The Supreme Court recently refused to hear an appeal to a 6th Circuit ruling that dismissed a challenge to the constitutionality of the NSA wiretapping program -- not by upholding its constitutionality, but (in a grim Catch-22) holding that because the program was secret the plaintiffs lacked standing to challenge the program.
Julian Sanchez is therefore probably right that in order to refute Andy McCarthy's claim that the Sixth Circuit's rejection of the ACLU's standing to sue over the the Bush administration's wireless wiretapping (and then the Supreme Court rejecting the appeal) demonstrates that the program is constitutional on the merits, one needs merely to restate it. But just in case Tim Lee gives the long version. I'll add that if anything the fact that the two Republican judges on 6CA rested on standing suggests, if anything, that the program isn't constitutional. If they believed the program to be constitutional they could have granted standing -- as the dissenting judge plausibly did -- and simply upheld the program on the merits. Although it's possible in theory that the two conservative judges felt the program was constitutional but decided to rest on an illogical standing argument instead of vindicating the program on the merits, it seems rather unlikely.
I'd have to say this may be my favorite example of McCarthy's hackery since he suddenly reversed course and discovered in 2005 with no textual or logical support that filibusters of judicial nominees are unconstitutional. If all goes well, I think we can expect him to revert back to the correct position in roughly January of 2009.
--Scott Lemieux
