Submitted to a Candid World

Short answers — kind of; maybe.

Despite reports explaining its near-uselessness, and a campaign promise to end it, the Bush-era “Terror Surveillance Program” (TSP) — a scheme that provides for “dragnet”/”vacuum” style information gathering, far broader than authorized under last summer’s FISA compromise — is still running. And more importantly, to some, the Department of Justice is still fending off lawsuits questioning the program’s validity, by asserting the hated “state secrets” privilege.

Predictably, this defense has unleashed a firestorm of criticism from those farther to my left. Many of these criticisms, however, aren’t entirely fair.

Under the Bush administration, the TSP operated entirely without safeguards and entirely outside the law. Recall that, when Bush’s Department of Justice refused to authorize the program, Vice President Cheney & David Addington rammed the program through without them, and without even consulting the President. Presidents typically push the boundaries of the discretion allowed to them by the Office of Legal Counsel, but this flagrant disregard of the executive branch’s own law, by a vice President no less, was unprecedented, and truly shocking.

In fairness to Obama, times have changed, both in form and substance. Shortly after Inauguration, Obama staffed the Department of Justice with vocal critics of the program, who have, with Attorney General Eric Holder, successfully reined in and limited the program. Even if it’s not everything we wanted, that is change, and a dramatic improvement.

Further, although Obama’s Department of Justice is, indeed, defending the TSP in court, that doesn’t say as much about the administration’s commitment to the program as interested groups like the Electronic Frontier Foundation want you to think it does. These cases (like Jewel v. NSA) are attempts to establish private liability for invasions of privacy. While claims of illegal government conduct must always be premised on private causes of action, the facts of the TSP don’t really fit the traditional model of impact litigation, in which an aggrieved plaintiff leverages their representative injury to displace an offensive statute or government program. But government surveillance is necessarily a secret thing: targets won’t know if they’re being surveilled and, without that knowledge, can’t present a discrete and particularized injury that a court can adjudicate (the government does indeed assert this defense (pdf)). Mere chilling is not enough. Laird v. Tatum, 408 U.S. 1 (1972), 10-11, 13-14. Admittedly this is rather convenient: the program is so intrusive that it’s not intrusive at all. It may also seem like this doctrine incentivizes the wrong behavior — secrecy, rather than candor. But if the program is being operated effectively, with proper minimization procedures, data accidentally collected from innocent parties (like EFF’s plaintiffs) will be destroyed as soon as the mistake is realized, along with records of its existence, the better to preserve the parties’ privacy. Bottom line, a federal court may not be the best place to challenge this sort of government conduct.

Which brings us back to the political process. We did elect a President who promised to end the TSP. Does his failure to do so, so far, constitute a broken promise? Consider this: warrantless wiretapping is more controversial to the public at large than it is to me, you, and the Democratic Party. Obama’s promise to cancel the warrantless wiretapping program was thus a risky one to make. Call it a costly signal. Accordingly, we can conclude that he meant it when he said it — if not, why take the risk? His failure to fulfill this promise, then, means one of a few things. Either,

1. He intends to keep his promise, and he’s working on it;
2. He intends to keep his promise, but it’s just not a priority, or;
3. He intended to keep his promise, but he’s since learned something that’s forced him to change his mind.

I’m only concerned about the second possibility. If it’s the first, I’m content to wait, and if it’s the third, I’ll trust the judgment of two successive U.S. Presidents, even if the first was George W. Bush.