The fundamental defect of the case of ACLU v. NSA is that it is wholly contrived. Faked from beginning to end. The claim of standing is for conduct that simply does not exist.

Many Americans are clear-headed enough to understand that while we are under assault by Muslims around the world, all of whom are fighting in the name of an Islamic world state, we are no less under assault by the liberal Elite who seek to undermine national existence as they agitate for a world state no less “universal.” This convergence of world state ideologies, however, presents America and the West with a two-front war not yet fully acknowledged. Even the conservative pundits who recognize the liberal “assault on our values” don’t seem to grasp that what is at risk is our national existence. This is brought home when these same conservatives embrace “human rights” and “democracy” as a kind of universal natural right that is said to trigger a law of nature that should mystically defang and even pacify war-mongering Muslims and other tyrannical ideologues the world over. Failure to understand that the attempt to universalize the American experience or to transform the U.S. constitution into a humanist document which recognizes no national interest because its only purpose is to continue to expand “civil” or “human” rights will result in a nation incapable of defending itself. In this battle over our constitution and homeland, there is no greater foe than the American Civil Liberties Union.

A concrete example of this convergence and, specifically, the assault by the Elites is the manufactured case of The ACLU et al. v. The National Security Agency et al., filed in the U.S. District Court for the Eastern District of Michigan, Southern Division. This case has gained immediate notoriety because the court rushed to judgment eleven days ago and gave the ACLU everything it wanted on a silver platter (save for one hors d'oeuvre). At present, there is no better case exemplifying the Elite’s war on our nation, our national security and the U.S. Constitution.

Much ink has already been spilt over the court’s opinion, a legal abomination, in the context of the substantive issues raised and disposed of, so we will not belabor the points already well covered by the print media and even better covered by the web logs manned by high-brow law professors and lawyers typically claiming some fame by listing a government-related employment in their resumes. What we will do is focus on one issue, judicial standing, and its relation to the assault on national existence. We will try to avoid a legalistic discussion because our intent here is to place this case in the context of the modus operandi used by the ACLU to re-write constitutional law without recourse to the difficult political process of drafting and ratifying a constitutional amendment. This political amendment process, difficult and cumbersome as it may be, is of course what the Founding Fathers had in mind for innovators and their innovations to the constitutional fabric woven so intricately in the original document we hold to be, almost sacredly, the Law of the Land.

For those of you who may not know, the ACLU has a long and successful history of setting up artificial if not wholly contrived “cases and controversies” to make destructive federal case law. Indeed, their specialty is to effect constitutional amendments through the fiat of federal appellate case law, thereby avoiding the difficult amendment process where you need the country’s overwhelming approval and not just a handful of appointed lawyers who sit in judgment without any checks or balances.

As everyone should know, one of the most important checks on the abuse of judicial power is the restriction of a court’s jurisdiction to actual “cases and controversies.” At the federal level this is enshrined in Article III of the Constitution. This very important constitutional limitation is an effective brake on the reach of the courts’ power because it turns courts into passive actors, not active participants, in setting government policy and law. When, however, the courts engage in a charade with the participants — usually plaintiffs like the ACLU — the brake is released and the steamrolling begins.

While federal case law defines what a case or controversy is quite specifically, as a factual matter at the margins it can get fuzzy. But the hornbook rule is clear enough. Some person or legal entity must have suffered a real harm (“an injury in fact – an invasion of a legally protected interest,” “concrete and particularized,” “actual or imminent, not conjectural or hypothetical,” casually connected to the act complained of that is likely remedied by the court’s decision). This harm is what gives parties “standing” to sue. Without this most essential rule, the courts can, with the connivance of a claimant or a claimant’s lawyers, play a forceful and active role in creating law and policy never intended by the Constitution or our founders.

