Why you can’t sue the government for spying on you

The courts have set up "one big Catch-22" that makes it impossible to take on the government

Topics: Surveillance, National Security Agency, law, Federal courts, Appellate Courts, Legal issues, Warrantless Wiretapping, George W. Bush,

Today, amid all the other news about the government’s vast surveillance network, the 9th Circuit Court of Appeals in California dismissed a case brought seven years ago against the National Security Agency’s warrantless wiretapping program. The dismissal essentially affirms the “big Catch-22″ that makes it nearly impossible for American citizens to sue their government for spying on them.

Among other things, the Center for Constitutional Rights coordinates the legal defense of the hundreds of detainees held at the Guantánamo Bay prison camp. After the New York Times revealed the NSA’s warrantless wiretapping program in late 2005, CCR had reason to believe that the agency had intercepted its attorneys calls and emails with people outside the U.S., including clients, clients’ families, outside attorneys, potential witnesses and others.

So in 2006 they sued, asking a federal court for an injunction to stop the program and naming George W. Bush, the head of the NSA and the heads of other intelligence agencies as defendants. The government eventually ended that program, so CCR now wanted the court to force the government to destroy any records of surveillance that the intelligence agencies may still have retained from its old illegal wiretapping program.

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To make a very complicated story simple, a district court judge dismissed the case in 2011, and today, the appellate court affirmed that decision. The Obama administration still hasn’t taken a position on whether it considered that old NSA program illegal.

In dismissing the case, the court agreed with the precedent set in two other cases, which basically said that Americans don’t even have the right to sue their government over its surveillance program, unless they can prove that their communications were intercepted. Of course, that’s essentially impossible since the program is classified and you can’t use classified documents in court, even if you somehow got your hands on them.

“It is one big Catch-22,” Shane Kadidal, an attorney at the Center for Constitutional Rights, told Salon today.

For instance, in the case of Al-Haramain Islamic Foundation v. Bush, the plaintiffs actually had proof that they were targeted in the form of a “top secret” document that the government had accidentally included in court documents. But an appellate court ruled that the document remained classified, despite its accidental disclosure, and thus dismissed the case on state secrets grounds last year.

Likewise, Kadidal’s organization had evidence that it was targeted. In 2008, the New York Times reported that “[t]he Justice Department does not deny that the government has monitored phone calls and e-mail exchanges between lawyers and their clients as part of its terrorism investigations in the United States and overseas.”

Still, the courts dismissed the case in 2011 and today, this time pointing to the Supreme Court’s February ruling in a case brought by the ACLU, which said plaintiffs need to show that they had “certainly impending” injury from government surveillance. In other words, if you can’t already prove that the government is monitoring you, you can’t even sue to find out if it is.

“Basically, the courts are telling the American people — even human rights monitors and lawyers suing the government, whose communications are extraordinarily sensitive — to live with the risk of surveillance,” Kadidal said.

“We’ll have to wait and see what the American people tell the courts in response.”

Alex Seitz-Wald

Alex Seitz-Wald is Salon's political reporter. Email him at aseitz-wald@salon.com, and follow him on Twitter @aseitzwald.

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