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The ACLU Loses in Court By: Andrew C. McCarthy
The Weekly Standard | Monday, July 16, 2007


The American Civil Liberties Union's Steven Shapiro is one of the best lawyers in the United States. Still, he was flat wrong when he told the New York Times that a federal appeals court's July 6 dismissal of the ACLU's challenge to the Bush administration's now-defunct Terrorist Surveillance Program "deprives Americans of any ability to challenge the illegal surveillance of their telephone calls and emails."

No, no, no. The ruling by the Sixth U.S. Circuit Court of Appeals that the plaintiffs--the ACLU, the Council on American-Islamic Relations (CAIR), journalist Christopher Hitchens, et al.--do not have standing to sue does not deprive Americans of the ability to challenge the warrantless surveillance of al Qaeda's wartime communications into and out of the United States. It deprives them of the ability to challenge the program in court. They can challenge it through political channels--and already have done so successfully. Bowing to criticism, the administration eliminated the program, at least in its most controversial form, early this year.

In other words, the program presented a political issue, not principally a legal issue. True, the recondite legal wrangling over whether the president or Congress is ultimately responsible for authorizing surveillance of foreign enemies drowned out the more important issues in the debate--such as whether the program was effective. But the noise does not change the nature of the issue. It was a policy dispute. It was not meant to be resolved by lawyers and judges, but by all of us acting through our political representatives.

The Terrorist Surveillance Program, run by the National Security Agency (NSA), was never an exercise in "domestic spying," as Bush bashers tirelessly libeled it. It was always a matter of foreign affairs: specifically, the monitoring of cross-border communications involving people reasonably suspected of affiliation with a foreign enemy actively at war with the United States. A foreign enemy which has already attacked our homeland and which is trying mightily to do it again.

The Supreme Court addressed such foreign intelligence matters in 1948, in Chicago & Southern Air Lines v. Waterman S.S. Corp. Here is what Justice Robert Jackson--FDR's former attorney general and a giant in both the political and legal realms--trenchantly wrote for the majority in that case:

The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports are nor ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.

The legal doctrine that best upholds these principles is "standing to sue." It is the irreducible constitutional threshold that must be surmounted before courts can properly thrust themselves into a controversy: A litigant must be able to demonstrate that he has been injured in a unique and concrete way.

If the "harm" to him is speculative, or contingent on events that may never happen, there is no standing. This was the case with the ACLU's complaint. The Terrorist Surveillance Program was highly classified. The plaintiffs therefore had no idea whether their international communications had been or ever would be monitored. Moreover, if a dispute is about a government policy--for example, high tax rates, immigration enforcement, or, as here, wartime surveillance of international phone calls and emails involving suspected enemy operatives--that presents a classic political question. In such instances, claimants lack standing because they are really not any more affected by the policy than other Americans. Our system reserves such issues for the democratic process.

In the Sixth Circuit, the standing doctrine was invoked by the majority of a divided three-judge panel to bar the suit. This, predictably, has provoked a hue and cry from media and elites who have come to see litigation, rather than popular self-determination, as our default dispute-resolution mechanism. In reality, though, the opposite is true. The proper approach, as Chief Justice John Roberts wrote in an academic article in 1993, long before he came to the High Court, is to "presume that federal courts lack jurisdiction 'unless the contrary appears affirmatively from the record.'"

That is what keeps the courts out of the policy-making business--a business for which they are particularly unsuited in the field of national security. There, lives are at stake and policy must be made by public officials accountable for those lives, not imposed by unaccountable judges reacting to agenda-driven litigants.

Litigation is a very poor substitute for the political process. For one thing, judges are not neutral ballot boxes. They bring along their own political baggage. That's fine when the issue is something properly before a court--Was a contract breached? Did the defendant rob the bank? For such matters, involving real, concrete harm, judges can reasonably be expected to check their politics at the courtroom door. But when litigation is political--when no one is known to have suffered a unique harm, but self-styled "public interest" groups are targeting a government policy that affects all Americans--then the judges' politics matter a great deal.

Don't think so? Consider this. After the NSA program was exposed at the end of 2005, it was, with few exceptions, scalded by Democrats and liberal academics while being defended by Republicans and conservative commentators. Now take a look at the case just decided. Well, whaddya know? The program was first held invalid by a judge appointed to the federal district court by President Carter. Then the Sixth Circuit appeals court panel split 2-1: In the majority, throwing out the suit, were two jurists placed on the federal bench by President Reagan and elevated to the appeals court by both Presidents Bush; the dissenter, who would have affirmed the district judge and killed the program, is a President Clinton appointee. No doubt the judges all voted their conscience--Democrats and Republicans tend to see constitutional law very differently. But does it not say something that, in a politically charged case, the judges have somehow managed to split exactly along the lines taken by the parties that appointed them?

