ACLU victory?
So I skimmed the NSA opinion. There are a lot of people talking about it who really know what they’re talking about, and Patterico has rounded up a pretty good list of important law-blogging guys sounding off about it.
Here’s the thing that bothered me. Judge Taylor takes for granted that the plaintiffs—the journalists, lawyers and academics—have been harmed by the government surveillance program, which the opinion calls TSP. It doesn’t really say why it’s called TSP or what TSP stands for; just TSP.
Anyway, TSP kicks in under these circumstances:It is undisputed that Defendants [The U.S. Government] have publicly admitted to the following: (1) the TSP exists; (2) it operates without warrants; (3) it targets communications where one party to the communication is outside the United States, and the government has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda.
That’s from page 13 of the opinion. TSP kicks in when a call goes out to or comes in to a suspected Al Qaeda affiliate.
Yet when you look at the original suit filed by the ACLU, they are claiming a much broader sort of surveillance is taking place, beyond the apparent limitations of the program to cover only Al-Qaeda.
For instance, perhaps Greenpeace ought to rest easy:Greenpeace’s telephone calls, emails, and other Internet communications with individuals and organizations abroad are vital to its organizational goal of addressing environmental problems of global magnitude. This mission requires free and open communication with international colleagues, members, experts, and leaders of governments and industry.
Many of the plaintiffs didn’t realize that TSP doesn’t have anything to do with them if the people they are speaking to abroad aren’t associated with Al-Qaeda. The judge ignores this fact as well, but it ought to be crucial. Many of these plaintiffs who don’t deal with Al Qaeda actually lack standing to bring this suit, because there is no way they could have suffered any damage if they weren’t talking ot someone affiliated with AQ.
(It’s late; I reserve the right to edit this post for clarity in the light of day.)