Letters to the Editor
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Catch 22 and Kermit the Frog
Thanks, Glenn, for (as usual) a truly educational post. But, yes, the decision does drive laypeople crazy. To simpify:
Bush regime: “We’re going to secretly surveil all green people without a warrant, because we don’t need no steenkin’ court system.”
The ACLU says: “Fine! That gives Kermit the Frog, here, standing to sue to get his Fourth Amendment rights back!”
Bush regime: “Oh, no you don’t! Kermit may be green, but he still has to personally prove he was spied on!”
The ACLU: “It’s a secret program! Kermit can’t do that!”
Bush regime: “And your point is?”
Surely, when the administration announces or evidences that a class of people are to be surveilled, the members of that class have standing?
This is even more clear in this case, where IIRC the plaintiffs were lawyers, and even if there are reasonable grounds for the attorneys to suspect they were surveilled, as opposed to hard proof, then attorney client privilege would be violated.
Let's also note that we really have to assume that Scalia et al wrote Bush v. Gore with votes on the court, hence decision outcomes, in mind. It's the same mentality as in the Gonzale's so-called voter fraud cases, where criminal cases were brought with election outcomes in mind. ("The intelligence and the facts were fixed around the policy.")
So, while I respect your explanation of the law of standing, I'm much less sanguine about the health, and the legitimacy, of the courts, and in particular the health, and the legitimacy, of the Bush Court, than you appear to be. The standing argument is merely the first layer of defense.
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Standing is to justice as the fix is to sport
Lack of standing is the specious legal doctrine federal courts use in the interest of ideology to deny people a chance to be heard when their interest in the case (their "standing") is abundantly clear from the time, expense and bother they have endured in bringing the action.
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Pyrrhus would be proud
The standing issue was always the great danger here, was it not, Glenn? I seem to remember that both you and the folks over at Balkinization thought that the government's state secrets defense of warrantless spying was weaker, in that at at some point it would, in fact, have to be a defense, whereas the plaintiffs might have a very hard time getting the government into court at all unless they could prove standing.
Well, that cat's well and truly out of the bag now, it seems. For better or worse, another way is now definitely needed to keep the law from once again being a ass.
I don't blame the law. It's what it always has been, the dumb instrument of men, which includes both their strengths and weaknesses in its fundamental structure. Still, I think that the Bush Administration is clearly sitting on a powder keg. The only remedy is Congress, and to move beyond where it now feels comfortable, Congress will need -- as an earlier commenter pointed out -- a Daniel Ellsberg or two to give them cover to do the right thing.
Will one be forthcoming? I myself think that it's inevitable, although it may well not come in time to stop GWB and Cheney. Once they've left office, though, we may see another whirlwind of legislation of the kind which followed Watergate. All to the good, in my opinion, even though, given the long-standing and well-documented weaknesses in the Constitution, it isn't likely to prevent another flirtation with empire and the reasons of state a generation or so down the road.
More fundamental reform is needed, but I doubt we'll get it, not at least until a majority of the people become aware of the recurring nature of this particular form of injustice.
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You referred to the logic of standing as Kafka-esque
but as noted above, Joseph Heller's construction is more accurate.
Regarding the phrase:
deeply confused and/or engaged in a campaign of deceit
This is the one area where our best effort ahead lies. Our resident troll has already tried to throw sand into the discussion by bringing up irrelevancies and no doubt the debate this ruling inspires will drift far away from the actual issues that are in play.
That's one reason why its important to stick to the facts even when they don't fall our way (as Glenn does in the paragraph on standing) but also to stress the Catch-22 nature of the controversy and to note, as Glenn does, that Congress is in a position to fix this if it is encouraged to do so.
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Shooter's the perfect example of what Glenn was talking about
He doesn't care about the damage Bush and Cheney and their minions are doing to this nation and the world. All he cares about is that this decision made "lefties" (defined by him as anyone who's ever refused to believe that Bush's excrement doesn't stink) upset -- and anything that ticks off lefties MUST be good, in his knuckle-dragging opinion.
Shooter doesn't mind because he thinks he gets to be the Stasi or the Gestapo, not the people whose doors get kicked in.
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"it's the best there is"
Worse still, it means that if the Government breaks the law in secret, it can be immune from being held accountable in a court because no one individual can ever prove that they were directly and uniquely harmed by the illegal conduct, and thus would lack standing to sue.
Whew. I do believe that Yossarian would let out a respectful whistle at the beauty of the Bush administration being rewarded (legally) for having broke the law.
From Catch 22:
Orr would be crazy to fly more missions and sane if he didn't, but if he was sane he had to fly them. If he flew them he was crazy and didn't have to; but if he didn't want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.
"That's some catch, that Catch-22," he [Yossarian] observed.
"It's the best there is," Doc Daneeka agreed.
Eventually Yossarian learns there’s even more beauty to Catch-22 because it doesn’t actually exist. It’s power lies in the claim that it does and the world believes that it does in fact exist – which makes it so potent. And, since it doesn’t really exist, there’s no way it can be repealed.
Hmmmmm.