I was interviewed yesterday in an extraordinary case out of South Florida where Attorney Marshall Dore Louis faced a problem that phone records material to his defense of a car robbery suspect have disappeared. Accordingly, he is seeking the records from one resource that has stored every call from every citizen: the National Security Agency (NSA). After all, the Administration has admitted the existence of the storage and program. After that, Dore is arguing that it is just another government agency with material evidence. Indeed, the NSA wanted a complete record of all calls to store and it is now being called upon to hand over material evidence in its possession.
Clearly, NSA views this program as a one way street and will not yield willingly to being a resource of litigators. The interesting question will be how it now objects. In the past, the government has refused to confirm such programs but it has now done so. In February, the Administration succeeded in blocking a challenge to its surveillance policies by arguing that any confirmation of such programs would put American lives at risk. Now that the case is dismissed, they have simply acknowledged the program. The decision is Clapper v. Amnesty International, No. 11-1025, and it is a true nightmare for civil liberties. The Supreme Court rejected the standing of civil liberties groups and citizens to challenge the Obama Administration’s surveillance programs. President Obama has long been criticized for his opposition to such lawsuits and his Justice Department has continued a successful attack on the ability of citizens to challenge the unconstitutional actions of their government in the war on terror. The 5-4 opinion by Justice Samuel A. Alito Jr. insulates such programs from judicial review in yet another narrowing of standing rules.
While insisting that disclosing such programs would put lives at risk to secure the dismissal of the Clapper case, the Administration readily did so a couple months later. That has not only removed the prior national security barrier but has raised questions over the truth of Clapper’s own testimony.
Dore says that the prosecutors have informed him that a month of the records of defendant Terrance Brown are missing for two phones. His provider, MetroPCS, says it has no longer has them. Then Dore was reading the newspapers and found an agency who helpfully collected all calls for all citizens. If the program is no longer secret and the calls were obtained directly from the carriers (without some secret method or device), what is the objection from the government beyond that it finds such requests a hassle. Are they ready to come to court and say that they are the government and they are not here to actually help citizens . . . just spy on them.
It is particularly ironic to seek access to this program to protect due process after the program itself blew away so many other constitutional rights. It is like an 11th Century Englishman stopping some Vikings for directions. They would like respond “we really are not there to help you.”
The government is likely going to win but it will be fascinating to watch them deal with the demand.