Circuit,

both Republican appointees, said no single plaintiff could prove that

he or she had been wiretapped and had therefore suffered harm -- the

legal standing necessary to go to court.

If Friday's ruling stands, it effectively would bar any challenge to

what has been one of the Bush administration's most controversial

initiatives.

<snip>

Justice Department attorney Gregory Garre argued that the plaintiffs,

including the American Civil Liberties Union, had alleged only

"speculative" harm done to them, which would be insufficient standing

for them to sue.

The only way the plaintiffs could find out whether they had been the

targets of wiretapping, he said, was if they obtained information about

the surveillance program -- in violation of the "state secrets"

privilege. (Established in 1953, the privilege bars the disclosure of

information in court proceedings when "there is a reasonable danger

that compulsion of the evidence will expose military matters which, in

the interest of national security, should not be divulged.")

Batchelder wrote: "The plaintiffs do not -- and because of the state

secrets doctrine cannot -- produce any evidence that any of their

communications have ever been intercepted by the NSA, under the TSP,

without warrants." Rather, she said, the plaintiffs had asserted "a

mere belief" that their overseas contacts were the types of people

being targeted by the NSA.

The ruling presents "a Catch-22," said Larry Diamond, a senior fellow

at the Hoover Institution at Stanford University and one of the

plaintiffs.

"If the court insists that a plaintiff must have certain knowledge that

some of their messages were intercepted in order to have legal standing

... then no one can ever have standing because we can never know, since

the program is secret," Diamond said.

<end excerpt>

Interesting once again to see right wing stalwarts like the Hoover institution side by side with the ACLU when it comes to state surveillance -- and striking out side by side. The autonomy of the state of society on this issue is remarkable -- and the state secrets doctrine is still its foundation stone.

Michael



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