The useful idiots and the 9th circus

NY Times:

Three federal appeals court judges hearing challenges to the National Security Agency’s surveillance programs appeared skeptical of and sometimes hostile to the Bush administration’s central argument Wednesday: that national security concerns require that the lawsuits be dismissed.

“Is it the government’s position that when our country is engaged in a war that the power of the executive when it comes to wiretapping is unchecked?” Judge Harry Pregerson asked a government lawyer. His tone was one of incredulity and frustration.

Gregory G. Garre, a deputy solicitor general representing the administration, replied that the courts had a role, though a limited one, in assessing the government’s assertion of the so-called state secrets privilege, which can require the dismissal of suits that could endanger national security. Judges, he said, must give executive branch determinations “utmost deference.”

“Litigating this action could result in exceptionally grave harm to the national security of the United States,” Mr. Garre said, referring to the assessment of intelligence officials.

The three judges, members of the United States Court of Appeals for the Ninth Circuit, were hearing arguments in two lawsuits challenging the highly classified surveillance programs, which the administration says are essential in fighting international terrorism. The appeals were the first to reach the court after dozens of suits against the government and telecommunications companies over N.S.A. surveillance were consolidated last year before the chief judge of the federal trial court here, Vaughn R. Walker.

The appeals concern two related questions that must be answered before the merits of the challenges can be considered: whether the plaintiffs can clearly establish that they have been injured by the programs, giving them standing to sue; and whether the state secrets privilege requires dismissal of the suits on national security grounds.

Though the questions are preliminary, the impact of the appeals court’s ruling may be quite broad. Should it rule for the government on either ground, the legality of the N.S.A. programs may never be adjudicated.

All three judges indicated that they were inclined to allow one or both cases to go forward for at least limited additional proceedings before Judge Walker.

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There is a reason why the useful idiots did their forum shopping in the Ninth Circuit. It is the most liberal and the most likely to go along with the idiocy. Fortunately, it is held in such low esteem by the Supreme Court it is also the most likely to be overturned. The Plaintiff are hoping for some political momentum, if they eek out a defeat for the defense of the country. They take comfort from the fact that the appeals court has not poured them out of court on reading their briefs. Our enemies also take heart from the damage these useful idiots can do to national security while accomplishing nothing of value for the people they claim to represent.