The Government Can't Be Sued for Secret Spying It Keeps Secret

A fresh bit of Kafka from the Supreme Court today: Since you can never be sure if the government is secretly spying on you, you can never sue the government for spying on you.

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A fresh bit of Kafka from the Supreme Court today: Since you can never be sure if the government is secretly spying on you, you can never sue the government for spying on you. And because unless you were actually spied upon by the government, you cannot sue to keep other citizens from being spied on by the government. And you can't know if you were spied on by the government because the government doesn't have to tell you if it spied on your communication.

This legal Möbius strip began in 2008, when Congress expanded the 1978 Foreign Intelligence Surveillance Act codifying the government's ability to initiate a wiretap on a foreign national suspected of involvement of terrorism. It was a bit belated; three years prior, the New York Times revealed that the Feds were already doing this. Since the surveillance occurred without a public warrant, privacy groups like the ACLU and Amnesty International sued to stop the practice, fearing that U.S. citizens, protected under the Fourth Amendment from unreasonable search and seizure, would also be caught in the government's system. This morning, in a 5-4 vote led by its conservative members, the Court declined to hear that lawsuit.

The majority's reasoning was that only those affected by a law -- those with legal standing -- could file a complaint. And Amnesty and the ACLU didn't know if they were affected. Nor could they. Clearly they wouldn't know if their electronic communication had been part of a government wiretap, since the practice is secret. And fear that they might be included in such surveillance isn't enough. Writing for the majority, Justice Alito suggested that because the law "at most authorizes -- but does not mandate or direct—the surveillance that respondents fear, respondents’ allegations are necessarily conjectural."

And, further, even if members of either group had contact with foreign parties who might be targeted under FISA -- thereby possibly giving the organizations standing to contest the law -- that, too, would be speculation. After all, there are many other ways in which the government could surveil those contacts besides FISA.

And finally, even if they knew the government sought to use FISA to monitor communication, it's possible that the secret court that determined if such surveillance can go ahead might reject the government's argument. Alito summarizes: "We decline to abandon our usual reluctance to endorse standing theories that rest on speculation about the decisions of independent actors." Remove the triple negative and you get: Speculation about application of a law isn't application of a law.

It's hard not to quickly drop into a rabbithole of scenarios under which the Court would determine a respondent would have standing to challenge the law. Had bin Laden made an effective escape to the United States, could he then have hired an attorney to challenge the law? (And if so, would he have had to appear in court? That could have been challenging.) Could prisoners at Guantanamo make a case for legal standing?

The dissenting justices shared similar concerns, according to the Washington Post:

Justice Stephen Breyer, writing in dissent, said that he would have allowed the lawsuit to move forward because he thinks “the government has a strong motive to listen to conversations of the kind described.”

“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 party,” Breyer said. “The majority is wrong when it describes the harm threatened plaintiffs as “speculative,” Breyer said.

ACLU Deputy Legal Director Jameel Jaffer issued a statement clearly agreeing:

Justice Alito's opinion for the court seems to be based on the theory that the FISA Court may one day, in some as-yet unimagined case, subject the law to constitutional review, but that day may never come. And if it does, the proceeding will take place in a court that meets in secret, doesn't ordinarily publish its decisions, and has limited authority to consider constitutional arguments. This theory is foreign to the Constitution and inconsistent with fundamental democratic values.

So how might FISA be challenged? Alito did offer one possible scenario under which an American would have standing: If the lawyer for a client charged using evidence obtained by FISA surveillance filed a lawsuit, the lawyer might have standing. Might. And only after the surveillance is done.

This article is from the archive of our partner The Wire.