The revelation last December that the NSA had been actively wiretapping US citizens living in the US in the interest of "national security" has been a major factor in the continuing decline in approval ratings of the President and Congress. The American Civil Liberties Union has also initiated a lawsuit challenging the legality of this surveillance program, claiming that it is tantamount to domestic spying and exceeds the authority granted to the President by the Foreign Intelligence Surveillance Act, which states that surveillance requires a warrant in order to comply with constitutional concerns. The government filed two separate motions to dismiss the case in Federal court today, the first claiming that the plaintiffs have no standing to file, the second says that because of the risk to national security the necessary details that would allow for prosecution of the case cannot be made available.

Their argument also makes no logical sense, it is a tautology. An illegal action whose validity is challenged cannot be challenged because of the illegal nature of the action itself. The executive branch is attempting to put itself in a position where it cannot be challenged on anything because of "national security." It's another example of the scare tactics and bullying that Bush has brought out every time Congress threatened to take him to task for something he had done in the name of the "war on terror." But this is a wholly different sort of opponent for the President. Federal judges are appointed for lifetime terms, and while resisting administrative pressure may jeopardize the future promotions of a federal judge, no other politics come into play once the judge has been appointed. The absolute worst case scenario is that a judge's decision is appealed and then overturned, with no ramifications at all for the original judge. This was the intent of the framers when the constitution was drafted, recognizing the importance of an independent judiciary they made the position as nonpolitical as possible after a judge had been confirmed and appointed.

So bringing out the "national security" bogeyman may not prove to be as effective as it has been in the past. Particularly considering the nature of the complaint; the FISA provides ample opportunity to quickly obtain a wiretap warrant in a secret court where no sensitive issues will be made available to the public, and even this was ignored in the administration's zeal to spy on its own citizens. Fortunately Judge Beeson doesn't seem to be buying it.

It's not as if the president was likely to face a hostile Congress if he asked for more authority in generating warrants for wiretap authority. But that doesn't seem to be how this administration operates, from the beginning it has searched to increase its own authority at the expense of that of both the legislative and judicial branches.

What is unfortunate is that the government's other objection, that of the standing of the ACLU to even file a complaint, could very well lead to the case being dismissed before a judge has a chance to weigh in on the meatier issues at hand. But even that objection is based on somewhat circular reasoning, as the government claims that it would violate national security to release information showing who had been adversely affected by the wiretapping, and therefore since it is unwilling to do so that the initial challenge against the government has no ground upon which to stand. In essence, the plaintiff has no evidence upon which to file suit because the government refuses to give out that information because of what the plaintiff is initially complaining about.

Wrap your heads around that.