And what of the purported "public interest" plaintiffs? The ACLU, its affectations to the contrary notwithstanding, does not represent the American people. It represents a finite segment of the population, one that adheres to a full-blown libertarian agenda. It is certainly entitled to those views, but most Americans don't share them--which is why policies supported by the ACLU do so much better before judges than before voters.

Polls indicate that Americans favor the concept of eavesdropping on al Qaeda communications even if that inevitably means--just as it does with run-of-the-mill criminal wiretaps--that innocent people will occasionally have their conversations monitored. The ACLU, by contrast, finds that prospect scandalous. In its world view, a single person's being inconvenienced for the sake of the community's enhanced security is virtually always unacceptable. The public's position is far more measured. So when the ACLU sues, it is not suing in what the public deems its own interest. It is suing in the ACLU's interest.

Because the plaintiffs so clearly represented not the public interest but their own narrow agendas, the Foundation for Defense of Democracies (through FDD's Center for Law and Counterterrorism, which I direct), joined with the Center for Security Policy and the Committee on the Present Danger to file an amicus brief in support of the NSA program. These "friends of the court" have a political view about what the best policy is. They favor the collective security of Americans and believe the nation is endangered by a libertarian solipsism that would shut down intelligence collection, putting all of us at risk, just so a few lawyers, journalists, and Muslim activists could be spared anxiety over the possibility that some innocent person's chats with suspected al Qaeda operatives might be monitored.

The place for advancing that view is the court of public opinion, not the courts of the United States. It's not the courts' business to be deciding policy questions. Matters of foreign policy are for elected officials who have to face the voters, not for judges who don't have to face anything except, perhaps, the recriminations of an organized bar unabashedly oriented to the political left.

On that score, Steve Shapiro and the ACLU can take some comfort in knowing that the political process has worked.

Democrats didn't dare shut down the Terrorist Surveillance Program after its existence was leaked. It was popular with the public, regardless of how much liberals ranted about Bush violating the 1978 Foreign Intelligence Surveillance Act (FISA), which purports to regulate all national security wiretapping.

The public's approval and the resulting Democratic reluctance to match heated words with meaningful legislative action against the program were direct results of our political process. In late 2005, right after the New York Times exposed the surveillance program, the White House, for once, immediately got out in front of a controversy. President Bush passionately and effectively defended the program, convincing Americans that it was the right thing to do in a post-9/11 environment where we've seen only too painfully what can be wrought by al Qaeda's cross-border communications.

Since then, however, the Democrats--helped immeasurably by the media's "domestic spying" narrative--have been adroit in attacking the program. Cowed by the political heat, the administration finally caved. Back in January, the Justice Department announced that the Terrorist Surveillance Program was being brought under the supervision of the FISA court. As a result, the program no longer exists as a wartime military effort run unilaterally by the executive branch. That is exactly what Democrats, the ACLU, and other critics have said they wanted all along.

From a policy standpoint, however, this is a grievous mistake. FISA requires probable-cause evidence that a person is an agent of a foreign power before eavesdropping may be approved by a court. The Constitution, by contrast, demands no such thing. The Fourth Amendment mandates only that searches be reasonable. As all of us know from boarding airplanes, entering public buildings, or having our bags searched when we enter the country, there are countless situations of far less consequence to national security than wartime penetration of enemy communications, in which searches are permitted without prior court approval and on less than probable-cause evidence.

Consequently, if the NSA program was, or is, calling for probable cause before surveillance can take place, then it is not monitoring everyone the Constitution would allow us to monitor, and everyone we need to have monitored during a war against an enemy trying energetically to reprise 9/11. As Judge Richard Posner has observed, FISA permits the surveillance only of people we already know are dangerous; but the threat to us today comes from the embedded terrorist we don't yet know, and you can't ferret him out if you need to prove probable cause before you can listen. By then, it may be too late.

That, however, is a policy argument. It is the kind of argument the administration has shied from making. Meanwhile, Democrats, joined by FISA-enthusiast Republicans like Senator Arlen Specter, have effectively argued the merits of court supervision since early 2006. The administration failed to make the very strong counter case, got spooked by all the scurrilous charges that it was violating the law, looked at its sinking poll numbers, decided the last thing it needed was another fight, and, voilà!, the program is no more.

That's a shame, but those of us on the losing side of the policy question have no beef. We lost fair and square in a political fight. In the end, the administration reacted to political pressure, not to a court usurping the political process. That's the way things are supposed to work. The argument over national security policy will continue, but thanks to the Sixth Circuit, the public interest will be determined by the real public, not "public interest" lawsuits.


Andrew C. McCarthy is director of the Center for Law & Counterterrorism at the Foundation for Defense of Democracies.


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