Politics & Policy

Courting Danger

The Supreme Court has refused to hear an appeal from the American Civil Liberties Union, the Council on American-Islamic Relations, and other like-minded activists, letting stand a federal appeals-court’s earlier ruling that these groups lack legal standing to challenge the Bush administration’s vital post-9/11 surveillance program.

The case is a victory for national security and highlights the extremism of House Democrats’ stubborn refusal to pass a bipartisan Senate bill that would allow U.S. intelligence agencies to continue to intercept communications among foreigners operating outside the United States. That Nancy Pelosi and the Democrats’ two remaining presidential candidates back this effort to undermine our intelligence agencies shows just how hopelessly in thrall to the Left the Democrats find themselves.

On Tuesday, in a significant move the mainstream media has largely ignored, the justices affirmed that the ACLU & co. lacked standing to challenge the National Security Agency’s warrantless-wiretapping initiative — the nub of the ongoing intelligence-reform controversy. In 2005, the New York Times exposed the program, which was top secret — but no secret to the Democrats’ congressional leadership or to the ranking members of the intelligence committees, all of whom were briefed on the subject. Predictably, the ACLU and its fellow travelers proceeded to sue the NSA, claiming that the program violated their purported constitutional right to communicate with suspected terrorists outside the United States during wartime without fretting over government surveillance.

In a 2006 decision widely criticized by legal commentators across the ideological spectrum for its sloppy reasoning, Detroit federal judge Anna Diggs Taylor sided with the ACLU. The Carter appointee, nakedly politicizing the issue as central to “the War on Terror of this administration,” ignored the settled principle that issues of general public policy should be settled in the democratic political process, not through lawsuits brought by political activists who have not been uniquely, concretely damaged.

Last autumn, Judge Taylor was properly reversed by the Sixth Circuit Court of Appeals. The appellate court concluded that the plaintiffs could not show a unique injury and therefore lacked standing to sue. The ACLU and its allies argued that their inability to prove injury was itself a result of the administration’s invocation of the state-secrets privilege. That complaint, however, was weak. The well-rooted state-secrets privilege, which prevents the government from being forced during litigation to disclose intelligence methods and sources, had been reaffirmed by the Supreme Court only two years earlier.

On Tuesday, the high Court decided to let that ruling stand. The justices were doubtless influenced not only by the soundness of the Sixth Circuit’s judgment but by the fact that the political branches — which are responsible for national security policy in our system — are close to agreeing on a reform measure. That legislation would align statutory law with the urgent need to monitor terror suspects and also would discourage lawsuits similar to the ACLU’s by providing telecommunications-service providers with immunity for good-faith cooperation with government intelligence work.

That is the sensible bill supported by the administration and a two-to-one majority in the Democrat-controlled Senate — the bill that House Democrats are blocking and that Obama and Clinton oppose. It is the bill that would restore our foreign-intelligence-collection capabilities, which Pelosi’s unconscionable inaction allowed to lapse last weekend.

The Left has lost its case against the Bush administration, but they still hope to press lawsuits against U.S. communications companies. At the beck of their deep-pocketed trial-lawyer contributors, top Democrats are fighting intelligence reform in order to keep alive dozens of lawsuits designed to undermine our terrorist-surveillance efforts and to wring billions of dollars out of American businesses. As the Supreme Court’s action underscores, those lawsuits are without merit. To imperil the nation over them is a disgrace.


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