Sixth Circuit Dismisses Illegal Spying Challenge

This morning, in a 2-1 decision, the Sixth Circuit Court of Appeals dismissed our legal challenge to the Bush administration's warrantless surveillance program. But the appeals court refused to rule on the legality of the program, thus denying Americans their day in court. They didn't say that warrantless wiretapping was okay: They chose not to talk about that issue. No, they dismissed the case because, they claimed, our clients did not have standing in court to sue. The two judges who ruled to overturn the earlier district court decision claimed that although our clients may have had plenty of reason to believe they were being wiretapped, they couldn't prove it for sure.

This means that the Bush administration has the distinct privilege of declaring itself above the law and announcing publicly that they are illegally spying on Americans. But when journalists and lawyers, who rely on confidentiality to do their jobs, object in court, that same administration invokes the states secrets privilege to keep anyone from proving that the NSA is doing what they already said they were doing.

It's Rumsfeldian in its circuitousness.

Meanwhile, the White House, Vice President and the Justice Department has until July 18 to comply with the Senate Judiciary Committee's subpoena for the documents about this very program. Since the Sixth Circuit decided not to act, we'll be counting down until then to see if Congress will step up to the plate, find out who is responsible for the decision to break the law, and hold them accountable.