A nasty split decsision from an appelate court on how to strike a balance between security and privacy:
An appellate court decision on Wednesday revealed deep and lingering divisions among a dozen judges over the government’s wiretapping powers and the courts’ ability to regulate them.
Deadlocked by a 6-to-6 vote, the United States Court of Appeals for the Second Circuit cleared the way for a lower court to hear a challenge to the constitutionality of broadened wiretapping powers that Congress approved in 2008 at the urging of the George W. Bush administration. . . .
As significant as the decision itself were the sometimes barbed comments of the appellate judges, as they clashed over whether Amnesty International, the American Civil Liberties Union and other groups should be allowed to challenge the constitutionality of the wiretapping powers.
In an unusual turn, 5 of the 12 judges issued separate written opinions on the question of whether the plaintiffs had legal grounds to sue the government.
Judge Gerard E. Lynch, explaining why the lawsuit should move ahead, wrote that the case represented an important test of the balance between the government’s ability to detect national security threats and the plaintiffs’ claims to privacy under the Fourth Amendment.
“The Constitution sets limits on the powers even of Congress,” Judge Lynch 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 G. Jacobs was equally forceful in arguing that the lawsuit should not proceed. He called the suit “frivolous” and likened it to a “plaintiff’s allegation that the C.I.A. is controlling him through a radio embedded in his molar.”
In a related story, Senators in a recent hearing take the Justice Department to task on how the surveillance is beign carrid out.
