Are they watch­ing you? Court says that's a se­cret

The Pak Banker - - OPINION - Noah Feld­man

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 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 email 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 shock- ing 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 post2008 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 gov- ern­ment 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.

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