Letters to the Editor
Published Letters: 1824
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More on standing
[Read the article: Various matters]
[Read more letters about this article: Here]Glenn:
At the outset of a case, a federal plaintiff is not required to be able to prove with evidence that there is jurisdiction, but they must be able to allege the facts which establish jurisdiction. Prior to discovery, the court will assume that all the facts about jurisdiction alleged by the plaintiff are true, and then ask: "if these allegations are true, is there jurisdiction here?"
Agreed. I think this is what I said earlier.
In the FISA cases, virtually all plaintiffs cannot even allege that they were subjected to surveillance, becasue they simply have no good faith basis for that allegation. They and their lawyers would likely be sanctioned if they allege it. Thus, all of these complaints are missing what the Government says is a pre-requisite for standing to challenge surveillance activities: namely, that the plaintiff be able to allege that they were subjected to the challeneged surveillance.
But they can allege the "injury" to give them standing by saying that the very existence of the program, whether or not it is directed at them personally, is harming them. This they did in one case. The existence of the program is acknowledged by the gummint. In the case I mentioned, their claim is that the existence of the program has a "chilling effect" on them (and their contacts and sources) as journalists. They wouldn't be the first to succeed on a "chilling effect" claim; courts have struck down laws in First Amendment free speech claims because just the possibility of prosecution, even if the result might not stand for a specific instance, has such an effect on some legal and protected speech ("least restrictive means", narrowly tailored" and all that gets into the analysis).
If a plaintiff could make that allegation in good faith, then you could have discovery to obtain the relevant evidence and see if that alleagtion is true. But you can't run into a court and tell the court: "We don't know if there is jurisdiction here or not, but we would like to have some discovery to find out." The whole point of jurisdictional requirements is that a case should not proceed unless there is a clear basis for believing the court is constitutionally empowered to adjudicate the case.
I know it's a horrible dilemma. I hate even having to summarize the argument because the outcome is so plainly, glaringly and horribly unjust. But process matters, and constitutional limits on a court's jurisdiction definitely matters.
One solution might be for the judge to see, through in camera submissions, whether there are grounds for the allegations. The other it to assert the "harms" that they did in the one case.
There may be ways to get around this. The ACLU had some creative arguments for how you can have standing anyway. And this case written about by Singel might provide the way through. Or Congress could get to its FISA investgigations, find out the identity of the parties on whom the administration eavesdropped, and then find a way to empower them to challenge that eavesdropping.
Another possibility.
There are solutions here. But if I had to bet, I'd bet (based on the Argument and the law) the Sixth Circuit will reverse on standing, but nobody can predict these things and I've been wrong many times.
I agree, but let's trot out Dubya. v. Gore in the appellate and amici briefs.... ;-)
Cheers,
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jojo
[Read the article: Various matters]
[Read more letters about this article: Here]I recall years ago reading about contractors who alleged that they had been exposed to toxic chemicals at the Area 54 base. Unfortunately, they had a serious problem bringing it to court to find redress: they had no documents on the base, since it's highly classified, and they couldn't even come up with the bases proper name and who has authority over it in the military, since that was classified. If I remember, the judge was sympathetic with their plight, but without those facts, there was no one to sue!
IIRC, this was another case dismissed on the "state secrets privilege". The gummint wouldn't say what chemicals might be there, or what they were doing with them, because it was all hushity-hushity.
Cheers,
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@ JaO
[Read the article: Various matters]
[Read more letters about this article: Here]The doctrines governing standing are such a muddle that they can present a Rorschach test to judges. Those disposed to take a case can rationalize a finding of standing; those who prefer to duck a case can rationalize the opposite.
To see this writ large (so to speak), just look at Elk Grove v. Newdow.... The Supes that tossed it just didn't want to deal with the consequences of deciding it on the merits.
Cheers,
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@ Gator90
[Read the article: Various matters]
[Read more letters about this article: Here][to Glenn]: Nevertheless, when I had the temerity to politely question the factual basis of an assertion you made, and to not accept the adequacy of your answers, ...
Look, there may not be enough evidence to prove in a court of law beyond reasonable doubt Glenn's claims about AIPAC and related groups, but just as it's getting increasingly untenable to deny anthropogenic global warming, the sheer consistency and weight of the evidence for the hardline sentiments of the AIPAC folks (as well as their PNAC buddies; see, e.g. the paper they tried on Netanyahu [who wisely rejected it] before coming to the more brilliant solution that it would be better [and cheaper and more effective] to enlist the U.S. to carry their sanguinary schemes) tells the tale: A prima facie case has been made, and reasonable discourse now puts the burden on the doubters to explain away the most likely conclusion WRT AIPAC's hopes, aims, and intentions.
You, sir, may continue to "doubt" the evidence. That is your right. We're free to reach our own conclusions. And not to accept assertions that no case has been made.
Cheers,
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@ Gator90
[Read the article: Various matters]
[Read more letters about this article: Here]Do you think it was AIPAC that caused George Bush to order the invasion of Iraq?
Same faces, different initials.
That being said, Dubya was an "easy sell" (or was that "easy mark"?)....
Cheers,