The Daily Outrage

The CCR blog

Post-Snowden revelations, the Supreme Court should take on surveillance

CCR has a long history of challenging overbroad and warrantless government surveillance, something that has ballooned since 9/11. Last week, we filed an amicus brief asking the Supreme Court to grant certiorari in a case that could decide the constitutionality of such surveillance — a decision will have broad implications for those targeted by the U.S. government in its “War on Terror,” as well as for organizations like CCR, whose international communications in the course of our work have been, and would be, subject to government surveillance entirely outside of judicial supervision. Mohamud v. United States is one of the first cases to reach the federal courts challenging the constitutionality of the FISA Amendments Act, the surveillance statute passed in 2008 that authorized incredibly broad surveillance of international communications under the PRISM program revealed by Edward Snowden.

Some background: After 9/11, the NSA, acting under authorization from President Bush, began a broad program of surveillance of Americans’ international communications without seeking any prior judicial approval, in clear violation of a post-Watergate statute (the Foreign Intelligence Surveillance Act, or FISA) that Congress passed to ensure that all such surveillance was approved of by the courts on a case-by-case basis. This program was revealed to the public by a New York Times story in December 2005, leading to a prolonged public outcry that caused the Bush administration to first seek approval from the surveillance court created by FISA, and then, when that ultimately failed, to seek broader surveillance authority from Congress.

In the summer of 2008, Congress enacted the FISA Amendments Act (FAA) after then-senator Obama switched positions and agreed to vote for the bill. The FAA completely dismantled the target-by-target formula for surveillance under FISA. Prior to the FAA, surveillance orders could only authorize the government to monitor specific individuals or facilities. Under the FAA, by contrast, the government now merely tells the court that it intends to carry out a whole program of surveillance targeting some broad category of unnamed individuals. So long as the category targets non-U.S. persons located abroad, the government may target anyone it feels fits those broad criteria. It no longer needs to name a specific target or show a judge any particular reason why that target was worthy of surveillance. Moreover, there is no provision for ongoing judicial review of the results of the surveillance to ensure that legally privileged communications (like conversations of attorneys with their clients, or with witnesses, experts, etc.) are not listened to, recorded or retained — what is called “minimization” in traditional surveillance parlance. If the government decided to target “all foreigners associated with Al Qaeda” under the FAA, it might well decide it could listen in on all attorney meetings at Guantánamo, since it says (typically without any evidence) that nearly everyone held there is a member of Al Qaeda. In that case, it would never have to show any proof of that to a court — or exclude attorney-client conversations from surveillance under the threadbare minimization protocols it applies under the FAA.

Less than an hour after President Bush signed the 2008 amendments, the ACLU filed a lawsuit challenging the law’s constitutionality. The case, Amnesty Int’l USA v. Clapper, was filed on behalf of a broad coalition of attorneys and human rights, labor, legal, and media organizations whose work requires them to engage in sensitive and sometimes privileged telephone and email communications with persons outside the United States. They argued that the nearly unrestricted surveillance possible under the FAA produced a huge chilling effect their work, and that they were legally injured — had “standing” in legal parlance – as a result. The government moved to dismiss, arguing that people claiming harm from the need to avoid a secret surveillance program must first prove that they were actually surveilled (or face a near-certain imminent threat of the same) in order to have standing. CCR filed an amicus brief, arguing that our own attorneys and several human rights attorneys who work with us incur great costs as a result of having to take countermeasures against the possibility of surveillance under the FAA. 

The Supreme Court agreed with the government and dismissed the case, in part because Solicitor General Verrilli, arguing for the government, said repeatedly that criminal defendants against whom FAA surveillance was used would “clearly” have legal standing to challenge the constitutionality of the statute, unlike the lawyers and journalists who sued in Clapper. (Based on the Clapper decision, CCR’s own case against the Bush-era warrantless surveillance, CCR v. Bush, was dismissed — ironically, four days after Edward Snowden’s revelations about the scope of surveillance under the FAA became public.)

As it turned out, this statement wasn’t true at the time Verrilli made it; the government hid the fact that FAA surveillance was used in criminal cases from the defendants against who it was used, so in fact, no one had the ability to challenge the constitutionality of the FAA. Once this became public, the government, quickly backtracking, started informing defendants that surveillance under the FAA had been used in their cases.

One of the first to receive such notice is Mohamed Osman Mohamud. He lost his constitutional challenge to the FAA in trial court and the federal Court of Appeals for the Ninth Circuit, and he is now asking the Supreme Court to review his case, and hold that the FAA violated the Fourth Amendment because it permits open-ended surveillance of Americans’ international communications without any individualized cause or meaningful judicial oversight. The government will likely file its opposition in the fall and the Supreme Court should decide whether or not to take the case before the end of the year.

Mohamud v. United States presents a ripe opportunity for the Supreme Court to decide the constitutionality of FAA once and for all. It has evaded review for years, and the Court should grant certiorari to decide, at long last, whether this scheme, which grants the government a frightening level of authority and the rest of us very little in the way of privacy, is consistent with the Fourth Amendment and the separation of powers.

 

Last modified 

August 17, 2017