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Let Non-Secret Courts Decide if NSA Surveillance Is Constitutional

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Deputy NSA Director John Inglis recently told Congress that analysts "try to be judicious" in analyzing telephone metadata so as not to waste their name studying phone records from "the pizza delivery man." But there are other groups of American citizens whose telephone records likely interest the intelligence community far more than takeout restaurants: attorneys who represent Guantanamo detainees. Journalists. Whistleblowers. Human rights researchers.
Even before the recent leaks about the NSA program, many of these groups and individuals suspected they were under surveillance, and sued to stop it. Courts have dismissed most cases because of a catch 22: in order to sue, plaintiffs must prove that they were affected by NSA surveillance -- but the proof is classified.

In 2007, a group of Guantanamo lawyers sued under the Freedom of Information Act (FOIA) for records that showed whether the government had intercepted communications relating to their representation of their clients. The government refused to provide any records, or even to say whether they existed, because "acknowledging the existence or nonexistence of the information" requested would reveal classified information. The court ruled that the government did not have to answer.

This February, the Supreme Court dismissed Amnesty International v. Clapper, a suit by nonprofit organizations, attorneys, and journalists against the Director of National Intelligence. Justice Samuel Alito held that the plaintiffs' fears of unlawful surveillance were too "highly speculative" for the suit to proceed. Second Circuit Judge Dennis Jacobs went further: the plaintiffs, he wrote, were acting out a "fantasy of persecution" comparable to "pro se plaintiff's allegation that the CIA is controlling him through a radio embedded in his molar."

But based on recent disclosures, journalists', attorneys' and civil society groups' fears of surveillance were, if anything, understated. The plaintiffs in Amnesty v. Clapper alleged that the NSA had likely intercepted their communications because their work required them to communicate regularly with non-U.S. citizens, some of whom had been accused of involvement with terrorism. If the government was eavesdropping on the plaintiffs' sources, clients, and witnesses, it would sweep up their communications as well.

We now know that the NSA did not restrict itself to querying its databases about people in direct contact -- "one hop" away -- from foreign surveillance targets. NSA officials have acknowledged that they can analyze metadata of people "two hops" or "three hops" from the target: not only a terrorism suspect, but everyone who communicates with him, everyone who communicates with those people, and everyone who communicates with those people.

To give a personal illustration: I have interviewed and communicated electronically with former detainees, but I do not know if any of them were NSA targets. A "one hop" analysis might exclude me. But I am virtually certain that a "two hop" analysis would not, because I have been in direct communication with a large number of detainees' counsel, national security journalists, and human rights investigators. This means that all of my family, friends, and professional contacts are "three hops" away.

What degree of surveillance this means in practice is unclear. A recently declassified order by the Foreign Intelligence Surveillance [FISA] Court gives some clues with respect to telephone metadata. According to the order, the "hop-limited results" of the initial NSA queries are processed into a "corporate store." Metadata in the corporate store can be searched "for valid foreign intelligence purposes," using "the full range of SIGINT [signals intelligence] analytic tradecraft." It is quite plausible that "valid foreign intelligence purposes" would include investigations of leaks of classified information, given the number of leakers the Obama administration has prosecuted for espionage. It is also quite plausible that the "corporate store" includes a great deal of information about national security journalists' telephone calls with sources.

It is hard to be certain what is actually occurring, because so much about these programs remains classified. President Obama has asserted that "none of the revelations show that government has actually abused these powers." But when discussing other countries' human rights records, the U.S. State Department describes widespread surveillance of journalists, civil society, and ordinary citizens as abusive in itself, because it leads to self-censorship. That is part of the reason we have a Fourth Amendment, which even the highly deferential FISA court has found the NSA violated at times. The administration should stop hiding behind secrecy and standing doctrine, and allow non-secret, adversarial courts to determine whether its surveillance programs violate the Constitution.