Courts May Soon Have to Hear a Constitutional Challenge to Mass Surveillance

As you may have heard, the Department of Justice is in the process of reviewing a slew of criminal cases that involve the kind of controversial, warrantless- and mass-surveillance evidence that’s been in the news lately and that’s being gathered under the authority of the Foreign Intelligence Surveillance Act, or FISA.

Although FISA is supposed to permit the government to intercept the electronic communications of foreign powers and their agents that implicate national security or terrorism, we learned this summer that the National Security Agency shares information from its programs with other agencies, including the Drug Enforcement Administration and the Internal Revenue Service, for use in their ordinary criminal investigations while concealing the source of the information—even from prosecutors and judges. Revelations like these have people understandably concerned.

As the DOJ’s review progresses, it will notify the affected defendants that it intends to use such evidence against them at trial. The government already made the first of these disclosures two months ago, and since then, more have come down the pike. The Attorney General has said he does not know how many cases are involved but that disclosures will be made on a rolling basis as Justice Department officials identify the information.

Such disclosures are not new in ordinary criminal cases. In fact, they are part and parcel of a routine discovery process that is mandated by law to give meaning to the words of the Fifth and Sixth Amendments. Under the Constitution, our due process rights include the right to be informed of the nature and cause of the government’s charges and to be confronted with the witnesses against us. That’s why, when the government charges you with a crime, it’s required to turn over evidence that it will use in its case against you.

What’s important here, though, is that these disclosures are likely to tee up constitutional challenges to the government’s mass-surveillance program that have been unsuccessful to date. So far, civil-liberties groups have not been able to get their legal challenges heard because the courts have adopted the position that such groups don’t have standing to sue because they can’t show they have suffered any concrete injury in fact. In other words, to show a personal legal injury in this context, civil-liberties groups would have to show that they have been spied on themselves. That may well be happening if history is any guide, but if you can’t show that the government’s conduct has touched you personally, you generally don’t have standing to sue on behalf of others.

The government’s disclosures in these criminal cases will change that. Defense lawyers in these cases can be expected to challenge the government’s conduct on behalf of their clients, and eventually, the courts will have to decide the issues on the merits. The first of these disclosures was made to a defendant who was charged with providing material support to a terrorist organization. Fair enough. It’s certainly easier not to care when the person whose rights were violated is unsympathetic. But behold: we all live in this brave new world now, and we should be careful not to let Orwellian fear-mongering, or some concept of perpetual war, destroy the values that we’re fighting for in the first place.