Political Bloviation

The defendants can’t sue because they can’t prove they were injured. They can’t prove they were injured because the government’s illegal activity is a state secret. Welcome to the wonderful world of Kafka. Glenn says it better:

Glenn Greenwald - Salon
This is one of those types of legal outcomes which — understandably so — can drive laypersons, along with conscientious lawyers, crazy. The result, on its face, is grotesquely unfair, outrageously so.

After all, the whole point of FISA is to make it illegal for the government to spy on us in secret. And yet spying on us in secret is exactly what the Bush administration did; that is the crux of the lawbreaking here. But precisely because it spied on Americans in secret rather than with judicial oversight, nobody knows whose conversations they surveilled and we cannot find out.

It is because of this illegal behavior that the plaintiffs are unable to show that they were subjected to this surveillance. To dismiss the case on the ground that the plaintiffs are unable to make this showing, then, is to reward the Bush administration with the ultimate prize (immunity from judicial review) for having broken the law.

Worse still, it means that if the Government breaks the law in secret, it can be immune from being held accountable in a court because no one individual can ever prove that they were directly and uniquely harmed by the illegal conduct, and thus would lack standing to sue. That result is as destructive as it is Kafka-esque, and it is what happened yesterday.

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