Supreme Court Puzzles: How There Can Be Oversight Concerning Warrantless Wiretapping If No One Can Sue?

from the that-would-appear-to-be-a-problem dept

One of the more ridiculous things about the government's ongoing campaign of secret surveillance on Americans is how hard it's fought back against anyone who has sought to have the policy tested in the courts. If the feds were confident that what they were doing was legal, they wouldn't be so aggressive in blocking each and every attempt. When the ACLU and others filed suit over the warrantless wiretapping under the FISA Amendments Bill (the Clapper v. Amnesty International case) the lower court rulings were especially troubling, because it was ruled that there was no standing to sue, because there was no direct proof of such spying. So that leaves the public in quite a bind. They can't complain about the program unless they can prove they've been spied upon, but they can't do that unless they know more about the program, which is secret. Someone page Joseph Heller.

The part of the case now at the Supreme Court is only over whether or not there is significant standing for Amnesty International and the ACLU to move the case forward. The government insists, quite vehemently, that as long as no one knows it's spying on them, they can't sue. The SCOTUS blog has a nice recap, saying that the Justices were "sensitive" to the lawyers who want to sue, but as we've warned before, what Justices say at oral hearings is not always a good barometer for how they'll eventually rule. Still, we might as well go through the transcript for some key points. The report kicked off with Solicitor General (and former entertainment industry litigator) Donald Verrilli being quizzed on the fact that, under his interpretation, no one could ever bring a lawsuit until after they were charged with a crime and knew about the details. That's neither fair, nor reasonable. Verrilli tries to cook up some other scenarios, but they all appear quite unlikely.

And, thankfully, Justice Ginsburg calls him on this point:
General Verrilli, can you be specific on who that person would be? Because, as I understand it, it's unlikely that, for example, the lawyers in this case would be charged with any criminal offense. It's more probable that their clients would be; but, according to the government, their clients have no Fourth Amendment rights because they are people who are noncitizens who acted abroad.

So it's hard for me to envision. I see the theoretical possibility, but I don't see a real person who would be subject to a Federal charge who could raise an objection.
In other words: "don't we have a problem when any effective oversight is written out of the law?"

Later, Ginsburg also wonders if the government will just claim state secrets to get out of having to provide info anyway. In the end, the debate comes down to if a lawyer just thinking that the government is spying on his phone calls, such that he's already modifying his behavior, is a form of "harm," and whether or not we trust the special FISA court (set up to monitor this stuff) to do a good job in weeding out abuses. Concerning "thinking" that the government is spying on a call, Verrilli tried to claim that there's no real harm there because a lawyer has an ethical obligation to take greater precautions. Seriously:
JUSTICE KAGAN: Well, is it really such speculation, General? I mean, just imagine that -- yourself in this lawyer's position, and the lawyer says, I'm representing a person associated with a terrorist organization, I'm representing KLM in the case of one of these lawyers, and I'm going to be talking to that person's family members and associates and trying to find out everything that I can.

Now, as a lawyer, would you take precautions, or would you pick up the phone and start writing e-mails to all those people?

GENERAL VERRILLI: If I took precautions, it would be because of a belief that I had to comply with an ethics rule, and the ethics rule would be the cause of me taking those precautions. It doesn't change the standard.

JUSTICE KAGAN: I don't even think it has to do with an ethics rule. If you're a good lawyer -forget the ethics rule and how the ethics rules apply. Are you really going to tell me that you, as a lawyer, would just pick up the phone in the face of this statute and talk to these terrorists' associates?
On the side of the lawyers seeking standing, their lawyer, Jameel Jaffer, tried to build on the hypothetical that the Justices raised, in which there's a "substantial risk" of having communications intercepted, leading them to change their behavior. Here Chief Justice Roberts kept pushing back that the standard is "certainly impending" rather than "substantial risk."
CHIEF JUSTICE ROBERTS: You have two arguments; one is likelihood of future injury and the other is present obligations or cause. I want to focus on the former. Our standard is certainly impending, and you articulated it by saying, substantial risk. There is obviously a vast difference between those two.

