Ben O’Neill writes in today’s Mises Daily:
Of course, if one were to apply the general common law (and common sense) principles of evidence to this kind of situation, the solution to this impasse would have been quite simple. Since the NSA is the agency with full control of the programs and full knowledge of their scope and operations, they are the ones who should be expected to testify that a plaintiff does not, in fact, fall within the scope of any of its programs. If they fail to do this then the court should draw an appropriate inference. To assert that the plaintiff lacks standing, while hiding the evidence that would disprove this, and criminalizing its disclosure, flies in the face of this evidentiary rule.
In addition to this undermining of the normal rules for putting forward evidence, the NSA and its partners in the “Five Eyes” have further compounded the destruction of traditional legal principles by spying on privileged attorney-client communications. During trade talks involving the US government, Australian intelligence agencies (partnered with the NSA under the “Five Eyes” program) spied on confidential communications between the Indonesian government and its US attorneys, and communicated this information to the NSA. This led to protests from the US Bar Association, in view of the erosion of attorney-client confidentiality.