OpEdNews Op Eds

Standing to Sue

By (about the author)     Permalink       (Page 1 of 1 pages)
Related Topic(s): ; ; ; , Add Tags Add to My Group(s)

View Ratings | Rate It

opednews.com

Congress is currently in the process of demanding that President Bush provide "a detailed justification of his executive privilege claims," as well as account for all the documents he is withholding from the House and Senate with respect to the controversial firing of nine U.S. attorneys (WaPo) It will be fascinating to see just how much the executive branch thinks it can hide under the umbrella of "state secrets." Ostensibly, this president's claim of "executive privilege" is, in essence, no different from invoking the Fifth, which is appropriate given that he has taken the First and Fourth Amendments and buried them, like so many bones, in his backyard.

While the White House claims to be "standing on principle" in not cooperating with congressional investigations, a federal appeals panel, in Cincinnati, last week upheld the National Security Agency's controversial surveillance program by questioning plaintiffs' "standing to sue." (NYT) You'll recall that the warrantless monitoring of citizens was ruled unconstitutional by a district court judge last year.

While far from unanimous, the court's decision to dismiss the lawsuit by attorneys and journalists who assert that government's program of intercepting their "international" e-mails and telephone calls, without warrants, or official notification, has been injurious to them represents a huge victory for the Bush administration. The court claims to have dropped the charges because plaintiffs were unable to present "concrete" evidence that the NSA program was directly, and tangibly, deleterious, thus they have no "standing," or cause, and are not entitled to sue.

One member of the appeals panel, Judge Gibbons, appointed to the bench by the president, suggests that the case was dismissed based on "the single fact that the plaintiffs have failed to provide evidence that they are personally subject to the program." (NYT) Indeed, one of the reasons plaintiffs may be unable to prove that they are personally affected by the program is because that evidence is "privileged," protected under "state secrets privilege," hence inadmissible in court. Ironically, another judge on the panel, Judge Batchelder, appointed by the president's father, George H.W. Bush, says that the case presents what she calls "a cascade of serious questions" as to whether the surveillance program violates the Foreign Intelligence Surveillance Act, as well as both the First and Fourth Amendments. At stake here is not merely whether FISA and the Constitution have been compromised, but whether the government can be allowed to use confidentiality to preclude the admission of evidence, into court, which demonstrates government wrongdoing.

Steven Shapiro, legal director of the American Civil Liberties Union, expressed alarm by the most recent appeals court decision which challenges that of district judge, Anna Diggs Taylor, who declared the Agency's spy program unconstitutional. Shapiro says that the court decision, in effect, "insulates the Bush administration's warrantless surveillance activities from judicial review and deprives Americans of any ability to challenge the illegal surveillance of their telephone calls and e-mails." (NYT) But, this decision goes deeper than that insofar as it reinforces the right of the government to withhold from evidence any information it deems to be secret, or classified, especially information which may be inconvenient, and/or actionable.

There was yet another case in which the state secrets argument surfaced, and led to a suit against the government being dismissed. Last April, in a district court in San Francisco, the U.S. government filed a statement in a class action lawsuit by the Electronic Frontier Foundation saying that they would assert "state secrets privilege" to obtain the dismissal of E.F.F.'s lawsuit against AT&T in which the group alleges that the telecommunications behemoth illegally monitored its networks. The Justice Department's statement established dismissal as the default position for any case that requires the release of what the DOJ considers classified information. And, as we've seen, the classification and de-classification of material, by this administration, has more to do with political expediency, and covering one's posterior, than national security.


As John Dean, former White House counsel to Richard Nixon, points out, for more than two centuries, the U.S. has functioned without an official state secrets act unlike other countries which criminalize divulging government information deemed to be potentially damaging to national interests. As early as 2003, Mr. Dean argued that, despite the cost to free speech and the First Amendment, "President George W. Bush has created the equivalent of an official secrets act for America…by cobbling together provisions from existing laws, Bush's Justice Department has effectively created one." (Findlaw) And, while we have no official state secrets act, there is a "state secret privilege," which amounts to an evidentiary rule, used by the government, in which the courts may be compelled to exclude any material, or testimony, that is deemed a threat to "national security."

Next month, a federal appeals court, in San Francisco, will hear another challenge to the NSA spy program in which two lawyers of a Muslim charity allege that they were "personally injured," and have had access to a document that demonstrates that the government has intercepted their exchanges. Their argument that their attorney-client privilege was damaged by the government's intrusion into their confidential affairs, according to legal experts gives them standing to sue.

The A.C .L.U. is not taking the decision by the federal appeals panel, last week, lightly, nor should we. They are even considering taking this appeal court's decision to effectively validate the administration's surveillance of American citizens all the way to the Supreme Court. And, if the Supremes can be prevailed upon to consider the legality of government's unauthorized monitoring, without a warrant, of our private conversations, they will be opening Pandora's Box as, not only is the Bush administration acting in defiance of F.I.S.A, but they will have a hard time ignoring allegations that they're in violation of the Constitution, too. We may yet get to see just how "conservative" judicial activist Bush appointees like John Roberts and Samuel Alito really are, and whether they have any standing to judge..

 

http://ladyjaynestahl.blogspot.com

Widely published, poet, playwright, essayist, and screenwriter; member of PEN American Center, and PEN USA. Jayne Lyn Stahl is a Huffington Post blogger.

Share on Google Plus Submit to Twitter Add this Page to Facebook! Share on LinkedIn Pin It! Add this Page to Fark! Submit to Reddit Submit to Stumble Upon

Go To Commenting
The views expressed in this article are the sole responsibility of the author and do not necessarily reflect those of this website or its editors.

Writers Guidelines

Contact Editor

Most Popular Articles by this Author:     (View All Most Popular Articles by this Author)

Martial Law?

The Best Argument Against McCain

"Waking Up the Coast" / "El Despertar de la Costa"

Another Poster Child for the NRA

Atheists in Foxholes

The Republican Guard?

Comments

The time limit for entering new comments on this article has expired.

This limit can be removed. Our paid membership program is designed to give you many benefits, such as removing this time limit. To learn more, please click here.

Comments: Expand   Shrink   Hide  
1 people are discussing this page, with 1 comments
To view all comments:
Expand Comments
(Or you can set your preferences to show all comments, always)

all the way to the Supreme Court on this one.If th... by Brett Paatsch on Monday, Jul 9, 2007 at 8:45:48 AM