The States Are Where It’s At: With End of Al-Haramain Case, Federal Litigation on Surveillance Hits a Brick Wall

The big guys, the big dogs, are going to own everything from the White House to the courthouse. Gov. Brian Schweitzer.

In the one case where someone has evidence of having been surveilled by the government’s warrantless wiretapping program, the lawyers representing the plaintiffs have decided not to appeal to the Supreme Court. They don’t believe the current court would side with them, and if they’re right, federal overturning of the warrantless wiretapping program will have to wait on a membership of the court more favorable to the Constitution.

This raises an important strategic question for surveillance activists: Which branch of government should we focus our efforts on?

Is there any realistic prospect of electing a President who will oppose warrantless wiretapping themselves? It’s hard to imagine. In 2008, Obama opposed it vehemently in public until he was safely the nominee, and then supported it with equal vehemence in private. Despite this, there was no progressive primary challenge to him in 2011-12 that would have forced him to adopt a less radical position. Any feasible winner of a Republican primary will have wedded himself to a policy of uncritical belligerence towards America’s enemies, which will necessitate continuing the program. The federal-executive route to a solution, then, depends on pure luck – on nominating a candidate who turns out in office to be a real friend to the Constitution.

Will Congress do anything? Congress has repeatedly failed to restrain the executive on warrantless wiretapping in even the most moderate ways. Right now, only just over one-fourth of Congressmembers oppose it. They are almost all Democrats, with a leaven of Ron Paul-inspired libertarian Republicans. This will only change substantially if the Republican Party chooses to focus on and oppose this program. They have been curiously reluctant to do so, perhaps because (1) they hope that a Republican President will be able to use those powers himself one day, or (2) because Congressional Republicans are conscious of having vigorously supported the Bush-era expansion of warrantless wiretapping and would feel hypocritical for opposing it now.

Therefore, many surveillance activists have put their hopes in the federal judiciary: that if a ruling is ever made on the merits, the warrantless wiretapping program will be overturned. We have reported ourselves on a variety of cases (Amnesty v. Clapper, Jewel v. NSA and Al-Haramain v. Obama et al. However, as we hear today (h/t Techdirt), the only case that has made it far enough and has some chance of success, is not being appealed up to the Supreme Court, because the plaintiffs’ lawyers fear that a (likely) adverse ruling would create a nationwide precedent.

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So if the executive won’t rule itself, Congress won’t rule the executive, and the Supreme Court won’t overrule Congress or the President, what are we left with as surveillance activists?

This is the point where many surveillance activists will say: There is nothing left but revolution. I disagree. There is one method left: a slow, frustrating method, but one that has worked for groups on other issues, and that can eventually work for us.

Two major civil liberties fights over the last decade related to gay marriage and marijuana policy. In each case, while there was certainly activity on the federal level, activists began with an environment where the majority of public opinion was clearly, and strongly, against them. Working on the state level, and starting with “friendly” states, they were able to shift state policy even in the context of strong federal hostility to changes in state law. Then, the changed state policy context began to influence legislators elected from those states, and to constrain the ability and willingness of the federal government to enforce federal law.

Yes, I'm talking

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