07/09/2007 03:02 pm ET Updated May 25, 2011

Standing to Sue

Congress is currently in the process of demanding that President Bush provide "a detailed justification of his executive privilege claims," as well as account for all the documents he is withholding from Congress with respect to the controversial firing of nine U.S. attorneys (WaPo) It will be fascinating to see just how much the executive branch thinks it can hide under the umbrella of "state secrets." Ostensibly, this president's claim of "executive privilege" is, in essence, no different from invoking the Fifth, which is appropriate given that he has taken the First and Fourth Amendments and buried them, like so many bones, in his backyard.

While the White House claims to be "standing on principle" in not cooperating with congressional investigations, a federal appeals panel, in Cincinnati, last week upheld the National Security Agency's controversial surveillance program by questioning plaintiffs' "standing to sue." (NYT) You'll recall that the warrantless monitoring of citizens was ruled unconstitutional by a district court judge last year.

While far from unanimous, the court's decision to dismiss the lawsuit by attorneys and journalists who assert that government's program of intercepting their "international" e-mails and telephone calls, without warrants, or official notification, has been injurious to them represents a huge victory for the Bush administration. The court claims to have dropped the charges because plaintiffs were unable to present "concrete" evidence that the NSA program was directly, and tangibly, deleterious to them, thus they have no "standing," or cause, and are not entitled to sue.

One member of the appeals panel, Judge Gibbons, appointed to the bench by the president, suggests that the case was dismissed based on "the single fact that the plaintiffs have failed to provide evidence that they are personally subject to the program." (NYT) Indeed, one of the reasons plaintiffs may be unable to prove that they are personally affected by the program is because that evidence is "privileged," protected under "state secrets privilege," hence inadmissible in court. Ironically, another judge on the panel, Judge Batchelder, appointed by the president's father, George H.W. Bush, says that the case presents what she calls "a cascade of serious questions" as to whether the surveillance program violates the Foreign Intelligence Surveillance Act, as well as both the First and Fourth Amendments. Notably, at stake here is not merely whether FISA and the Constitution have been violated, but whether the government can be allowed to use confidentiality to preclude the admission of evidence, into court, which demonstrates government wrongdoing.

Steven Shapiro, legal director of the American Civil Liberties Union, expressed alarm by the most recent appeals court decision which challenges that of district judge, Anna Diggs Taylor, who declared the Agency's spy program unconstitutional. Shapiro says that the court decision, in effect, "insulates the Bush administration's warrantless surveillance activities from judicial review and deprives Americans of any ability to challenge the illegal surveillance of their telephone calls and e-mails." (NYT) But, this decision goes deeper than that insofar as it reinforces the right of the government to withhold from evidence any information it deems to be secret, or classified.

There was yet another case in which the state secrets privilege was also at the heart of a suit against the government being dismissed. Last April, in a district court in San Francisco, the U.S. government filed a statement in a class action lawsuit by the Electronic Frontier Foundation saying that they would assert "state secrets" to obtain the dismissal of E.F.F.'s lawsuit against AT&T in which the group alleges that the telecommunications behemoth illegally monitors its networks.

As John Dean, former White House counsel to Richard Nixon, points out, for more than two centuries, the U.S. has functioned without an official state secrets act unlike other countries which criminalize divulging government information deemed to be potentially damaging to national interests. As early as 2003, Mr. Dean argued that, despite the cost to free speech and the First Amendment, "President George W. Bush has created the equivalent of an official secrets act for cobbling together provisions from existing laws, Bush's Justice Department has effectively created one." (Findlaw) And, while we have no official state secrets act, there is a "state secret privilege," which amounts to an evidentially rule, used by the government, in which the courts may be compelled to exclude any material, or testimony, that is deemed a threat to "national security."

Next month, a federal appeals court, in San Francisco, will hear another challenge to the NSA spy program in which two lawyers of a Muslim charity allege that they were "personally injured," and have had access to a document that demonstrates that the government has intercepted their exchanges. Their argument that their attorney-client privilege was damaged by the government's intrusion into their confidential affairs, according to legal experts gives them standing to sue.

The A.C.L.U. is not taking the decision by the federal appeals panel, last week, lightly, nor should we. They are even considering taking this appeal court's decision to effectively validate the administration's surveillance of American citizens all the way to the Supreme Court. And, if the Supremes can be prevailed upon to consider the legality of government's unauthorized monitoring, without a warrant, of our private conversations, they will be opening Pandora's Box as, not only is the Bush administration acting in defiance of F.I.S.A, but they will have a hard time ignoring allegations that they're in violation of the Constitution, too. We may yet get to see just how "conservative" judicial activist Bush appointees like John Roberts and Samuel Alito really are, and whether they have any standing to judge.