Patterico did a decent job debunking the latest effluvium from Ellers McEllerson, claiming that the Sixth Circuit’s decision on the NSA warrantless surveillance case “had absolutely nothing to do with the merits of the case,†as far as Patterico went. But inasmuch as Patterico admits he is not an expert on the issue of standing to sue in federal court, I would add that Patterico ended up going light on the Gleen(s).
 I would not claim to be an expert on the standing issue myself, but it was the focus of the Constitutional Law and Civil Liberties classes I took in undergraduate school, it came up again in both Con Law and Federal Courts in law school, and I am a published author on the Religion Clauses of the First Amendment, where a lot of standing precedent was created. So I can verify that the “injury-in-fact” and prudential limitations imposed by the standing doctrine have both been criticized –usually by civil libertarians like the Gleen(s) — as allowing federal courts to use the doctrine of standing as a surrogate for a decision on the merits.ÂÂ
Questions of standing are often intertwined with the underlying issues, as happened in this case. As Patterico noted:
Judge Batchelder’s ultimate conclusion is stated at page 31: “No matter how these claims are characterized, the plaintiffs have not asserted a viable FISA cause of action.â€Â
Is the Gleen(s) unaware of the close relationship standing has to the merits? How could he be, as he touts himself to the world as an expert on Constitutional Law and Civil Liberties?
But wait…there’s more! The standing doctrine (esp. the “injury-in-fact” requirement) derived from the “case or controversy†requirement of Article III. It is an element of the separation of powers. The “case or controversy†requirement is supposed to limit the judicial power and prevent federal courts from becoming a second legislative branch (which, incidentally, is why I disagree with Patterico calling it a “dry and technical issue.”). Yet Gleen(s) takes issue with the fact that the Bush Administration has challenged the jurisdiction of the federal judiciary in this instance. He is silent on the value of the judiciary following the Constitution. Apparently, his concern for out-of-control branches of the federal government is… selective.
Comment by Dan Collins on 7/8 @ 5:01 pm #
I’m surprised he hasn’t sued Patterico for alienation of affection.
Comment by Rick on 7/8 @ 5:17 pm #
” I am a published author on the Religion Clauses of the First Amendment.”
Ah, but have your comments been read aloud on the Senate floor, and have your musings launched numerous articles in the proglodite press, in affirmation of your meteoric ascent in the blogoshpere? Strictly on genuine merit, of course.
I didn’t think so. Good day, sir!
Cordially…
Comment by Robin Roberts on 7/8 @ 5:44 pm #
“It is an element of the separation of powers. The “case or controversy†requirement is supposed to limit the judicial power and prevent federal courts from becoming a second legislative branch (which, incidentally, is why I disagree with Patterico calling it a “dry and technical issue.â€ÂÂ). “
This is key. The courts cannot become a forum for dissenters from an administration’s conduct of a war can expose military secrets. It is Congress’ sole perogative to act in oversight. Not every ACLU chapter and District court.
Comment by DrSteve on 7/8 @ 6:22 pm #
Greenwald’s legal expertise has long struck me as a particularly fluffy confection, like one of those foams Marcel was always pushing on last season’s Top Chef.
Unfortunately I have a feeling we’ll be spending the years 2009-2013 seeing exactly how inconsistent a defender of Constitutional rights he is.
Comment by Karl on 7/8 @ 8:06 pm #
Glad Rick caught the allusion.
Comment by Ric Caric on 7/8 @ 8:16 pm #
Absolutely spiffing! Three nicknames for Greenwald in one post! Such great nicknames too. “Sock Puppet of the Baskervilles!” “Ellers McEllerson!” And “Gleen(s)!” And Karl’s use of that parenthesis. Breathtaking! I mean that just shows right there that Karls’s a lot smarter than Greenwald. Really, how clever can you get?
