Dispatches from the Creation Wars

Judge Vaughan Walker, who has been so good when it comes to rejecting the invocations of the state secrets privilege by the Bush and Obama administrations, has nonetheless dismissed a key legal challenge to the NSA’s warrantless wiretapping (specifically, their data mining) program on standing grounds. See the full ruling here (PDF).

The government has used two primary tactics to respond to each and every case against them over illegal surveillance. The first is on standing, to argue that the plaintiffs don’t have standing to bring the suit because they can’t prove that they were specifically the target of the illegal surveillance (and of course, we’re not going to tell them, even under subpoena).

The second is an assertion of privilege, arguing that even if they have standing to bring such a suit, the suit involves matters of national security and highly secret documents, the revealing of which would undermine the nation’s ability to defend itself. Thus, the case has to be dismissed. This is the state secrets privilege that has been discussed so often on this blog.

Judge Walker, a Reagan appointee with a justified reputation as fiercely independent and unpredictable, has consistently rejected the state secrets privilege — for which I’ve given him much praise. But now he has accepted the standing argument, ruling:

“The court has determined that neither group of plaintiffs/purported class representatives has alleged an injury that is sufficiently particular to those plaintiffs or to a distinct group to which those plaintiffs belong; rather, the harm alleged is a generalized grievance shared in substantially equal measure by all or a large class of citizens. “[I]njuries that are shared and generalized – such as the right to have the government act in accordance with the law – are not sufficient to support standing.” Seegers v Gonzales, 396 F3d 1248, 1253 (DC Cir 2005).

It’s probably unfair to put too much of this on Walker. He is a district court judge bound by precedent and the precedents here are clearly on the side of dismissal. But this once again highlights the profoundly irrational and unjustified nature of the use of standing doctrine in American courts.

If the courts, whose chief job it is ensure that the other branches of government act within the bounds of the constitution, cannot hear a collective challenge to the government’s violation of the constitution, the core premise — the very purpose — of judicial review is rendered useless. The government simply gets around all legal challenges to its authority by violating everyone’s rights instead of one person’s rights.