Politics & Policy

Setback for the ACLU

In a welcome decision, a divided panel of the Sixth Circuit U.S. Court of Appeals on Friday reversed a Detroit federal judge’s ruling from last summer which purported to invalidate the Bush administration’s Terrorist Surveillance Program. The TSP, which is no longer in effect, involved eavesdropping by the National Security Agency, without court warrants, on communications into and out of the United States by suspected members of al Qaeda.

Notwithstanding relentless efforts by administration critics to mischaracterize the program as “domestic spying,” it proved to be popular with the public, which understood that for terrorist operatives inside our country to take directions from overseas requires communication.

Despite their criticism of President Bush’s alleged lawlessness, Democrats made no serious effort to end the program by cutting off funding. Most said they believed such communications should be monitored; their sole objection, they claimed, was that they wanted it done within the “rule of law” — by which they meant they wanted it done only with judicial blessing under a 1978 statute Congress had enacted. They rejected the notion that the president, as commander-in-chief, maintained the inherent authority to order the surveillance as a way to protect the nation from foreign attack during wartime. But all wartime presidents have exercised this authority (once the technology made this sort of surveillance possible), and all courts that have considered the issue have concluded the chief executive indeed has this constitutional power.

What we really had, in other words, in the TSP controversy was a simple policy dispute over the proper balance between concern for our safety and concern for our privacy. Such disputes are supposed to be decided in the political process. Elected representatives make the judgment calls, and are then rewarded or punished at the ballot box by the people whose lives are at stake. That is called democracy.

Decisions on national-security matters are not supposed to be imposed on us by unaccountable judges, issuing rulings in lawsuits brought by activist plaintiffs who pretend to represent “the public” but, in fact, represent only their own agendas. They certainly have a right to fight for their views– but only by persuading us in the political arena, not usurping our self-determination through the courts.

That is what the Sixth Circuit majority has held. The federal courts are limited by a doctrine called “standing.” Essentially, it means that a litigant cannot bring a lawsuit unless he can show that the actions of a party, including the government, are harming him in a specific and unique way. If he is just another concerned citizen who thinks his taxes are too high or worries that his police department’s policies may someday result in actions that are too aggressive, that is not grist for a lawsuit. If it were, all policymaking would be transferred to the courts. The standing doctrine is not legal procedural arcana; it is a bedrock limitation on judicial power designed to protect democratic self-determination.

The panel reasoned that the plaintiffs lacked standing to challenge the TSP in court. Led by the American Civil Liberties Union, the Council on American Islamic Relations, and various other activists, these plaintiffs were a collection of lawyers, journalists, and Muslim interest groups. They had no idea — nor could they, since the program is classified — whether their communications had actually been intercepted by the NSA. Rather, they purported to fear the possibility, which they portrayed as a likelihood that they could be overheard. They claimed harm from being shunned by the people with whom they wanted to communicate — the kind of people the government might suspect of al Qaeda connections because, well, they just might have al Qaeda connections.

This claim of a “chilling effect” was never persuasive. After all, even if there were no TSP, the government could monitor the very same people by getting judicial warrants. That, however, is almost beside the point. There is nothing that makes these plaintiffs so special that they, unlike the rest of us, are uniquely affected by having to worry that their conversations with our enemies in wartime might be monitored. They just don’t like the idea of George W. Bush managing a war. That’s a perfectly acceptable position to take, but it is a political position, not a legal one.

Typically, the mainstream media has been quick to label the appeals-court ruling as a setback for civil liberties. No, it is merely a setback for the ACLU. The most important civil liberty is our right to govern ourselves. The Sixth Circuit’s judgment takes wartime surveillance of the enemy out of the courts and back into the political arena, where it belongs.

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