An example of just this sort of affair occurred 100 years ago in what became known then as the “Dynamiters Case.” It is a fascinating tale of labor union heads involved in terrorist bombings, murder and arson. When authorities seized documentation evidencing the planning behind the violent and deadly acts, important labor leaders confessed to their crimes, to the dismay of their political overlords and union powerbrokers. The crime and subsequent convictions were a shock to the nation and a severe body blow to the young, emerging labor union movement. But what makes the Dynamiters Case relevant to this discussion is the subsequent fiction known as the Supreme Court case of Weeks v. United States (1914). In a carefully documented and well argued book (Bombers, Bolsheviks and Bootleggers), attorney Leon F. Scully, Jr., explains to us how the political and labor union supporters of the day pursued and set up this case in a way to enlist the Supreme Court’s help in crafting a new Fourth Amendment protection against unlawful searches and seizures. The point of this new rule, ultimately referred to as the Exclusionary Rule, was to exclude perfectly probative evidence of a crime if government investigators failed to dot their i’s and cross their t’s in the obtaining and execution of a search warrant.

An evidentiary rule wholly foreign to Anglo-American jurisprudence and no where to be found in the Constitution became the Law of the Land literally overnight, grafted onto the Fourth Amendment with nary a whimper. Scully explains how the Weeks case was literally stage-managed to deliver this ruling so that it could be applied to overturn the convictions of the Dynamiters as that case wound its way through the appellate process. While presidential pardons and the First World War intervened to render the federal Exclusionary Rule of Weeks unavailing to the Dynamiters, it ultimately became the tool used by the Supreme Court in Mapp v. Ohio (1961). As Scully artfully allows the historical facts to detail, Mapp was quite simply a case “suborned by the ACLU” to extend the federal exclusionary rule to the states.

We look back on these rulings by the Supreme Court because they most adequately illustrate how a court bent on crafting constitutional law out of whole cloth will participate in a staged affair so that the “facts before the court” – the work of dishonest lawyers and their co-conspirators – provide the canvas for the short-circuiting and actual usurpation of the political process by judges and justices bent on writing the Law of the Land by their own hands. What makes this theft of constitutional and political authority most egregious is the fact that once a mere five justices of the Court have ruled, there is absolutely no check or balance or separation of powers that can undo the harm done. The only “check” is the battle over the cushioned chairs vacated by retired or deceased justices. Of all the harebrain theories concocted by law professors and political scientists about what the constitution “really” means and what the Founders really intended by way of Separation of Powers, it most certainly cannot mean that the first word, the intervening word, and the last word on constitutional law is the Court itself, governed only by the possibility of a later reversal.  In effect, if the justices themselves are the “check” on the Court’s abuse of power, the constitutional amendment process has been diluted from a requirement mandating the approval of three-fourths of the states to a 5-4 vote of a single committee of appointed lawyers.

In our case at bar, everyone knows or should know that the ACLU has won the first round in the obscene game of choose-your-district-court. It is no secret why the ACLU chose the Eastern District of Michigan for its filing in ACLU v. NSA. While the ACLU claims it was for the convenience of several of the plaintiffs in the event of an evidentiary hearing, this is a cover story for what everyone recognizes as simple forum shopping. The ACLU knew quite well which “forum” to choose. Metropolitan Detroit has the largest concentration of Arabs in the US. Over 350,000 people of Arabic heritage call Metro Detroit home, which boasts more than 3,000 Arab-owned businesses. The ACLU understood that judges who live and work among so many Arabs are bound to associate with Arab-Americans and have a high likelihood of socializing with Arab0Americans. When you add to that mix that Arabs in Michigan tend to be wealthy and well-educated, you understand how the ACLU hedged its bets. Arab-Americans are predominantly Muslim and as Muslims they are opposed to the “War Against Terror” because it “unfairly” singles out Muslims (yes, that is the actual argument).

In addition to choosing the right district court, the ACLU got very lucky when Judge Anna Diggs Taylor was assigned to the case.  Judge Taylor is a Carter appointee who had in the past served as chief federal judge of the Eastern District of Michigan. While several local practitioners claim she is not the most wild-eyed liberal on the bench in the district, her professional life has been anchored in civil rights and Democratic politics and her opinion in the NSA case suggests she was the perfect choice.

