A unanimous panel of the Second Circuit Court of Appeals yesterday ruled that the NSA’s nationwide collection of Americans’ phone records is illegal, unauthorized by section 215 of the PATRIOT Act or any other statute.
The opinion in ACLU v. Clapper is only the latest in a series of court decisions and government reports discrediting the bulk collection program. Even so, the Second Circuit’s ruling is a landmark—and it demonstrates the fundamental difference between independent, adversarial judicial review, and secret legal approvals for secret programs.
As the New York Times wrote, yesterday’s ruling was “the first time a higher-level court in the regular judicial system has reviewed the program” although it had repeatedly been approved in secret by the Foreign Intelligence Surveillance Court (FISC) since 2006. The FISC approved the bulk collection program for years without issuing any opinion—even a classified one—analyzing its legality. The FISC also never heard legal arguments that the program violated the Constitution, or was unauthorized by statute.
As Second Circuit’s opinion states, Congress reauthorized section 215 of the PATRIOT Act after the call records program began, but it did so when the program
was shrouded in the secrecy applicable to classified information, and only a limited subset of members of Congress had a comprehensive understanding of the program or of its purported legal bases. There was certainly no opportunity for broad discussion in the Congress or among the public of whether the FISC’s interpretation of § 215 was correct. Finding the government’s interpretation of the statute to have been “legislatively ratified” under these circumstances would ignore reality.
The court calls this secrecy “understandable.” That is debatable, particularly since the government did not simply classify the extent of NSA surveillance before Edward Snowden’s disclosures. It also actively misled Congress, the public, and the courts about them, in an effort to prevent open debate or judicial review.
Both the Second Circuit opinion and Judge Robert Sack’s concurrence acknowledge that the Snowden leaks “led to this litigation.” The opinion notes that the Second Circuit may well have reached a different result from FISC in part because the former “received the benefit of an adversarial presentation of the issues” in open court.
Judge Sack’s concurrence explains this at greater length. He compares Snowden’s disclosures to Daniel Ellsberg’s leak of the Pentagon Papers, and discusses the crucial differences between secret ex parte proceedings and ordinary judicial review:
Two of the fundamental characteristics of ordinary Article III Courts that are often considered central to their mission are transparency (ʺopennessʺ) and a properly functioning adversary system…. most Article III courts, including this Court, operate under a strong presumption that their papers and proceedings are open to the public.
Sack’s concurrence also discusses the crucial role that a New York Times attorney’s cross-examination of government witnesses played in the Pentagon Papers case, leading the district court judge to “find as a fact” that the government had not demonstrated “that the publication of these historical documents would seriously breach the national security.”
The Executive Branch also seems to realize what a difference public disclosure and adversarial, independent judicial review can make in evaluating the legality of national security programs. It has responded by using state secrets privilege, classification, and standing arguments to oppose judicial review whenever possible, and by concealing its own controlling interpretations of law from Congress and the public. Too often, the federal courts have acquiesced.
In 2013, in Clapper v. Amnesty International, the Supreme Court held that civil society organizations, detainees’ lawyers and journalists could not challenge NSA spying under section 702 of the FISA Amendments Act, because their fears of surveillance were “highly speculative” (overturning a Second Circuit decision in which Judges Sack and Lynch took part). The reason the plaintiffs were forced to “speculate” about whether the NSA was collecting their communications, of course, was the secrecy in which the agency operated. The government also made several inaccurate statements about the 702 program during oral arguments.
In February 2015, in Jewel v. NSA, a federal judge in California held that the plaintiffs could not challenge the 702 program based on a similar Catch 22. The plaintiffs’ evidence that their communications were targeted remained were too “speculative” for them to be allowed to sue. In any case, the judge said, the case had to be dismissed on grounds of state secrets privilege, because the government had shown that “could not proceed without risking exceptionally grave damage to national security.” The only proof of the harm to national security was contained in government declarations that were kept secret not only from the public, but from the plaintiffs and their lawyers.
The use of secret, ex parte government declarations to dismiss cases is not limited to surveillance. In March of this year, a federal judge in New York dismissed a private defamation case on grounds of state secrets privilege, in Restis v. American Coalition Against Nuclear Iran, Inc. The plaintiffs and their lawyers were not only denied access to the government’s declarations, but were also not told which government agency submitted them. As the court stated, dismissing the case meant that “Plaintiffs not only do not get their day in court, but cannot be told why.” It dismissed the case anyway.
As the Restis court noted, federal cases often rely on secret, ex parte government declarations on the need for secrecy even in cases where opposing counsel have high-level security clearances. Clearance or no, the government gets to decide whether opposing counsel have a “need to know” the information that may well prove decisive to their client’s case.
Standing and the state secrets doctrine are only two of a host of legal arguments that the government can use to persuade courts not to rule on the legality of its national security programs. The Executive can also argue that the defendants have immunity from suit; that the case is a “political question”; that even if the government’s acted illegally there is no right to sue them for it; that the plaintiffs are not, legally, speaking, “persons”. The list of ways in which plaintiffs can lose national security cases without any ruling on the legality of the government’s actions is nearly endless.
If regular courts do not hear national security cases on the merits, then who says what the law is? Sometimes, it is a secret court like the FISC. More often, it is attorneys within the Executive Branch itself—particularly the Justice Department’s Office of Legal Counsel (OLC). OLC opinions, as former Attorney General Eric Holder acknowledged in 2010, are often “effectively…the final word on the controlling law” for the United States government on issues “that are unlikely to be resolved by the courts.” Under the Bush administration, OLC memos redefined torture. Under Obama, they set the legal limits on the drone program. Surveillance under Executive Order 12333 is governed in part by an OLC memo written during the Reagan administration. But most OLC memos remain as secret from the public, and as inaccessible to Congress, as the Section 215 program was before the Snowden disclosures. Even for unclassified memos, OLC routinely redacts their titles and dates as well as their content in response to Freedom of Information Act requests. When it comes to OLC memos about classified programs—OLC won’t even reveal how many it has written under the Obama administration.
The intelligence community constantly reassures us that its actions are legal and constitutional. But as the Second Circuit’s ruling demonstrates, without an opportunity to read the legal justifications, or debate them in Congress, or test them in independent courts that hear arguments from more than one side, those reassurances have little value. That is why meaningful surveillance reform must include checks on government secrecy.