The Supreme Court Enters the Surveillance Debate

Since 2004, the Supreme Court’s transnational progressive bloc has forged a novel — and, in my view, a damaging — judicial oversight role in American national security. The whimsical Justice Kennedy’s alignment with the Court’s four-justice left-wing bloc (in which the two Clinton appointees, Justices Ginsburg and Stevens, are now joined by the two Obama-appointed justices, Sotomayor and Kagan, who’ve replaced retiring Justices Souter and Stevens) has created a majority for the radical propositions that (a) America’s alien enemies are endowed with U.S. constitutional rights, (b) these rights may be vindicated in U.S. courts during the aliens’ war against the American people, and (c) “separation of powers” — which used to mean that the judiciary deferred to the institutional competence and political accountability of its peer branches — now means wartime political decisions derive their legitimacy from judicial imprimatur, not public approval.


For the most part, the effort to “judicialize” the political realm of national defense has been confined to the disposition of enemy combatants, specifically the process due for detaining and trying them. On Monday, the Supreme Court announced that next term it will enter the fray of intelligence gathering. The justices will entertain the Lawyer Left’s predictable challenge to overseas surveillance, which now occurs under judicial auspices thanks to wrongheaded amendments enacted in 2008 to modify the ill-conceived 1978 Foreign Intelligence Surveillance Act, also known as “FISA.” As is usual when the judges begin to flex their muscles in a new area, the first case is a camel’s nose in the tent: involving only the narrow question of “standing” — i.e., whether the plaintiff’s have a right to bring their suit — and not the merits of their claim that Fourth Amendment principles apply to searches targeting non-Americans outside the United States.

To protect the nation from hostile foreign forces is the principal responsibility of the federal government. Primarily, it is the responsibility of the Executive Branch. The federal courts have held both before and after FISA’s enactment that the president is endowed by the Constitution with the power to conduct surveillance — including electronic eavesdropping — against “foreign powers” (a term of art that includes operatives not only of foreign governments but of such sub-sovereign entities as foreign terrorist organizations). If the president has that power, it cannot be reduced by a statute — it is black-letter law that the Constitution cannot be trumped by a mere congressional enactment. The federal courts were intended to have no national security role, particularly when it comes to foreign threats, both because they lack institutional competence in intelligence matters and, more importantly, because they are not politically accountable to the American people — national defense decisions being the most significant that a body politic makes.


In FISA, Congress imposed the federal judiciary on the Executive Branch’s domain by creating a specialized court (the Foreign Intelligence Surveillance Court) from which the FBI and Justice Department would thereafter seek permission before eavesdropping on an “agent of a foreign power.” Because such surveillance is primarily for national security intelligence gathering and not criminal evidence collection, the government need not show probable cause of a crime (the constitutional test for a traditional search warrant). The government must, however, satisfy the FISA judge that there is probable cause to believe the target is an agent of a foreign power.

This was a terrible idea.

Even the Carter administration, which (naturally) agreed to FISA, did so only with the caveat that national security is an executive responsibility and thus that the president maintained the authority to gather intelligence against foreign threats even if a judge refused to grant permission. Nevertheless, neither the Executive nor the Judicial Branch wanted to force a constitutional crisis, so FISA ostensibly worked: the Executive Branch complied by seeking permission with the unspoken reservation that it really did not have to seek permission; and the FISA Court granted virtually every application, ensuring that its dubious new supervisory role would not be questioned.

It is necessary to qualify the last sentence with the word “ostensibly,” because we now know the system really did not work — and that disastrous costs attended its malfunction.

For reasons too convoluted to burden this discussion with, the Justice Department and the FISA court ended up erecting the infamous “wall” between intelligence agents and criminal investigators. The wall prevented them from “connecting the dots” — i.e., from sharing information that, had it been competently processed, might have enabled the FBI to thwart the 9/11 attacks. (For readers interested in this subject, see “Terrorist Surveillance and the Constitution,” a white paper for the Federalist Society that I co-authored with David Rivkin and Lee Casey.)


FISA and its wall were a pre-9/11 culprit. The wall was dismantled by the Patriot Act and a subsequent ruling by the Foreign Intelligence Court of Review. But FISA returned to the spotlight when it emerged that President Bush had authorized a wartime warrantless surveillance program — directing the NSA, without obtaining a green-light from the FISA Court, to intercept communications (phone, email, etc.) that crossed national boundaries, including U.S. boundaries, whenever one interlocutor was outside the U.S. and suspected of working with the enemy.