But the pièce de résistance of this case is the case or controversy itself. There simply is none. What the ACLU did in this non-justiciable political controversy is to enlist a group of Liberal Elite lawyers, academics, and journalists, all of whom submitted sworn affidavits to attest to the fact that they are in constant telephone and email contact with al Qaeda-linked individuals, or individuals the U.S. government would be expected to suspect to be linked to international terrorists, and that as a result of the NSA surveillance program, their terrorist-linked clients, contacts, and associates won’t talk to the ACLU and their hearty band of plaintiffs anymore except in person. Telephones and emails are apparently out. This is known famously as the “chilling effect.”

Note that the plaintiffs do not allege any facts that the US has actually conducted surveillance of any of the communications of the plaintiffs or even of their terrorist-linked friends. They don’t for two reasons. One, they don’t have any such facts available to them. And, two, if the ACLU did allege such facts and their case boiled down to requiring proof that the NSA had actually harmed the plaintiffs by in fact conducting surveillance on their terrorist-linked associates, the US government could and would successfully enlist the state secrets privilege.  This sensible judicial rule states that if the government must expose national security secrets to defend itself (i.e., no we didn’t conduct surveillance on X only on Y and Z or if we did conduct surveillance on X, he is a known terrorist and this is why it was a matter of urgent national security to do so), the case should be dismissed because the country’s national security and existence trumps civil litigation.

Indeed, Judge Taylor rejected the government’s assertion of this privilege in this case in all but one count on the very grounds that the government need not expose any specifics because the ACLU was not alleging any actual or specific surveillance, only the existence of a program now fully exposed to the public that might involve the surveillance of the terrorist-linked friends of the ACLU. In other words, the ACLU does not allege any actual conduct that harms anyone, only the existence of a national security program that if used as first advertised by the New York Times, might scare off some suspect foreigners from telephoning their friends at the ACLU. And, for the final leg of the complaint to stand, this “chilling effect” would harm the ACLU and its group of patriotic plaintiffs in their ability to conduct their professional responsibilities by forcing them to actually travel to these countries and speak to their terrorist-linked associates in person.

Liberals argue that under the government’s theory, if you allege actual conduct to obtain standing, the state secrets privilege will nail you and if you don’t, as in this case, the standing requirement cripples you. A classic damned if you do and damned if you don’t. While this is in fact so, it misses the point of the Catch-22. This case and others like it do not belong in the courts. This is a non-justiciable constitutional conflict between separate branches of government. On the one side is the President acting as Commander-in-Chief, protecting this country against real foreign and domestic terrorists, who are coordinating their activities worldwide via electronic communications and who have proven themselves resourceful and successful in a focused and sworn effort to destroy this country. The President stands firmly on his Article II authority. On the other side is Congress, pitting its claim of the Constitution’s grant of legislative authority under Article I, which allows Congress to restrict the President’s power as Commander-in-Chief to conduct war-time surveillance. Congress insists that the President is at his constitutional weakest once it passed legislation (i.e., Foreign Intelligence Surveillance Act) placing restrictions on the conduct of a war that necessarily touches the Homeland.

The Constitution does not resolve this issue in any explicit or definitive way. Rather, it is an issue decided by a single divide not related meaningfully to legal analysis per se. For those who value national existence and the safety of our physical existence first and foremost, and who recognize that the loss of liberty involved in communicating with suspected foreign terrorists by telephone without the “chilling effects” of a government surveillance program is not consequential, they are certain the President as our Commander-in-Chief prevails and a strong constitutional argument can be made citing the expressed language of Article II. For those whose priority is not national existence in any real or physical sense but “rights” and “liberties” – then an argument can be made that the President acted unlawfully because Congress has the authority to pass laws under Article I and the President is duty bound to protect and preserve the Constitution and the laws promulgated thereunder.

But this is a constitutional question with no answer in the law. It is a question outside the purview of nine lawyers wholly unsuited to making such a determination. Indeed, the very contest over constitutional authority suggests that the Commander-in-Chief acting during the exigencies of war need not explain himself to the nine justices of the Court any more than he must to Congress. And, the Founders understood this as well, which is why there is no explicit resolution in the Constitution. Anyone who says otherwise has simply not read the document. However one might argue the specific provisions of Article I (Congress), Article II (the President) or Article III (the Court), there is no definitive constitutional rule that governs.

