There’s an interesting article in the NY Times today: Arguments on Spy Program Are Heard by Federal Judge – New York Times. [Sorry for the link to the Times, which will eventually expire only to be replaced with a request that you pay $2 for the article, but this coverage is better than other articles I browsed.]

The article talks about a lawsuit brought in Detroit by the ACLU on behalf of James Bamford and other reporters and journalists claiming that the warrantless NSA surveillance is cramping their ability to do newsgathering. The issue before the court now is the same one that is currently before Judge Walker in the EFF’s case against ATT, whether the case can go on without revealing state secrets.

This article shows that the Detroit case is facing some of the same problems the EFF case is facing here.

First, there’s the question of standing. Standing means that the litigants in the lawsuit have to have suffered some actual harm that gives them a right to sue. Lack of standing is a great way for the government to get these cases dismissed. They argue, you can’t prove you were surveilled, and we can’t tell you if you were because that’s a state secret, so you don’t have standing, so the case has to be dismissed. The ACLU case is about the First Amendment, and relies on some more liberalized standing rules in those kinds of cases, but they are clearly facing similar problems. There, though, the lawyers will argue that they don’t have to prove that the plaintiffs or their sources were surveilled, only that the threat of surveillance chilled their First Amendment activities.

Second, and interwoven, is the question of state secrets. More on this later this afternoon.