I think there is standing here, though the Supreme Court's doctrine is a mess on the topic and I don't think anyone can say that it's an easy issue to resolve. The ACLU invented creative theories to justify standing but the fact that they had to do that demonstrates that it is not the standard, easy case to demonstrate standing.

I agree with that -- it is clearly time for an addition gloss on standing issues, much as the courts do not deny standing to a woman on abortion cases simply by virtue of her having delivered a baby, the case has supposedly become "moot." Because it is a situation capable of repetition that will virtually always become "moot" before it can be adjudicated, mootness doctrine makes that sort of scenario an exception.

In an instance in which it can be impossible to know whether one has been the target of illegal activity by the government, but one does make the kinds of telephone calls the program intercepts, I think a similar logic should allow standing. Otherwise it could be the case that the harm can never be redressed.

That said, any novel approach to standing would have been appealed to SCOTUS, and I don't think it would be smart to have the first NSA case go up in that posture. Not with the High Court as constituted. But, and tho I have not been tracking it, my understanding is there is a case in Oregon moving through the courts where the Muslim parties know they (and their lawyer as well, I believe?) were targeted by the program.

That sort of case does not allow dispensing with it on a bona fide problem like standing. The SCOTUS would have to reach the merits.

A good recent example was U.S. District Court Judge Garr King's refusal to dismiss a similar warrantless surveillance case brought in Oregon by the Al-Haramain Islamic Foundation. In analyzing the standing issue, Judge King found that it might be possible for the plaintiffs to proceed with their case based on his review of secret documents in camera. The decision is at 451 F. Supp. 2d 1215, 1226-27 and available at http://www.eff.org/Privacy/Surveillance/NSA/al_haramian_opinion_09072006.pdf. In that case, the plaintiff was aware that the secret document showed that plaintiff had been subject to surveillance (the document was inadvertently disclosed, but was still classified "top secret") --

I believe that is the Oregon case I referenced, no? But -- and correct me if I'm wrong -- my understanding of the 6th Cir. case is that the plaintiffs were not necessarily arguing that they believed they had been subject to the illegal surveillance, but rather that knowledge of the program was chilling their speech. District Court Judge Diggs-Taylor did review classified NSA documents in camera in the case the 6th Cir. ruled on yesterday, and I don't recall that she announced any evidence that the plaintiffs had been targets of the program. She simply found that after her in camera review, the program was illegal.

This is the relevant language on standing issues from Roe v. Wade, challenging a TX statue forbidding abortion -- a decision, by the way, which I otherwise find deeply troubling and flawed. But on the justiciability issue, they got it right. The plaintiff in that case had long ceased to be pregnant by the time her case began wending its way though the appeals process, yet the High Court reached a sensible conclusion as to why it ought still be heard:

But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). See Moore v. Ogilvie, 394 U.S. 814, 816 (1969); Carroll v. Princess Anne, 393 U.S. 175, 178-179 (1968); United States v. W. T. Grant Co., 345 U.S. 629, 632-633 (1953).

We, therefore, agree with the District Court that Jane Roe had standing to undertake this litigation, that she presented a justiciable controversy, and that the termination of her 1970 pregnancy has not rendered her case moot.

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0410_0113_ZO.html

Something similar is going on in this NSA matter, in that it is a matter not only capable of evading review, but perversely designed by the government to be exactly that (but the capable of repitition bit is missing -- Jane Roe *had* been pregnant -- whether the plaintiffs in the 6th Cir. case had been subject to illegal surveillance is just not known.) But, I don't think the current High Court will expand standing doctrine as I think warranted here, and the 6th Cir. was likely right to expect reversal if they held otherwise.