Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, explains why the Supreme Court turned away a challenge on Monday to government spying under the Foreign Intelligence Surveillance Act.
THE STATEMENT AT ISSUE:
“Disclosures over the past two years have called into question whether judicial oversight of national security surveillance is adequate to prevent abuse and preserve the constitutional balance between liberty and security….
Through this case, this court has the opportunity to provide guidance concerning the role that federal judges should play in ensuring that the government’s surveillance practices are consistent with the Constitution.”
– Excerpt from a legal document filed in the Supreme Court in the case of Daoud v. United States. On Monday, the Supreme Court refused to hear that case, after the federal government chose not to file a reply to it. It was one of the first cases in which a person accused of crime has been told by the government that he was a target of a secret intelligence monitoring and that some of the evidence would be used against him at his trial.
WE CHECKED THE CONSTITUTION, AND…
Nearly four decades ago, in 1978, there was a constitutional coincidence – two events, occurring fairly close together, that would seem entirely unconnected, but over time would become intertwined. The courts, however, have yet to figure out a way to make the two work in tandem to serve both the cause of national security and the cause of personal liberty.
In June of that year, the Supreme Court, in a routine criminal case, Franks v. Delaware, ruled that an individual accused of crime would have the right under the Fourth Amendment to challenge the legality of a police search of his belongings, if the individual could first make a fairly convincing argument that the search was not legal. A judge would look at the basis for the police search, the arguments police had made in getting a warrant, and then decide if the accused individual could go ahead with a challenge to the legality of the police action.
In October of that year, President Jimmy Carter signed into law the Foreign Intelligence Surveillance Act, setting up a court system in which the government could seek permission to carry out electronic eavesdropping aimed at the threatening actions of a “foreign power” or its agents. “The bill I am signing today,” the President said, “sacrifices neither the security nor our civil liberties.” The measure, he added, strikes “that difficult balance.”
One of the features of that new law was a mandate by Congress that, if government electronic intelligence-gathering uncovered evidence that would be used to prosecute an individual for a crime, that person would be told about it, and have the opportunity to challenge it. As that law has operated over the years since, it has become clear that only those facing criminal charges are likely to be told that they were monitored; anyone else whose conversations had been overheard has not been told about it, so they had no way to contend that the monitoring was illegal or unconstitutional.
Through the 37 years since then, one thing has become clear: no one has ever had the opportunity to challenge in court whether government spying under the 1978 law was actually done illegally or in violation of the Constitution. There are two reasons for that. First, no one who simply suspects they were overheard by an intelligence-gathering wiretap has been able to prove that they were, so they could not show they had been harmed and thus had no legal claim. Or so the Supreme Court said two years ago, in the case of Clapper v. Amnesty International.
Second, no one who has been told that they were overheard (because they were charged with a crime based partly on evidence from such a wiretap) has ever been given actual access to the secret papers that gave the government authority to do the wiretapping, so they had no basis to claim it was begun or carried out illegally. The government has been able routinely to block demands for such access, claiming national security reasons.
But that circumstance appeared to have changed about a year ago. A federal trial judge in Chicago, Sharon Johnson Coleman, actually ordered the federal government to share with a defense attorney who had a Top Secret clearance some of the background papers on secret intelligence surveillance.
The judge did that in the case of a 19-year-old from Hillside, Ill., Adel Daoud, who had been charged with planning to bomb a bar in the Loop section of downtown Chicago, as a terrorist act. An FBI undercover agent who learned of Daoud’s online conversations about bomb-making and “jihad” worked out the plot with him, and provided him with a fake bomb that, of course, would not detonate.
The government had notified Daoud’s lawyers that some evidence from a secret wiretap would be used at his trial. Judge Coleman rejected the government’s argument that it would endanger national security if the background papers regarding that surveillance were shared with a defense lawyer, even one with sufficient clearance to see such papers. The judge relied upon the Supreme Court’s decision in the Franks v. Delaware case, and her own authority under the 1978 intelligence surveillance law to weigh demands for access.
These developments appeared to be a near-perfect alignment of facts and legal developments to set up a clear-cut court test of the legality of the massive foreign-intelligence surveillance program that has been revealed through the disclosures of former security analyst Edward Snowden.
However, Judge Coleman’s order of disclosure was overturned by the U.S. Court of Appeals for the Seventh Circuit, finding that the trial judge had not followed the required procedures for ordering such a disclosure. Daoud’s lawyers decided to press the issue in the Supreme Court, filing a case there last December asking the court to apply the Franks v. Delaware precedent, and sort out who should get access to the background papers of spying, in a case like Daoud’s.
As matters would turn out, however, the federal government’s lawyers chose to waive their right to respond to the Daoud case. The Supreme Court had the option of calling for a government response, but it did not do so. The case came up before the Justices, then, as only a one-sided matter, and that kind of case does not get reviewed. The Daoud case was denied on Monday without an explanation and without any indication that any Justice had voted to hear it.
So, again, as in other cases that had failed to draw the Justices into an analysis of the balance of security and privacy in the global wiretapping context, challengers had to await another case with not much reason to anticipate a different outcome.
