Hitchens v. NSA
Two separate lawsuits were filed in federal court today challenging the legality of the President's secret domestic spying program. One of the suits is being handled by the ACLU which has, predictably, already prompted a number of knee-jerk conservatives to suggest that the ACLU is somehow in league with terrorists.
If these mindless apologists ever get around to reading the actual complaint, however, they may be surprised by a few things. First, while the ACLU will be litigating the case, the list of plaintiffs includes a number of people who can hardly be described as anti-war lefties. The list includes Stanford Professor Larry Diamond--who served as a senior adviser to the Coalition Provisional Authority in 2004--and journalist Christopher Hitchens--who has been a fierce and unrelenting pro-war voice. The other plaintiffs include additional professors and journalists, as well as a number of defense attorneys and organizations including the ACLU, Greenpeace, the Council on American-Islamic Relations (CAIR), and the National Association of Criminal Defense Lawyers (NACDL). (sidenote: I wonder if there is any way to get the case captioned Hitchens et al. v. NSA? That would be fantastic.)
The complaint, which names the National Security Agency as defendant, alleges that the warrantless spying conducted by the NSA since 2001 is illegal, that it exceeds the president's constitutional authority, and that it has infringed upon the plaintiffs' 1st and 4th Amendment rights under the Constitution. The complaint asks the court to declare the program unconstitutional--under the 1st and 4th amendments as well as separation of powers grounds--and to enjoin the NSA from utilizing the program.
As I've stated previously, I think the administration's legal justification for authorizing warrantless wiretapping in contravention of FISA is remarkably weak. The problem the ACLU will face is getting the litigation to a point where that argument is even heard. As with all cases of this type, the plaintiffs must overcome significant procedural hurdles before they even get an airing on the substantive merits of their claims. The government will undoubtedly attempt to have the complaint dismissed on standing grounds.
For those of you who are not lawyers, standing is a convoluted doctrine intended to insure that cases are brought by the proper litigants. Article III of the constitution says that the federal courts may only hear actual "cases and controversies" and cannot render mere advisory opinions. The Supreme Court has held that in order to be a true case or controversy, a complaint must be filed on behalf of a plaintiff who has suffered an "injury in fact" which was caused by the defendant's conduct and which is redressible by a remedy that is within the court's power to grant. In other words, not just anyone can bring a case. You have to show that the action you're complaining about has injured you personally and that the remedy you seek would redress that injury.
In practice, defining what constitutes an "injury in fact" is notoriously difficult, particularly in constitutional cases. The case law on this issue is all over the map and is very difficult to reconcile into any coherent doctrine. As a result, the doctrine of standing is inconsistently applied. If a court wants to decide a particular case, it often goes out of its way to find the requisite injury in fact, but if it doesn't, dismissing a case on standing grounds is often an easy way to avoid facing difficult issues or issuing unpopular rulings. For instance, last year the Supreme Court dismissed the pledge of allegiance case on standing grounds. I'm convinced that the only reason the Court did this was to avoid having to find the pledge unconstitutional (which it clearly is).
The reason the ACLU's complaint includes such a diverse group of plaintiffs (besides the obvious political reasons) is to make it that much more difficult for the government to secure a dismissal on standing grounds. So how does the ACLU argue that people like Christopher Hitchens have standing to sue? Here's an excerpt from the complaint:
I predict that before the courts ever hear the substantive merits of these cases, these standing issues will be extensively litigated. I am encouraged by the ACLU's framing of the complaint, however. They seem to have done a good job of anticipating the government's objections and alleging injuries that stand a reasonable chance of surviving the inevitable objections to standing. Ultimately, however, the fate of these cases will depend on whether the judges overseeing them really want to delve into these issues. If not, they'll likely find some way to avoid the hard questions.
If these mindless apologists ever get around to reading the actual complaint, however, they may be surprised by a few things. First, while the ACLU will be litigating the case, the list of plaintiffs includes a number of people who can hardly be described as anti-war lefties. The list includes Stanford Professor Larry Diamond--who served as a senior adviser to the Coalition Provisional Authority in 2004--and journalist Christopher Hitchens--who has been a fierce and unrelenting pro-war voice. The other plaintiffs include additional professors and journalists, as well as a number of defense attorneys and organizations including the ACLU, Greenpeace, the Council on American-Islamic Relations (CAIR), and the National Association of Criminal Defense Lawyers (NACDL). (sidenote: I wonder if there is any way to get the case captioned Hitchens et al. v. NSA? That would be fantastic.)
