The American Mind

A U.S. appeals court tossed an ACLU suit challenging the domestic terrorist spying program:

The 2-1 ruling by the 6th U.S. Circuit Court of Appeals panel vacated a 2006 order by a lower court in Detroit, which had found the post-Sept. 11 warrantless surveillance aimed at uncovering terrorist activity to be unconstitutional, violating rights to privacy and free speech and the separation of powers.

U.S. Circuit Judge Julia Smith Gibbons, one of the two Republican appointees who ruled against the plaintiffs, said they failed to show they were subject to the surveillance and therefore do not have standing for their claims.

One of the judges declared the plaintiff’s claims of injury as “insufficient, speculative.”

Paul Mirengoff sums up the opinions thusly:

The majority opinion was written by Judge Alice Batchelder, who was said to be a candidate for the Supreme Court back in 2005. Judge Julia Smith Gibbons concurred with the holding, but declined to get into all of the standing issues covered by Judge Batchelder. For her, it was enough that the plaintiffs presented no evidence that they were personally subject to the intercept program. Judge Ronald Gilman thought the plaintiffs have standing to challenge the program, and that the trial judge correctly found it unlawful.

Ed Morrissey is pleased with the ruling:

Thankfully, the court threw out this novel and dangerous argument. Had it succeeded, anyone could file a lawsuit on the basis of imaginary intimidation to speech, especially as it relates to law enforcement and counter-terrorism efforts. Any program would have been vulnerable to harrassing lawsuits, regardless of their legality and efficacy.

Had Judge Anna Diggs Taylor’s ruling stood it would have established that plantiff need not prove they were the subject of spying. In the realm of classified programs it’s very difficult for an outsider to determine if their the subject of surveillance, but there needs to be some evidence of harm. Or else opponents of even legal government surveillance could file nuisance suits.

The spying program is now under the jurisdiction of FISA so I’m not sure how much injury the ACLU can now claim. But that’s why the lawyers get paid.

“Court Rejects Domestic Spying Suit”