Everyone's favorite legal doctrine: Standing!

The 6th Circuit dismissed a suit claiming Bush's domestic spying program is unconstitutional today for lack of standing. The NYTimes doesn't have much:

The 2-1 ruling by the 6th U.S. Circuit Court of Appeals panel was not on the legality of the surveillance program, but it vacated a 2006 order by a lower court in Detroit. That court had found the post-911 warrantless surveillance aimed at uncovering terrorist activity to be unconstitutional, violating rights to privacy and free speech and the separation of powers.

The fulltext is here. Standing fails for a lack of injury-in-fact. The opinion reminds me a lot of Lujan v. Defenders of Wildlife, albeit without the snarky Scalia "alas" ("Respondents' other theories are called, alas ..."). There are three theories for injury: (1) We can't make overseas telephone calls because we're afraid the government is listening and it could violate our confidentiality with the other person on the phone; (2) People in other countries won't want to communicate with us; (3) There is a legitimate expectation of privacy in these communications which, if invaded, gives rise to injury-in-fact. The plaintiffs have six causes of action (First Amendment, Fourth Amendment, Separation of Powers, APA, Title III, FISA) and tied the injuries to the claims.

The court was not impressed: "By claiming six causes of action, the plaintiffs have actually engaged in a thinly veiled, though perfectly acceptable, ruse. To call a spade a spade, the plaintiffs only have one claim, namely, breach of privacy, based on a purported violation of the Fourth Amendment or FISA." So, the court redefines the claims, redefines what they consider the injuries to be for the new claims, and, shock of all shocks, finds there's no standing on any of them. It's one of the classic damned-if-you-do, damned-if-you-don't chokehold-like cases: If you've already done the illegal act, you're punished; if you haven't, you don't have standing yet to challenge its constitutionality.

That being said, isn't it easy enough for the ACLU to find someone who's facing prosecution as a result of the surveillance? Maybe the hard part is figuring out if a charge is, or is not, based on information obtained by the wiretapping? Could the executive remove all injury-in-fact by never disclosing how they got the information through some sort of executive privilege?