OCTOBER 30, 2012, 10:41 AM
Secret Surveillance

By LINCOLN CAPLAN
At the Supreme Court on Monday, Solicitor General Donald Verrilli Jr. told the justices that they should not allow judicial review of a secret surveillance program in order "to preserve the separation of powers" among the government's three branches. But if the court lets the executive branch prevail in this dispute, its power will be almost unlimited for surveillance and the power of the judiciary will be gutted: it is possible no court will ever rule on the constitutionality of the program.

Authorized by a 2008 amendment to the Foreign Intelligence Surveillance Act (which retroactively ratified what the Bush administration had been doing since soon after 9/11) the program empowers the government to intercept every international communication between Americans and non-Americans that potentially contains "foreign intelligence information." Mr. Verrilli contended that the plaintiffs don't even have standing to sue, because they have no hard evidence that they have been subjected to surveillance or suffered any injury.

The trick here is obvious: it is almost impossible for the plaintiffs to have evidence since the program is secret. But since the plaintiffs are lawyers and human rights, labor, legal and media organizations whose work requires them to be in communication with clients, colleagues and others outside the United States, it's likely that the government has intercepted at least some of their emails and phone calls. The plaintiffs contend that the statute violated their rights against illegal searches and seizures, and led some of them to change how they communicate, including by travelling to Afghanistan, Pakistan and other distant places for face-to-face conversations (at considerable expense, a legal injury).

At least some of the justices seemed sympathetic to the plaintiffs' arguments. The statute "greatly expands the government's surveillance power," Justice Elena Kagan said. Justice Anthony Kennedy said "it's hard for me to think that the government isn't using all of the powers under the law." And Justice Ruth Bader Ginsburg acknowledged the secrecy problem for evidence: "There may be dozens of concrete applications affecting the plaintiffs in this case, but we will never know."