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.