ACLU Has Lost It's Way

High Wiretap Act
January 19, 2006; Page A14

There once was a day, many years ago, when the American Civil Liberties Union bothered to read the U.S. Constitution before it brought a lawsuit. If it did so today, it might discover that the judiciary isn't the only branch of government. The Founders created three branches, along with a system of checks and balances that are both judicial and political.

We offer this lesson in Con Law 101 in response to the news that the ACLU and the Center for Constitutional Rights have filed suit in federal court charging that President Bush exceeded his constitutional authority in authorizing the National Security Agency to eavesdrop on international phone calls involving al Qaeda suspects.

The groups understand their lawsuits will almost certainly be dismissed before they even get to trial, but never mind. Theirs is a purely political exercise, designed to capture headlines and further bathe the wiretap issue in the false aura of "illegality." In fact, their own suits are the real misuse of the courts.

The plaintiffs lack the legal standing to sue because they can show no evidence that they've been harmed. They are journalists, academics, lawyers and interest groups that claim that the U.S. government violated their privacy and free-speech rights by possibly listening in on their phone conversations without a warrant. But even they admit that they have no evidence -- zero -- that any of them have in fact been wiretapped.

Another reason for dismissal has to do with something called the Totten doctrine. This is based on an 1875 case involving a Civil War spy for Lincoln and says a lawsuit can't proceed if it would inevitably lead to the disclosure of sensitive intelligence matters. Its most frequently quoted line is relevant here: "Public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential."

It's always possible the plaintiffs will find some district court judge who wants to grab a few headlines by hearing the case. But barring any new evidence about the NSA wiretaps, the higher courts will surely dismiss.

The battle over the al Qaeda wiretaps isn't in fact a legal issue at all. It is basically a political battle between Congress and the White House over supremacy on matters of national security. President Bush has forthrightly defended the use of wiretaps as essential to fighting the war on terror. If the ACLU disapproves, it has every right to lobby Congress to exert political pressure on the White House to reverse its policy. But its charge of "illegality" is nothing but a political weapon designed to suggest something more nefarious.

The ACLU and the Center for Constitutional Rights are engaged in a phony judicial exercise whose sole aim is to damage the Bush Administration. But the greatest harm is being done to the reputation of these once intellectually honest organizations.