NSA Warrantless Wiretapping Case Dismissed

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A three-member federal appeals court ruled very narrowly yesterday that the government’s warrantless wiretapping program should remain in place until a plaintiff comes along who can prove s/he was spied on, resulting in concrete harm. The decision suggests that the program might be illegal, but states clearly that the lawyers and journalists who brought the suit had no standing to do so.

There are some important sticking points in the decision, however. First, what about the generalized harm that results when any number of law-abiding citizens clam up because they believe, with a some justification, that they are being monitored? Second, people could only know for sure that they were spied on if the government told them. The government claims that that information is a “state secret”—information that, if revealed, would threaten national security. (One of the two judges in the decision determined categorically that the plaintiffs had no standing; the other wrote that the state secrets privilege prohibits the court from knowing.) The government’s claim is, of course, only true if warrantless wiretapping were only conducted on people who posed a genuine threat, but it allows no legal avenue to determine if that’s the case. Many legal experts argue that the state secrets privilege should not serve as a get-out-of-court-free card, but rather should simply require careful handling of the potentially secret material by the federal judges. After all, if we can’t trust presidentially appointed federal judges to maintain confidentiality—which they already do as a routine part of their jobs—who can we trust? The same Bush administration that leaked Valerie Plame’s name?

A case in San Francisco in which the plaintiffs claim to have proof that they were monitored is still pending.

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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.

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