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A divided federal appeals court today dismissed a case challenging the National Security Agency’s program to wiretap without warrants the international communications of some Americans, reversing a trial judge’s order that the program be shut down.

The majority in a three-judge panel of the United States Court of Appeals for the Sixth Circuit, in Cincinnati, ruled on a narrow ground, saying the plaintiffs, including lawyers and journalists, could not show injury direct and concrete enough to allow them to have standing to sue.

Because it is extremely difficult to show concrete injury from the highly classified program, the effect of the ruling was to insulate the program from judicial scrutiny in ordinary federal courts.

So, the case was dismissed because the plaintiffs could not demonstrate harm from the program; however, as the records of the wiretaps are considered to be state secrets, it’s nigh on impossible for anyone who is wiretapped to demonstrate such harm to gain standing for a lawsuit.

Maybe it’s me, being all rational and whatever, but I have a problem when our government looks at its citizens and says “Yeah, you just try to prove we’re watching you. Good luck with that, peon.”

White House spokesman Tony Fratto said the administration was pleased by the ruling. “The court of appeals properly determined that the plaintiffs had failed to show their claims were entitled to review in federal court,” he said.

In short, any of us could be wiretapped and none of us will know it’s us until we’re whisked away in the night, classified as an unlawful enemy combatant, and tried in a secret military tribunal, never to be heard from again.


Not that I think we’re to that point, else we’d never hear Jose Padilla’s name in the news. However, this latest ruling – and the White House response – certainly shows a general contempt for the citizenry, for transparency, and for those ideals I would lump under “the American way.”

* Anybody get that?

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