Tuesday, January 17, 2006

Preliminary Impressions on the NSA Case

Today, the ACLU filed in Detroit federal district court a lawsuit seeking to enjoin the NSA from continuing with its recently revealed program of extra-FISA electronic surveillance.  Upon my first skim (and I stress skim) of the complaint, the merits of the case, which was brought on behalf of numerous journalists, academics, and several organizations, seem to have been presented as well as could be expected in a case like this one. 

But, I have a feeling that - all things being equal – this case may not get too far.  Not on the constitutional issues, anyway.

The allegations of fact presented in the complaint may be insufficient – indeed, too speculative – for the plaintiffs to demonstrate standing to sue. 

(I know, standing is never nearly as sexy as the merits of the constitutional claims, and the resolution of cases on standing grounds is often less than satisfying.  That said, I find this stuff fascinating and I imagine a fair amount of my career will consist of showing how the other side has no adjudicable case.  Besides, the Constitution requires that plaintiffs have standing before the federal courts can hear their cases, so it’s pretty important.  Accordingly, I geek forward.)

I don’t want to get into the specifics without a fuller reading of the complaint, but each of the claims of injury I read articulated a “well-founded belief” that the plaintiff had been a subject of NSA surveillance of some sort, and goes on to demonstrate a rough (read: not remotely scientific) probability that the named party (if nothing else) had a higher chance of being monitored than a random member of the population.  I’ve done some light reading on the matter tonight, and will do more, but alleging a sufficient “injury-in-fact” of each of the plaintiffs may be difficult; this numbers game strikes me as being their Achilles heel.  (Again, it’s just a lightly informed gut reaction at this point.  I could be wrong.)

MORE:  The above may be a non-issue in the initial stages.  The judge hearing the case, Anna Diggs Taylor, is a Carter appointee.  I don’t know much about her specifically, but in general Carter appointees are usually fairly liberal (even when compared to Johnson or Clinton appointees).  She may be more inclined to be permissive on the standing issue, but this is purely speculation on my part.  This also means, though, that the standing issue (which the government will certainly raise) could shadow this litigation all the way to SCOTUS (if necessary) and if any level of the judiciary finds a lack of standing, that's the ballgame.

MORE:  It seems a separate suit was filed in New York City as well.  I have not yet seen that one.

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