The Flawed Foundations of Article III Standing in Surveillance Cases (Part II)

Then-Secretary of Defense Melvin Laird Sharing a Light Moment With President Nixon

Then-Secretary of Defense Melvin Laird Sharing a Light Moment With President Nixon

In my last post, I introduced the 1972 Supreme Court case of Laird v. Tatum, which has since served as a basis for subsequent courts to deny standing to plaintiffs seeking to challenge government surveillance programs. Here, I continue the exploration of Laird as unsound precedent for the high Article III bar currently facing surveillance plaintiffs.

Much like the events following the revelations of government surveillance by Edward Snowden in 2013, the 1970 disclosure of U.S. Army programs designed to keep tabs on civilians and civilian organizations such as Martin Luther King, Jr., the Urban League, and student organizations, raised significant concerns about the effects of such programs on a democratic society.

In response to Christopher Pyle’s Army surveillance revelations, North Carolina Senator Samuel Ervin, Jr., chairman of the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, held extensive inquiries regarding Pyle’s allegations in 1971, placing a large body of testimony and documentation regarding Army surveillance into the public record. A number of organizations and people mentioned as surveillance targets in the Army documents initiated a suit challenging the constitutionality of these Army surveillance programs in February 1970. The plaintiffs, including Arlo Tatum, the executive secretary of the General Committee for Conscientious Objectors, sought injunctive and declaratory relief from Secretary of Defense Melvin Laird and several high-ranking Army officials. The defendants immediately filed motions to dismiss with the district court, refusing to discuss the specific Army intelligence activities, but assured the court of their legality, and claimed that the Laird plaintiffs had failed to state claims upon which relief could be granted.

In their complaint, the Laird plaintiffs did not assert that the Army had made any attempts to directly control protest or speech. Instead, they argued that the Army’s domestic surveillance programs created with them an inhibiting force on First Amendment liberties. Indeed, in his concurring opinion in Lamont v. Postmaster General (1965), Justice Brennan stated that the “inhibition as well as prohibition against the exercise of precious First Amendment rights is a power denied to government.” This was exactly what the Laird plaintiffs sought to challenge: a nationwide domestic surveillance program, conducted by the Army, creates a “dragnet which may enmesh anyone.”

District of Columbia District Court Judge George Hart, Jr. heard oral argument on the motions in April 1970. Plaintiffs had brought with them a number of former Army military intelligence agents who were prepared to testify on their behalf on the nature and scope of the Army’s civilian surveillance programs. Judge Hart, however, refused to allow plaintiffs to present any witnesses, and concluded on the papers that the surveillance activity in question was no more intrusive than collecting clippings of news media reports, which was constitutional. Judge Hart granted the Army’s motion to dismiss, finding that the plaintiffs had not alleged any unconstitutional conduct on the part of defendants.

The Laird plaintiffs appealed this ruling, and the D.C. Court of Appeals remanded the case back to the District Court for an evidentiary hearing, finding that “[b]ecause the evil alleged in the Army intelligence system is that of overbreadth . . . and because there is no indication that a better opportunity will later arise to test to the constitutionality of the Army’s action, the issue can be considered justiciable at this time.” The court further stated that “[t]he compilation of data by a civilian investigation agency is thus not the threat to civil liberties or the deterrent on the exercise of the constitutional right of free speech that such an action by the military is,” and ordered the District Court to re-hear the case.

The defendants appealed the order of the Court of Appeals to the Supreme Court, which granted certiorari on the issues of justiciability and standing. The plaintiffs asked the Court to affirm the Court of Appeals order for an evidentiary hearing, arguing that the record as it existed was not sufficient for a determination of the constitutional issues before the District Court. In addition to the parties’ briefs, a group of twenty-nine former military intelligence officers and agents filed an amicus brief with the Court. In their brief the amici informed the Court that the Army’s domestic surveillance programs went far beyond mere newspaper article clippings, and included such activities as widespread agent infiltration into civilian groups, agents posing as journalists with falsified identification, and assigning agents to stake out Martin Luther King, Jr.’s cemetery and keep records of visitors to his gravesite.

The Supreme Court’s decision–which I will explore fully in my next post–has provided the rationale for courts since to deny standing to challenge government surveillance programs. But as we will see, the unprincipled decision in Laird is fundamentally unsound, and deserves renewed scrutiny.

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