The district court held that the plaintiffs had standing to challenge the warrantless NSA surveillance program. The plaintiffs are individuals and associations whose members "conducted regular international and telephone and internet communications for various uncontestedly legitimate reasons including journalism, the practice of law, and scholarship." They asserted a "well founded belief" that they had been subjected to warrantless surveillance and that the existence of the program had actually "chilled" their communications with persons overseas. None of the plaintiffs alleged, however, that they had actually been surveilled under the NSA program.

The Supreme Court has held that, to establish standing, the plaintiffs must allege an injury that is concrete and particularized, not hypothetical and conjectural. Cases in the past decade or so have shown that this doctrine is quite flexible, allowing the Court to sidestep difficult or particularly sensitive constitutional questions where there's even a doubt about whether the standing threshold has been met. An example of this technical maneuver to avoid consideration of a thorny constitutional issue is the Supreme Court's recent decision to reject a non-custodial atheist father's claim that it is unconstitutional for public schools to lead children in reciting the phrase "under God" in the Pledge of Allegiance. Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1 (2004) (dismissing claim on the ground that the father lacked standing). Justice Stevens's majority opinion declared: "The command to guard zealously and exercise rarely our power to make constitutional pro-nouncements requires strictest adherence when matters of great national significance are at stake." Id. at 11 (emphasis added).

The district court nevertheless thought the plaintiffs had met this standard because the "chilling" effect from the very existence of the program was clear. The court then cited cases in which plaintiffs had adequately alleged chilling and other effects from the operation of federal laws. The problem is that, in each case, there was no question that the plaintiffs had actually been subjected to the regulation in question, not simply whether they might be. Once the application was clear, a chilling effect surely suffices as a sufficiently concrete injury. But the predicate is not clearly met in this case.

I am one of those who believes that the NSA program is not authorized by the AUMF, that it violates FISA, that FISA is a constitutional exercise of congressional power, and that therefore the NSA program is both illegal and unconstitutional. I have written so here. But I am less sure this is an issue courts should review, and even less sure that this case is one they should review.

So while the much sexier questions of executive power, the First Amendment, and the Fourth Amendment, will no doubt occupy many of us over the coming months (as they already have), I'd be willing to bet that at either the appellate court or the Supreme Court the suit will be dismissed for lack of standing.

(Meanwhile, with all this going on, ABC led its evening news with the latest from the Jon Benet Ramsey case.)