Commentary

Putting the Gloves On

this article appeared on Reason.com on June 1, 2006.

The expected face-off between the Supreme Court and the president over National Security Agency surveillance is like a mismatched prize fight. In one corner, a chief executive, clad in a flight suit, surrounded by Secret Service agents with itchy trigger fingers. In the other corner, nine nebbish lawyers (or five, if you assume, as I don’t, that Justices Scalia, Thomas, Roberts, and Alito are knee-jerk Bush yes-men).

It’s a match the Supreme Court seems doomed to lose. Yes, the NSA’s domestic surveillance program violates the law. But when confronting a damn-the-torpedoes president, the Court needs muscle to enforce its will. Imagine if President Bush balks at a Court order to axe the NSA program. If our feckless Congress doesn’t impeach, the Court is helpless—and its authority over the president irreparably damaged.

What’s the Court to do? Allow me to float a modest proposal, inspired by the sweet science: the “rope-a-dope.”

“Rope-a-dope,” for non-boxing fans, was the key to Muhammad Ali’s 1974 comeback victory over heavyweight champ George Foreman, the storied “Rumble in the Jungle.” The Rumble, fought in Zaire, was also a mismatch. The 25-year-old Foreman, unbeaten with 40 wins under his belt, was favored 7-1. But 32-year-old Ali—older and wiser—shocked the world. He spent the first seven rounds against the ropes, deftly parrying Foreman’s blows. When Foreman tired, Ali pounced in the eighth round and, with a swift left-right combo, dispatched the champ.

The Supreme Court can mimic Ali by staying on the ropes and wearing out the president. Here’s how:

1. Float like a butterfly. The president wants the Supreme Court to uphold the NSA program or, barring that, order lower courts to duck the issue. The Court doesn’t have to play along. Its jurisdiction is a matter of choice. And it can refuse to hear NSA cases, leaving lower courts to hear challenges as they see fit.

What then? The administration would press ahead with its surveillance, as it does when lower courts disagree about the validity of run-of-the-mill regulatory programs. (Government lawyers politely call refusal to honor divided lower court decisions “intracircuit nonacquiescence.”) But without Supreme Court protection, the administration would face a tide of litigation in hostile jurisdictions. That increases the costs of the NSA program, draining strained Justice Department resources.

2. Sting like a bee. The Court can simultaneously foment resistance to unlawful surveillance by hearing smaller-stakes issues. Here are three suggestions:

First, narrow the “state secrets privilege,” which requires courts to toss out lawsuits that involve national security secrets. The privilege is a shield for AT&T, Verizon, and other companies dragged into court for cooperating with the NSA. But this judge-made doctrine can be narrowed. And exposing these companies to lawsuits would frustrate NSA efforts to recruit corporate spy-partners.

Second, revisit Branzburg v. Hayes, the decision that says reporters can be forced, on pain of jail-time, to reveal leakers. While the Court dodged an opportunity to reconsider Branzburg in the Valerie Plame scandal, other cases are percolating through the courts. Expanding the privilege will embolden leakers, making it harder for the president to conceal home-turf snooping.

Finally, the Court can threaten to trim the executive’s “communications privilege” (the term for presidential power to conceal internal White House debate). If the Court considers the state secrets privilege, its opinion could reach beyond that narrow issue, indicating the Court’s willingness to back congressional subpoenas of the President and his key aides—a disputed approach suggested by some courts in the D.C. Circuit. The message to the president: Go it alone and watch judicial recognition of your special privileges evaporate.

On each of these privilege questions, the political costs of presidential resistance to court orders outweigh the expected gains—putting the Court in charge. And, together, these low-level confrontations might do what winner-take-all fights over high constitutional principle can’t: Cow the president, by threatening him with the specter of hemorrhaging legal privilege, interminable lawsuits, leaks, and subpoenas unless he buys peace at the bargaining table with Congress.

The prize? The chance at a democratically agreed-on framework of modern security law—one that balances security and accountability better than unchecked presidential willfulness.

Is this a sure shot? Not even close. But as Ali knew, in tough fights, great fighters don’t listen to the oddsmakers.

Mark Moller is a senior fellow at the Cato Institute and editor in chief of the Cato Supreme Court Review.