How Snowden Could Return

Adam Liptak’s great story yesterday in the New York Times—it should’ve been on the front page—tells me that Edward Snowden might want to return to the United States to stand trial for his criminal wrongdoing, after all.  But if and only if his Article III standing at the law can be guaranteed before he returns, as a party who was (a) injured by the NSA, the FISA courts, and the Justice Department, and who can (b) find redress first in the protection of the federal courts and then in legislation.

This not a fanciful scenario.  The suit and the amicus briefs would have to be filed long before he returned; otherwise his life would be forfeit to the Gulag my country has built to protect its inhabitants against themselves and the phantom menace of terrorism.  But his complaint is already much stronger than the one brought by Amnesty International et al. last year, in which the Supreme Court rejected the plaintiffs’ claim previously upheld by the Court of Appeals for the Second Circuit, saying that these “respondents” lacked Article III standing to sue the FISA courts for injury caused by the covert surveillance they enable via the NSA and other government entities.  They lacked standing, the Court said in an October decision written by Justice Alito which closely followed the “Reply Brief” of the Solcitor General, Donald J. Verrilli, because the injury specified—the costs of protecting their communication from “dragnet” or “vacuum-cleaner style” surveillance—was “speculative” and “conjectural,” not actual and/or imminent.

Snowden’s claims of Article III standing would be much stronger because (a) the harm inflicted deliberately by the NSA with FISC connivance (thus “causation”) is both actual and imminent, and we know this because Snowden himself has revealed the evidence of the wrongdoing—“dragnet” or “vacuum-cleaner style surveillance”—and the consequent injury; (b) his standing as a party directly subject to the adverse effects of surveillance and secret courts, or as a party that can represent others who may not be able to ask a court for relief—these others would be we, the people, whose privacy has been indiscriminately invaded—is practically self-evident; and (c) the possibility of redress at the law required by the doctrine of Article III standing is also practically self-evident, in the form of legislation limiting NSA surveillance and opening the FISA courts to public scrutiny in the name of the most original intents, the 1st and 4th Amendments.

In his inimitable, understated way, Liptak makes two key points.  First, both in argument before the Court and in his “Reply Brief,” Verrilli insisted that evidence of non-conjectural harm inflicted by “dragnet” or “vaccum-cleaner style surveillance” would give a plaintiff Article III standing.  Second, Verrilli also insisted—and here Alito actually amplified the argument of the brief—that if the government (presumably at any level) uses information acquired by NSA with FISA authorization in a criminal proceeding, it must disclose the source of the information and, more important, that the accused would then have Article III standing to “challenge the lawfulness of the acquisition.”

Liptak notes that two federal prosecutions, one in Fort Lauderdale, the other in Chicago, have used such information to press charges against alleged terrorists, but in each case the prosecutors have so far refused to divulge or explain or confirm the source, thus depriving the accused of his potential standing; that means he can’t even begin to challenge the lawfulness of the evidence brought against him.  His legal interest can’t be protected by the best attorney until he’s given standing, but that standing can’t be established without the assertion of a legal interest in his right to privacy—or at least protection from the arbitrary search and seizure conducted, presumably, by the NSA with FISA approval.  So much for the Solicitor General’s brief and the Supreme Court’s decision.

Here’s the crucial paragraph from Verrilli’s brief (which you can’t copy and paste, by the way, because it’s a  document available online but SECURED by the federal government):

“Respondents contend that the government’s position could ‘immuni[ze]’ surveillance claims from scrutiny, because they can never be certain that communications involving them have been acquired.  That contention is misplaced.  Others may be able to establish standing even if respondents cannot.  As respondents recognize, the government must provide advance notice of its intent to use information obtained or derived from Section 1881a-authorized surveillance against a person in judicial or administrative proceedings and that person may challenge the underlying surveillance.” [“Reply Brief for the Petitioners,” p. 15]

All right, then.  Wiki-Leaks, Amnesty International, et al. must begin preparing the case Snowden can make against FISA I (1978) and II (2008), and the NSA—to challenge the “underlying surveillance” as violations of both existing statutes and Constitutional imperatives.  Once a writ of a certiorari is issued by the Supreme Court, he will not have automatic Article III standing, but, unlike the accused in Fort Lauderdale and Chicago, he will have the prior protection of the law, and more important, of public opinion.

Here’s the link to the Liptak story, from there you can get to the SG’s “Reply Brief”:




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