The courts and Congress affirmatively conceal and protect lawbreaking

Glenn Greenwald
Salon.com

In August, 2006, Judge Anna Diggs Taylor became the first federal judge ever to rule on the legality of the Bush administration's NSA warrantless spying program, and she ruled that the NSA program violated both statutory law as well as multiple rights guaranteed by the U.S. Constitution. The case was brought by the ACLU on behalf of numerous Muslim lawyers, journalists and others, who argued that the existence of the warrantless eavesdropping program rendered them unable to perform their jobs.

The Bush administration appealed that decision to a three-judge panel of the Sixth Circuit. In July of last year, two of the three appellate judges voted to reverse Judge Diggs Taylor's ruling, not because they disagreed with her conclusions about the program's legality. Instead, they found that the plaintiffs lacked "standing" to challenge the legality of the program -- and courts were therefore barred from ruling on their claims -- because the plaintiffs were unable to prove that they were actually subjected to the warrantless eavesdropping (due to the absolute secrecy under which the program operates).

The third member of the appellate panel, Judge Gilman, dissented from that finding, holding that plaintiffs were permitted to proceed with the lawsuit, and then proceeded to find that the NSA program was illegal. Thus, even to date, the only two judges ever to rule on the legality of Bush's NSA program -- District Judge Diggs Taylor and the Sixth Circuit's Judge Gilman -- have both ruled that it was illegal.

(Continued here.)