What's more, the 6C expressly denied the sufficiency of the usual pleading requirement for injunctive relief in a case that "eludes review but is susceptible of repetition" (a standard invented for abortion cases where the plaintiff would have delivered by the time the Court finished its deliberations, normally), but which is pretty close to what the district court applied here in holding that public facts about the wiretapping program sufficed to show standing. The "susceptible of repetition" exception to standing really goes to the requirement that the court be able to afford relief rather than to the requirement that the plaintiff show individualized injury, but it's a pretty fine difference in this context, not one the court had to give any significance to.
(2) Even more disturbingly, the 6C ruled out the normal way you'd determine standing in a case where it isn't clear whether it exists. The court normally has the power to test jurisdictional allegations if they are challenged with some reason to doubt them. It could in other cases order discovery. Such discovery might be cloaked with a protective order, essentially in this case the plaintiffs could put a single interrogatory to the government: Are we being tapped? Or two: Is there a substantial likelihood that we will be tapped? (Because immanent probability of irreparable harm is is enough for standing for injunctive relief.) Or a more elaborate evidentiary hearing process could be involved. The answer could be heard in camera and the plaintiffs prohibited from disclosing it, or any information derived from it in open court. Nothing in the case actually depends on the answer: the challenge was a purely facial challenge to the law itself. The 6C said that the state secrets doctrine barred even this. So you can't sue unless you can you prove you are injured by actually being tapped, which you can't because the state secrets doctrine prohibits your being hold. A genuinely Orwellian position.
Hell, push came to shove, the whole case could have been transferred to a FISA (Foreign Intelligence Security Act) Court, which is specially delegated with overseeing national security cases. The 6C did NOT rule this out, I believe, so maybe that avenue is still open if the statute of limitations has not run. FISA Courts are pretty much a rubber stamp for the G, but any review is better than "we could tell you, but then we'd have to kill you," which is what the 6C more or less said.
Ancient liberties are slipping through our finders like sand. Any more disquisitions here on the evil and reactionary nature of liberalism?
--- Doug Henwood <dhenwood at panix.com> wrote:
>
> On Jul 7, 2007, at 2:56 PM, Jordan Hayes wrote:
>
> > What's not clear is why there isn't anyone around
> with good standing.
>
> You have to know you're being tapped. Who does?
>
> Doug
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