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