short term victory for rights, but it probably won't last?

[acroyear]

Dispatches from the Culture Wars: Federal Judge Grants Injunction on NSA Surveillance:

Anna Diggs Taylor, come on down. You're the next contestant on Name That Activist Judge. Taylor, a Federal judge in Michigan's eastern district, has granted the plaintiffs' request for an injunction against the NSA's warrantless surveillance programs.

Ed then briefly summarizes the decision which was on 2 parts.  First, is the administration right in that the case can not go forward without revealing state secrets (no - they have publically admitted that the program exists and operates without warrents in violation of FISA and the constitution), and second, is there enough evidence that its unconstitutional to be subject to injunction pending final decision (yes, by that same admission).

Will the ruling stand up? Frankly, I doubt it. I think it should, but I don't think it will. It will be immediately appealed to the 6th circuit court of appeals, where I think that even if the court agrees with her on the basic premise, they will probably knock the case down on the basis of standing. The argument will be that the plaintiffs can't show actual standing because they can't show that their phone calls were intercepted without revealing details about the program not in evidence publicly at this time. Precedents support that conclusion and I fully expect the 6th circuit to rule that way.

But here's the problem: it makes the administration's unconstitutional actions immune from judicial review completely. It's a perfect mobius strip of logic: we can't tell you who is surveilled under the law because of the state secrets privilege, and if you don't know who is surveilled you can't prove you have standing. That means there is simply no check at all on executive power, something that constitution clearly did not intend.

Shit like that bothers me. Gee, I'm not sure why...

Maybe (with a more reasonable court), some of these more restrictive and executive-building aspects of the state secrets regs might themselves be rejected as unconstitutional restrictions on due process and free speech...probably not...

Comments

[caseylane.livejournal.com]

I served on jury duty in Anna Diggs-Taylor's court once. I remember calling my mother and telling her that if that woman ever ran for office I would work my ass of to get her elected, I was that impressed by her and how she handled the courtroom.