While there's been plenty of attention over the last month or so concerning the revelations from Ed Snowden about NSA surveillance, there have been a series of important ongoing lawsuits that tried to challenge the various aspects of the surveillance efforts. Unfortunately, most of these have ended badly, leading some to wonder if there even is any way at all to legally challenge these programs. At the end of 2011, for example, in a case testing the legality of the telcos helping the government with warrantless surveillance, Hepting v. AT&T, one of the key reasons why the court rejected the challenge was because it basically said, "well, you can always sue the government
, but the government has the right to absolve companies of such wrongdoing." Except that, as the Supreme Court ruled earlier this year, because the government keeps the program a complete secret, no one has standing
to sue. That is, unless you can prove that you were spied on via this specific program, you can't sue because there's been no harm.
The Supreme Court Justices were clearly troubled
by the idea that the government could implement a secret surveillance program that could never be challenged in court, and homed in on that key point in questioning the Solicitor General of the US (and former top RIAA litigator), Donald Verrilli. As the NY Times notes, Verrilli insisted that it simply was not true
that no one would ever have standing, because if the government ever used information from such surveillance programs in a court case against someone, the government would have
to reveal that the info came via that program.
“Is there anybody who has standing?” Justice Sonia Sotomayor asked.
Yes, said Mr. Verrilli, giving what he called a “clear example." If the government wants to use information gathered under the surveillance program in a criminal prosecution, he said, the source of the information would have to be disclosed. The subjects of such surveillance, he continued, would have standing to challenge the program.
Got that? Of course people would have standing, because the government has to tell them where the information came from. So those people could always challenge the program. When the eventual Supreme Court ruling came out, the majority decision relied very heavily
on this particular claim:
...if the Government intends to use or disclose information obtained or derived from a §1881a acquisition in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition.... Thus, if the Government were to prosecute one of
respondent-attorney’s foreign clients using §1881a-authorized
surveillance, the Government would be required to make a
disclosure.... In such a situation, unlike in the present case,
it would at least be clear that the Government had acquired the foreign client’s communications using §1881a-authorized surveillance.
Ok. Now, here's the important part. In defending the FISA Amendments Act (FAA), which is what enabled these kinds of warrantless wiretaps, politicians have been pointing to all of those "examples" where this program was supposedly instrumental in "stopping terrorists." And this includes a few cases that involved federal prosecutions. Senator Dianne Feinstein, the staunchest defender of these programs, has called out two specific prosecutions as "specific cases where FISA Amendments Act authorities were used," saying that "these cases show the program has worked."
While it's arguable whether or not these cases actually showed whether or not the program worked, they do give us two cases where, according to the US Solicitor General and the Supreme Court, the feds were required to reveal to the defendants the source of the information.
And take a wild guess whether or not the government actually informed the defendant how it obtained the info? You're psychic!
In a prosecution in Federal District Court in Fort Lauderdale, Fla., against two brothers accused of plotting to bomb targets in New York, the government has said it plans to use information gathered under the Foreign Intelligence Surveillance Act of 1978, or FISA, which authorized individual warrants. But prosecutors have refused to say whether the government obtained those individual warrants based on information derived from the 2008 law, which allows programmatic surveillance.
Prosecutors in Chicago have taken the same approach in a prosecution of teenager accused of plotting to blow up a bar.
In fact, the magistrate judge in the Florida case has told the government it needs to disclose whether or not the surveillance was based on the FAA, but the government, so far, is refusing to say anything, and is asking the court to reconsider.
As far as I can tell, there are a few possibilities here, none of them good:
- Solicitor General Donald Verrilli lied to the Supreme Court about whether or not the federal government would need to reveal the source of surveillance info obtained under the FAA.
- Senator Dianne Feinstein lied to Congress about the FAA supposedly being instrumental in those cases.
- The US Attorneys are now withholding information they are, by law, required to reveal.
It's possible that the reality is a combination of all three. But I can't see how you can explain the present situation without at least one of the three statements above being true.
The ACLU has called this "a shell game" and it's that and more. No matter where you point for the legal authority to challenge these programs, the government insists you have to look elsewhere. Can't sue the companies, but can sue the government. Can't sue the government unless you can prove standing. Can't prove standing unless you're in a case which involves this surveillance, at which point we have to tell you. Of course, in cases where it's been revealed that this kind of surveillance is used, well, now the government insists it doesn't have to admit that. Basically, the feds are going to keep trying to avoid ever having to face an actual legal challenge on this, which suggests they know the reality: the program is illegal and unconstitutional. If they were sure that it was a legitimate, constitutional program, why not just stand up in court and say that?