Skip to main content

The flaw in the government's logic on wiretapping

By Jameel Jaffer and Alexander Abdo, Special to CNN
updated 2:19 PM EDT, Mon October 29, 2012
The Supreme Court is hearing a challenge to a 2008 law that expanded the government's authority to wiretap Americans.
The Supreme Court is hearing a challenge to a 2008 law that expanded the government's authority to wiretap Americans.
STORY HIGHLIGHTS
  • Jameel Jaffer, Alexander Abdo: FISA Amendments Act violates Americans' privacy
  • They say the act lets the government to target people without suspicion of wrongdoing
  • They ask: Will this invasive program be subject to meaningful judicial review at all?
  • Jaffer, Abdo: Government's efforts to shield the act from judicial review is disturbing

Editor's note: Jameel Jaffer, deputy legal director of the American Civil Liberties Union, argues for the plaintiffs in Clapper v. Amnesty before the U.S. Supreme Court on Monday. Alexander Abdo, a staff attorney at ACLU, is co-counsel on the case.

(CNN) -- On Monday, the Supreme Court is hearing a challenge to a 2008 law that dramatically expanded the government's authority to wiretap Americans' phone calls and e-mails. At stake are not only the privacy protections guaranteed by the Constitution, but the ability of the courts to enforce them.

The law in question -- called the FISA Amendments Act -- endorsed and expanded the warrantless surveillance program that President George W. Bush authorized shortly after 9/11. It gives the National Security Agency a virtual blank check to intercept Americans' international phone calls and e-mails, to store them indefinitely in huge databases, and to share them with other agencies with few restrictions.

Surveillance under the law must target foreigners abroad, but the law permits the government to sweep up Americans' communications in the process. Indeed, administration officials who advocated for the law made clear that their principal interest was in collecting Americans' international communications.

Jameel Jaffer
Jameel Jaffer
Alexander Abdo
Alexander Abdo

Most troublingly, the FISA Amendments Act allows the government to wiretap Americans' international communications in a dragnet fashion -- potentially sweeping up thousands or millions of Americans' communications at a time -- without any suspicion of wrongdoing and without even identifying the targets of its surveillance to any court.

In the Clapper v. Amnesty case, the Supreme Court will, for the first time, hear a case concerning FISA -- the Foreign Intelligence Surveillance Act -- which was enacted more than 30 years ago, after the Senate's Church Committee exposed the rampant surveillance abuses of the preceding decades. And it will be the first time since 1972 that the court has considered any case concerning "intelligence surveillance" -- surveillance conducted not for law enforcement, but for investigating threats to national security.

The question before the justices is in one sense a narrow one: Can the law be challenged? The plaintiffs include an array of attorneys, human rights, labor, legal and media organizations whose work requires them to engage in sensitive and sometimes privileged phone and e-mail communications with people abroad.

Become a fan of CNNOpinion
Stay up to date on the latest opinion, analysis and conversations through social media. Join us at Facebook/CNNOpinion and follow us @CNNOpinion on Twitter. We welcome your ideas and comments.



In the past, we have argued that the plaintiffs have the right to challenge the law because it puts their communications at risk of surveillance, and because that risk is substantial enough to have compelled them to take costly and burdensome measures to protect their confidential communications.

For example, some of the plaintiffs have had to travel overseas to gather information in person that -- if not for this law -- they would have been able to gather by phone or e-mail.

An appeals court agreed with us last year, but the government argues that the plaintiffs may not sue because they cannot prove that their communications have actually been intercepted under the law or will be intercepted under it in the future. Of course, the government refuses to disclose whether it has -- or will in the future -- wiretap the plaintiffs' phone calls or e-mails.

The flaw in the government's logic should be obvious: If only those who can prove they were wiretapped can sue, and if the government categorically refuses to reveal whom it has wiretapped, then no one will ever be able to challenge the law. The real issue here is whether this unprecedented and invasive surveillance law will be subject to meaningful judicial review at all, ever.

If the plaintiffs cannot challenge the law, then the only judicial scrutiny the law is likely to receive will come from the FISA Court, which meets in secret, generally allows only the government to appear before it, rarely issues public decisions, and doesn't have the authority to consider several key constitutional problems with the law.

