Not two days later, we've already been reminded just how crucial such legislative pressure is. For those who haven't heard yet: an Appeals Court ruled this afternoon that a group of plaintiffs -- including "journalists, academics, and lawyers" who "regularly communicate" internationally -- lacked standing to sue the NSA for its warrantless surveillance under the Terrorist Surveillance Program.
Just why did the plaintiffs lack standing? Simple, really. They couldn't access the very information that would have proved they were being spied on. Or as the opinion itself acknowledged: "the plaintiffs do not -- and because of the States Secrets Doctrine cannot -- produce any evidence that any of their own communications have ever been intercepted by the NSA, under the TSP, or without warrants. Instead, they assert a mere belief" that their communications were intercepted.
Nice logic, that. You may know that you're talking with people abroad, and even more, you may also know that the government is spying, warrantlessly, on such conversations. Additionally, you may further know that such surveillance presents, as the opinion itself confessed, "a number of serious issues." Yet despite all that knowledge, you'll never be able to sue the NSA. Because it would be illegal, after all, for you to possess the very information that proved you were being spied on.
What's so remarkable here is that somehow the patent circularity of the ruling's logic isn't even the worst part. Rather, it's the self-conscious nature of the legal dodge it represents. Indeed, the justices in the majority openly acknowledge the gravity of what they're doing. Yet there's nothing rueful in their tone. Instead, there's only a kind of wry insouciance -- the legal equivalent of the bemused grin or casual shrug that says, "Don't look at me, sucker. It ain't my fault."
Yet what troubles me most about that tone, to return to my initial point, is that there's nothing to limit it to only certain types of classified military activity.
In particular, what worries me is that the ruling's tenor and logic will reappear in next year's Supreme Court decision on the Military Commissions Act. As I mentioned on the 4th, the MCA explicitly declares that "alien unlawful enemy combatants" -- ie, the detainees in Guantamano, among other places -- cannot submit a writ of habeas corpus in federal court. As a result, there are even clearer grounds for the Supreme Court to rule that foreign detainees lack standing to sue than there were for the Appeals Court to rule today that the NSA plaintiffs lacked standing.
As I'll be noting again and again over the coming weeks -- beginning with "The Top 10 Reasons to Repeal the MCA" on Monday -- that means there's little sense in waiting for the Supreme Court to strike the Military Commissions Act down. Instead, we need to begin pressuring Congress to repeal the MCA on its own.
For if today's ruling is any guide, we won't have any other choice.