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Monday, February 5th 2007

Judicial Branch Brings Stick With Nail In It To WWF Match

Recently, as I posted on, the administration allowed FISC to review the wiretapping going on in the infamous NSA domestic spying scandal. The review isn’t for a real warrant but more likely an “anticipatory” warrant. Actually, no one is really sure what sort of shape this “review” function by the FIS Court looks like.

Well now Gonzalez and the administration will allow the two senior members of the Senate Intelligence Committee to look at examples of these FISC orders granting the administration authority to carry out this domestic spying.

Perhaps that will appease the legislative branch. On the judicial side the federal government argued to the 6th Court of Appeals that since it has already conceded to FISC overview of the program, that the original District Court ruling calling program unconstitutional should be overturned.

The 6th Court has already a stay on that unconstitutional ruling. But now the executive is basically arguing that because they have allowed the FISC judges some oversight that the original District Court ruling should be overturned. Basically, the Court of Appeals should find in the government’s favor.

According to Wired, the 6th Court didn’t appear to be buying that. Good for them.

According to the International Herald Tribune,

In a series of sharply worded questions to an administration lawyer defending the program, the judges on Wednesday noted that the administration did not promise to continue working with the secret court in the future.

“You could opt out at any time, couldn’t you?” asked Judge Ronald Gilman of the 6th U.S. Circuit Court of Appeals.

As happy as that makes civil libertarians the hearing was not all bad news for the government. Several of the judges questioned whether the plantiffs, who are represented by a consortium including the ACLU, have any standing.

To bring suit they obviously have to prove that their rights were physically violated. They can’t even know under the rules of the surveillance whether they were targets of surveillance.

As Judge Ronald Gilman said,

Gilman raised the possibility that the legality of the program might never be adjudicated. “If the plaintiffs here don’t have standing,” he said, “who would possibly have standing?”