For the past decade, a legal battle has been brewing on multiple fronts over the US government’s ability to conduct secret surveillance on the phone calls and emails of American citizens without a warrant. And after a Supreme Court decision this past Tuesday, it's a fight that the American people are in grave danger of losing.
The 5-4 decision that ended Clapper v. Amnesty International earlier this week did not address the important question of whether or not warrantless wiretaps are constitutional, as various lawyers, journalists, and civil rights groups have been asking the court to do since the program first came to light in 2005. Rather, the court dismissed the challenge outright on the grounds that since plaintiffs can’t prove they’ve been specifically targeted (as no one short of the government itself really can), they don’t have the proper standing to sue in the first place.
For privacy advocates, the dismissal is nothing short of a disaster. Not only does it showcase the recurring Catch-22 we've seen in so many of these legal battles — that criticizing secret government programs requires the very information that the government refuses to disclose — it effectively closes the book on surveillance deliberations within the country's most important legal venue before they even have a chance to begin. Now, with the Supreme Court essentially out of the picture, the number of remaining avenues for challenging the law is shrinking fast — and along with it, the hopes that warrantless wiretapping will ever be properly challenged at all.
It may not be possible to ever challenge the law, barring a radical change within Congress
In 2012, a memo from the Director of National Intelligence revealed that electronic surveillance had violated the constitutional rights of an American citizen "on at least one occasion." But as Supreme Court Justice Samuel Alito and four other judges see it, there's still not sufficient evidence of "certainly impending" harm brought on by the wiretaps. In a majority opinion for the Clapper case, Alito wrote that it is "not the government's burden to disprove standing by revealing details of its surveillance priorities."
But if that's the case, it may not be possible to ever challenge the law, barring a radical change within Congress. Surveillance under the 2008 FISA Amendments Act, which codified the illegal Bush-era spy program, is only reviewed by secret courts whose opinions are highly classified — unattainable even for members of Congress. Just before the surveillance law was reauthorized last December, the Senate considered transparency measures that could have helped to provide the necessary evidence for cases like Clapper. But after just one day of deliberation, the bill went through unamended, renewing the NSA's domestic spying powers carte blanche for the next five years.
Sen. Ron Wyden (D-Ore.) and others attempted to amend the wiretapping law last December
ACLU Deputy Legal Director Jameel Jaffer, who argued the Clapper case, called the dismissal "disturbing," saying that it "insulates the [wiretapping] statute from meaningful judicial review and leaves Americans' privacy rights to the mercy of the political branches." A New York Times editorial described it as "a clear-cut abdication of [the court’s] fundamental role in the American constitutional system of checks and balances, which ensures that Congress and the president are not infringing on protected rights."
It's the second time the US government has shut down a major challenge to warrantless domestic surveillance in the past year. In Al-Haramain v. Obama, a case heard in the 9th Circuit Court of Appeals, the government invoked "sovereign immunity" to overturn a previous court decision and rid itself of charges brought by members of an Islamic charity, who discovered through erroneously sent documents that they had been targets of warrantless surveillance by the NSA. So even when legal standing is established and evidence is abundant, the government is digging up all sorts of legal immunities to have cases dismissed, conveniently preventing a constitutional ruling.
That's also what's worrying about Jewel v. NSA, an Electronic Frontier Foundation suit that could be one of the last opportunities to fight electronic surveillance in court. In some ways, the case may actually have a better chance than the Amnesty's: unlike Clapper, which focused on the effects of current and future surveillance on innocent Americans, the court notes that Carolyn Jewel, the lead plaintiff, has a stronger case because she "alleges past incidents of actual government interception of her electronic communications" as part of an indiscriminate dragnet surveillance operation.
The secret room alleged to be an NSA listening post inside AT&T's switching facility at 611 Folsom Street
The case began with evidence from whistleblower Mark Klein, who in 2006 exposed secret equipment installed at an AT&T switching facility in San Francisco that siphons domestic communications to the NSA. This seemed to confirm what previous reports had already suggested: that the NSA, with the help of major telecoms, has been intercepting Americans’ communications en-masse — presumably for eventual storage and analysis at its massive new data center in the Utah desert. There's also a trio of former NSA employees prepared to testify, including William Binney, one of the architects of the surveillance program who left the Agency when he observed it being turned against US citizens after 9/11.
"The executive has engaged in unprecedented assertions of power without regard to the limits of its authority."
But again, even with favorable conditions, it's unclear whether the case will proceed as privacy advocates have planned. "Since September 11 and now, through two administrations, the executive has engaged in unprecedented assertions of power without regard to the constitutional and statutory limits of its authority," attorney Richard Wiebe stated when the case was first filed. "It has correspondingly sought to exclude the judiciary from adjudicating whether these exercises of executive power have stayed within the limits set by the Constitution and by Congress."
In Jewel, the Obama administration has already twice invoked the "state secrets" privilege, a mechanism left behind from the McCarthy-era persecution of Communist sympathizers which effectively lets the government 'turn off' the Constitution and the justice system whenever they feel that a case might jeopardize national security. The administration has promised to limit its use of the privilege to situations which present the potential for "significant harm" to the country. But that promise obviously hasn't stopped them from deflecting recent challenges to warrantless wiretapping and other government counterterrorism initiatives — like indefinite detention provisions, or the secret program for targeted killings carried out by drones — nor will it necessarily restrain future administrations from doing the same.
Jewel may be the last chance for meaningful judicial review of the wiretapping programs in the foreseeable future. Failing that, the only remaining response for journalists and others dealing in sensitive overseas communications may be exactly what digital activists have been advocating for decades: widespread personal encryption. But aside from being somewhat impractical, the necessity of encrypted communications would more broadly underscore just how thoroughly the legal system has failed to protect citizens from unnecessary intrusion.