In Thier Court

July 7, 2007


The US Federal Appeals Court overturned a ruling by a lower court to shut down the NSA warrentless wiretap program implemented by the Bush administration. Now the case will go to the US Supreme Court. How they rule may set the tone for this nation for the next century.

In our legal system, when you bring a case in federal court against the government and you win, the government has two more chances to get their own way: the US Appeals Court and the US Supreme Court. Naturally, if they win the case on appeal, the government does not bring it to the Supreme Court. The losers always petition the court to hear cases in the highest court in the land. In the current case, some journalists and civil rights attorneys (some from the ACLU) brought a suit against the US FEderal government to get the program of Warrentless Wiretaps, implemented by the Bush Administration, halted. The Federal Court sided with the plaintiffs and ruled that the program violated US Federal Law - specifically the Foreign Intelligence Surveillance Act (FISA) of 1978 that prescribes procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between or among "foreign powers".

The Bush administration disagreed. Their contention is and always has been that the President has the right to do whatever he thinks is in the interest of National Security, regardless of the rule of law. By their view, if the President thinks something is a good idea then he gets his way whatever the US Congress or the US Courts say: in other words, King George, who does not need to pay any attention to other branches of government unless he wants to.

The Appeals court did not actually find in favor of the government and say that Wireless Wiretaps are legal. That is pretty difficult to demonstrate in law. Instead, what the Appeals Court did was to find that the journalists and attorneys who brought the case did not have "standing" because they "could not show injury direct and concrete enough to allow them to have standing to sue." The Appeals Court decision is certain to be appealed to the Supreme Court and how they rule might be the most important legal ruling of the 21st century.

The Supreme Court has three options: they can hear the case and rule it's decision correct and Constructional, they can hear the case and reinstate the ruling of the lower Court, or they can refuse to hear the case at all, which more or less confirms the ruling of the Appeals Court.

Why is this important? This case was brought by civil rights attorneys on behalf of the American people. Their contention is that any time the government breaks the law, the people are harmed. What the Appeals Court has said is that the government breaking the law injures no one. If the Supreme Court supports this contention, then we have no basis for legal challenge when the government ignores the Construction and harms our friends or our neighbors, only when we are ourselves personally affected.

If this sounds just a little bit like Nazi Germany, then it should. The Chief Justices of the Nazi courts, who were, incidentally, hanged at the Nuremberg War Crimes Trials, interpreted German law this way: only the people who were put in Concentration Camps had legal standing to bring a legal challenge to their incarceration, not their friends or families or their legal counsels.

So, again we stand at a cross-roads, dragged here by the logically expedient rule of George Bush and Dick Cheney. Our legal system is in peril. Well, this just matches all the other aspects of our nation that are in peril: health care, cities, education, and the environment, to name some of the most endangered. The most amazing fact about all this peril is how little we're doing to change the course we're on. We sit idly by, like so many lemmings, as our entire civilization thunders down a suicidal path toward oblivion.

What do we do about this? Lao Tzu had an excellent prescription more than 2500 years ago:

If, when you see the symptoms, you can tell you are sick,
Then your cure is quick.
Sound people know that sickness makes them sick
And before they catch anything else they cure their ills.

Change is not an option. Change is inevitable. All we get to choose is how much choice we have in what consequences occur.

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