All three branches of government have a hand in the surveillance measures enacted to protect Americans from terrorism, but the need for secrecy and formidable legal obstacles have blunted challenges about their legal foundation and constitutionality.
This week’s disclosures about government surveillance of phone calls and Internet data led President Obama on Friday to try to reassure the public that programs initiated to keep tabs on foreign terrorism suspects are not compromising Americans’ right to privacy.
“What you’ve got is two programs that were originally authorized by Congress, have been repeatedly authorized by Congress, bipartisan majorities have approved them, Congress is continually briefed on how these are conducted . . . and federal judges are overseeing the entire program throughout,” Obama said.
But Jameel Jaffer, the ACLU’s deputy legal director, said the revelations that the government secured telephone records from Verizon and Internet data from some of the largest providers proved the opposite.
“It confirms the safeguards that are supposed to be protecting individual privacy are not working,” he said.
Jaffer learned firsthand the difficulty of litigating challenges that arise from the system of warrantless surveillance initiated by the George W. Bush administration and embraced by the Obama administration.
Jaffer represented a group of lawyers and journalists challenging a 2008 expansion of the Foreign Intelligence Surveillance Act, which allows the interception of electronic communications between foreign targets and people in the United States. It allows national security officials to obtain authorization from the Foreign Intelligence Surveillance Court (FISC) to track suspects for up to one year.
The Supreme Court split along ideological grounds in ruling 5 to 4 that because the group could not prove that its communications had been intercepted, its lawsuit challenging the constitutionality of the law could not go forward.
The challengers, Justice Samuel A. Alito Jr. wrote for the conservative majority, “can only speculate as to how the attorney general and the director of national intelligence will exercise their discretion in determining which communications to target.”
Justice Stephen G. Breyer, writing for the liberal dissenters, said the majority was wrong to accept the government’s view that the challengers’ belief that their communications were intercepted was “speculative.”
“We need only assume that the government is doing its job (to find out about, and combat, terrorism) in order to conclude that there is a high probability that the government will intercept at least some electronic communication to which at least some of the plaintiffs are parties,” he wrote.
In an interview Friday, Jaffer said: “It turns out the kind of things the government said were only speculative were in fact going on at the same time.”
Still, the question in that case was whether the lawsuit could continue, not about underlying questions about the program’s legality.
“These issues are very tough to get litigated,” said Orin Kerr, a law professor at George Washington University.
The government’s actions in the surveillance area are overseen by FISC, composed of 11 federal judges appointed by Chief Justice John G. Roberts Jr. The judges consider the government’s surveillance programs and requests, and rarely make their opinions public.
The court approved each of the 1,789 eavesdropping requests it received from the government in 2012, except for one that was withdrawn. The court made modifications in 40 of the requests, according to a report it sent to Congress.
The court’s chief judge, Reggie Walton, denied that it rubber-stamps administration requests. In an interview with the Guardian, which broke the story that the National Security Agency has been collecting phone records of millions of American customers of Verizon, one of the nation’s largest telecommunications providers, Walton said: “There is a rigorous review process of applications submitted by the executive branch, spearheaded initially by five judicial branch lawyers who are national security experts and then by the judges, to ensure that the court’s authorizations comport with what the applicable statutes authorize.”
But Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice in New York, wrote in the Wall Street Journal that courts sometimes make mistakes.
“When that happens, the losing party has the right to appeal, and the erroneous decision is reversed,” she wrote. “That process cannot happen when a secret court considers a case with only one party before it.”
Kerr said the secrecy that comes along with national security makes it difficult to evaluate how the administration carries out the wide authority Congress has given it.
“FISA court judges hear all of this and they think it’s legal,” Kerr said. “What we really don’t know, though, are what the FISA court’s opinions say.”
Stewart Baker, assistant secretary for policy at the Department of Homeland Security under Bush, said in an interview that he doubted more information would assuage critics. The purpose of establishing the court was that “everyone would be satisfied that there was judicial review” of the administration’s actions, he said.
He added that the procedures for establishing reasonable suspicion and securing warrants in the national security area cannot be compared to typical law enforcement.
“Large-scale collections give the government a way to screen for patterns in communications that will bring to light terrorists who are unknown to the government,” Baker wrote on the legal blog the Volokh Conspiracy. Then the government must “establish the relevance of each inquiry before it’s allowed to conduct a search.”