Secrecy is Catch-22 - East Valley Tribune: Opinion

Secrecy is Catch-22

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Posted: Friday, July 13, 2007 6:56 am | Updated: 5:43 pm, Fri Oct 7, 2011.

A divided three-judge federal appeals court panel sidestepped the major issues in the so-called Terrorist Surveillance Program, secretly instituted by the Bush administration shortly after the 9/11 terrorist attacks.

We hope the Sixth Circuit decision does not close a case that should be troubling to all Americans who value civil liberties.

Under the program, the National Security Agency conducted surveillance of telephonic and e-mail communications between U.S. residents and people overseas suspected of being involved in al-Qaida or other terrorist organizations — in apparent violation of the 1978 Foreign Intelligence Surveillance Act, which set up procedures for getting warrants from a secret FISA court for such surveillance.

The Sixth Circuit court, as legal analyst Timothy Lynch of the libertarian Cato Institute pointed out, never got to such issues as whether the program violated the FISA law or was constitutional or not under either the First Amendment or the Fourth Amendment. It simply (well, in fact rather turgidly) declared that the plaintiffs who filed the suit in conjunction with the American Civil Liberties Union lacked “standing” to compel the courts to continue the case, so it should be dismissed.

To be sure, “standing,” the legal concept that a plaintiff should be able to demonstrate specific and concrete harm from a law, program or policy before being allowed to challenge it in court, is an important concept that should not be undermined. It is an important protection against frivolous lawsuits filed simply to make a political point or a statement. However, the Sixth Circuit decision interprets the concept so narrowly as to make one wonder what it would take to challenge a program, in this case one that we believe is clearly illegal.

The plaintiffs were an assortment of scholars, journalists and attorneys who said they had valid reasons to be in contact with people in the Middle East, but that those contacts had been chilled or became difficult or unreasonably circuitous once it became known in 2005 that the program existed. But they could not prove that their communications had been specifically targeted because the identities of those who had been subject to the unwarranted surveillance was classified information that the government was not about to make public.

That’s a Catch-22 that sets the bar for “standing” absurdly high. You can’t sue unless you can prove you’ve been targeted by a secret program that doesn’t tell anybody, including the special courts set up to handle such matters, what persons have been targeted.

The argument that this is a political or policy issue that should be handled in Congress rather than in the courts is especially weak in this instance. This program was set up in secret, with only a few members of Congress, who were sworn to secrecy, informed about it. While the administration says it suspended the program once its existence became public knowledge and controversial (which makes one wonder whether it was so vital in the first place) it has declared that it has the right, under the “inherent” wartime powers of the presidency, to resume it at any time — and presumably to do so in secret.

Congress spoke in 1978 on the issue, declaring that the FISA court procedure was the “exclusive means” to conduct electronic surveillance in the United States for foreign intelligence purposes. The administration had plenty of time, between 2001 and 2005, to go to Congress with the argument that the 1978 law was outdated and in need of revision, but preferred to operate in secret. The question is whether the administration action violated the law, which is appropriate for the courts to consider.

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