Tuesday, August 22, 2006

At some point the questions become not questions of law of what we value.
ACLU v. NSA was a civil action brought by a broad range of individuals and organizations alleging that the NSA surveillance program infringes their legal and constitutional rights. The government argued that the case should be dismissed because the government would have to reveal state secrets in order to defend the legality of the program . This argument is puzzling. It is analogous to a defendant in a civil action demanding dismissal of the case because in order to prove a defense he would have to forego the attorney-client or doctor-patient privilege. But the privilege gives the defendant the right to prevent the plaintiff from demanding the privileged information. It does not give him the right to have the case dismissed. In any event, this question was not presented in ACLU v. NSA because, as Judge Taylor held, the government failed to demonstrate that any state secrets needed to be disclosed in order for it to defend the legality of the program.

The standing argument is similarly puzzling. The government maintained that the plaintiffs lacked standing to challenge the legality of the NSA program because they could not prove that they had personally been subjected to unlawful surveillance. Why couldn't they prove this? Because the government insisted that the identities of the victims of the program were a state secret. On this view of the law, no one would have standing to challenge an unconstitutional and unlawful government program if the government keeps secret the identities of those who are aggrieved by the program. Though there is precedent for this position (see Laird v. Tatum), Judge Taylor rightly rejected the standing argument in ACLU v. NSA on the basis of both logic and precedent. Happily, sometimes the law is not an ass.

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