Surveillance and Accountability

October 28, 2012
Surveillance and Accountability
Nearly seven years after the disclosure of President George W. Bush’s secret program of spying on Americans without a warrant, the Supreme Court is about to hear arguments on whether judges can even consider the constitutionality of doing this kind of dragnet surveillance without adequate rules to protect people’s rights.

President Obama’s solicitor general, Donald Verrilli Jr., will be calling on the court to toss out the case based on a particularly cynical Catch-22: Because the wiretaps are secret and no one can say for certain that their calls have been or will be monitored, no one has standing to bring suit over the surveillance. The United States Court of Appeals for the Second Circuit rejected that avoidance of accountability, and so should the Supreme Court.

The lawsuit the Justice Department is trying so hard to block concerns the 2008 statute amending the Foreign Intelligence Surveillance Act. The new law retroactively approved Mr. Bush’s legally dubious warrantless wiretapping and conferred immunity from prosecution on the telephone companies that cooperated in the program.

The measure gave the government broad and unprecedented power to intercept the communications of Americans without individualized warrants based on probable cause or any administrative finding of a terrorism connection. It lowered the burden of proof for government wiretapping of suspects, weakened judicial supervision, and failed to set adequate limits on retention and dissemination of acquired information. The statute discarded traditional constitutional protections for the privacy of innocent people, and chilled the exercise of the core democratic rights of free speech and association.

It would not require a legal stretch for the court to find that the plaintiffs had standing to sue. The plaintiffs are lawyers and human rights, labor, legal and media organizations engaged in work that requires them to be in communication with colleagues, clients, journalistic sources, victims of human rights abuses and others outside the United States. They have a reasonable fear of government monitoring of sensitive conversations, based on the law’s vacuum-cleaner approach to surveillance and the identities and locations of their contacts.

They have taken expensive and burdensome steps to avoid the risk of government eavesdropping, demonstrating tangible injury. For lawyers, an ethical obligation to safeguard client confidences requires such protective actions. Under existing Supreme Court doctrine, plaintiffs who have been harmed by government conduct are allowed to bring suit, even if, as here, they may not be direct targets. As the Supreme Court recognized in an important 1972 case, the invoking of national security to justify warrantless surveillance only heightens the need for searching judicial review.

Technically, the only question before the court is the fairly narrow-sounding issue of standing that it has agreed to hear. But should the court acquiesce to the government’s cramped reading of standing, the larger implications should be clear to everyone. As a practical matter, it would foreclose any meaningful judicial review of the warrantless wiretapping statute, perhaps permanently. The damage to the nation’s system of checks and balances, which relies on independent court scrutiny of laws as a safeguard against legislative and executive branch overreaching that disrespects constitutional rights, would be serious.