NSA Surveillance Program Gets Tiny Setback

For indispensable reporting on the coronavirus crisis, the election, and more, subscribe to the Mother Jones Daily newsletter.


Can ordinary Americans like you and me sue the government for illegally spying on them? When it comes to the NSA surveillance program, the government itself says the answer is no. After all, since it’s a secret program you don’t really know if you’re being spied on. And if you don’t know you’re being spied on, you have no standing to sue.

If that logic makes your head spin, it should. But today Glenn Greenwald reports some modest good news. A few months ago a panel of judges on the 2nd Circuit Court decided that such a suit could indeed go forward. So the government appealed to the full court:

Yesterday, the full Second Circuit panel issued its ruling on the Obama DOJ’s request. Six of the judges voted against a full review of the decision by the three-judge panel, while six voted in favor of reviewing it. Because a majority is needed for a full-circuit review, the 6-6 tie means that there will no further review, and the March decision of the three-judge panel — allowing the lawsuit challenging the FAA’s constitutionality to proceed — will stand. This significant victory for the rule of law may well be temporary, as the unusual 6-6 vote (and the numerous contentious opinions accompanying the vote) makes it likely (though by no means guaranteed) that the Supreme Court will accept this standing dispute for resolution. But at least for now, this is a good and important development.

Actually, “modest” might be overstating just how good this news is. As a layman, I find it pretty shocking that any judge could rule that, effectively, no one ever has any standing to sue in a case like this, let alone six judges. And it gets worse. You really have to read the opinion of Dennis Jacobs, the Chief Judge of the Second Circuit, to believe it. Jacobs apparently can’t even conceive that there might be a legitimate reason for anyone to object to the NSA program:

At the risk of being obvious, the purpose of this lawsuit is litigation for its own sake — for these lawyers to claim a role in policy-making for which they were not appointed or elected, for which they are not fitted by experience, and for which they are not accountable. As best I can see, the only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation.

That’s just staggering. Hell, it would seem over the top coming from Rush Limbaugh, let alone an appellate judge. What rock did this guy crawl out from?

DEMOCRACY DOES NOT EXIST...

without free and fair elections, a vigorous free press, and engaged citizens to reclaim power from those who abuse it.

In this election year unlike any other—against a backdrop of a pandemic, an economic crisis, racial reckoning, and so much daily crazy—Mother Jones' journalism is driven by one simple question: Will America will move closer to, or further from, justice and equity in the years to come?

If you're able to, please join us in this mission with a donation today. Our reporting right now is focused on voting rights and election security, corruption, disinformation, racial and gender equity, and the climate crisis. We can’t do it without the support of readers like you, and we need to give it everything we've got between now and November. Thank you.

DEMOCRACY DOES NOT EXIST...

without free and fair elections, a vigorous free press, and engaged citizens to reclaim power from those who abuse it.

In this election year unlike any other—against a backdrop of a pandemic, an economic crisis, racial reckoning, and so much daily crazy—Mother Jones' journalism is driven by one simple question: Will America will move closer to, or further from, justice and equity in the years to come?

If you're able to, please join us in this mission with a donation today. Our reporting right now is focused on voting rights and election security, corruption, disinformation, racial and gender equity, and the climate crisis. We can’t do it without the support of readers like you, and we need to give it everything we've got between now and November. Thank you.

We Recommend

Latest

Sign up for our newsletters

Subscribe and we'll send Mother Jones straight to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate