At the Supreme Court on Monday, as Hurricane Sandy approached, Chief Justice John Roberts kept the Court open to hear Clapper v. Amnesty International, the most important wiretapping case of the term. Judging from his reception during the oral arguments, Solicitor General Donald Verrilli may have wished that the storm had closed the Court a day early.
As part of its concerted campaign to prosecute whistleblowers and to classify state secrets, the Obama administration has taken a position in Clapper that makes the Bush administration pro-secrecy campaign seem pale in comparison: namely, that no one can challenge warrantless surveillance unless the government tells you in advance that you’re being surveilled—which national security interests prevent it from doing. When Bush administration offered milder versions of the same arguments, the civil liberties community rose up in protest. Verrilli, for his part, was met by vigorous skepticism from the Supreme Court’s liberal justices.
It’s unfortunate enough that the administration asked the Court to hear the surveillance case in the first place, after the U.S. Court of Appeals for the Second Circuit had ruled that the plaintiffs —lawyers and human rights and media organizations whose work requires them to communicate with clients, sources, and victims of human rights abroad—had legal standing to bring the case. Although they couldn’t be 100 percent sure that their telephone communications were being monitored, the appellate held that there was a “realistic danger” that their telephone communications were being monitored under the FISA Amendments Act of 2008 (FAA), passed by Congress to codify some of the worst excesses of the Bush administration’s warrantless wiretapping program. This led the journalists and lawyers to suffer tangible injuries—such as having to fly to the Middle East to communicate with clients rather than talking by telephone, for example, or being more circumspect in talking to Middle Eastern sources, as journalists such as Naomi Klein and Chris Hedges alleged.
In his Supreme Court brief and in the oral argument yesterday, however, Verrilli alleged that these harms were too speculative to create legal standing to challenge the law, since the lawyers and journalists couldn’t be sure they were being surveilled under the FAA rather than under some other warrantless wiretapping authority. Essentially, the Obama administration was arguing that targets of surveillance could only challenge the law after they knew they were being surveilled, though the government would never tell them they were being surveilled before bringing a case against them.
The liberal justices pounced on the Alice in Wonderland circularity of Verrilli’s argument. “General, is there anybody who has standing?” Justice Sonia Sotomayor asked after Verrilli had gotten out three sentences. “I don’t see a real person who would be subject to a Federal charge who could raise an objection,” chimed in Justice Ginsburg, noting that the human rights lawyers in the case would never be charged with a crime and their clients had no Fourth Amendment rights as non-citizens who acted abroad. Justice Breyer noted that the lawyers who represented clients at Guantanamo could be as certain that their telephone calls were being monitored as the probability that there would be “a storm tomorrow—I mean, you know, nothing is certain.” And Justice Elena Kagan noted that since the 2008 amendments vastly expanded the government’s surveillance powers, it was just “commonsensical” that the lawyers and journalists had to take precautions that wouldn’t have been necessary before the law was passed. Although the conservative justices were more sympathetic to the claim that the plaintiffs couldn’t be certain they were being surveilled, they, too, were skeptical of parts of Verrilli’s argument. “You are saying that the Government has obtained this extraordinarily wide-reaching power … and the Government’s not going to use it,” said Justice Anthony Kennedy. “It’s hard for me to think that the Government isn’t using all of the powers at its command under the law.”
What makes the administration’s position all the more frustrating is that it wasn’t necessary for the Solicitor General to support the Director of National Intelligence’s sweeping anti-privacy position. In a related case involving government transparency, CREW v. FEC, the Federal Election Commission is taking the position that it doesn’t have to state publicly whether or not it will comply with any given request for information under the Freedom of Information Act. But in that case, the Solicitor General and Justice Department conspicuously decided not to support the FEC’s position, leaving the agency to file a brief on its own.
To make matters worse, the Obama administration has refused to support the Congressional reforms that could ensure that foreign intelligence surveillance respects the constitutional limitations. In July, the Senator Judiciary Committee approved on a party line vote Senator Patrick Leahy’s proposal to require the Inspector General of the Intelligence Community to conduct a thorough review of how the new surveillance authorities are being used, and to make public an unclassified summary of his findings. Leahy would also require the intelligence community to report more extensively about the use of surveillance authorities, to ensure that it’s complying with privacy and minimization procedures. The House, however, recently approved the reauthorization of the surveillance authorities without these new reporting requirements, and the administration is taking the side of the Republican House rather than the Democratic Senate. “The White House wants these authorities renewed without any modifications, and the House Republicans, who one day are trying to impeach Eric Holder, the next day are agreeing with the Obama Justice Department to renew this act without any changes,” says Marc Rotenberg of the Electronic Privacy Information Center.
When Justice Ruth Bader Ginsburg asked Don Verrilli to discuss the “minimization standards” that might protect the lawyers and journalists in the case from being surveilled without limits, the Solicitor General replied that the standards were secret. “That’s a very sensitive intelligence method; and, to the extent minimization plays into that, it’s—it’s not public information,” Verrilli declared. In other words, when its use of Bush-era surveillance authority is challenged, the Obama administration’s position is the same as its predecessor’s: trust us. Given the record of the Intelligence Community in abusing its authority, let’s hope this is an argument that the Court and Congress can find the votes to reject.
Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.