TWO MAJOR civil liberties "watchdog" groups, the American Civil Liberties Union and the Center for Constitutional Rights, have filed lawsuits in federal court seeking to end President Bush's recently-discovered National Security Agency domestic surveillance program. These lawsuits, coming on the heels of the well-publicized announcement of the existence of this program in The New York Times, will certainly please the ACLU's rich contributor base. But these lawsuits present no legal claims a court can decide and represent a poor way of dealing with the important issues presented by the NSA surveillance program.
To be sure, there is a serious question of the legality of President Bush's spying program under the Foreign Intelligence Surveillance Act, a statute enacted in the heady post-Watergate days of government mistrust to prevent a repeat of President Nixon's wiretaps of "hippie" groups. But the ACLU and its hand-picked plaintiffs are not the appropriate people to pursue this question in court.
To understand why, it must be recognized that one of the key restraints on the power of the federal courts is their obligation, spelled out in Article III of the Constitution, to hear only "cases or controversies." This means that courts must decide cases in an adversarial context, involving plaintiffs with substantial interests at stake. Without this check, the courts would threaten to become agencies possessing roving supervisory authority over the actions of other branches of government, or forums for citizens to vent generalized grievances about government conduct. Thus, federal courts have refused to hear cases brought by plaintiffs asserting, in the words of the Supreme Court from a 1974 case, "only the generalized interest of all citizens in constitutional governance." A litigant must have a "personal stake in the outcome of a controversy," not simply a general desire to see a law overturned.
The ACLU plaintiffs lack any interest in the outcome of the case except insofar as they would like to see the surveillance program end. The ACLU filed its lawsuit "on behalf of scholars, attorneys, journalists and nonprofit groups that regularly communicate by telephone and e-mail with people in the Middle East." Yet since any international communication may have been monitored through the surveillance program, it is difficult to see what interest the ACLU plaintiffs, who assert only that their privacy has been invaded, have in this case that is beyond that of the millions of Americans who make international telephone calls each day and whose communications are thus potentially monitored. After all, there is no way any of the ACLU plaintiffs -- who presumably would not have learned of the program if it had not been revealed by The New York Times or another media source -- would be able to know one way or the other whether their calls are being monitored.
The CCR plaintiffs are lawyers who have been providing legal advice to detainees at Guantanamo Bay as well as those facing deportation proceedings, and who make the slightly more substantial argument that their ability to provide counsel to their clients has probably been impaired by the program. But absent a finding that one of their clients was convicted of a crime on the basis of information gleaned from the surveillance, the CCR plaintiffs have no more interest in the outcome of the case than any other citizen who has made an international telephone call.
The ACLU would respond that if these sorts of standing rules were imposed on people seeking to challenge the NSA surveillance, then the issue would never be able to be heard in court. But the only circumstance where the legality of the NSA program should become an issue are those where people are actually disadvantaged by it: Namely, where people have been convicted of crimes on the basis of data gleaned from the program, or who can prove that they have been directly affected by the program in some other way.
To allow the ACLU and CCR lawsuits to proceed would be to invite the disturbing spectacle of a system of government where the federal courts stand as the primary agency of political change, with the U.S. Congress as a sort of last resort. While interest-group litigation has produced some laudable results in the past, such litigation goes too far when it becomes, as in the present case, a means of policy change divorced of any substantial real-world context.
The Senate Judiciary Committee has launched an investigation into the NSA program, and Arlen Specter, chairman of the committee, has made it clear that he disagrees with the president's legal justification for the program. The NSA program may die a natural death, thanks to revelations about the details of the program served up in New York Times reporter James Risen's new book, "State of War." Even if the NSA program dies, the problem will remain: Any realistic policy solution to the difficult problems presented by the potential for foreign conspiracies within the United States would involve secret wiretapping in some form, be it with or without prior court approval, given in secret. But in any event, such issues should not be resolved in the context of the ACLU and CCR litigation involving plaintiffs who can assert no special interest in the matter.
Noah Peters' column appears Mondays in The Cavalier Daily. He can be reached at npeters@cavalierdaily.com.
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