Sliding it in under the radar

It's Friday night and you've probably read today's news. You know more Iraqis and Americans are dying as a result of the surge; that Fred Thompson told Nixon the Department of Justice knew about his bugging his office; that clemency for GOP toadies as a means of self-preservation is a Bush family tradition. But a pretty big story slid under the news radar late today, and I'd like to bloviate a little bit.

Remember Judge Anna Diggs Taylor of the Eastern District of Michigan ruling the Bush administration's warrantless wiretapping program was illegal and must be halted immediately? The Sixth Circuit issued a stay on the judgment, so the program continued.

Today the Sixth Circuit court of appeals dismissed the case. The majority opinion stated the plaintiffs failed to show injury and thus standing to sue. The linked article is short so I won't excerpt it heavily, just this:

The plaintiffs were represented by the American Civil Liberties Union.

"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.

Any guesses about how that will go? Injury and standing are extremely important concepts. I'm mindful of our old friend Judge Ray Naifeh's assertion that judges must be extremely careful how they decide, because almost without exception, both sides of a dispute have equally valid issues.

Personally, however, I'd say not this time. I think the Sixth Circuit Appeals Court's majority opinion is myopic, specious and contrived. You who are even marginally familiar with me know I am a staunch defender of the first amendment, and that stand extends to the Bill of Rights as a whole. In my opinion, the mere existence of this loathsome program is injurious and offends the word and spirit of the fourth amendment which, contrary to what some people believe, gives you a constitutionally guaranteed right of privacy:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

That right is fundamental. There are ways other than money damages in which a person can be harmed by the surrender of such a fundamental right. In my eyes, this is plain, simple and self-evident. No, I'm not a lawyer, nor did I read the transcript; but that seems to be what the court is saying: without specifying a precise damage amount, the plaintiffs lacked standing.

Last week Len Hart suggested petitioning judges to convene grand juries to investigate criminal activity by the Bush administration. I admire this creative thinking. Ray McGovern posted this article suggesting we start with something basic, like the issue of warrantless wiretapping. I was in the process of putting together a program to petition judges in that chain, beginning with Judge Taylor. Heh, I guess I can scrap that idea! But there are others. I have not collected the advice needed to suggest a solid plan of action. But the idea still interests me, and heaven knows we've been provided with a cornucopia of opportunities.

Elizabeth de la Vega said today we don't have to do things like that: Bush and Cheney have earned impeachment, it's Congress's job and they know it.