The Eavesdropping Case 

Shelby County has figured more than once in judicial decisions of momentous national importance. Arguably, the most influential Supreme Court decision of the last century was Baker v. Carr (1962), which struck down legislative gerrymandering of the crude rural-vs.-urban kind.

The lead plaintiff in Baker v. Carr was the late Charles Baker, longtime chairman of the Shelby County Court, who sued to force state government (Joe Carr was the Tennessee secretary of state) to give equal representation to urban counties in the apportionment of the state's legislative districts. The fallout from Baker v. Carr has affected all reaches of American government — local, state, and federal.

What Baker sought was simple justice, and his manner of radical revisionism was to insist on fidelity to immutable constitutional principles of fairness. He was a "strict constructionist," we are tempted to say.

That point is relevant to the outcome of a ruling issued last Friday by the Sixth Circuit Court of Appeals concerning the legality of the domestic warrantless-search procedures of President George W. Bush. The administration had appealed a 2006 decision by federal judge Anna Diggs Taylor of Detroit in favor of plaintiffs, including the American Civil Liberties Union, which had challenged the administration's ongoing program of arbitrary domestic eavesdropping.

Of the three appeals judges who heard the case, two — Julia Gibbons, a Bush appointee, and Ron Gilman, a Clinton appointee — hailed from Memphis. Gibbons and a fellow judge, appointed by the senior President Bush, constituted a majority of two. They reversed Judge Taylor's prior ruling, on the grounds that the plaintiffs in the case lacked proper standing.

In essence, what the appeals court majority held was that unless the plaintiffs could demonstrate that they had themselves been subject to the kind of surveillance under challenge, they could not sue to challenge it. The bottom line was that the administration, which has claimed the inherent authority for such eavesdropping under the Military Authorization Act that followed the 9/11 attacks, was free to continue.

We believe, along with Judge Gilman, that the perfectly legitimate principle of "standing" was misapplied or applied over-literally in the eavesdropping case.

In finding, as had Judge Taylor, that the eavesdropping procedures were explicitly prohibited by the Federal Intelligence Surveillance Act of 1978, Gilman went on to note that summary judgment had been asked by both sides to the dispute, "[b]ut the government did not contest the plaintiffs' statement of undisputed facts or provide its own statement of undisputed facts. ... If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party."

In short, even on the technical issue, the previous ruling should have been upheld. We await the inevitable Supreme Court ruling on this case, which we expect to be as momentous for this century as Baker v. Carr was for the previous one.

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