A Catch 22
I worked my way through the Sixth Circuit's opinion in the domestic wiretapping case. For those of you who do not remember (and this is America, so it is a lot)a federal judge in Detroit declared the warrantless wiretapping program unconstitutional. Last week, the Sixth Circuit Court of Appeals overturned the lower court 2-1. Interestingly the two justices in favor of overturning were Republican nominees (Batchhleder and Gibbons) the dissenter (Gilman) was a Clinton appointee.
Contrary to some commentators, the Sixth Circuit did not hold that the program of warrantless wiretaps of US citizens was constitutional. Rather is said that the plaintiffs lacked standing to pursue their claims. (Standing is a doctrine that determines who can bring a lawsuit.) The Court said that the Plaintiffs could not prove they were actually harmed by the program and thus were unable to bring a case. This creates a bit of a Catch 22 because no one will ever know if they were harmed by the program because the program is a secret. So, this decision essentially allows the program to go forward. It also fortifies the idea of government secrecy by barring the types of lawsuits that would force the government to disclose their activities.
This is, unfortunately, a huge victory for conservatives who have been advocating for a narrow doctrine of standing for at least a decade. The Federalist Society, Heritage Foundation and the like have spent a lot of ink arguing that the federal courts should restrict the ability of private citizens to bring lawsuits aagaints their government on constitutional grounds, and the "actual injury" standard was always their basis. Note that this decision comes on the heels of a decision that held that a private citizen lacked standing to challenge expenditures made by the Executive Branch of government. It seems conservative justices do not like the idea of accountability and are willing to shield government officials from the oversight of the citizenry.
It is sad that at a time when the country is finally starting to wake up from its conservative wet dream, the federal courts will be able to carry on the conservative agenda for some time.
Contrary to some commentators, the Sixth Circuit did not hold that the program of warrantless wiretaps of US citizens was constitutional. Rather is said that the plaintiffs lacked standing to pursue their claims. (Standing is a doctrine that determines who can bring a lawsuit.) The Court said that the Plaintiffs could not prove they were actually harmed by the program and thus were unable to bring a case. This creates a bit of a Catch 22 because no one will ever know if they were harmed by the program because the program is a secret. So, this decision essentially allows the program to go forward. It also fortifies the idea of government secrecy by barring the types of lawsuits that would force the government to disclose their activities.
This is, unfortunately, a huge victory for conservatives who have been advocating for a narrow doctrine of standing for at least a decade. The Federalist Society, Heritage Foundation and the like have spent a lot of ink arguing that the federal courts should restrict the ability of private citizens to bring lawsuits aagaints their government on constitutional grounds, and the "actual injury" standard was always their basis. Note that this decision comes on the heels of a decision that held that a private citizen lacked standing to challenge expenditures made by the Executive Branch of government. It seems conservative justices do not like the idea of accountability and are willing to shield government officials from the oversight of the citizenry.
It is sad that at a time when the country is finally starting to wake up from its conservative wet dream, the federal courts will be able to carry on the conservative agenda for some time.
posted by Jack Reed at 2:28 PM
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