Even if you can prove that you’ve been illegally wiretapped by the government, in violation of the federal Foreign Intelligence Surveillance Act, you can’t seek restitution unless the government decides to try to use the illegally-acquired evidence against you. That’s the upshot of the Ninth Circuit’s ruling last week in the case of Al Haramain v. Obama, which invoked “sovereign immunity” to overturn an award of damages to an Islamic charity that discovered (thanks to an error by the government) that it had been targeted in the warrantless wiretapping program launched by President Bush.
As a narrow matter of statutory construction, the decision may well be correct—I leave that question to colleagues with a firmer grasp of “sovereign immunity” jurisprudence. But it ought to be disturbing on policy grounds for a couple of reasons.
First, when Congress voted in 2008 to grant retroactive legal immunity to telecoms that had aided the NSA’s illegal surveillance, the key argument was that the companies, which had been assured by the government that everything was hunky dory, shouldn’t be the ones held responsible if those assurances were false. Supporters of the legislation, like Sen. Kit Bond, stressed during floor debates that targets of any purportedly illegal wiretapping “can still sue the government.” In rejecting one challenge to the FAA, the Ninth Circuit itself held that the immunity provision didn’t violate the separation of powers because aggrieved parties could still seek relief from the courts against the government. The key premise behind that controversial policy decision was that citizens would still have a meaningful forum to challenge the legality of that surveillance—but if the main statutory provision providing for redress doesn’t apply to the government in the same way as it does to private actors, that turns out to have been something of a false promise, as the burden on challengers suddenly becomes much higher.
Second, the history of surveillance abuses by U.S. intelligence agencies—the history that gave rise to the entire FISA framework in the first place—is emphatically not a history of overt, public prosecutions based on illegally obtained information. Unsurprisingly, when J. Edgar Hoover ordered illicit surveillance of civil rights activists, he was generally not eager to parade his conduct before federal judges. Rather, the improper “use” of information typically took the form of targeted leaks to press, anonymous harassing letters, or the exploitation of private and privileged information for political advantage. These activities were, by design, almost impossible to trace back to the government. The same, of course, could be said of the surveillance itself—but that at least tends to necessitate some kind of paper trail, as a practical as well as legal matter. Realistically, the way to prevent improper use is to deter improper collection.
These considerations are particularly pressing in the broader context of the government’s efforts to shield its intelligence and counterterror activities from judicial scrutiny. We should, as they say, “connect the dots” and recognize this ruling as part of a larger, disturbing pattern, including its promiscuous invocation of the state secrets privilege.
In a case challenging the latest version of NSA’s vaccum-cleaner wiretapping, Amnesty v. Clapper, the Obama administration is arguing that only those who can demonstrate that they have actually been wiretapped (under a top secret program) are eligible to sue the government—and that therefore the courts should toss out a suit brought by lawyers, journalists, and activists who regularly communicate with clients and sources in the Middle East, reasonably believe (based on public information) that their communications are highly likely to be swept up in the NSA’s broad collection programs, and have taken costly measures to reduce the risk of this occurring. The trouble here is that almost none of the thousands or millions of people intercepted—many (if not most) of whom are entirely innocent—will ever be informed about the surveillance of their calls and e-mails. As the legislative history of FISA makes clear, Congress expected that most electronic surveillance for intelligence purposes was not necessarily being conducted with a view to criminal prosecution. Moreover, federal prosecutors actually decline to pursue about 80 percent of the terrorism-related cases referred to them by the FBI. Perversely, then, the most evidently guilty stand some chance of learning they have been spied on—but the innocent almost never will, and thus never have an opportunity to have a court determine whether their rights have been violated. Because the plaintiffs in Amnesty are seeking a ruling on the legality of current and future surveillance, rather than monetary damages for past conduct, this latest ruling doesn’t necessarily sink their suit, which the Supreme Court is slated to hear in October to determine whether the challenge can proceed. There too, however, the Obama administration’s position is that it should not.
Al-Haramain is the extremely rare case in which surveillance targets learned they’d been wiretapped without the fruits of surveillance being introduced in the course of prosecution, but now it seems even that isn’t enough. In general, federal law regards illegal interception as an intrinsic harm that makes the wiretapper liable for monetary damages, even if nothing is subsequently done with the information. obtained. That’s the rule that obtains for both government and private actors in the case of ordinary wiretapping, and even under FISA the same is normally true for private actors like those retroactively-immunized telecoms, but as the Ninth Circuit interprets the law, the government can’t be held liable for the illegal wiretapping itself; only for what it later does with that information. As the court itself notes, “such a structure may seem anomalous and even unfair.” The Founders, after all, weren’t just concerned with shielding citizens against unreasonable government use of illegally obtained information, but with “the right of the people to be secure… against unreasonable searches and seizures.” But on the court’s reading, the law as currently written doesn’t allow that right to be vindicated here. For those keeping track, we’re now approaching seven years since the original exposure of Bush’s version of the NSA spy program, widely deemed illegal by experts, yet with no decisive public ruling on the question from our courts, and no real prospect that the thousands of innocents spied upon will ever get an opportunity to seek redress.
This, it seems, is our surreal new reality: Even if the government breaks the law, violating the rights of thousands of citizens, none of them can do anything about it unless the government volunteers to reveal exactly whose rights it has violated, which it won’t. If by sheer chance any of them do find out about it, they can’t seek to be compensated for the violation without the government’s permission, which it hasn’t given. Strip away the legal Latin, and in the end, you’ll find the universal mantra of the bully: “I’m stronger, and you can’t make me stop if I don’t want to.”