At any rate, interception of communications has been accepted as a violation of privacy for decades now, qualifying at least for nominal damages and injunctive relief. No further injury is required. Just ask Jim McDonald.

Who is Jim McDonald and what is his relevance to this discussion? Do you mean Rep. Jim McDermott (D-WA)?

You dance around the point I was trying to make. No ever asks me, since I am just an autistic and of no real importance, but if someone were to ask me, I would suggest there is no need to create a special cause of action since any number of existing federal causes of action + existing standing (injury-in-fact) already more than adequately addresses the problem.

What I WOULD do is legislate a three-judge panel in the district court, along with a direct as matter of right appeal to the Supreme Court in any case raising the surveillance issue within the context of any federal case.

But, the common sense of autistics never prevails in the logic of the real world. So I don’t suppose my suggestion would carry any weight.

Putting aside the legality of any of these actions, I think that court involvement reflects the view that this really isn’t a war. Let’s say, for example, President Bush had decided to destroy the EP-3 Aries that was forced to land on the island of Hainan, and general hostilities broke out between the US and China, does anyone think that any court would get involved in any issues that popped up (detention of Chinese nationals, seizure of Chinese-flagged vessels etc.)? And if they tried, they’d be laughed at.

Second point: let’s say that the courts do have a place here in this aspect of war-fighting (clearly the use of signals intercepts no matter that it crosses the US border is a part of war-fighting). What is the logical basis of limiting it to detentions of alleged combatants or the interception of signals? With respect to the signals, the answer could be the fact that it crosses US borders–but there is no easy answer for the detainees. Could US courts order the army not to bomb certain villages? Could they write the rules of engagement?

I would not reply except for the calumny that I am a lawyer or law professor. I am a citizen of the USA, subject to its laws and therefore interested in them.

The Fourth Amendment recognizes the right to be secure in one’s papers, independent of whether one is coerced to surrender them. While I did not like being held at gunpoint, I can assure you that the feeling was different when he was going through my papers. In today’s world, e-mail and telephone conversations are the equivalent of papers.

At any rate, interception of communications has been accepted as a violation of privacy for decades now, qualifying at least for nominal damages and injunctive relief. No further injury is required. Just ask Jim McDonald.

I don’t even think that is clear — to me there is a very good argument that goes something like this: (1) FISA has a built in exception for later statutory authorization (2) SCOTUS, in holding that the AUMF authorized the detention of citizens (in the face of the Antidetention Act), and (3) SCOTUS further stated that the AUMF authorized reasonable incidents of war — to which they looked to the history of armed conflicts for their determination that detention of enemy combatants was such an incident of war. THEN IN MY OPINION, it is not implausible (and actually pretty persuasive) that the AUMF be interpreted to authorize military intelligence in the form of signal capturing (something that has been done in every conflict since the advent of signal communications), thereby providing statutory authority for the NSA program and satisfying the statutory exception in FISA. This of course would make Marty’s claim of a “clear violation” of FISA’s text entirely inaccurate.

“we can’t even make this judgment about legality in the absence of all relevant facts and, probably, an actual case to test the application”

I agree — but I’m still not sure how the Executive Privilege factor will play out — I sincerely doubt that any civil case will be enough to outweigh the claims of national security. In my opinion, it may take a criminal prosecution of someone who was arrested based on evidence obtained under the NSA program to have a chance at beating the Executive Privilege.

I second the point that this NSA program is hardly cut-and-dry “illegal.” Whether its unwise, of course, is not the question really, but I read many commentators’ sentiments as infused with a notion that this is illegitimate or unwise as opposed to plainly illegal. I think one comment above is too harsh in taking Mr. Lederman to task. He does sometimes use language that blurs the lines between objective/subjective and form/content. But, what he really argues, as I understand him, is that it is unassailable that FISA’s text is violated by the NSA program. This conclusion–standing alone–says nothing about the legality per se of the NSA program given the other disagreements over whether aspects of FISA’s reach are constitutional as constraints on Article II powers or (less likely) whether the AUMF was a subsequest congressional carve out of power to the President in this regard. In any event, I stand with many even in the legal community who are more common law minded (as I would describe it), and, therefore, who feel we can’t even make this judgment about legality in the absence of all relevant facts and, probably, an actual case to test the application.

Additionally, and I think we saw aspects of this problem in McConnell v. FEC, what ever happened to the broad agreement in the legal community that perculating questions in lower courts presented with ACTUAL CASES testing the contours of a law was the reified best practice for resolution of legal controversies under our common law system? I find more and more commentators mentioning these fast-track appeals in a positive or neutral light, which surprises me. This is among the most problematic of the litany of questions raised by Schumer’s proposal.

“Standing has an injury requirement. What is the injury?”

Uh, maybe a vessel surveillance platform cnducting llegal surveillance of an Americans With Disabilities Act plaintiff, where the information obtained about litigation strategy in the ADA case is used against the ADA plaintiff to illegally retaliate by recklessly tying the vessel for a Hurricane in an attempt to kill the plaintiff to end the ADA suit and hide the fact of the illegal surveillance. And, then the vessel “owner” turns out to testify under Oath that the vessel is Cayman registered in circumstances where US Marshal puts pictures of hte essel into the court record showing the vessel lack the markings and carvings to comply with Cayman registry, and the “owner” cannot produce the evidence of Cayman registry admissible in evidence under Cayman registry laws, and testifies to teh Corut all Cayman shipping records were destroyed by Huricane Ivan, when the Cayman news reports all such Cayman governmental records and data survivied the Hurricane?

What is the injury??????!!!!!!

First of all, for someone who cares about invasions of privacy, show some mercy and keep your private fantasies involving Supreme Court Justices to yourself.

Second, your hypo does no work to prove the claim you are attempting to make. The “feeling of violation” during a robbery or an assault stems from the imminence or immediacy of the physical harm, i.e., when Robber X says “Your money or your life!”, you think “If I don’t let him go through my stuff, he will kill me!” No such threat of physical harm exists here. Indeed, none of the parties seeking standing even know for sure whether they were wiretapped. It is impossible for to feel threatened with immediate physical harm by wiretapping you are unaware of.

What’s more, for a law professor, you are making some rather loose claims (Hey, did you submit a brief in FAIR v. Rumsfeld?). If “feelings of violation” are all it takes to surpass standing’s bar, then Justice Douglas was correct when he noted public interest groups could sue on behalf of trees for aesthetic injury. I am sorry, Friedman, but I find the idea of trees committing arboricide to file court papers that aim to safeguard their aesthetic sensibilities about as absurdly unappealing as the notion of Justice O’Connor giving me a spanking.

Be that as it may, and putting aside any jurisdictional/standing concerns, I still don’t know if Schumer’s bill will get the job done. I’m not sure that a Court could rule on the legality of the surveillance program, without the details of what is actually going on. To that end, I’m not convinced that the Court would be willing to cast-aside the claim of Executive Privilege for purposes of National Security, so that they can effectively rule on a civil cause of action created by this “statute.” Look at the balancing the Court did in Nixon, and that was a criminal proceeding vs. a general claim of executive privilege; in this situation the claims are very different, with the former being dramatically less compelling, and the latter being much more powerful.