The ACLU Loses in Court

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 neither are nor ought 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.