07/09/2007 11:37 am ET | Updated May 25, 2011

You're Sane If You're Crazy

In Joseph Heller's legendary 1961 novel, Catch-22, the titular military rule -- soon to become a universal catchphrase for an impossible choice -- referred directly to the tortured logic of a bureaucracy at war. Under Catch-22, a pilot didn't have to fly if crazy, but as soon as he said he was nuts and didn't want to fly, he was deemed sane because he didn't want to fly. Then, he had to fly.

Well, that's exactly what the Sixth Circuit did this week with the National Security Agency's illegal warrantless wiretapping program. By denying our plaintiffs the right to sue the NSA because they couldn't prove they were victims of the government's secret spying program, it created a Catch-22 situation: how can you prove you're definitely a victim of a secret spying program when it's secret? The court's decision essentially sets up a situation where no American can challenge President Bush's illegal wiretapping program. Ordinary citizens with well-founded fears are not allowed to contest the government's secret actions because they are, well, secret. And that's plain un-American.

Here's the relevant background:

On December 16, 2005, The New York Times revealed the existence of an ultra-secret wiretapping, call logging, email tracking and data mining program, run out of the NSA, that reportedly intercepted the communications of Americans with individuals overseas. The Times had sat on the story for about year, and was subject to great pressure from the White House to not publish the story.

The ACLU sued about a month later, representing several journalists, academics, activists and criminal defense lawyers, all of whom have frequent overseas contacts with individuals that would likely be of interest to the NSA. Given their professions, all of our plaintiffs had excellent reason to believe that they were being spied on without a warrant.

We won the first round. Federal District Judge Anne Diggs Taylor in Michigan issued a comprehensive opinion finding the NSA program unconstitutional and ordering its end. But the appellate court "stayed" her order -- halted its implementation -- until it could rule. And that's what it did on Friday, when it said our clients didn't have "standing" to sue.

The Constitution says you have to have a "case or controversy" in order for a federal court to hear your claim. That means you need direct connection to the action you're challenging, and some sort of injury.

By finding a lack of standing, courts can avoid ruling on controversial issues by never reaching the merits of the case at hand. For instance, in one well-known case, an African-American man who was chokeheld by the LAPD -- a potentially lethal maneuver where you cut off air to the lungs and block the jugular to subdue suspects -- sued to prevent the LAPD from continuing to chokehold suspects. The court said that because he personally did not have a sufficient chance of being chokeheld in the future, he couldn't pursue the case.

In ACLU v. NSA, we argued that our plaintiffs, based on what little information the administration would release, had already been harmed as a result of the illegal NSA program and had a "well-founded fear" of being spied on. Standing on First Amendment cases, like this one, tended to be easier to establish because of the overall effect to the public.

The Sixth Circuit, however, said that without concrete evidence of being spied on, our clients were out of luck. A quintessential Catch-22 -- you can't get that evidence because it's protected by something called the "state secrets" privilege which often boils down to blocking public access to information based solely on the government's invocation of the magic words: national security.

Making it really concrete: You're a journalist. You're calling Islamabad because you want to investigate Pakistani government support for al-Qaida militants in the frontier provinces abutting Afghanistan. In order to do your job, you talk to various religious leaders, community types, secular activists, or even suspected terrorists.

If you're a good reporter, the intelligence community will probably be interested in your conversations. There are legal avenues that would allow them appropriate access with at least some neutral court review to ensure everything's above board. But, the NSA program as originally conceived by President Bush lets the government tap your conversations with no review whatsoever.

Knowing that, you sue to stop it, because it affects how you do your work, or because it violates a number of constitutional provisions, amendments, and federal laws. The court says, show me some evidence you were spied on or we'll deny you "standing." You say, I can't because the government keeps it under lock and key, and I can't compel its release. And the President violates the law without anyone being in a position to challenge him.

So, that's the decision. Captain Yossarian -- the bombardier stuck with the Catch-22 -- would commiserate.

The ACLU will certainly appeal this case -- whether to the full Sixth Circuit or the US Supreme Court. The issues are much too important and the principles too fundamental to just let it slide. In the meantime, the Senate Judiciary Committee recently issued subpoenas seeking information about the NSA program. Specifically, they want Attorney General Gonzales to explain why he told Congress there was no internal dissension over the legality of the spying, a statement in direct contradiction with the story told by former Deputy (and Acting) Attorney General James Comey, you may remember, said that a number of Justice staff, including the then-hospitalized John Ashcroft, concurred that there was no legal basis for the program and refused to reauthorize its use.

We strongly support Judiciary Chairman Patrick Leahy, D-Vt., and the other members of the committee in their fight to get the truth about the NSA spying to the American people. Justice William O. Douglas once called military surveillance a "cancer on the body politic." It makes us wary of speaking our minds or speaking to each other. The warrantless NSA surveillance does exactly that and must be stopped.