March 4 (Bloomberg) -- Think Big Brother is tapping your phone and reading your e-mail? Want to go to court and make the government prove its surveillance program is constitutional? Well, you can’t, according to the U.S. Supreme Court’s recent ruling, because you can’t say for sure that your privacy has been breached.
In case this Catch-22 doesn’t bother you enough, there’s more. The court on Feb. 26 decided not to hear complaints involving the Foreign Intelligence Surveillance Act, as amended in 2008. That law says the government can intercept any communication between the U.S. and any non-U.S. citizen abroad provided its purpose is to obtain foreign intelligence (duh) and it uses generic procedures to minimize privacy intrusion -- procedures that we are (surprise) not allowed to know.
It used to be that the government had to get case-specific permission from the secret Foreign Intelligence Surveillance Court for each wiretap. Since 2008, however, that court seems to lack specific supervision authority: It just signs a blank check for the system.
While the exact procedures remain behind a government veil, what the law means in practice is modestly clear: officials almost certainly start by accessing every phone call abroad and every e-mail to a non-U.S. recipient, then use data mining to “narrow” the search before drilling down. If this isn’t quite what the Pentagon embarrassingly but accurately called “Total Information Awareness” in 2002, it is certainly close.
The reason to think this is the system is that the technology exists, and there is no other way to keep an eye on such a large volume of communication. So every time you pick up the phone to call London or e-mail someone abroad, a government computer, and possibly a live intelligence officer, is in the know. Think of it as Google Inc.’s Gmail on an even grander scale.
OK, let’s say you have no secrets that you don’t want the government to know and are happy to sacrifice some privacy to help track terrorists. Even then, don’t you still want to know how the Supreme Court reached its conclusion?
The court acknowledged the structure of surveillance, but denied U.S. plaintiffs their day in court because they lacked standing, which requires that an injury be “concrete, particularized, and actual or imminent.” The catalog of reasons that Justice Samuel Alito provided in his majority decision makes for shocking reading.
For one thing, Alito wrote, the plaintiffs don’t know how the government targets people -- so how can they think that they’re targeted? The government might be using some other method to spy on them, so how can they know it will use this one? The security court might deny such authority, and because its decisions are secret, they can’t know they haven’t been targeted. The government might fail to capture their communications with the target.
These arguments would be funny if they weren’t being used to deny a hearing on constitutional rights that everyone knows are real. Oh, and where did the arguments originate? From the Barack Obama administration’s Department of Justice, which won this grand victory by persuading the court’s five Republican appointees and none of the Democratic ones, including Justice Elena Kagan, Obama’s former solicitor general.
The plaintiffs, represented by the American Civil Liberties Union, had a perfect rejoinder to these absurdist arguments: If we don’t have standing to sue, no one ever will, and the government’s post-2008 surveillance program will never be subject to constitutional scrutiny.
The Supreme Court rejected this argument, too. First, it quoted a 1982 opinion by then-Justice William Rehnquist to the effect that “the assumption that if respondents have no standing to sue, no one would have standing, isn’t a reason to find standing.” It then asserted, laughably, that the system might still be reviewed if the government publicly used secretly obtained information in prosecuting a defendant.
Finally, Alito explained that the government’s program was subject to review by the Foreign Intelligence Surveillance Court. Unfortunately, that court captures everything that has gone wrong in the encroachment of secrecy into the constitutional protections of the rule of law.
It was created in 1978 as secret body to review government surveillance requests back in the dark ages, when specific directives were still required for each wiretap. The government always appeared in the court unopposed by any advocate for the surveillance target; existing data suggest its requests were almost never turned down. Perhaps the secrecy and non-adversarial nature of the court was justified insofar as its job was to grant warrants. But it should be obvious that such a court cannot engage in serious constitutional review, because no one other than the government appears before it.
Alito also said that the court has its own review panel, an appellate “court” of three judges whose job is to review denials in the unlikely event that the government should lose its initial request. Like the regular court, the review panel has no one before it but the government advocates. It was this body that reviewed and affirmed the constitutionality of the entire government surveillance program in 2008. The opinion, one of only two ever issued by the panel, was released in a heavily redacted form.
Still, we know that the review panel didn’t hear arguments from anyone whose rights would actually have been infringed. Instead, the argument against the constitutionality of the surveillance program was mounted by the (anonymous) telecommunications-industry service providers who were the targets of the warrants issued by the surveillance courts. Two main interests of those companies are to keep costs low and the government happy -- hardly the basis for a rigorous adversarial challenge to a government program based on national security.
By claiming that the review panel’s judgment is an adequate avenue for constitutional review, the Supreme Court embraced the creeping norm of secret and quasi-secret legal proceedings. The Obama administration’s claim that the court satisfied due process for U.S. citizens targeted abroad via secret internal review is another version of the same tendency.
It’s always sad when a court won’t allow citizens to assert their constitutional rights. When the Supreme Court says secret, nonadversarial proceedings are good enough, it’s even sadder.
(Noah Feldman, a law professor at Harvard University and the author of “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices,” is a Bloomberg View columnist. Follow him on Twitter. The opinions expressed are his own.)
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