Sitting in Their Own Stool

August 29, 2015–Have you noticed that the National Security Agency (NSA) no longer insists its vacuum eavesdropping programs “caught” hundreds of terrorists and “saved” thousands of lives? NSA is also now silent about the specific claims it made for particular plots it alleged were broken up. It had abandoned the number “55,” alleged as a specific number of cases where the blanket spying was crucial, and the number “14,” a later version of the same claim. The ethereal spooks are no longer even talking about “one”–the guy who wanted to give cash to Somali fundamentalists, which under current statutes represents aiding terrorism. (It turns out the FBI had a bead on that person before NSA knew anything about him.)

Instead the NSA is trumpeting the latest set of court decisions, in which the United States Court of Appeals for the District of Columbia ruled that an injunction against the NSA electronic eavesdropping has to be lifted because the original plaintiff lacked “standing” to sue, since they could not prove their phone records had been collected. The case has been sent back to the lower court for review.

How do the spin doctors pitch this? It “proves” that vacuum eavesdropping is “legal.”

Talk about Big Brother. A more convoluted, illegitimate application of judicial authority can hardly be imagined. Here is a tightly-held program–beyond top secret–that nobody knows about which is recording everybody’s information. But you can’t sue because you can’t “prove” NSA took your data. To put it another way, the original basis for “legality” was that broad classes of people have no “interest” in the privacy of their “business records,” which the NSA can therefore collect, but no member of that class can have standing to sue, essentially because the NSA has an interest in the privacy of its spying.

This despite the fact that Congress has passed a law revoking NSA’s authority to spy and giving the agency until November 29 to adapt to a new arrangement, and despite the fact that an injunction had actually been issued, simply held in abeyance.

Those are double standards. The courts should be ashamed. The NSA, which no longer dares front claims for the effectiveness of its blanket eavesdropping, now hides behind the fig leaf of “standing” for legal proceedings.

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