The complaint, which names the National Security Agency as defendant, alleges that the warrantless spying conducted by the NSA since 2001 is illegal, that it exceeds the president's constitutional authority, and that it has infringed upon the plaintiffs' 1st and 4th Amendment rights under the Constitution. The complaint asks the court to declare the program unconstitutional--under the 1st and 4th amendments as well as separation of powers grounds--and to enjoin the NSA from utilizing the program.
As I've stated previously, I think the administration's legal justification for authorizing warrantless wiretapping in contravention of FISA is remarkably weak. The problem the ACLU will face is getting the litigation to a point where that argument is even heard. As with all cases of this type, the plaintiffs must overcome significant procedural hurdles before they even get an airing on the substantive merits of their claims. The government will undoubtedly attempt to have the complaint dismissed on standing grounds.
For those of you who are not lawyers, standing is a convoluted doctrine intended to insure that cases are brought by the proper litigants. Article III of the constitution says that the federal courts may only hear actual "cases and controversies" and cannot render mere advisory opinions. The Supreme Court has held that in order to be a true case or controversy, a complaint must be filed on behalf of a plaintiff who has suffered an "injury in fact" which was caused by the defendant's conduct and which is redressible by a remedy that is within the court's power to grant. In other words, not just anyone can bring a case. You have to show that the action you're complaining about has injured you personally and that the remedy you seek would redress that injury.
In practice, defining what constitutes an "injury in fact" is notoriously difficult, particularly in constitutional cases. The case law on this issue is all over the map and is very difficult to reconcile into any coherent doctrine. As a result, the doctrine of standing is inconsistently applied. If a court wants to decide a particular case, it often goes out of its way to find the requisite injury in fact, but if it doesn't, dismissing a case on standing grounds is often an easy way to avoid facing difficult issues or issuing unpopular rulings. For instance, last year the Supreme Court dismissed the pledge of allegiance case on standing grounds. I'm convinced that the only reason the Court did this was to avoid having to find the pledge unconstitutional (which it clearly is).
The reason the ACLU's complaint includes such a diverse group of plaintiffs (besides the obvious political reasons) is to make it that much more difficult for the government to secure a dismissal on standing grounds. So how does the ACLU argue that people like Christopher Hitchens have standing to sue? Here's an excerpt from the complaint:
Because of the nature of his communicationsThis is a clever argument. Under this theory, Hitchens and others need not allege that the NSA actually spied on them or violated their 4th amendment rights. Instead, they argue that the mere fact that such illegal spying is being conducted at all has damaged their ability to practice their chosen professions, whether it be journalist, defense attorney, or academic. Though creative, this argument strikes me as compelling. It alleges a real injury that would be remedied by the type of injunction requested in the complaint. Moreover, the nature of the injury hinges on the disregard for the warrant requirement, not the act of spying itself. The argument is that if the warrant requirement is followed, those engaged in innocent conversations need not be overly worried about having their communications intercepted. And conversely, when the NSA doesn't comply with the warrant requirement, even the innocent may reasonably fear that they will be ensnared in the NSA's net. The chilling effect on protected speech, therefore, is caused by the abandonment of the warrant procedure and judicial oversight, not by legitimate spying under FISA.
with people in the Middle East, the identities
of those with whom he communicates, and
the subject matter of his online research,
Mr. Hitchens has a well-founded belief that
his communications are being intercepted by
the NSA under the Program. Mr. Hitchens
believes that free and open communication
with his sources is an essential element of his
work as a journalist. Given the sensitive
nature of his work, Mr. Hitchens must assure
some of his sources that their
communications are kept in strict
confidentiality. The Program undermines
Mr. Hitchen's ability to make that assurance.
As a result, individuals are less forthcoming
in their conversations with him, and may cut
off communications completely. In addition,
the likelihood that Mr. Hitchens'
international communications are being
intercepted by the NSA under the spying
program impinges his own ability to
communicate freely and candidly with his
sources and others, to the detriment of his
effectiveness as an investigative journalist.
I predict that before the courts ever hear the substantive merits of these cases, these standing issues will be extensively litigated. I am encouraged by the ACLU's framing of the complaint, however. They seem to have done a good job of anticipating the government's objections and alleging injuries that stand a reasonable chance of surviving the inevitable objections to standing. Ultimately, however, the fate of these cases will depend on whether the judges overseeing them really want to delve into these issues. If not, they'll likely find some way to avoid the hard questions.
posted by A.L. at 11:55 AM
9 Comments:
AL
It seems like standing was the response Alito gave in response to quesitons from (IIRC) DiFi and Feingold about executive privilege. I think he said at least twice that of course the court could only rule on something if someone had standing. Which, in the case of the Gitmo prisoners (who have been denied some legal avenues) and particularly those who have been tortured overseas, is a pretty high bar. I think it revealed the way BushCo will fight NSA wiretaps, torture, and extraordinary rendition.
