The Second Circuit Court of Appeals has ruled that a consortium of groups including the ACLU have legal standing to sue over the expansion in wiretapping powers passed in 2008.

The Circuit Court had ruled that unless a plaintiff could prove that they had been secretly wiretapped, they had no standing to sue, and the court has said that they do have standing.  It made no ruling on the merits:

A district judge in Manhattan had thrown out the lawsuit because he said that the plaintiffs failed to demonstrate they were actually spied upon and did not have legal standing to sue. But the Second Circuit Court of Appeals disagreed, allowing the lawsuit on Monday to move forward.

It found that the groups challenging the wiretapping law, including lawyers and journalists communicating with people overseas who might fall under terrorism investigations, had a reasonable fear that their international calls and e-mails would be monitored by the government.

The district court set up a lovely “Catch-22”. You could not challenge the law unless you had proof that you were wiretapped, but the wiretaps are secret, so you couldn’t sue, and so could not use the courts to prove that you were wiretapped.

I expect the Obama administration to use everything but the kitchen sink to stop this suit, but sovereign immunity will be their first bite at the apple.