Tuesday the Supreme Court declined to review the ACLU’s challenge to the Terrorist Surveillance Program (TSP), the NSA’s post‐9/11 foreign intelligence‐gathering initiative whose critics labeled “domestic spying.”
This case shows the interplay of the foundational legal doctrine of “standing” with one of the privileges courts recognize as being more important than allowing full discovery of information during the litigation process – and it also shows the proper relationship between the political and judicial branches in our constitutional system. To maintain a legal claim a plaintiff must show that he was injured in a unique and concrete way. Here, a motley crew of plaintiffs – who also included the Council on American‐Islamic Relations (CAIR), journalist Christopher Hitchens, various lawyers, and others – cannot demonstrate that they have been harmed in any but a generalized, speculative way by the TSP. They simply have no idea whether their international communications had been monitored.
While the plaintiffs previously argued that they were denied the opportunity even to find out about possible violations of their civil liberties because the relevant evidence is classified, the lower court correctly ruled that the government’s “state secrets privilege” prevented the dissemination of this information that, if disclosed, could compromise national security. Further, the state secrets at issue here relate to foreign intelligence, involving the monitoring of cross‐border communications of people suspected of affiliation with a foreign enemy. As Justice Robert Jackson (commonly cited by those who would curtail executive authority over intelligence gathering) wrote in 1948:
The President, both as Commander‐in‐Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports neither are nor ought to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.
Ultimately — and wherever you put the dividing line between executive and legislative authority — this case is just such a disagreement over policy that should be handled in the political branches, rather than as unnecessary litigation in the courts. Much like disputes over high tax rates, immigration enforcement, earmarks, and a host of other issues now being debated by the presidential candidates, the TSP presents a classical political (not legal) question. The plaintiffs were not more affected by the policy than other Americans, so their recourse, as ACLU legal director Steven Shapiro (no relation to me) correctly noted, is to petition Congress (and the executive). Ironically, this is exactly what the ACLU and its allies already did successfully, contributing to the political pressure that led the Bush administration to shut down the program in January 2007. For good or ill, this is the way our democracy is supposed to function.