Monday, July 09, 2007

Catch-22 on surveillance

Sorry, but after the long plane flight I just didn't feel much like blogging last night. We had a wonderful time in Georgia but it was somewhat exhausting. Nonetheless I went to work today, and here's what I mainly focused on:

Last Friday a three-judge panel of the Sixth Circuit federal court of appeal (Cincinnati) handed down a split decision on the ACLU's challenge to the National Security Agency's program of unwarranted electronic surveillance of Americans in contact with people overseas who had contact with people suspected of being affiliated with al-Qaida or other suspected terrorist groups or individuals. The program, which doesn't require warrants and therefore circumvents the 1978 Foreign Intelligence Surveillance Act (FISA), was begun almost immediately after 9/11 and wasn't known to anybody but the White House, those running it and a few members of Congress (sworn to secrecy) until the New York Times did an extensive story in late 2005.

A district court judge had ruled in this case that the program was facially (legalese for "on its face") illegal and probably unconstitutional and ordered it stopped. That order was stayed while the government's appeal was ongoing, although the administration says they have suspended it (making one wonder how all-fired important it really was), while declaring it has the right to resume it any time, possibly in secret again. The Sixth Circuit ruled that the plaintiffs -- a group of academics, journalists and attorneys who have regular and legitimate contact with people in the Mideast, including people who might be suspected of terrorism -- did not have legal standing to bring the case, since they couldn't show that they themselves had been subject to surveillance, though they testified that they had changed their methods of communicating and some contacts refused to communicate with them once knowledge of the program became public.

There's a legitimate reason for demanding standing -- a showing one has been personally and deleteriously affected -- before allowing a lawsuit. But this ruling sets up a Catch-22. The names of those surveilled is a closely-held government secret that the government isn't about to reveal; I'm pretty sure that although they may have showed some stuff to the judge(s) in camera that they didn't reveal who had been subject to surveillance. So naturally none of the plaintiffs could prove they had been surveilled. I think they should have been given standing, and if they had (as the dissenting judge made clear) it should have been a slam-dunk against the government.

A couple of additional factors. If the 1978 FISA law was too restrictive or time-consuming in face of the post-9/11 terrorist threat (as plenty of people argued when the NYT story broke) the administration had plenty of time to ask Congress to change the law, and in the months after 9/11 (remember the misbegotten Patriot Act?) Congress would almost certainly have obliged. Instead the administration preferred to operate -- typically -- in almost complete secrecy. This case isn't moot since the program has been suspended, because the administration still claims the "unitary" virtually complete plenary power to resume it at its discretion -- a power the founders would have found appalling. And contrary to what some stories implied, the Sixth Circuit didn't "approve" the program; they never reached the central issues, having punted with the standing argument, and the judge who wrote the majority opinion added that the program did raise at least five troubling potential issues.

I can pretty much guarantee we haven't heard the last of this case or this issue. The ACLU has the resources to appeal, and there's a case soon to come before the 9th Circuit in which a Muslim charity says it actually saw a classified document that named it as one of the groups under surveillance. That should settle the standing issue (though anybody who predicts what a court will do with too much assurance is a bit of a fool).

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