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Even if you can prove that you’ve been illegally wiretapped by the
government, in violation of the federal Foreign Intelligence
Surveillance Act, you can’t seek restitution unless the government
decides to try to use the illegally-acquired evidence against you.
That’s the upshot of the Ninth Circuit’s ruling last week in the case of Al Haramain v. Obama,
which invoked “sovereign immunity” to overturn an award of damages to
an Islamic charity that discovered (thanks to an error by the
government) that it had been targeted in the warrantless wiretapping
program launched by President Bush.
As a narrow matter of statutory construction, the decision may well
be correct—I leave that question to colleagues with a firmer grasp of
“sovereign immunity” jurisprudence. But it ought to be disturbing on
policy grounds for a couple of reasons.
First, when Congress voted in 2008 to
grant retroactive legal immunity to telecoms that had aided the NSA’s
illegal surveillance, the key argument was that the companies, which had
been assured by the government that everything was hunky dory,
shouldn’t be the ones held responsible if those assurances were false.
Supporters of the legislation, like Sen. Kit Bond, stressed during floor debates that targets of any purportedly illegal wiretapping “can still sue the government.” In rejecting one challenge to the FAA, the Ninth Circuit itself held
that the immunity provision didn’t violate the separation of powers
because aggrieved parties could still seek relief from the courts
against the government. The key premise behind that controversial policy
decision was that citizens would still have a meaningful forum to
challenge the legality of that surveillance—but if the main statutory
provision providing for redress doesn’t apply to the government in the
same way as it does to private actors, that turns out to have been
something of a false promise, as the burden on challengers suddenly
becomes much higher.
Second, the history of surveillance abuses by U.S. intelligence agencies—the history that gave rise to the entire FISA framework in the first place—is emphatically not
a history of overt, public prosecutions based on illegally obtained
information. Unsurprisingly, when J. Edgar Hoover ordered illicit
surveillance of civil rights activists, he was generally not eager to
parade his conduct before federal judges. Rather, the improper “use” of
information typically took the form of targeted leaks to press,
anonymous harassing letters, or the exploitation of private and
privileged information for political advantage. These activities were,
by design, almost impossible to trace back to the government. The same,
of course, could be said of the surveillance itself—but that at least
tends to necessitate some kind of paper trail, as a practical as well as
legal matter. Realistically, the way to prevent improper use is to
deter improper collection.
These considerations are particularly pressing in the broader context
of the government’s efforts to shield its intelligence and
counterterror activities from judicial scrutiny. We should, as they say,
“connect the dots” and recognize this ruling as part of a larger,
disturbing pattern, including its promiscuous invocation of the state secrets privilege.
In a case challenging the latest version of NSA’s vaccum-cleaner wiretapping, Amnesty v. Clapper,
the Obama administration is arguing that only those who can demonstrate
that they have actually been wiretapped (under a top secret program)
are eligible to sue the government—and that therefore the courts should
toss out a suit brought by lawyers, journalists, and activists who
regularly communicate with clients and sources in the Middle East,
reasonably believe (based on public information) that their
communications are highly likely to be swept up in the NSA’s broad
collection programs, and have taken costly measures to reduce the risk
of this occurring. The trouble here is that almost none of the thousands
or millions of people intercepted—many (if not most) of whom are
entirely innocent—will ever be informed about the surveillance of their
calls and e-mails. As the legislative history of FISA makes clear,
Congress expected that most electronic surveillance for
intelligence purposes was not necessarily being conducted with a view to
criminal prosecution. Moreover, federal prosecutors actually decline to pursue
about 80 percent of the terrorism-related cases referred to them by the
FBI. Perversely, then, the most evidently guilty stand some chance of
learning they have been spied on—but the innocent almost never will,
and thus never have an opportunity to have a court determine whether
their rights have been violated. Because the plaintiffs in Amnesty are
seeking a ruling on the legality of current and future surveillance,
rather than monetary damages for past conduct, this latest ruling
doesn’t necessarily sink their suit, which the Supreme Court is slated
to hear in October to determine whether the challenge can proceed. There
too, however, the Obama administration’s position is that it should
not.
Al-Haramain is the extremely rare case in which surveillance
targets learned they’d been wiretapped without the fruits of
surveillance being introduced in the course of prosecution, but now it
seems even that isn’t enough. In general, federal law regards
illegal interception as an intrinsic harm that makes the wiretapper
liable for monetary damages, even if nothing is subsequently done with
the information. obtained. That’s the rule that obtains for both
government and private actors in the case of ordinary wiretapping, and
even under FISA the same is normally true for private actors like those
retroactively-immunized telecoms, but as the Ninth Circuit interprets
the law, the government can’t be held liable for the illegal wiretapping
itself; only for what it later does with that information. As the court
itself notes, “such a structure may seem anomalous and even unfair.”
The Founders, after all, weren’t just concerned with shielding citizens
against unreasonable government use of illegally obtained
information, but with “the right of the people to be secure… against
unreasonable searches and seizures.” But on the court’s reading, the
law as currently written doesn’t allow that right to be
vindicated here. For those keeping track, we’re now approaching seven
years since the original exposure of Bush’s version of the NSA spy
program, widely deemed illegal by experts,
yet with no decisive public ruling on the question from our courts, and
no real prospect that the thousands of innocents spied upon will ever
get an opportunity to seek redress.
This, it seems, is our surreal new reality: Even if the government
breaks the law, violating the rights of thousands of citizens, none of
them can do anything about it unless the government volunteers to reveal
exactly whose rights it has violated, which it won’t. If by
sheer chance any of them do find out about it, they can’t seek to be
compensated for the violation without the government’s permission, which
it hasn’t given. Strip away the legal Latin, and in the end, you’ll
find the universal mantra of the bully: “I’m stronger, and you can’t
make me stop if I don’t want to.”
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