Lyle Denniston looks at why it is an exaggeration to say that the nation’s judicial branch has given the federal government’s electronic surveillance programs a constitutional pass.
THE STATEMENTS AT ISSUE:
“The classified program has been authorized by all three branches of the government. … The program at issue here is conducted under authority granted by Congress and is authorized by the Foreign Intelligence Surveillance Court. By statute, the court is empowered to determine the legality of the program.”
– James R. Clapper, U.S. director of national intelligence, in a public statement June 6 reacting to unauthorized public disclosures of two secret programs of federal government electronic surveillance of telephone and Internet communications, including many within the U.S.
“Our holding today by no means insulates [government electronic surveillance] from judicial review. … Congress created a comprehensive scheme in which the Foreign Intelligence Surveillance Court evaluates the government’s certifications, targeting procedures, and minimization procedures–including assessing whether the targeting and minimization procedures comport with the Fourth Amendment. … The possibility of judicial review in this context is not farfetched.”
– Supreme Court Justice Samuel A. Alito, Jr., writing for a majority on February 26 when the court ruled—by a 5-4 vote—that individuals may not sue to challenge a secret government surveillance program because they had no proof that their private electronic communications with foreign contacts had actually been, or would be, monitored by government listening devices.
WE CHECKED THE CONSTITUTION, AND…
The blunt reality, as a constitutional matter, is that the legality of the newly disclosed government programs of eavesdropping on international telephone calls and Internet exchanges is not going to be decided in the courts in the way that Americans have come to expect. It is thus an exaggeration to say that the nation’s judicial branch has given those programs a constitutional pass.
Rightly or wrongly, Americans have come to believe—after generations of experience—that a major constitutional question will not get a final answer until the Supreme Court has spoken. And those who know how the Supreme Court works understand that its answer will come after two sides have debated it in the open, after exploring it fully in written arguments that look at the issue from many angles. The justices have the final word, but only at the end of a highly visible public inquiry.
That is what lawyers and judges call the “adversary system,” and the legal community has long argued persuasively that it is a very good way to get at the truth, at least in a contest over the law. It does not mean a no-holds-barred joust in a courtroom between sworn enemies; it is a more decorous process, in which each side has a lawyer and they energetically argue conflicting points of view. Not everybody will be happy with the outcome of any specific legal contest, but most outcomes are accepted because of a widespread faith in the process as a fairly good one at producing just results.
If, as national intelligence director Clapper has said, a federal court has decided that a government electronic spying program is legal and satisfies the Constitution, that is not the result of this kind of adversary system. The specialized court he was talking about, the Foreign Intelligence Surveillance Court, does not issue orders approving such surveillance in a proceeding in which there are two sides. Only the government itself appears before that court, and the court then makes up its mind—in secret—on whether the government has satisfied legal and constitutional standards. No actual or potential challenger has any role there.
The historic fact is that this specialized court almost never says no to a government surveillance request, and the orders it issues are almost never made public and are almost never reviewed in a regular federal court where there are two sides contesting the legal points. (On Monday, the American Civil Liberties Union formally asked that court to release the opinions explaining how it interprets its authority; that has been attempted before, unsuccessfully. The new motion is here.)
Because those programs are steeped in secrecy, with the government claiming that they involve the most sensitive national security information, there are a number of ways to keep the regular courts from second-guessing what the specialized Foreign Intelligence Surveillance Court has allowed.
Challengers to such a program will often find their attempt to get judicial review frustrated because the government will claim what is called the “state secrets doctrine,” which is used to entirely shut down a lawsuit that may potentially expose a highly secret government activity. That doctrine has been a very reliable protective measure for government secrecy since the Supreme Court embraced it 63 years ago. The doctrine has even expanded in recent years.
Even beyond that doctrine, there is another way that the government can succeed in shutting down a lawsuit that seeks to test a government surveillance program—and, in fact, a government program that had been explicitly authorized by the special court. That is the constitutional doctrine of “standing”—that is, who had a legal right to sue?
That is the doctrine that a Supreme Court majority used last February to block a court challenge to an earlier version of government electronic spying on a global scale. Because the individuals believed that the spying was so widespread that the government almost certainly had been listening in to some of their electronic exchanges, they thought they had shown they were harmed by it, and thus had “standing” to sue. The Supreme Court majority denied their claim, saying it was too speculative and hypothetical, and lacked any solid foundation in real-world fact.
The newly disclosed spying programs are not so much different in operation, it appears, that anyone is likely to be able to prove they were monitored on the telephone or the Internet.
In saying that judicial review of a spying program was not “farfetched,” the Supreme Court majority was only talking about a possible criminal proceeding in which the government sought to make use of evidence it had gathered under a FISC court order. The government very seldom uses global electronic monitoring to gather evidence for a criminal case; what it is seeking is intelligence to try to thwart potential terrorist activity.
Odd though it may seem, for assurances that the government’s surveillance programs are legal, Americans largely have to trust a secret court that does not explain itself publicly, or else trust that Congress and the president will not allow the system to be abused.
Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
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