Earlier this week, the United States Court of Appeals for the Second Circuit let stand, by a 6–6 vote, a panel decision authorizing an ACLU suit challenging warrantless surveillance of a group of scholars and journalists. At the core of the lawsuit is a challenge to surveillance under the FISA Amendments Act of 2008. The suit raised a number of extremely serious questions about the legislation, seeking injunctive relief that would have restricted its use for surveillance in the future. Justice Department efforts to block the ACLU suit have focused on such technical questions as standing, which governs who can bring a lawsuit and when.
When the Second Circuit opinions were released, most were scholarly discussions of the law. But one was not—an opinion issued by Chief Judge Dennis G. Jacobs. Revealingly, no other judge joined the Jacobs opinion, in which Jacobs called the lawsuit “frivolous” and stated that it was akin to a “plaintiff’s allegation that the C.I.A. is controlling him through a radio embedded in his molar.”
The plaintiffs—all of whom are involved in studying and writing about terrorist groups, and some of whom are eminent authorities regularly relied upon by the U.S. government—express concern that as FISA is apparently being interpreted, their communications would be routinely intercepted and examined by the NSA. The NSA has not credibly denied their contention. Indeed, retired senior NSA officials like Thomas Drake have openly acknowledged that such practices were routine during the Bush years.
A hardened civil-liberties skeptic could of course argue that the government is within its rights to engage in the warrantless surveillance of its citizens, but to compare those who complain about it to tin-hatted loons is irrational. The balance of Jacobs’s opinion was long on hyperventilating political rhetoric, and short on facts and legal argument.
in full:
http://harpers.org/archive/2011/09/hbc-90008253
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