ADDED: My analysis of standing is at that link, but we're talking about it in the comments here. Marty Lederman was nice enough to comment and say he appreciated my analysis, so let's look at what he wrote about the case. He says that the standing analysis is "complicated -- real FedCourts inside baseball" and opines that ordinary people are unlikely to sit through the explanation.
This really is a problem with fedcourts doctrine. You have strange, alienating doctrine that prevents courts from doing what it seems that courts are for: deciding the case on the merits. Judges act as though they are carrying out some higher calling when they decline to act, and maybe they are, but if what they are doing is incomprehensible to people, they are likely to draw their conclusions about the quality of the case based on the outcome.
Lederman says that the Supreme Court's standing doctrine is "a mess" -- but that's mainly true because the Court is composed of some very different individuals, some of whom would never have adopted the constitutionalized 3-part injury-in-fact test in the first place and because the test must be applied in complex and varied fact settings, which has given the Court's swing voters room to affect outcomes in a pragmatic fashion. The mess could be cleaned up pretty easily by replacing a justice or two. Which way do you want it cleaned up? Would you rather have it kept a mess than cleaned up the way you don't like? If yes, then you should understand why we've got the mess.
Marty observes that whatever you might say about the injury to these plaintiffs, it can at least be said that the program they challenge is injuring someone, and it's a real, not a hypothetical controversy. The constitutional aspect of standing doctrine is a gloss on the Article III definition of "the Judicial Power" in terms of "cases" and "controversies," and Marty seems inclined to revive the way the Warren Court used to talk about standing doctrine. We definitely have a real controversy, so why stress the concrete and particularized injury to these plaintiffs? He blames the defendants for withholding the information about who the program has actually targeted: "What constitutional value is served by allowing that type of uncertainty -- wholly a function of the government's own refusal to identify the victims -- to be grounds for avoiding a resolution on the merits?"
I think the answer, for those who support the current standing doctrine, is that standing is required across the board, and you don't get to create exceptions to the requirements in individual instances where the case seems justified. Standing is a matter of the constitutional limit on judicial power, so nothing that the parties do can enlarge it. Even if the Executive Branch wanted the federal court to decide a case beyond the Article III judicial power they would have to decline. If Congress passed a statute granting jurisdiction beyond the judicial power, it would be unconstitutional. These constitutional limits on the courts' power are just as important as the limits on the executive power that you wish they would address.
That's the strong view of standing -- which goes along with a strict view of separation of powers. Not all the justices support the strong view all the time. I note that in Laidlaw, the case that Judge Gilmore relied on, Justice Scalia was forced to rail about this sort of thing in dissent (joined only by Justice Thomas).
And let me flag this new post by Patterico, which shows that Glenn Greenwald was wrong when he asserted that only the dissenting judge in the 6th Circuit case had anything to say about the substantive merits of the plaintiffs' claims. In fact, Judge Batchelder wrote that the plaintiffs failed to state a claim under Title III and FISA. As quoted by Patterico (who adds emphasis):
It is undisputed that the NSA intercepts international, rather than domestic, communications, so . . . Title III does not apply. Moreover, because the plaintiffs have not shown, and cannot show, that the NSA engages in activities satisfying the statutory definition of “electronic surveillance,” the plaintiffs cannot demonstrate that FISA does apply.Patterico is right, but I'm not impressed by the way Batchelder disposed of these two claims on the merits. With respect to the plaintiffs' constitutional claims, she said that the plaintiffs' lacked standing. But the same lack of standing would apply to the statutory claims and should have precluded her from reaching the merits. And Batchelder ought to have wanted to coordinate with Gibbons on a single opinion. It looks rather obvious to me that Batchelder wanted to have it both ways and be strict about standing and still talk about the merits. That doesn't add up. And Gibbons did well to refuse to join it.
I can't stand Greenwald's posturing about how all the judges who have reached the merits have found the program illegal. It's not surprising that the judges who are lax about standing also lean toward restricting the President's power in national security. These are both liberal positions. The judges who stop at the level of standing are the judges who would be most likely to find the program legal. So Glenn's point doesn't impress me. Patterico shows that Glenn is wrong. But ironically, Batchelder would look a whole lot better if Glenn were right.