Monday, August 28, 2006

ACLU v NSA - reson #2 why case will be reversed ACLU v NSA - reson #2 why case will be reversed

Probably the biggest reason that the MI ACLU v. NSA case will be reversed upon appeal is that Judge Taylor, while giving lip service to the State Secret privilege Doctrine, never did the type of filtering that it woud require The ACLU suggested that it would be possible to come to a decision (in their favor) despite the privilege, and this implies filtering out of any evidence that could be affected by the privilege. As noted, she agreed that this could be done, but then didn't bother to show what evidence was left after filtration. The appeals courts are thus left guessing as to whether any inadmissibe evidence was used by her in coming to her decision in favor of the ACLU.

The ACLU didn't rebut most of the government's specific assertions of where the State Secret privilege would apply, but rather, tried to rebut the government case through generalities such that the privilege is very limited, etc. For example though, the government asserted that the evidence of the three plaintiffs who claimed a good faith belief that they had been surveiled is inadmissible because the way to rebut that would be evidence whether these plaintiffs were indeed electronically surveiled by the TSP, and that evidence is protected by the privilege, and is therefore inadmissible. The government then asserted that as a result, this testimony by those three plaintiffs is also inadmissible.

It is this sort of item by item analysis that is missing from Judge Taylor's decision, and, thus, the appeals courts are left guessing exactly what evidence she used to come to that decision.


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