Monday, August 28, 2006

ACLU v NSA - one reason why case will be reversed ACLU v NSA - one reason why case will be reversed

I just finished reading all of the relevant pleadings in the MI ACLU v. NSA case that Judge Taylor decided in the ACLU's favor a little over a week before, and I still find the decision lacking.

One of my big problems all along has been the question of who was injured, esp. in the 4th Amdt., FISA, and Title III (Wiretap Act) claims. I can accept the injury of the plaintiffs in their 1st Amdt. claim, on which the Court found standing - which was that communications with people publically described as being likely candidates for TSP surveilance quit communicating with the plaintiffs as a result of the disclosure of the TSP, though I believe that this claim will ultimately be rejected as a matter of law (because, plaintiffs essentially claimed a 1st Amdt. right to unfettered electronic communications with designated enemies during a time of war).

But the problem remains, who received 4th Amdt., FISA, or Title III injuries as a result of the TSP? Plaintiffs seem to have two theories. First, specific plaintiffs are claiming that they were injured by the knowledge of the TSP, regardless of whether they were indeed surveiled by the TSP. And, secondly, that there are so many of them, esp. in the group of defense attorneys, that some must have been surveiled by the TSP, or if not yet, will be.

Contrary to popular Web knowledge, the government did address both of these claims for injury. In the case of the few plaintiffs claiming a good faith belief that they were surveiled, the government asserted that this is purely speculative, and whether they were actually surveiled is the important issue, and that cannot be determined without recourse to information protected by the State Secret privilege. In the second case, the problem is that it is purely speculative, and there are no identifiable parties who have been surveiled by the TSP. Everything is conjecture, and these types of violations require specific instances of surveilance of specific identifiable people to be actionable. And, plaintiffs haven't made such claims. The government's briefs indicate that they believe that plaintiffs have moved from a claim of the first type to a claim of the second type, as the case has progressed.

Regardless, Judge Taylor's decsion doesn't answer the question of who she felt had been injured, and by what actions of the government. Was it of the specific plaintiffs claiming a good-faith belief in being surveiled? Or was it the general class who might be surveiled in the future, if they hadn't been surveiled by the TSP already?

The opinion is silent here, and, for that reason, I think it highly likely that the judge's decision will be reversed. After all, how can the appeals courts ratify that injury did occur, if they can't determine from the opinion who the injured parties were from the opinion?

12:22 PM Display: Full / Chopped / Footer

Display: Full / Chopped / None

Display: Full / Footer / None

Display: Chopped / Footer / None


Post a Comment

Links to this post:

Create a Link

<< Home >>