Tuesday, July 17, 2007

Giving Standing to Sue

Newsday editorial

A lawsuit challenging the National Security Agency's warrantless wiretapping program was dismissed last week by an appeals court that ruled that the plaintiffs can't sue because they can't prove their calls were among those tapped. If that logic prevails, the courts will have rendered themselves powerless to do anything about what could well be an ongoing violation of the law and the Constitution.

Congress needs to fill that shameful void. It should either explicitly bar the government's unauthorized eavesdropping or pass a bill sponsored by Sen. Charles Schumer (D-N.Y.) that would give citizens standing to sue without a showing of individual harm.

Consider the no-win situation the ruling has created for citizens who think they could be targets of the government's secret monitoring of phone calls and e-mail without probable cause or warrants. The plaintiffs in this case are lawyers, journalists and academics with clients and contacts in the Middle East, making their international communications just the sort that the NSA monitors. Still, the court said they can't sue unless they establish that the NSA in fact monitored their calls. But only the NSA knows whose calls it monitored, and it's not saying.

So the NSA won't talk and the court won't make it - the government invoked the state secrets doctrine, which allows officials to withhold evidence that they contend would compromise national security if it were exposed.

The plaintiffs and their American Civil Liberties Union lawyers should appeal. When an administration is arguably violating federal law and the Constitution, the courts should never go willingly to the sidelines. Someone has to step up here, and if the courts won't, then Congress must.

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