But this doesn’t prevent us from asking the quite obvious question. Why should the President’s assertion of expressed constitutional authority in war time be limited by a Court, whose very authority in such circumstances is at least as suspect as the President’s? Or, put differently, is the Court the one branch of government not subject to the Separation of Powers doctrine? Understood in this context, it is clear that the arbiter of this non-justiciable question is decidedly not the courts. If one takes the position that it is the Supreme Court’s role to arbitrate over these fundamental questions of national existence and governance, then there is no such thing as the Separation of Powers or Balance of Powers doctrines. The Court trumps all. All powerful and separated from no sphere of governance. And, as we learned in Hamdan just a few months ago, even when Congress acts under its explicit Article III power to take jurisdiction away from the Court, the Court simply reads the law inside out to nullify its plain meaning and effect.

And of course there are quite reasonable constitutional and political resolutions of this conflict of Separate Powers without turning our Constitutional Republic into a Judicial Tyranny. First, Congress controls the President’s purse strings. This power alone is enough to bring any high-flying president to his knees. Second, unlike unelected and life-tenured justices of the Court, the President must face the electorate at the end of his first term and in any event may not serve more than eight years. If the Court rules incorrectly, we are saddled with its decision indefinitely or until enough of the ruling majority dies or voluntarily retires, a move not chosen by nearly enough justices.

But aside from all of this constitutional theory, the fundamental defect of the case of ACLU v. NSA is, as I have suggested, that it is wholly contrived. Faked from beginning to end. First, the claim of standing is for conduct that does not exist. The plaintiffs have no idea and don’t allege that any actual surveillance of them is taking place or of their terrorist-linked associates. It is pure hypothetical and conjecture. Their claim is akin to me alleging that my neighbor John has a temper and has been known to get so angry that he hits people – notably blonde-haired people. This temper is widely known. My blonde-haired friends will no longer associate with me because they fear John’s well-known assaults on similar types might subject them to harm. I therefore have standing to sue John for assault (with no evidence or allegation that he has hit me or any of my blonde friends) and ask this court to enjoin him from assaulting anyone. While we can all laugh at the legal theory of the claim itself, the question here is whether I would have any standing to sue. What concrete or particularized conduct has interfered with a legally protected right that I have against John?

The answer is none. There is no allegation of any particularized or concrete conduct directed against me or my friends. In the NSA case, the same is true. There is no actual conduct alleged, rather its possibility because of the existence of a program that might conduct surveillance of people linked to terrorism. This hypothetical conduct then leads people to curtail their communications due to the “chilling effect” – an effect for which the ACLU can thank the New York Times. Maybe, the standing issue could be resolved if the ACLU and its band of merry plaintiffs sued the Times for illegally disclosing the program and tortiously interfering with their business and contractual relationships.

But none of this stopped or even slowed down Judge Anna Diggs Taylor. She whisked right past the standing issue so she could craft new constitutional law. Indeed, notwithstanding that this case was argued before her a mere month earlier (a time period of almost zero relevance in federal court), Judge Taylor was able to digest the issues and write what everyone agrees was a poorly written and even more poorly conceived 44-page opinion. Why? All in an effort to find her place in the annals of jurisprudence? We ought not to dismiss too cavalierly the other consideration: another group of liberals out to protect us from the chilling effect had filed a similar action in the District Court of the Southern District of New York. The good judge knew quite well that the spotlight shines brightest on the first to make an appearance and take a bow (I don’t imagine women judges actually curtsy).

We will take up later in a future essay the actual legal theories this judge used to decide the case, theories that almost all commentators have found to be weak at best and flatly wrong at worst. And, mind you, these are the legal Elites commenting (who almost all begin their commentary by, “while I don’t believe the NSA program is legal, I find this opinion . . .”). What is important now is that we keep our eyes on the ball. What is most important today, for our purposes, is to understand how the ACLU and compliant if not fully conspiratorial judges manipulate the legal system to remake this country, the Constitution, and its political system to fit the image of a World State ideology, where the ever expanding “rights” of its ever-expanding minorities soon devour what is left of Peoplehood and national existence. And they accomplish this without politics; just good ol’ fashion lawyering.