Do you have "standing" if they might be listening -- even if you'll never know for sure?
Glenn Greenwald has this explanation of where we are in the National Security Agency warrantless eavesdropping cases, with a good explanation of the concept of "standing":
As a matter of straight logic, this potential government argument, that the plaintiff who cannot prove having been a victim of spying by the NSA without a warrant lacks “standing,” is absurd.
The concept of “standing” – do you as a plaintiff (either directly or as a legal representative of the injured person) have a real, actual, personal stake in the outcome of the matter? – is a variant of the principle that courts may only adjudicate actual “cases” or “controversies.” If the plaintiff does not have such a stake, then the court is not presented with a genuine case or controversy. Suppose I residing in Illinois filed suit (wherever, even in Alaska) against Exxon for fouling up Prince William Sound and violating all kinds of Federal and state environmental laws. It probably would be tossed because my interest is general, just as a citizen of the U.S. or the world like anyone else, not specific. People who fish the Sound or use its beaches are a different story. If they don’t care, why should the court care just because I do as a matter of general principle? That’s the job of legislatures.
As pointed out before, this is why the right-wing mantra of “activist judges,” even when dressed up more formally as “judicial activism” – is fundamentally frivolous. The court has no jurisdiction until it is presented with a genuine case or controversy, with both sides making arguments about the law. The court cannot go out and grab cases to decide. What those who rail against “judicial activism” really mean is that they prefer one set of legal arguments over the other, and do not think the ones they don’t like should even be listened to by the courts. Of course, they are right if the arguments of that side are what the law “should be” – what’s morally right – and not what the law “is.” But unless it’s a jailhouse lawyer or law student doing the argument, that is not what the argument ever is. On the contrary, the reason “new law” gets made is because the side making the argument against prevailing wisdom actually succeeds in establishing to the satisfaction of the court that the prevailing wisdom does not conform to the full range of laws that are relevant. This is usually accomplished by showing how a principle of law that was not recognized before as applying to the circumstances actually does apply.
In the case of eavesdropping in violation of FISA or the first amendment, however, the injury – the chilling effect on me or anyone else knowing that my conversation might be listened to without probable cause – is very direct. For a matter like this, it would seem that anyone whatsoever protected under FISA or the 4th Amendment who merely might be listened to should have sufficient standing. The chilling effect is real injury every bit as much as a misuse of information improperly taken is. A foreigner who might be listened to but who also objects on principle to the government listening in on Americans, say, as a human rights violation, would probably not have standing on either basis, both because he is not protected from eavesdropping under the Constitution or FISA, and he otherwise has no direct stake in the outcome.
Greenwald properly describes the government’s standing argument as a “Catch 22”: you have no standing unless you’ve been spied upon, but you can’t find out if you’ve been spied upon because you don’t have standing to force the disclosure. In other words, nobody could ever succeed in challenging its Constitutionality. When there is a Catch 22 like that, the common sense conclusion is that the alleged legal principle is completely bogus.
If Judge Diggs Taylor's decision is to be reversed by the Sixth Circuit (where the appeal is pending), it is (in my view) highly likely that it will be on the standing issue. Though it may sound petty, and though it presents an outrageous Catch-22 (since Bush officials here have broken the law in secret and are now trying to benefit from that secrecy by arguing that nobody can sue them because nobody can prove they were actually injured), "standing" is an important concept because it serves to limit the jurisdiction of courts.
The Founders did not want courts to be able to run around as some floating, superior body resolving every dispute. That is why Article III limits the jurisdiction of courts to actual "Cases" or "Controversies." They are empowered not to adjudicate any matter that is in dispute, but instead only those cases where one party is injured by the actions of another (hence, the general requirement that a plaintiff prove he has suffered specific/unique injury from a government act in order to have "standing" to challenge the legality of that act).
As a matter of straight logic, this potential government argument, that the plaintiff who cannot prove having been a victim of spying by the NSA without a warrant lacks “standing,” is absurd.
The concept of “standing” – do you as a plaintiff (either directly or as a legal representative of the injured person) have a real, actual, personal stake in the outcome of the matter? – is a variant of the principle that courts may only adjudicate actual “cases” or “controversies.” If the plaintiff does not have such a stake, then the court is not presented with a genuine case or controversy. Suppose I residing in Illinois filed suit (wherever, even in Alaska) against Exxon for fouling up Prince William Sound and violating all kinds of Federal and state environmental laws. It probably would be tossed because my interest is general, just as a citizen of the U.S. or the world like anyone else, not specific. People who fish the Sound or use its beaches are a different story. If they don’t care, why should the court care just because I do as a matter of general principle? That’s the job of legislatures.
As pointed out before, this is why the right-wing mantra of “activist judges,” even when dressed up more formally as “judicial activism” – is fundamentally frivolous. The court has no jurisdiction until it is presented with a genuine case or controversy, with both sides making arguments about the law. The court cannot go out and grab cases to decide. What those who rail against “judicial activism” really mean is that they prefer one set of legal arguments over the other, and do not think the ones they don’t like should even be listened to by the courts. Of course, they are right if the arguments of that side are what the law “should be” – what’s morally right – and not what the law “is.” But unless it’s a jailhouse lawyer or law student doing the argument, that is not what the argument ever is. On the contrary, the reason “new law” gets made is because the side making the argument against prevailing wisdom actually succeeds in establishing to the satisfaction of the court that the prevailing wisdom does not conform to the full range of laws that are relevant. This is usually accomplished by showing how a principle of law that was not recognized before as applying to the circumstances actually does apply.
In the case of eavesdropping in violation of FISA or the first amendment, however, the injury – the chilling effect on me or anyone else knowing that my conversation might be listened to without probable cause – is very direct. For a matter like this, it would seem that anyone whatsoever protected under FISA or the 4th Amendment who merely might be listened to should have sufficient standing. The chilling effect is real injury every bit as much as a misuse of information improperly taken is. A foreigner who might be listened to but who also objects on principle to the government listening in on Americans, say, as a human rights violation, would probably not have standing on either basis, both because he is not protected from eavesdropping under the Constitution or FISA, and he otherwise has no direct stake in the outcome.
Greenwald properly describes the government’s standing argument as a “Catch 22”: you have no standing unless you’ve been spied upon, but you can’t find out if you’ve been spied upon because you don’t have standing to force the disclosure. In other words, nobody could ever succeed in challenging its Constitutionality. When there is a Catch 22 like that, the common sense conclusion is that the alleged legal principle is completely bogus.
posted by KISSWeb | 4:58 PM
2 Comments:
Absolutely correct. I feel the threat every day -- not just as a blogger, where I have chosen to speak out (albeit semi-anonymously)so I suppose I can't object to them tracing the blog back to it's real identity -- but in terms of who I call and what I say over the telephone. There is, of course, nothing there that would be illegal under any reasonable stretch of the law, but who knows what this administration will do to destroy its enemies? The no fly list is a perfect example. They won't tell you why you're on it -- or even if you're on it -- and they won't take you off unless they choose to do so.
I'm just going to add one more thing to my previous comment. Look at what they've done to 8 or 9 loyal Republicans - the fired U.S. Attorneys - for not toeing the White House line. If they do that to their own, how much more will they do to those they perceive as enemies?
For most of us, our best protection is that we're small fries -- too insignificant to be worth swatting. But, there are no guarantees. And, when you're not a small fry, look what happens (see Joe Wilson and Valerie, for an example).
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