Court sabotages independent review of Bush wiretap program

Los Angeles Times:

The only way the plaintiffs could find out whether they had been the targets of wiretapping, he said, was if they obtained information about the surveillance program — in violation of the "state secrets" privilege. (Established in 1953, the privilege bars the disclosure of information in court proceedings when "there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.")

Batchelder wrote: "The plaintiffs do not — and because of the state secrets doctrine cannot — produce any evidence that any of their communications have ever been intercepted by the NSA, under the TSP, without warrants." Rather, she said, the plaintiffs had asserted "a mere belief" that their overseas contacts were the types of people being targeted by the NSA.

The ruling presents "a Catch-22," said Larry Diamond, a senior fellow at the Hoover Institution at Stanford University and one of the plaintiffs.

"If the court insists that a plaintiff must have certain knowledge that some of their messages were intercepted in order to have legal standing … then no one can ever have standing because we can never know, since the program is secret," Diamond said....

Constitutional scholars were, like the court, split over Friday's ruling, with conservative law professors praising the opinion and liberals decrying it. ...

Duke University law professor Erwin Chemerinsky countered that under the ruling 'it is inconceivable that anyone will ever have standing to challenge' the surveillance program.

'It is deeply troubling that the government can engage in unconstitutional and illegal secret eavesdropping and that very secrecy then prevents a legal challenge,' Chemerinsky said.

Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) said he was troubled by the ruling because it 'closed the courthouse doors' without getting to the merits of the case.

'I hope the Bush administration will finally provide the information requested by Congress regarding the constitutional and legal questions about this program so that those of us who represent the American people can get to the bottom of what happened and why,' Leahy said.

While specialists can argue the merits of individual cases and fine points of standing doctrine, the emerging theme of the Roberts Court is that of closing the courtroom door to all plausible comers, rendering Executive decisions all but invulnerable to independent judicial review. That this judicial abdication of its independent responsibilities comes at a moment of unprecedented Executive (or in Cheney's case, fourth branch) arrogance and self-aggrandizement makes for potential tragedy for our democracy.

Some weeks back, I read a review doubting the significance of Joseph Heller's Catch-22. It's a long time since I read it--I do recall thinking it was one of the funniest novels I had ever read, and captured, in more accessible form than Kafka's work, the essence of modern bureaucratic life (not limited to the military, or to government). The references to Catch-22 herein reinforce my sense that this is an essential analytic, as well as satiric, category--and one increasingly applicable to the subversive formalisms of our judiciary.