Part of me wishes they had gotten Peter Bergen to be a defendent. He is the journalist for whom it'd be easiest to make the case of injury, given his known contacts with OBL and AQ. But it would also point out one of the problems with tapping journalists. I'm not postiive, but I'd guess Bergen's work on AQ has been every bit as valuable as any work (say) Michael Scheuer did on the group. But if AQ believes Bergen is tapped, that avenue of intelligence gathering will be cut off.
Finally, I have a question. Why was this submitted in Detroit?
Not sure about the choice of Detroit. There were two cases filed, one in Manhattan and one in Detroit. Because these are federal claims, they can be filed in any federal court. It's just a matter of naming some plaintiffs who meet the venue requirements, which isn't hard to do. My guess is that they chose Detroit and Manhattan because they figured those two venues offered the best odds of drawing a judge who is actually willing to have the merits of the case litigated. And if the case finds its way to the appellate level, they probably figured the 6th and 2nd circuits were better than some other courts. It might also have something to do with case law regarding standing to sue. Different circuits have different precedents on that issue and the law may have been more favorable in the 6th and 2nd circuits. That's my best guess.
As for your comment about Bergen, the ACLU may have been consciously trying to stay away from journalists who have been known to have had contact with terrorists or terrorist groups. In that case, the government might argue that the affect on such communications would have been the same whether or not FISA was followed. The ACLU wants to argue that non-terrorist communications are being chilled by the abandonment of the warrant procedure. In other words, people who have no connection with terrorists will think twice about mentioning certain subjects for fear of being caught up in the NSA's net. It's important to there argument to show that it's the warrantless aspect of the surveillance, not the surveillance itself, that is causing the complained of injury.
You know, you really are asking a lot to expect wingnuts like David Horowitz and the folks over at Captain's Quarters and Atlas Shrugs, to actually *read* the complaint. After all, they might learn something and they might (god forbid) realize that Bush's usurpation of both the legislative and judicial branches, is hardly just a liberal issue. The noted conservative legal scholar Bruce Fein has called the NSA wiretapping patently unconstitutional and suggested it's an impeachable offense. And libertarians are going nuts too.
But again, wingnuttia is too busy today bashing Hillary Clinton, Ted Kennedy and the ACLU to actually *read* anything.
The Hitchens claim to standing is that the program interferes with his ability to provide believable assurances of confidentiality to his sources, thus inhibiting the sources from providing information to him. And, as Mr. Hitchens alleges in the ACLU’s complaint: “free and open communication with his sources is an essential element of his work as a journalist.”
But exactly the same claim could be made of any effort whatsoever by the US government to find, capture or kill someone.
No doubt it would be a major coup for a journalist to obtain an interview with Osama Bin Laden or Ayman al Zawahiri. But the United States government’s continuing efforts to capture or kill them make obtaining such an interview much harder for a journalist, greatly interfering with “free and open communication” between source and journalist. As a result, the journalist’s professional goals, including income, career advancement, and reputation, are frustrated, and the public’s right to know is narrowed.
Why, then, does the ACLU’s lawsuit not also seek to halt these other interferences with journalists’ work?
Of course, it could be argued that a warrant could be obtained to intercept a journalist’s conversation with Zawahiri or Bin Laden, but not for a conversation with some other source who may desire confidentiality for perfectly innocent reasons like fear of retribution, and that it is access to such other sources that is inhibited by the risk that conversations might be intercepted.
That, however, would not be reasonable. First, there is no evidence that intercepts of chats between journalists and innocent sources are in fact being rendered “non-confidential” in any way that an innocent source could reasonably fear. The NSA clearly is not disclosing the targets of intercepts nor the information obtained. Second, there never has and never will be an absolute safeguard against interception of innocent conversations. Such conversations are intercepted all the time under warrants. When an intercept warrant is granted, all conversations by the person against whom the warrant is obtained are subject to being intercepted, including conversations with his babysitter, his mistress, his drycleaner, his doctor and his journalist, all of whom have thereby been deprived of their rights to confidentiality.
Finally, by definition, these conversations Mr. Hitchens seeks to protect are originating in the Middle East. Given the status of the “rule of law” in that region of the world, there is no reasonable expectation by anyone in the Middle East (except possibly Israel) that their conversations are legally protected against interception.
The potential that innocent sources might be less forthcoming to Mr. Hitchens because he cannot assure them that the NSA is not intercepting his communication with them seems a very weak argument for standing to demand termination of the program.
Look, I said the argument was clever, not bulletproof.
That said, I don't think you give it enough credit.
First, as you note yourself, it's not the communications with terrorists themselves that are at issue. Those could be intercepted with a warrant. It's the communications with non-terrorists that are allegedly being stifled by the warrantless wiretapping.
