Friday, March 24, 2006

"The founding fathers didn't trust George Washington with unlimited power. Why should we trust George Bush?"

Hat tip to Mark Kleiman of the Reality-Based Community (as I hope we all are) for pointing this out: a candidate to succeed Spitzer as NYAG based his first commercial on a pledge to sue the Bush administration over the warrantless spying scandal, if he's elected. He came up with the fantastic line, "The founding fathers didn't trust George Washington with unlimited power. Why should we trust George Bush?" Maloney even has a sample complaint, or at least what appears to be a rough draft of one.

It would help if he made a more solid case for the State of New York to have standing to sue, at least for discovery of whether residents of New York have been targeted, because of the impossibility of establishing standing otherwise combined with a preponderance of the evidence that New Yorkers have been targeted. Establishing standing to get into court is I think the biggest weakness the complaint would have. Of course with more time and effort he could strengthen his case by finding individual plaintiffs with a strong case for standing, as the ACLU and CCR did.

I also found it a little odd that he refers to violated Fourth Amendment rights as "privacy", a famously penumbral constitutional principle, rather than the straightforward right to freedom from unreasonable search. It was also interesting that he alleged violation of people's First Amendment rights to free speech and free association, which I haven't seen argued regarding the NSA program, but could justify a good argument. As Justice Scalia has persuasively argued, the First Amendment freedom of speech includes the right to control the audience to which you direct your speech.

2 comments:

Anonymous said...

Actually, standing is a big problem with the cases you cite because proof of actual wiretapping is impossible to obtain.

Standing would actually be less of an issue for Mr. Maloney (or any AG that chooses to file suit, for that matter). You raise some interesting questions. Perhaps you should pass on your concerns to Mr. Maloney's campaign directly?

bryan @ shotgunfreude said...

Standing is a problem with them, but they are still specific individuals with a strong presumption of having been specifically injured by the criminal enterprise of the spying - and making it reasonable to argue before the judge that because the nature of the crime will prevent any of its victims from having a priori standing, justice requires that he at least acknowledge their standing to proceed with pre-trial discovery.

The New York AG does have standing to criminally prosecute on behalf of the people of New York who have been victims of illegal wiretapping, through New York's wiretapping statute - but he still doesn't have proof that anyone in New York has been illegally wiretapped - he has only a presumption; but he also, so far, has no specific test cases to investigate whether any New Yorkers have been illegally wiretapped.