NSA Surveillance Program Gets Tiny Setback

| Thu Sep. 22, 2011 12:08 PM EDT

Can ordinary Americans like you and me sue the government for illegally spying on them? When it comes to the NSA surveillance program, the government itself says the answer is no. After all, since it's a secret program you don't really know if you're being spied on. And if you don't know you're being spied on, you have no standing to sue.

If that logic makes your head spin, it should. But today Glenn Greenwald reports some modest good news. A few months ago a panel of judges on the 2nd Circuit Court decided that such a suit could indeed go forward. So the government appealed to the full court:

Yesterday, the full Second Circuit panel issued its ruling on the Obama DOJ's request. Six of the judges voted against a full review of the decision by the three-judge panel, while six voted in favor of reviewing it. Because a majority is needed for a full-circuit review, the 6-6 tie means that there will no further review, and the March decision of the three-judge panel — allowing the lawsuit challenging the FAA's constitutionality to proceed — will stand. This significant victory for the rule of law may well be temporary, as the unusual 6-6 vote (and the numerous contentious opinions accompanying the vote) makes it likely (though by no means guaranteed) that the Supreme Court will accept this standing dispute for resolution. But at least for now, this is a good and important development.

Actually, "modest" might be overstating just how good this news is. As a layman, I find it pretty shocking that any judge could rule that, effectively, no one ever has any standing to sue in a case like this, let alone six judges. And it gets worse. You really have to read the opinion of Dennis Jacobs, the Chief Judge of the Second Circuit, to believe it. Jacobs apparently can't even conceive that there might be a legitimate reason for anyone to object to the NSA program:

At the risk of being obvious, the purpose of this lawsuit is litigation for its own sake — for these lawyers to claim a role in policy-making for which they were not appointed or elected, for which they are not fitted by experience, and for which they are not accountable. As best I can see, the only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation.

That's just staggering. Hell, it would seem over the top coming from Rush Limbaugh, let alone an appellate judge. What rock did this guy crawl out from?