Second, you don't seem to place enough importance on the fact that the type of spying at issue is allegedly illegal.
If this very same type of surveillance was being done lawfully, I think you're right that the alleged injury would be non-existant. But the allegation is that illegal surveillance is making sources more reluctant to talk than they would be if the law was being followed. In other words, there is a direct nexus between the illegal conduct and the nature of the injury.
Surely, you'll admit that foreign sources reasonably have a greater fear of having their communications intercepted now than they did when they thought warrants were required. You're right that they had no complete assurance of privacy before, but it's hard to deny that they have less assurance now. In other words, the risk calculus has changed; the odds of being intercepted have gone up.
If that change in risk was brought about through lawful means, i.e., an amendment to FISA, there would be no standing to sue. But because the change was brought about by an (allegedly) illegal surveillance program, standing arguably exists.
Again, this is no bulletproof argument. The case may well be dismissed on standing grounds. But the argument is clever and it has some chance of succeeding.
Once Mr. Hitchens' source has lost a "reasonable expectation" of confidentiality, what difference does it make how far gone it is? If you know, when Mr. Hitchens calls you, that your own government can wiretap your call with impunity, with possibly deadly results for you, how reasonable is it that you will be less guarded in your innocent conversation with Hitch just because the US government would have to get a warrant to listen in on your call too?
Hitch's position on standing reveals the real problem and why the Democrats have a tiger by the tail on this and just haven't realized it yet:
Most Americans want the government to be monitoring contacts between the Middle East and people on US soil closely enough to find the dots to connect to prevent the next potential terrorist attack.
So if FISA requires a warrant to do that, and such warrants are obtainable and could have been obtained, then Hitch could not legitimately have assured his sources that he could protect their confidentiality anyway.
If such warrants could not be obtained under FISA, then most Americans are likely to believe that FISA needs to be fixed. Americans will not be accepting of the notion that a conversation that is already wide open to being spied on by any Middle Eastern dictator who wants to should be closed to the NSA.
Hitch's position on standing reveals the real problem and why the Democrats have a tiger by the tail on this and just haven't realized it yet.
I disagree. No one even knows about this standing argument unless they've read the complaint (or this blog). It's not as if the Democrats or Bush's critics are making this argument, it's just a clever legal argument designed to overcome a procedural hurdle. If it succeeds, then the case will proceed to the substantive question: is the NSA program legal. That's the question the news coverage and political debate will focus on, not the intricacies of art. III standing. If the court finds the program to be illegal, it will be very hard for the Bush administration to spin that in a favorable way.
I agree that this issue could backfire on the Democrats, but if so, it won't be because of this particular procedural argument which no one will even hear about.
Sorry. My earlier post was unclear. I didn't mean that the legal argument about standing was the problem for Democrats. I agree. It's not. What I meant was that the factual claims made by Hitchens (and some of the other plaintiffs) in support of the claim of standing highlighted the difficulties the Democrats will face down the road.
At its heart, Hitchens claims standing because a hypothetically innocent source who is already subject to being spied on by the country he's in might hypothetically be less candid with Hitch because the NSA is trying to identify international coordination of terrorist attacks within the US.
Some of the other plaintiffs complain, in effect, that their ability to communicate with overseas accused terrorists they represent is inhibited. (Or that their America-bashing to friends and relatives back home in the countries they came from will be less vivid.)
As they say, cry me a river.
Even if true, and even if legally significant, this is just not a good corner for Democrats to paint themselves into.
If Osama's recent tape promising new attacks turns out to be true - although to me his offer of 'truce' sounds like it could be spelled 'uncle' - I hope we don't learn to our regret that modest offenses to civil liberties before the fact could have saved us from massive instrusions on them after the fact.
If Osama's recent tape promising new attacks turns out to be true - although to me his offer of 'truce' sounds like it could be spelled 'uncle' - I hope we don't learn to our regret that modest offenses to civil liberties before the fact could have saved us from massive instrusions on them after the fact.
Your point is well taken, but I honestly think it is beside the point with regard to the NSA situation. You're making a policy point here, not a legal point. I agree that determining the proper balance between civil liberties and counter-terrorism efforts is difficult. And I'll readily admit that I'm not sure where that line should be drawn. But I'm absolutely sure that the president should not have the power to unilaterally decide where to draw that line. With respect to surveillance, FISA draws that line very clearly. If the president thinks that line is drawn incorrectly, he needs to seek amendment or repeal of the law from Congress. We cannot have a system where the president gets to redraw a line that was clearly drawn by Congress. That's not how democracy works, and it's an incredibly dangerous precedent.
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