In SCOTUS Review Of Government Surveillance, What We Don’t Know May Kill The Challenge

Undeterred by Hurricane Sandy, the U.S. Supreme Court justices were back in their chairs Monday morning hearing arguments in an important case about government eavesdropping. The case takes up one of several challenges to the government’s broad post-9/11 power to electronically monitor foreigners and Americans. The plaintiffs – human rights activists, journalists and lawyers – say this eavesdropping is invoking a justified fear that their confidential conversations about sensitive foreign information will be intercepted. This has had a chilling effect on their work, and has prompted them to travel abroad to have confidential conversations, rather than have them via phone or electronically, they say.

But there is an obstacle to their challenge that has plagued almost every other attempt to question the sweeping federal policy: the plaintiffs must show that they particularly have been harmed by the government’s policy, i.e., that have “standing” to sue. While the federal appeals court in this case found that plaintiffs did have standing because they incurred significant expense traveling abroad, other courts have held otherwise (including the trial court in this case), reasoning that their fear is merely “abstract,” since they cannot prove whether their communications are actually being intercepted.

Of course, this is precisely the problem with the Foreign Intelligence Surveillance Act – no one will know if they are under surveillance or not because, under 2008 amendments to the law, the government does not have to share much of anything at all – not even with the secret FISA court tasked with reviewing the government’s actions. Here are some of the many things we don’t know about the government’s spying:

• We don’t know whether the government is following its own law. The Foreign Intelligence Surveillance Act was initially passed in 1978 to set limits on surveillance, in the wake of a Supreme Court decision that held warrantless surveillance of Americans unconstitutional. But after President George W. Bush’s post-9/11 disregard for FISA’s limits, Congress passed amendments to FISA in 2008 that in many ways codified Bush’s approach and rolled back the requirements for obtaining surveillance permission by a secret FISA court. The result is that, while the government is still technically required to target only foreigners and not Americans, we don’t know if they are actually doing so, because the court charged with vetting FISA surveillance has very limited power, and its determinations may be ignored by the government.
• We don’t know who the government is targeting. Under the Foreign Intelligence Surveillance Act, the government is supposed to limit its spying to cases in which the target is a foreigner (though the foreigner can be communicating with Americans). But under the 2008 Amendments, the government doesn’t have to disclose who the targets are.
• We don’t know if the government has a justification for its spying. Typically to obtain a warrant under the Fourth Amendment, the government has to show that it has “probable cause” to search the particular person or place for the particular information it is seeking. But under FISA, no such justification is necessary. Instead, the government merely has to show that there is probable cause that the target of the surveillance is a “foreign power or an agent of a foreign power.” As Garrett Epps writes in the Atlantic, “It’s a license for wholesale spying, as long as the communications involve one party in another country.”
• We don’t know what type of information the government is gathering. Not only is the government exempted from identifying its targets; it also doesn’t have to identify the places, facilities and phone lines it is monitoring, let alone the type of information it is seeking.
• Even if the U.S. Supreme Court strikes down the 2008 Amendments to FISA (however unlikely), we won’t know if the government is spying on us. From the U.S. government’s brief: “Even without the FAA, the United States could monitor such persons abroad with, for instance, ‘NSA surveillance programs’ not covered by FISA or surveillance under traditional FISA orders.” Epps interprets the government’s argument in a must-read piece about the case:

In other words: You’re right. Big Brother is watching. Whatever the Court decides, Big Brother will still be watching. Big Brother may be watching you right now, and you may never know. Since 9/11, our national life has changed forever. Surveillance is the new normal.