Constitutional Law

Secrecy and Surveillance

By Jameel Jaffer, Center for Democracy

Over the last decade, lawyers for the Bush and Obama administrations have contended, controversially, that many government surveillance programs are effectively immune from judicial review. They've argued that surveillance programs can't be challenged in court except by those who can prove definitively that their own communications have been monitored. Because only the government knows for certain whose communications have been monitored, the upshot of their argument is that a great deal of government surveillance is simply beyond the reach of the courts, and beyond the reach of the Constitution.

In a decision issued earlier this week, an appeals court in New York rejected this argument, ruling that an ACLU challenge to the FISA Amendments Act (FAA) can go forward. As the New York Times observed yesterday, it's a crucially important decision. It means that the judiciary will finally consider whether the FAA is consistent with the Constitution. (It's not.) And beyond its significance in this particular case, the decision is an encouraging sign that the courts are no longer comfortable leaving Americans' privacy rights to the mercy of the political branches.

It's perhaps surprising that the Obama administration, which has rightly been scolding other countries for their lawless surveillance programs, is arguing in American courts that the judiciary has no role to play in ensuring that American surveillance statutes comply with the Constitution. But it's reflective of a broader effort on the part of the Obama administration to exempt government surveillance from the checks and balances that apply in other contexts. It's not just the courts that the administration has been trying to sideline; it's the public, too.

Since 2006, we've been pressing the government to release information about the surveillance programs the Bush administration put in place after 9/11. We've been doing this because we think it's important that the American public know what the government is doing (or has done) in its name, especially when the government's policies have implications for Americans' constitutional rights. We haven't asked the government to disclose technical information, the names of surveillance targets, or anything that could fairly be described as intelligence sources or methods. But we've asked the government to disclose, at least in general terms, what the Bush administration's surveillance policies were, and how it was that the Bush administration concluded that those policies were legal.

For the most part, the government — first the Bush administration and now the Obama administration — has stonewalled our request. Last week, almost five years after we filed our request under the Freedom of Information Act, we managed to obtain two Bush administration legal memos about government surveillance, but the memos are heavily redacted — almost comically so.

The notations on the memos refer to specific FOIA exemptions claimed: b1 and b3 are both claims of classification/national security, b5 is a claim of some type of privilege (e.g., attorney client or attorney work product).

The sad truth is that despite five years of litigation, we still don't know much about the surveillance policies that the Bush administration introduced after 9/11. And according to the Obama administration, we don't have a right to know. This proposition would be offensive and unpalatable even if there were no reason to believe that the Bush administration's surveillance policies were illegal, but of course we know that some of them were illegal, and we have good reason to believe that others were illegal, because senior members of the Bush administration's Justice Department threatened to resign over them.

The secrecy surrounding government surveillance is unwarranted and fundamentally antidemocratic, but this secrecy will one day be lifted. Inevitably, the details about the Bush administration's surveillance policies will be made public — perhaps by court order, or leaked to the press, or simply released voluntarily by an administration committed to transparency. When this happens, history will hold the Bush administration accountable for its surveillance policies. And history will hold the Obama administration accountable for having kept those policies a secret from the American public.

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Full post as published by Blog of Rights on March 24, 2011 (boomark / email).