2nd Circuit Splits on Wiretap Suit; Judge Claims Lawyers Have 'Fantasy of Persecution'

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A federal appeals court split 6-6 Wednesday on whether to grant en banc review of a decision allowing lawyers, journalists and human rights advocates to challenge a federal wiretap law.

The split decision (PDF) by the New York City-based 2nd U.S. Circuit of Appeals sheds light on divisions in the court, the New York Times reports. The plaintiffs had argued they had standing to challenge amendments to the Foreign Intelligence Surveillance Act because they feared the law would be used to intercept their conversations, according to the New York Law Journal. Five judges issued separate written opinions.

“As significant as the decision itself,” the Times says, “were the sometimes barbed comments of the appellate judges.” The newspaper provides examples.

Judge Gerard Lynch, who was on the original panel that found the plaintiffs had standing, said the suit should be allowed. “The Constitution sets limits on the powers even of Congress,” he wrote. “It is the glory of our system that even our elected leaders must defend the legality of their conduct when challenged.”

Chief Judge Dennis Jacobs was on the other side. “As best I can see,” he wrote, “the only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation.”

Jacobs compared the suit to a “plaintiff’s allegation that the CIA is controlling him through a radio embedded in his molar.”

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