Ahhh, I always loved a good conspiracy! Good to see Bush covering his tracks well.
[quote]
The dissenting vote was cast by Appeals Court Judge Ronald Lee Gilman, nominated to the bench in 1997 by President Clinton, who said the plaintiffs were within their rights to sue and it was clear to him the program violated the Foreign Intelligence Surveillance Act of 1978.[/quote]
I also think it’s their right to sue. Absolutely.
I have nothing but total and complete ignorance of the 1978 Foreign Intelligence Surveillance Act.
Sounds like a simple issue of standing to me. To challenge constitutionality of a given action you have to show that it affects you directly, and not merely because you are a citizen or taxpayer. For instance, when the Sierra Club wants to challenge a regulation of a national park, they actually have to send someone to go hike in the park so they’ll be affected by the regulation. Kind of amazing that the ACLU couldn’t find anyone who’s been affected by the spying. 
Don’t let the Smithee’s title fool you. The court did not allow any such thing.
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The suit was dismissed because of a lack of standing. ie the suit was not dismissed with prejudiced.
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there was no final judgment on the merits.
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The court did not rule on the constitutionality of the surveillance program.
nothing to write home about. But it’s a shame the Smithee tries to mislead people with his writing (intentionally or not)
Salon does an in-depth analysis of the case:
Yesterday’s ruling on NSA warrantless eavesdropping
[quote]…the whole point of FISA is to make it illegal for the government to spy on us in secret. And yet spying on us in secret is exactly what the Bush administration did; that is the crux of the lawbreaking here. But [b]precisely because it spied on Americans in secret rather than with judicial oversight, nobody knows whose conversations they surveilled and we cannot find out.
It is because of this illegal behavior that the plaintiffs are unable to show that they were subjected to this surveillance. To dismiss the case on the ground that the plaintiffs are unable to make this showing, then, is to reward the Bush administration with the ultimate prize (immunity from judicial review) for having broken the law.
Worse still, it means that if the Government breaks the law in secret, it can be immune from being held accountable in a court because no one individual can ever prove that they were directly and uniquely harmed by the illegal conduct, and thus would lack standing to sue.[/b] That result is as destructive as it is Kafka-esque, and it is what happened yesterday. [/quote]
Fortunately, there’s a case in the works where the plaintiff is in the unique position of actually being able to prove that he was surveilled illegally:
In bureaucratic foul-up, US government accidentally gives attorney his own wire-tap logs
[quote]Imagine a government agency, in a bureaucratic foul-up, accidentally gives you a copy of a document marked “top secret.” And it contains a log of some of your private phone calls.
You read it and ponder it and wonder what it all means. Then, two months later, the FBI shows up at your door, demands the document back and orders you to forget you ever saw it.
By all accounts, that’s what happened to Washington D.C. attorney Wendell Belew in August 2004. And it happened at a time when no one outside a small group of high-ranking officials and workaday spooks knew the National Security Agency was listening in on Americans’ phone calls without warrants. Belew didn’t know what to make of the episode. But now, thanks to that government gaffe, he and a colleague have the distinction of being the only Americans who can prove they were specifically eavesdropped upon by the NSA’s surveillance program.
The pair are seeking $1 million each in a closely watched lawsuit against the government, which experts say represents the greatest chance, among over 50 different lawsuits, of convincing a key judge to declare the program illegal.[/quote]