What if the government was tapping your phone unconstitutionally, and there was nothing you could do about it? That’s just life in the United States of America, at least according to the Justice Department. On Monday, October 29, Solicitor General Donald Verrilli Jr. argued in the Supreme Court that, for all practical purposes, the most expansive authority Congress has ever given the government to intercept Americans’ international phone calls and e-mails could not be challenged in court, even by the very people most likely to be harmed by it.
The law, the FISA Amendments Act of 2008 (FAA), has been challenged by The Nation magazine and two of its writers, Chris Hedges and Naomi Klein, as well as by lawyers and human rights activists. They regularly engage in international communications on the very subjects and with the very people the government is most likely to monitor under the law. If the government prevails in the case, Clapper v. Amnesty International, the nation’s newest and most sweeping surveillance law, may never be subject to adversarial constitutional review.
In some sense, we’ve seen this before. The Bush administration famously justified its own warrantless wiretapping of Americans’ communications with foreign targets by arguing that the president’s actions in “engaging the enemy” in the “war on terror” could not be limited by the other branches. Richard Nixon infamously 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 he has sought a similar result by contending that, for all practical purposes, similar surveillance cannot be challenged in court.
Monday’s oral argument 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 the prisoners at Guantánamo, this may be the most basic question of all. If the program cannot be challenged by those 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 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, 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 supposed to be targeted at non-US 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 argues 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 that their conversations were intercepted. The US Court of Appeals for the Second Circuit rejected the government’s theory. It reasoned 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 Guantánamo and Bagram Air Force Base in Afghanistan, 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 e-mail, and instead fly overseas to conduct interviews, or to avoid inquiring into certain subjects when they must use phone or e-mail. They must assume, in short, that “Big Brother is Watching.” 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 the plaintiffs have standing. When Solicitor General Verrilli insisted that only those who can show that surveillance is “certainly impending” should be permitted to sue, 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.
Permitting this case to go forward 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 showing films to which the government had affixed a “propaganda” label. The Court has also recognized that when constitutionally protected speech is at risk, 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 routinely engage.
The Court has on occasion stated that the fact that no one may have “standing” to challenge a particular law simply means that the checks on the law must be found in the political process. But that argument rings hollow here, where the law is implemented entirely in secret, and no one even knows whether their conversations are being intercepted. How can the political process check what it cannot see?
As in the Guantánamo cases, a ruling for the plaintiffs would say nothing about the merits of the underlying legal issue. It would merely ensure that the courthouse door is open. But as with Guantánamo, that is no small matter. The threshold question that this case poses, like the Guantánamo cases, is whether the government’s national security initiatives will be subject to adversarial testing, or alternatively, operate beyond the law.
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?
David Cole is The Nation’s legal affairs correspondent. A version of this article appeared on the blog of the American Constitution Society.