The Lonely Centrist

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Thursday, August 17, 2006

One Screwy Opinion

Here is Judge Taylor's opinion in ACLU v. NSA, the case finding the Administration's program of wiretapping the phone calls to and from suspected terrorists, to be unconstitutional. It's kind of wierd. The gravamen of the plaintiffs' complaint - their alleged injury that gets them into court - is this:

Each Plaintiff has alleged... that the TSP substantially chills and impairs their constitutionally protected communications. Persons abroad who before the program spoke with them by telephone or internet will no longer do so.

She then goes on, in a lengthy opinion that I won't try to dissect for its other flaws, to issue an injunction against the program.

But think about it: the harm suffered by plaintiffs is that since this top secret program was disclosed by the New York Times in December, people won't talk to them because they are afraid that the government is listening in. Makes you wonder what they're talking about, but that's not the point. The point is, the harm to these plaintiffs is not because of the program itself, but because the people they want to talk to now know about the program and won't talk to them anymore, thanks to the leak and the Times decision to publish the information regardless of any threat to national security.

Is the judge then saying, then, that the Administration will be OK if it terminates this program, then starts it up again under another name - so long as it stays secret? It would seem so, wouldn't it? Because if it is secret, then the people - alleged terrorists - overseas will be comfortable talking again, and the plaintiffs suffer no harm, and lack standing. The alternative is that these people overseas remain suspicious and still won't talk to the plaintiffs - but if that's the case, then the court ordered injunction is no remedy at all, and the case should be dismissed for that reason.

Meanwhile, beginning in about two weeks it will be illegal for all of these plaintifs - the ACLU, Greenpeace, all the rest - except for a couple individuals, to run a broadcast ad urging members of Congress to vote for or against increased presidential powers in the war on terror, thanks to McCain-Feingold.

Has our judiciary got the Constitution screwed up or what?

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