The Flawed Foundations of Article III Standing in Surveillance Cases (Part I)
I’m grateful for the opportunity to be a Concurring Opinions guest blogger this month. My posts will largely concentrate on the history of Article III standing for plaintiffs seeking to challenge government surveillance programs, and the flawed foundations upon which our federal standing jurisprudence rests.
Plaintiffs seeking to challenge government surveillance programs have faced long odds in federal courts, due mainly to a line of Supreme Court cases that have set a very high bar to Article III standing in these cases. The origins of this jurisprudence can be directly traced to Laird v. Tatum, a 1972 case where the Supreme Court considered the question of who could sue the government over a surveillance program, holding in a 5-4 decision that chilling effects arising “merely from the individual’s knowledge” of likely government surveillance did not constitute adequate injury to meet Article III standing requirements. Federal courts have since relied upon Laird to deny standing to plaintiffs in surveillance cases, including the 2013 Supreme Court decision in Clapper v. Amnesty Int’l USA. But the facts behind Laird illuminate a number of important reasons why it is a weak basis for surveillance standing doctrine. It is therefore a worthwhile endeavor, I think, to reexamine Laird in a post-Snowden context in order to gain a deeper understanding of the Court’s flawed standing doctrine in surveillance cases.
The facts behind Laird originated with a January 1970 article in The Washington Monthly, titled “CONUS Intelligence: The Army Watches Civilian Politics.” The article was written by Christopher Pyle, a lawyer and former Army military intelligence officer, who revealed that “[t]he U.S. Army has been closely watching civilian political activity with the United States. Nearly 1,000 plainclothes [Army] investigators . . . keep track of political protests of all kinds—from Klan rallies in North Carolina to anti-war speeches at Harvard.” Further, Pyle claimed that the Army kept “files on the membership, ideology, programs, and practices of virtually every activist political group in the country.”
Army officials initially denied Pyle’s claims, but Congress, the press, and the public were becoming increasingly unimpressed with the integrity of military leadership at that time, especially after the November 1969 revelations of the My Lai massacre and the subsequent attempted cover-up by U.S. officials. The article sparked inquiries from dozens of senators and congressmen, and the Army’s general counsel responded by asserting that he had ordered the Army Intelligence Command at Fort Holabird, MD, to destroy its civilian surveillance databases. He failed to mention, however, that the Army continued to maintain volumes of “counterintelligence” information on paper, microfilm, and regional databanks on “organizations and individuals of interest,” which included details on thousands of organizations and individuals, from the John Birch Society, to the Urban League, to Martin Luther King, Jr.
It is no surprise that these revelations elicited a strong response from Americans. Since its founding, U.S. citizens have been ambivalent when it comes to a standing military, with the Third Amendment being a tangible recognition of this philosophy. The nation’s founders were not naïve, however, and allowed for the provision, under Article I, Section 8 of the Constitution, of statutory procedures for the use of the military to restore public order. These procedures, however, were constrained to three possible uses: (1) The President may use federal forces upon a request by a state legislature to restore civil order, (2) the President may deploy federal forces to combat a rebellion against the federal government, and (3) the President may use federal forces if states deny constitutional rights to a part of that state’s population. There is no such provision for the use of federal troops to surveil U.S. citizens prior to any legal commitment by the President. Congress further strengthened this separation when it passed the Posse Comitatus Act of 1878, which forbade the use of military forces in law enforcement, except when expressly authorized by Congress. (It should be noted, however, that, beginning with the Reagan administration, the use of federal military forces in the “drug war” has weakened this barrier.)
There’s no shortage of parallels between the circumstances in Laird and those we face in a post-Snowden world. For more than a year, the world has become increasingly aware of the extent of government surveillance programs, and the atmosphere of distrust for institutions has risen to levels we haven’t seen since the days of COINTELPRO, Vietnam, and Watergate. But we also face the grim realities of a post-9/11 world, where we have shown a renewed ambivalence toward the natural tension between national security and civil rights. Laird has played an important role in this struggle–at least as it has manifested in federal courts–and I will explore its effects in detail in subsequent posts.