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Standing above the law—A Commentary by Chad Flanders ’07 and Robert Wiygul ’08

The following commentary was published in the San Francisco Chronicle on July 12, 2007.

Standing above the law
By Chad Flanders ’07 and Robert Wiygul ’08

President Bush's approval ratings hover in the low 30s, and many pundits have already declared him a lame duck. But late last week, the Sixth Circuit Court of Appeals handed his administration a significant victory by reviving one of its most controversial programs -- the National Security Agency's secret warrantless wiretapping of American citizens. A politically diverse group of plaintiffs had filed a lawsuit in U.S. District Court arguing that the program was illegal. A judge agreed and ordered the government to shut down the surveillance. But in a complete reversal last Friday, the Sixth Circuit dismissed every one of their claims.

The court didn't rule that the NSA program was lawful. In fact, many legal experts believe it is not. Instead, the court's opinion rested on the doctrine of standing, which governs who can bring a lawsuit. For example, if a driver runs over my neighbor's dog, I can't sue the driver on my neighbor's behalf.

In legal terms, only my neighbor has standing to sue. The U.S. Supreme Court has interpreted the Constitution to give standing only to those who can show they have personally suffered a legally recognizable injury, or "injury in fact," as a result of the challenged conduct.

Aware of this hurdle, the plaintiffs, who included professors, journalists and lawyers who have contacts and clients in the Middle East, argued that they were injured by the very possibility that they were being wiretapped. Fear that their privacy was being illegally invaded, they claimed, intimidated or "chilled" them from exercising their rights to communicate freely.

The Sixth Circuit declared that this "chilling effect" harm was too speculative. The Supreme Court's earlier decisions had not made completely clear what kind of injury would satisfy the standing requirement. But the court had expressly said that "conjectural and hypothetical" injuries are inadequate -- language that proved fatal to the plaintiffs' case.

It's hard to fault the Sixth Circuit's decision based on the law. But it raises serious constitutional concerns. Any secret surveillance program worthy of its name will not inform its subjects that their privacy has been invaded. And courts are understandably reluctant to allow plaintiffs to dig around in classified files in search of needed evidence. The ironic result is that a government program that is more secret than the law allows is so secret that it escapes judicial scrutiny. In a country committed to the rule of law, this result is intolerable.

Last year, U.S. Sen. Chuck Schumer, D-N.Y., introduced legislation that would fix the problem, by authorizing lawsuits against the government by people, like the plaintiffs, who reasonably fear they are being wiretapped. It's a promising strategy: Congress could give explicit legal recognition to the plaintiffs' injury, thus giving the plaintiffs standing to challenge the surveillance program. Although the Supreme Court has not fully settled the question of Congress' power in this area, the court has often deferred to congressional statutes that grant standing.

Schumer's bill languished in the then-Republican-controlled Congress. Now is the time to enact it.

It is in everyone's interest that federal courts render a conclusive decision on the constitutionality of the surveillance program. Uncertainty over the lawfulness of our president's actions serves neither civil liberty nor national security.

Robert Wiygul is a third-year student and Chad Flanders is a recent graduate of the Yale Law School.