Of course, the effect would have been enhanced if Karl had read Greenwald’s post. Greenwald clearly defines the “merits” of this case in terms of “whether the NSA program is illegal or not.” This is not the locus of Patterico’s disagreement on the merit issue. Patterico expresses sympathy for the NSA program at the end of his post, but takes the question of merit in terms of whether the plaintiff showed any “facts” indicating that the NSA program eavesdropped on them or whether that eavesdropping violated FISA, etc. For Patterico, the finding of “lack of standing” is also a finding of lack of facts to support the plaintiff’s claim’s on the merits. Greenwald’s post indicates that he would accept a finding of lack of facts himself and then criticize the Bush administration for its (illegal) secrecy.
Still, Patterico does not end up with a counter-argument to Greenwald’s assertation that the Appeals panel did not address the legality of the program in the context of its holding on the standing of the plaintiff.
But what’s a little sloppiness among friends?
Myself, I apologize for not calling Greenwald any of his cutesy nicknames and confess my ontological inferiority on this score. But it might be appropriate to mention that Greenwald (I’m sorry “gleen(s)”) did not claim that the Appeals Court panel was wrong in its decision. Greenwald stresses that his belief that the decision was unfair to the plaintiffs does not mean that it was wrongly decided or that the doctrine of standing needed to be loosened. Greenwald then goes through a long explanation of the way the doctrine of standing serves as a safeguard against an imperial judiciary. Despite his political sympathies with the plaintiffs, Greenwald (oops Ellers McEllerson) suspects that they don’t have sufficient standing to sue.
But I agree with Karl! The fact that Greenwald went through his analysis without playing on the names of the judges or offering anything in the ways of clever asides means that he’s full of crap. He should have focused on being “cool” and left the actual thinking to people who are less clever and don’t have anything better to do.
Comment by Dan Collins on 7/8 @ 8:16 pm #
Well now, I knew this girl. It’s true she had read
Sophocles in a fairly good translation
And caught that bitter allusion to the sea,
But all the time he was talking she had in mind
The notion of what his whiskers would feel like
On the back of her neck.
Comment by Dan Collins on 7/8 @ 8:19 pm #
“[O]ntological inferiority”? Who claimed that? I wish you’d unpack your analysis of Fred Thompson as bulldyke a bit more, though. Your comment got cut off there.
Comment by Pablo on 7/8 @ 8:29 pm #
Wilson!
tw: you injustice
Comment by Dan Collins on 7/8 @ 8:33 pm #
Ric Ceric–
First, you realize, don’t you, why we refer to Glenn(s) in the plural, and why we think it’s funny? I don’t know the Latin for “sock puppet,” but if I did I might admit that we were guilty of an ad whatever-Latin-for-sockpuppets argument is. And my only plea would be that you at least recognize the hilarity.
Having said that, though, I think you ought to go reread Beyond the Pleasure Principal regarding fort-da and hypercathexis, and consider the application.
Comment by Dan Collins on 7/8 @ 8:38 pm #
Oops. Beyond the Pleasure Principal was that movie. Make that “Principle.”
Comment by happyfeet on 7/8 @ 8:41 pm #
ad puppetum. Latin had no word for socks, since socks with sandals were just not done then.
Comment by maggie katzen on 7/8 @ 8:46 pm #
Three nicknames for Greenwald in one post!
errrr, if you give them to yourself are they really nicknames? I think the more correct word is alias.
Comment by Dan Collins on 7/8 @ 8:51 pm #
happyfeet–
That’s not plural. Also, mustn’t there be some vulgar Church-Latin neologism for socks?
Comment by Robin Roberts on 7/8 @ 8:54 pm #
Actually Ric, your comment leads me to believe that you did not actually bother to read either Gleen(s) nor Patterico. Nor of course the appellate opinions.
