Judge Hears Argument In Another NSA Case

Jay

The ACLU’s suit against the NSA is not the only one. The Center for Constitutional Rights is pursuing another case challenging the program in New York.

Adam Liptak writes about this case in the NY Times. There are several interesting points in this particular case.

One of the main arguments of interest to me is whether the plaintiffs have any standing.

One preliminary issue is whether the plaintiffs, the Center for Constitutional Rights and several of its lawyers, have standing, the requirement that they demonstrate a concrete injury from the program. The plaintiffs represent people accused of terrorism, and they say their ability to conduct their work has been affected by the possibility of surveillance. The government says such speculation is insufficient to show standing.

In my opinion the plaintiffs can not show any evidence that they have been injured by the program. I admit it is a catch 22 in that being a secret program this is impossible to prove. It seems to me, however, even if lawyers representing terror suspects were obstructed from conducting that business it would not be by the existence of the program itself as much as the illegal actions of the classified program being revealed. Perhaps the lawsuit should be against the NY Times instead.

Another interesting development is a shift in strategy by the government.

In a move that surprised Judge Lynch and lawyers who have been following the debate over the surveillance program, a government lawyer seemed to shift tactics to bring one more legal question within the scope of the privilege.

It has been widely assumed that the government has acknowledged that the surveillance program violates the Foreign Intelligence Surveillance Act, a 1978 law that requires the government to obtain a warrant from a secret court before wiretapping the international communications of Americans for national security purposes.

“We don’t agree,” the lawyer, Anthony J. Coppolino, said, “that the government has specifically conceded that point.” He added that the question could not be answered without endangering national security.

Statements from government officials that seemed to make the concession, Mr. Coppolino said, “may not be fully complete, as they have all indicated.”

Judge Lynch was taken aback by the shift in tactics. “This is the first time,” he said, “that I have understood that the government is taking the position that it is a contested issue whether this violates FISA.”

Judge Lynch was very questionable towards the government’s arguments, and at many points found them unconvincing. It is hard to say which way the judge will rule on this, but he does narrow down what the deciding factors will be.

At the beginning of yesterday’s argument, the second to consider the legality of the program, Judge Lynch said he would “devote little time to the First and Fourth Amendments.” Judge Taylor’s decision relied heavily on arguments based on them.

Judge Lynch confined himself, instead, to questions about his ability to rule on the merits and, if he can, on whether the program violates the constitutional separation of powers.

So it seems that this particular case boils down to a few questions. Does the government have standing in their claims toward state secrets to have the case dismissed? Does the plaintiffs have standing to claim injury without concrete evidence? And questions on the seperation of powers. At this point the decision could go either way. Of particular interest and concern to me is the question of whether the plaintiffs even have standing. Can the entire case be built on hypotheticals? We will find out soon.

Regardless of how this particular judge rules we can count on the case being appealed. We will see this controversy find its way to the top courts where these same questions will be pondered once again.