Private: Unchecked Spying

By Professor David D. Cole, Professor of Law, Georgetown Law

What if the government was tapping your phone unconstitutionally and there was nothing you could do about it? You’d be living in the United States of America, at least as understood by the Justice Department. Solicitor General Donald Verrilli, Jr., argued in the Supreme Court on Monday, October 29, that, for all practical purposes, the government’s authority to intercept Americans’ international phone calls and emails could not be challenged by the very people most likely to be harmed by it – lawyers, journalists, and human rights activists who regularly engage in such international communications on the very subjects and with the very people the government is likely to be monitoring. Resolution of the case, Clapper v. Amnesty International, may determine whether the most expansive government spying program ever authorized by Congress will be subject to adversarial constitutional review. 

The Bush administration famously argued that the president’s actions in “engaging the enemy” in the “war on terror” could not be limited by the other branches. It used that argument to justify a secret warrantless wiretapping program run by the National Security Agency that monitored United States citizens’ international communications, in contravention of a criminal statute.  Richard Nixon similarly asserted, when asked by David Frost why he thought he could authorize warrantless wiretapping during the Vietnam War, that “if the President does it, that means it’s not illegal.” To his credit, President Obama has rejected these theories of uncheckable power.  But in defending the most sweeping electronic surveillance authority Congress has ever enacted, he has sought a similar result by contending that, for all practical purposes, the surveillance cannot be challenged in court.

Monday’s oral argument was in one sense highly technical – it did not address the constitutional merits of the surveillance program, but only whether the plaintiffs had “standing” to challenge the program in court. But as in the Court’s cases about whether habeas corpus extended to Guantanamo, this may be the most basic question of all.  If the program cannot be challenged by those who are most likely to be affected by it, the American people have little or no assurance that the program is constitutionally valid. Surveillance, the Supreme Court has long ruled, must be conducted in accordance with Fourth Amendment limits. But if the program can’t be challenged, what guarantee is there that those limits are being followed?

The statute at issue, the FISA Amendments Act of 2008 (FAA), was enacted in the wake of the disclosure of President Bush’s secret National Security Agency warrantless wiretapping program.  The law it amended, the Foreign Intelligence Surveillance Act, or FISA, already authorized targeted electronic surveillance of persons whom the government had probable cause to believe were “foreign agents” or members of “foreign terrorist organizations.”  The FAA expanded that authority by permitting surveillance without a showing that the targets were foreign agents or otherwise linked to terrorism, and without specifying what communications facilities would be intercepted.  Although the authority is limited to surveillance targeted at non-U.S. citizens abroad, the surveillance can encompass communications between those targets and persons in the United States. According to the ACLU, the statute violates the First and Fourth Amendments by authorizing sweeping “dragnet” surveillance without individualized suspicion. 

The government has yet to defend the law on its merits. Instead, it argued that the case should be dismissed because none of the plaintiffs could show that they had been subject to surveillance under the statute, or that surveillance of them was “certainly impending.” The catch is that they cannot possibly make such a showing, because the law authorizes secret monitoring, without any requirement that persons overheard ever be notified, even after the fact, that their conversations were intercepted. The U.S. Court of Appeals for the Second Circuit rejected the government’s theory, reasoning that the plaintiffs had shown, based on the subject matter of their communications and the identity of those with whom they communicated, that they faced a substantial risk that their conversations would be intercepted, and that they were therefore forced to take costly protective measures now to avoid that risk. The plaintiffs include lawyers who represent detainees at Guantanamo and Bagram Air Force Base, and who regularly must speak with individuals in Pakistan, Afghanistan and elsewhere about matters relating to those cases.  Because those communications must remain confidential, they are forced to avoid using the phone or email, and instead fly overseas to conduct interviews, or to avoid inquiring into certain subjects when they rely on phone or email. The Second Circuit found that the need to take reasonable concrete measures to respond to a substantial risk of future injury provides sufficient injury to assure the concrete case or controversy required by Article III of the Constitution.

The Obama administration sought Supreme Court review, which the Court granted -- never a good sign for the prevailing party below. Monday’s oral argument, however, suggested that a majority of the Court may conclude that those who must take reasonable measures now to respond to a substantial risk of surveillance have sufficient injuries to satisfy standing requirements. When Solicitor General Verrilli insisted that only those who can show that surveillance is “certainly impending” have standing, Justices Ruth Bader Ginsburg and Sonia Sotomayor countered that given the secret nature of the surveillance, that standard would mean that even plainly unconstitutional surveillance would be effectively immune from judicial review.  Justice Elena Kagan said it would only be common sense for a lawyer in plaintiffs’ shoes to take protective measures, and Justice Anthony Kennedy said he thought it would be malpractice not to take such steps. Justice Breyer also expressed sympathy for the plaintiffs’ right to seek judicial review.

Granting standing here would hardly be unprecedented. The Court has in the past granted standing to farmers who had to take protective measures to ward off the risk that their crops would be affected by pollination from genetically altered alfalfa that the government approved, and to a film distributor who had to take protective measures to counteract the risk of reputational harm that might be caused by a “propaganda” label the government affixed to certain foreign films he wanted to show. The Court has also recognized, particularly when constitutionally protected speech is at risk, that the mere enactment of a statute can give standing to those whose speech might be affected by the statute, even before it is enforced and there is only a risk that it will be enforced against plaintiffs. Those cases, taken together, should support standing here, where plaintiffs’ speech has already been affected by the enactment of a statute designed to authorize surveillance of the very types of communications in which they engage.

As in the Guantanamo cases, a ruling for the plaintiffs would say nothing about the merits of the underlying legal challenge. It would merely ensure that the courthouse door is open. But as with Guantanamo, that is no small matter. The threshold question that this case poses, like the Guantanamo cases, is whether the courts will remain open to subject government national security initiatives to adversarial testing. 

Even a ruling in plaintiffs’ favor on standing, however, will not guarantee a test on the merits.  At one point in the argument, Solicitor General Verrilli adverted to the possibility that the government might invoke the “state secrets” privilege, which allows the government to dismiss cases against it by proclaiming their subject matter secret. If it does so, plaintiffs will face yet another major hurdle to a ruling on their claims. Why, one wonders, is the government so worried about having to defend the constitutionality of this statute on the merits?

Constitutional Interpretation, Search and Seizure, Supreme Court