Breaking: Sixth Circuit Smacks Down ACLU in NSA Wiretapping Case
A summary of the action, courtesy of Howard Bashman (aka "Ho Bash," as one commenter dubbed him):
The U.S. Court of Appeals for the Sixth Circuit holds that the American Civil Liberties Union and its co-plaintiffs lack standing to challenge the National Security Administration's interception without warrants of certain telephone and email communications...Circuit Judge Alice M. Batchelder issued the lead opinion, and Circuit Judge Julia Smith Gibbons issued an opinion concurring in the judgment. Judge Gibbons's opinion begins, "The disposition of all of the plaintiffs' claims depends upon the single fact that the plaintiffs have failed to provide evidence that they are personally subject to the TSP. Without this evidence, on a motion for summary judgment, the plaintiffs cannot establish standing for any of their claims, constitutional or statutory...."
And Circuit Judge Ronald Lee Gilman dissented. He would hold that the plaintiffs possess standing and that "the [Terrorist Surveillance Program] as originally implemented violated the Foreign Intelligence Surveillance Act of 1978."
Is this ruling a surprise? Not so much. First, most legal analysts were deeply disappointed by the handiwork of Judge Anna Diggs Taylor (E.D. Mich.), the district judge in this case.
Second, here's a telling detail from the Sixth Circuit website:
Does the Sixth Circuit website always feature a patriotic graphic of the United States filled with a flag pattern? Or is this just a special Fourth of July thing they haven't gotten around to changing back yet?
ACLU v. NSA [U.S. Court of Appeals for the Sixth Circuit (PDF) via How Appealing]
Many Experts Fault Reasoning Of Judge in Surveillance Ruling [New York Times]
(21) Comments
Less "smack down" and more "2-1 opinion with the majority disagreeing as to the grounds to reverse." Batchelder has the opinion, Gibbons concurs in the judgment only, and Gilman dissents. Not a lot of "smack."
Losing on standing grounds is a pseudo-smackdown. It's like "you shouldn't even have made it through the courthouse doors."
Let me get this straight. . . NSA won't tell you if you're getting wiretapped, because it's just doing it and they don't even bother with warrants. I imagine a FOIA request would get real far. So there's no way to get evidence of being surveilled, essentially. But you can't challenge this without evidence that you are being specifically surveilled. Hmm. . . Great job, 6th Circuit! No one can ever challenge this, until that evidence is presented in a trial against them, and even then the feds will likely try to find some way not to disclose it. Way to let Big Brother off the hook. I'm damn well affected by this, knowing that W could be listening any time I pick up the phone! Make me your name plaintiff, ACLU!
What a beautiful result! This really sets me up for a joyous weekend. I couldn't have asked for anything more.
The 6th giveth with one had and taketh away with the other. Just last month the 6th held that DOJ interpretations of the Electronic Communications Privacy Act violated the 4th Amend. insofar as they authorized the warrantless search of stored electronic communications (i.e., email).
http://www.ca6.uscourts.gov/opinions.pdf/07a0225p-06.pdf
Thank you for exposing the ACLU as unpatriotic. It's about damn time.
Judge Batchelder for Supreme Court! Want more female "voices" on the Court? Hear her roar!
The ACLU is not "unpatriotic." They are highly patriotic, in defending our civil liberties.
Maybe they can get the entire Sixth Circuit recused because of that stupid flag graphic. Too bad this isn't a flag-burning case!
10:46,
Nobody is listening to your phone calls. You really think anyone gives a shit what you have to say.
This is essentially a discovery matter. They alleged that they were being tapped, but the State Secrets Doctrine prevented them from getting enough evidence to survive SJ.
The US-graphic is an example of irony, not a portending of the ACLU's loss.
The irony is, under the graphic of the country and stars & stripes, the 6th Circuit essentially undercut a key check on the executive's exercise of secretive surveilance powers, thereby effectively granting the executive almost dictatorial (and decidedly non-democratic) authority to do what it will without repercussion.
11:11, the courts are not the only body that has the power to stop this. Congress certainly can, with its spending power, and possibly through the AUMF and FISA. And, of course, the voters can and probably will put an end to it by replacing the president next year.
And by that, 11:11 probably means that the 6th Circuit prevented the ACLU from abusing the power of courts to issue declaratory judgments in order to prevent the rampant expansion of judicial activism. Funny story, I've heard that the legislature can and should check and balance the executive, too.
11:11: Funny story, I've heard that too. Maybe we should tell the legislature; it seems they have not.
Re: the graphic:
The stars and stripes constitutes the design of the flag of the United States of America. The logo is shaped like the continental United States.
The federal courts are part of the United States government.
So since when are federal courts supposed to be embarassed of patriotic symbols? Would you like them to fit an eagle clutching arrows and an olive branch in that kind of pixel size?
Big fucking deal, we lose one. The ACLU OWNS the fucking courts. We always win, motherfuckers.
What about an icon of a Federalist Society member fellating Stalin?
On the bright side, the Al-Haramain Islamic Foundation suit is still alive in Oregon, with an intact damage claim and actual proof of wiretapping (in the form of accidentally-disclosed transcripts of the taps).
12:56, thanks for the pointer. Very interesting case with a great discussion of the privilege. That privilege is the heart of this 6th Cir. case as well though it didn't get much discussion.
http://www.fas.org/sgp/jud/statesec/ahif090706.pdf
11:11, 11:20, 11:55, funny story: the legislature already did its part in checking the executive by passing FISA. It's the Sixth Circuit's failure to to give the legislature's work any force that let the executive off the hook.
Hepting and Al-Haramain are set for combined argument before the 9th Circuit in SF on August 15.
11:01: "Maybe they can get the entire Sixth Circuit recused because of that stupid flag graphic. Too bad this isn't a flag-burning case!"
I think they should probably also be recused in every case involving the US government, since, as a part of that government, they can't possibly render a neutral verdict.