Republican majority throws wiretapping case out of federal court

This is another case in which the plaintiffs were said to have "no standing" by a Republican majority in a three-member federal appeals court panel.

A federal appeals court on Friday ordered the dismissal of a lawsuit challenging President Bush's domestic spying program, saying the plaintiffs had no standing to sue.

In a 2-1 decision, two Republican appointees on the 6th U.S. Circuit Court of Appeals ruled against allowing the lawsuit. A Democratic appointee judge disagreed, saying it was clear to him that the post-911 warrantless surveillance program aimed at uncovering terrorist activity violated the Foreign Intelligence Surveillance Act of 1978.

Although the Bush administration said in January the program is now overseen by a special federal intelligence court, opponents said that without a court order, the president could resume the spying outside judicial authority at any time.

The ruling Friday vacates an order by a U.S. District Court in Detroit last August that found the surveillance unconstitutional, violating rights to privacy and free speech and the separation of powers.

It's a catch-22 situation:  the plaintiffs "have no standing" because they can't prove (thanks to government secrecy) that they were subjected to wiretaps.    Just goes to show:  you have to prove you live in a free country before you can have freedom.

Update:  Adam Liptak has a fuller report now at the New York Times.  More of the same.   For example, one of the Republican judges said:

“Plaintiffs are ultimately prevented from establishing standing because of the state secrets privilege,” a legal doctrine that requires courts to limit or dismiss cases when allowing them to proceed would disclose information harmful to national security. Judge Batchelder did not discuss the privilege.

Case closed.  Or not.  The ACLU will appeal.  Their lawyer's response:

“We are deeply disappointed,” the group’s legal director, Steven R. Shapiro, said in a statement, “by today’s decision that insulates the Bush administration’s warrantless surveillance activities from judicial review and deprives Americans of any ability to challenge the illegal surveillance of their telephone calls and e-mails.”

Mr. Shapiro said the group is weighing its options, including the possibility of appealing to the United States Supreme Court.

Lotsa luck, pal.  We don't exactly have a respectable Supreme Court now.  Their nadir may have been reached in 2000.  But they're working very hard on digging down to a new low.