The government's argument is really about the role of the judiciary in patrolling the boundaries between the lawful measures that the executive should take in the defense of national security, and the unconstitutional and effectively unbridled discretion the government now has to acquire Americans' international communications.

Whatever one's views of the legality of the FISA Amendments Act, the government's efforts to shield the law from any meaningful judicial review should be profoundly disturbing to all Americans.

The opinions expressed in this commentary are solely those of Jameel Jaffer and Alexander Abdo.

ADVERTISEMENT
Part of complete coverage on
updated 8:35 AM EDT, Mon July 21, 2014
Frida Ghitis: Anger over MH17 is growing against pro-Russia separatists. It's time for the Dutch government to lead, she writes
updated 8:27 AM EDT, Mon July 21, 2014
Julian Zelizer says President Obama called inequality the "defining challenge" of our time but hasn't followed through.
updated 7:57 AM EDT, Mon July 21, 2014
Gene Seymour says the 'Rockford Files' actor worked the persona of the principled coward, charming audiences on big and small screen for generations
updated 10:17 AM EDT, Mon July 21, 2014
Daniel Treisman says that when the Russian leader tied his fate to the Ukraine separatists, he set the stage for his current risky predicament
updated 12:42 PM EDT, Fri July 18, 2014
Andrew Kuchins says urgent diplomacy -- not sanctions -- is needed to de-escalate the conflict in Ukraine that helped lead to the downing of an airliner there.
updated 9:50 PM EDT, Fri July 18, 2014
Jim Hall and Peter Goelz say there should be an immediate and thorough investigation into what happened to MH17.
updated 11:07 AM EDT, Fri July 18, 2014
Pilot Bill Palmer says main defense commercial jets have against missiles is to avoid flying over conflict areas.
updated 1:55 PM EDT, Sun July 20, 2014
Valerie Jarrett says that working women should not be discriminated against because they are pregnant.
updated 3:53 PM EDT, Mon July 21, 2014
David Wheeler says the next time you get a difficult customer representative, think about recording the call.
updated 3:33 PM EDT, Fri July 18, 2014
Newt Gingrich says the more dangerous the world becomes the more Obama hides in a fantasy world.
updated 6:11 AM EDT, Fri July 18, 2014
Michael Desch: It's hard to see why anyone, including Russia and its local allies, would have intentionally targeted the Malaysian Airlines flight
updated 3:14 PM EDT, Thu July 17, 2014
LZ Granderson says we must remember our visceral horror at the news of children killed in an airstrike on a Gaza beach next time our politicians talk of war
updated 8:06 AM EDT, Thu July 17, 2014
Sally Kohn says now the House GOP wants to sue Obama for not implementing a law fast enough, a law they voted down 50 times, all reason has left the room.
updated 8:14 AM EDT, Thu July 17, 2014
A street sign for Wall Street
Sens. Elizabeth Warren, John McCain and others want to scale back the "too big to fail" banks that put us at risk of another financial collapse.
updated 4:16 PM EDT, Thu July 17, 2014
Newt Gingrich writes an open letter to Robert McDonald, the nominee to head the Veterans Administration.
updated 12:01 PM EDT, Fri July 18, 2014
Paul Begala says Dick Cheney has caused an inordinate amount of damage yet continues in a relentless effort to revise the history of his failures.
updated 10:04 AM EDT, Fri July 18, 2014
Kids who takes cell phones to bed are not sleeping, says Mel Robbins. Make them park their phones with the parents at night.
updated 1:29 PM EDT, Thu July 17, 2014
Buzz Aldrin looked at planet Earth as he stood on talcum-like lunar dust 45 years ago. He thinks the next frontier should be Mars.
updated 2:04 PM EDT, Wed July 16, 2014
Mark Zeller never thought my Afghan translator would save his life by killing two Taliban fighters who were about to kill him. The Taliban retaliated by placing him on the top of its kill list.
updated 11:18 AM EDT, Thu July 17, 2014
Jeff Yang says an all-white cast of Asian characters in cartoonish costumes is racially offensive.
updated 9:24 PM EDT, Wed July 16, 2014
Gary Ginsberg says the late John F. Kennedy Jr.'s reaction to an event in 1995 summed up his character
updated 12:41 PM EDT, Wed July 16, 2014
Meg Urry says most falling space debris lands on the planet harmlessly and with no witnesses.
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT