There has to be a way for ordinary people to challenge the government's right to monitor their international phone calls and e-mail without court warrants. President George W. Bush clearly doesn't want that to happen. His administration is using a catch-22 legal strategy to derail any lawsuits that question the surveillance. That's intolerable. Somebody outside the executive branch needs to take a hard look at these government programs to judge whether they're legal. National security is important, but so is the privacy guaranteed by the Constitution's ban on unreasonable searches. The courts need to find a balance that would allow these cases to be litigated. Otherwise, people will be powerless in the face of intrusive government authority.
The administration has various rationales to bar the courthouse door. Last month a federal appeals court dismissed a suit by lawyers and journalists, saying they lacked standing to sue because they couldn't show they'd been harmed. The reason? They couldn't prove their calls had been monitored. Only the National Security Agency knows for sure, and it won't say, insisting that coming clean would compromise national security.
In two other cases, argued Wednesday, the administration took a slightly different tack. It asserted a state secrets privilege, insisting that the suits must be dismissed because continuing them would reveal details of secret surveillance, and that would harm national security. In one of those suits, AT&T customers claim the government was improperly given access to their phone records. In the other, a Muslim charity says classified documents, mistakenly handed over by the government, prove their calls were monitored.
So here's a summary of the artful dodge: If the government won't confirm it monitored your calls, the case has to be dismissed. If you can prove you were targeted, the government can withhold evidence and the case has to be dismissed. If you already have the evidence you need, the government can bar its use and the case has to be dismissed. The administration shouldn't be allowed to duck accountability for what could be ongoing violations of the rights of millions of Americans.