This is the sort of thing wartime presidents have done since doing so has been technologically possible. And certainly, warrantless eavesdropping is less consequential than, say, President Obama’s warrantless killings of al-Qaeda operatives (including those who are American citizens). But because it was a Bush program, the Bush-deranged Left went bonkers. The controversy came to a head when judges began ruling that even overseas surveillance, involving foreign targets wholly outside the jurisdiction of U.S. courts, violated FISA (because, with the advent of modern telecom technology, a phone or email conversation between two foreigners — say, one in Pakistan and one in Yemen — will often be digitally routed through the U.S.).

The controversy brought into sharp relief the basic folly of FISA. Originally intended to protect Americans inside the U.S. from overzealous surveillance, and stuck in the antediluvian technology of the 1970s, the statute (and ravenous judicial interpretations thereof) were now threatening to dry up foreign intelligence reservoirs. Imperiled was access to information on which not only our intelligence agents rely upon to keep us safe, but which our troops also rely upon to succeed in battle. FISA should have been repealed. But cowed by progressives for whom transforming political prerogatives into judicial processes is a priority, Congress and the Bush administration opted to try to mend FISA. It was an effort that then-candidate Barack Obama supported after no small amount of hand-wringing.


The fix allows our overseas intelligence collection to proceed once the FISA court issues a sweeping authorization based on the Executive Branch’s certification that it is seeking foreign intelligence against non-American persons outside the United States. This is ludicrous. How the federal government interacts with foreigners outside the United States, particularly hostile aliens who endanger Americans, is not part of the courts’ concern. It is a political issue: if Americans come to believe their elected representatives are either overzealous or insufficiently concerned about threats to our security, we can exert political pressure on them (see, e.g., the protests against closing Gitmo and giving KSM a civilian trial in Manhattan) or replace them at the ballot box.

Moreover, when Americans travel abroad, they are subject to the laws, diktats, and excesses of foreign governments. They have no reasonable expectation of protection by U.S. laws and courts in places where neither has any application. Under the Lawyer Left’s conception of privacy, Americans who wish to interact with America’s enemies are subject to surveillance by the agents of every intelligence service in the world except America’s — the only one in business to protect American lives.

The case the Supreme Court has now agreed to hear is Clapper v. Amnesty International, et al. The plaintiffs are attorneys (of course), media organizations, and “human rights activists” — i.e., the Lawyer Left. They want to communicate with clients, sources, and other interesting (i.e., anti-American) characters outside the U.S. and fear that their sensitive international communications may be monitored. Thus, they explain, they must take costly and burdensome measures to protect the confidentiality of their contacts. That is to say: the plaintiffs have no idea whether they actually have been eavesdropped on, much less whether, assuming they have been intercepted, there was any legal impropriety.


As a foundational principle, the law wants public policy debates — “political questions” — resolved by Congress and the president, not the courts. Thus, a lawsuit will not be entertained unless the plaintiff can show a concrete, personal injury that has caused him actual damage — you don’t get to sue because you think, for example, that your taxes are too high or that the government’s counterterrorism policies are extreme. With this principle in mind, the case the Supreme Court will hear is not about the merits of the Lawyer Left’s speculative complaints regarding overseas intelligence-gathering activities — at least not yet. It is narrowly about standing to sue: Should Amnesty International, Human Rights Watch, the International Criminal Defence Attorneys Association, and the Service Employees International Union, among others, be permitted to bring the suit in the first place?

A federal district judge in New York City said no. A three-judge panel of the Second Circuit Court of Appeals reversed him, however, allowing the suit to proceed. The government then sought review by the full Second Circuit, but the en banc court deadlocked 6-6, effectively affirming the panel ruling that the plaintiffs have standing. That is the ruling the Supreme Court will now tackle.

The Obama administration’s position is intriguing. If the Bush administration were still in power, many Obama administration lawyers would no doubt be spearheading the Lawyer Left’s assault on aggressive intelligence gathering, just as they led the charge against most of the Bush counterterrorism policies that have safeguarded the nation from a 9/11 reprise. Nevertheless, as president, Obama has adopted most of these policies that he campaigned against. Much of this 180-degree change owes to the fact that he is now politically accountable for the nation’s security. But in no small part, the Obama administration now champions effective national security because it requires secrecy. For all its pretensions about “transparency,” the Obama administration prefers to rule — not govern, but rule — behind closed doors, shielded from the sunshine of normal politics. When the power of the government to operate outside the watchful eyes of judges is at stake, the Obama administration checks its “rule of law” blather at the door.


It so happens that, like the proverbial broken clock, the administration is right this time: gor security you must have intelligence, and for intelligence you must have secrecy. But even as we give the president his due, we needn’t ignore that he is more interested in defending the expanse of executive secrecy than the imperative of good intelligence. Nor should we forget in this election season that, were Obama not occupying the Oval Office, he and his minions would be on the other side of this case.


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