The Twin Obstacles of Standing and State Secrecy Live On In Surveillance Challenges

As Federal District Judge Jeffrey White made plain in his order granting the government partial summary judgment yesterday in Jewel v. NSA, current judicial interpretations of both standing doctrine and the state secrets privilege remain formidable obstacles to those seeking to challenge government surveillance programs in U.S. courts. Both of these doctrines have long been criticized by scholars as either poorly defined "Rorschach tests" in the case of standing, or as easily abused by government agencies merely wishing to avoid embarrassment in the case of the state secrets privilege. I've written about both of these doctrines (On Standing: Part I, Part II, Part III, Part IV; State Secrets Privilege), but it's worth examining Judge White's reasoning in this particular case.

Citing Clapper v. Amnesty International USA, which continues to build upon the flawed standard found in the 1971 case of Laird v. Tatum, Judge White allowed that the plaintiffs had "crossed the threshold requirement to establish that, should the [NSA] program work as alleged, their communications would be captured in a dragnet Internet collection program." But, following Clapper, this was not enough to establish standing in this case, as their evidence could "only speculate about what data were actually processed and by whom...and how and for what purpose," since the details of the NSA program in question remain classified. This problem--how to provide evidence for claims of injury due to surveillance programs held as secret by the government--has become a Catch-22 for surveillance plaintiffs.

Judge White also held that, even if the plaintiffs could provide evidence to support standing in this case, "adjudication of the standing issue could not proceed without risking exceptionally grave damage to national security." In other words, a "fair and full adjudication" of the case before the court would require the government to defend itself, which (the government claims) it cannot do, as any defense of their actions would necessarily expose national secrets and would be detrimental to national security. Thus, according to Judge White at least, the state secrets privilege appears to provide a backstop to prevent challenges to surveillance programs that might slip by the Article III standing requirement. It should be noted at this point that in a number of high profile cases where the government has claimed this privilege, it has turned out that the government defendants were abusing the privilege in order "to avoid embarrassment, handicap political enemies, and to prevent criminal investigation of administrative action."

So where does this leave future challenges to government surveillance programs? It seems contrary to the rule of law that such challengers cannot have their day in court concerning government programs that could very well be unconstitutional or otherwise illegal. Indeed, the government argument that laws need to be bent, broken, or ignored in order to preserve our constitutional democracy feels a bit like burning down the village in order to save it. While Article III standing and the state secrets privilege are both necessary components of our jurisprudence for many good reasons, they were not designed to act as impermeable barriers to justice, especially when constitutionally protected core principles are at stake.