MR. JAFFER: Well, I don't think, Your Honor, that the Court has settled on certainly impending. The cases that the -- the Government cites are cases like -- I think that the one that the Government cites, relies on most heavily is Summers. But in Summers, the distinction between likelihood and certainly impending was not one that the Court relied on in -- in that decision. The Court said that plaintiffs couldn't meet even the lower standard. So I think that the discussion of certainly impending -

JUSTICE KENNEDY: But both in Summers and Monsanto the Government tells us: We knew that the governmental act was occurring, and then once we knew that, the question was substantial risk.

MR. JAFFER: Justice Kennedy, the -- the -the cases that we rely on, Monsanto, Laidlaw, Meese v. Keene, these are cases in which the Court didn't look to the certainly impending standard at all. The question that the Court asked in those cases was: Is there a substantial risk? Is there a substantial risk that effectively compels the plaintiffs to act in the way they are -- they are acting?
Meanwhile, Justice Scalia seemed to think that the FISA Court could really be trusted to automatically ferret out 4th Amendment violations without, say, lawyers being spied upon being able to raise the issue themselves. Scalia, it would appear, is tremendously trusting in the powers of the FISA Court to actually stop excessive surveillance. While Jaffer points out that the current fight to renew the FISA Amendments Act suggests otherwise, since it removed the basic tests that the FISA Court had to look at the specifics (about the particular person or location being monitored) and gives the government much more leeway to spy broadly:
JUSTICE SCALIA: Does that assessment take into account the fact that a court is going to pass upon the Government's ability to intercept these communications?

MR. JAFFER: It does, Justice Scalia. I mean you -- you are right that there is a court that in some sense stands between plaintiffs and the future injury that they -- that they fear.

JUSTICE SCALIA: With the obligation to apply the Fourth Amendment.

MR. JAFFER: I don't think it's that simple. The -- the -- the court, the FISA court, is tasked with assessing the reasonableness of targeting and minimization procedures. But the statute itself forecloses the court from imposing the kinds of limits that plaintiffs think the Fourth Amendment requires. So for example, the statute itself in section (g)(4) says that the Government is not required to identify the facilities to be monitored. And the statute itself in defining targeting procedures defines them to be procedures intended to ensure that the targets are outside the United States.

JUSTICE SCALIA: But if as you say those procedures violate the Fourth Amendment, it doesn't matter what the statute says.

MR. JAFFER: Well, the Court would have to -

JUSTICE SCALIA: If those statutory provisions would produce a violation of the Fourth Amendment, they are null and void, right?

MR. JAFFER: Well, I think that's right.

The -- the court -

JUSTICE SCALIA: Okay. So the FISA Court would presumably know that.

MR. JAFFER: Well, I think if that had happened over the last 4 years, the Government wouldn't be seeking reauthorization of the statute now.
Later, he pushes back again, noting that the FISA Court doesn't get enough details to make the determination:
JUSTICE SCALIA: I don't see how the rest of your challenge or your challenge to the remainder of this statute can be characterized as a facial challenge, because it necessarily assumes that the FISA court will mistakenly say that there has been no Fourth Amendment violation, doesn't it?

MR. JAFFER: I don't think that's so, Justice Scalia. Our concern is not -- not that -- that the FISA court will make mistakes, although it well might. The concern -- the main concern is that the reasonableness inquiry that the FISA court engages in is a narrowly cabined one. They court can't say this is unreasonable because you haven't identified the facilities. They can't say this is unreasonable because you haven't identified a specific target.
On the whole, it does seem like it may be difficult to convince a majority of the Justices that there is standing here. This is unfortunate, because clearly some of the Justices are worried about the implications of the federal government being able to pass a law for secret spying that no one can ever challenge since they'll never know about it. But, if they can't prove that the spying actually took place, then it's tough for them to be able to show the actual harm. Hopefully the Court recognizes that the uncertainty surrounding the likely monitoring of communications is legitimate harm... but it seems like a longshot.

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