Comment by Ric Caric on 7/8 @ 8:56 pm #
No, I’m going to follow the wisdom of proteinwisdom and devote my energy to making up a cool nickname for Freud’s theories. Hey George Bush loves nicknames too. Remember the earlier puff pieces on how he calls Karl Rove “turd blossom,” Olmpia Snowe “the big O” and Susan Collins “Sweet Suzie.”
That gives me an idea! You guys should invite George to post on this blog after he leaves office. I’m sure he’d fit right in and he’s really not as dumb as everybody says he is.
Comment by daleyrocks on 7/8 @ 8:58 pm #
Prof. Ric – Reading comprehension does not appear to be one of your strenths. Try reading Patterico’s post again slowly and attempt to concentrate. He points out several places where the judges, through their discussion of standing, in fact do address the merits of Judge Taylor’s ruling, which also directly affect what you so kindly point out Greenwald has defined as the merits of the case.
Greenwald also neglects to tell his readers that if the appelate judges dismiss the case on standing, there is really no reason for them to dig into an exhaustive discussion on the legality of the program. He make it sound like a victory for Taylor when it is not.
Comment by Dan Collins on 7/8 @ 9:01 pm #
All right. But could you please start by making up a cool nickname for the stuff you were saying about Fred Thompson last night? Because it sounded like “alcoholism,” to me.
Comment by happyfeet on 7/8 @ 9:13 pm #
Dan is talking about here. This is where the wymyns studies guy calls Fred Thompson’s wife a slut. This is a term of art in wymyn’s studies I think, yes?
Comment by TallDave on 7/8 @ 9:33 pm #
Gleen’s only consideration when writing is “what would my deranged leftist fan base most like to hear today?”
He’s like Ann Coulter without the commitment to evenhandedness and accuracy. And bitchier.
Comment by Rusty on 7/9 @ 5:01 am #
The only logical conclusion I can come to is that it has to be dead easy to be a perfesser at whatever institution Ric is currently a perfesser at. At whatever subject he allegedly purports to teach. ‘Cause whatever it is, it’s plain reason isn’t involved.
Comment by Karl on 7/9 @ 8:03 am #
Ric Caric,
The point of the post was that standing is intertwined with the merits, which is why Greenwald is either ignorant of the law he is purporting to analyze or misleading his readers. Do you have any substantive point to make about standing doctrine, or did you just get mad that PW posters constantly remind people that Greenwald seems to go by many names, most often to pat himself on the back?
Comment by Karl on 7/9 @ 9:28 am #
I was pressed for time, but would like to return to the non-germaine points Ric Caric thought he made.
First, Wilson does not get to define the “merits” of the case. He lives in Brazil, not Wonderland. He is not, afaik, the Red Queen. The merits of the litigation are defined by the litigation itself, not by semantic fiat. It may well work differently on Prof. Caric’s campus, but in real courtrooms, it’s a non-starter… which may be one reason why Wilson is writing for Salon instead of actively litigating cases or teaching law these days.
Second, even by the Wonderland definition, Ellers is wrong to claim that the court did not address the “merits,” as Patterico pointed out. As Prof. Caric seems loathe to read Patterico, allow me to quote pp. 30-31 of Judge Batchelder’s opinion, which addresses the FISA claim:
That is very clearly a statement about the legality of the TSP, as Jeff noted back in 2005.
Third:
If this was really true, Ellers would have been pointing out that the primary ruling of the Sixth Circuit here was that Judge Taylor exceeded her constitutional authority. But that’s just another of the sock-puppets that did not bark.
Comment by mojo on 7/9 @ 12:27 pm #
Calls crossing an international border have ALWAYS been fair game for the snoopy boys, most especially in wartime.
I don’t know what’s unclear about that simple fact, or why it seems necessary to restate it endlessly.
Captcha: Ohio situation
Nazis?
Comment by McGehee on 7/9 @ 1:09 pm #
I hate Ohio Nazis.
Pingback by FISA Update: The Left now relies on Pelosi and Reid to thwart the will of the American people [Karl] on 2/19 @ 2:08 pm #
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