I realize this is a little outside my bailiwick, but I wanted to mention one little historical footnote in relation to last week’s decision in ACLU v. NSA.At the heart of Friday’s decision dismissing the ACLU’s suit against the NSA’s warrantless wiretapping program is the somewhat tenuous reasoning that the only way to establish an actual injury by the plaintiffs (required constitutionally before a federal court can decide a case) is through evidence that they were actually spied on. But, because the program is so ultra-secret, and information about it protected by various classification rules, you would never know if you had been wiretapped. Hence, can you say rock and a hard place?Now, the same argument was essentially presented in a famous decision in the early 1970s, called Laird v. Tatum (1972). The ACLU was also involved in that case (in fact, I believe it was the representative plaintiff, but I can’t remember off the top of my head). In any event, the case involved a program by the U.S. Army to collect information about civil rights and Vietnam War protesters.It’s crucial to note that the monitoring involved in that case was, if you can believe it, less serious than that in the NSA spying scandal. The NSA surveillance involved illegal wiretapping, record collection, data-mining and wholesale keyword searches through vast terabytes of telecommunications data. The Army was basically clipping newspapers and compiling dossiers.Anyway, back to Laird, after a series of investigative hearings on the Hill, word leaked that the program had broadened significantly. Folks sued, alleging that their constitutional right to associate and speak freely had been infringed through the “chilling effect” of the ever-present possibility of military surveillance.At first, it looked likely that the Supreme Court would buy that argument. But, President Nixon quickly nominated future Chief Justice William Rehnquist to the Court, who, in his very recent previous life at the Justice Department, had spoken out against the argument made by the plaintiffs in the case.Pretty much everyone said Rehnquist should have recused himself, but he refused to do so. And he cast the deciding vote.Funny how that worked out.Anyway, point is, that case basically made the same argument as the Sixth Circuit in ACLU v. NSA. AND, that case also dealt with military surveillance of Americans on American soil (the NSA is an agency of the Department of Defense). The parallels are marked, though the abuses alleged in the NSA suit are far more grave than those alleged in Laird. I leave you with the inimitable Justice William O. Douglas, writing in dissent in Laird:
This case involves a cancer in our body politic. It is a measure of the disease which afflicts us. Army surveillance, like Army regimentation, is at war with the principles of the First Amendment. Those who already walk submissively will say there is no cause for alarm. But submissiveness is not our heritage. The First Amendment was designed to allow rebellion to remain as our heritage. The Constitution was designed to keep government off the backs of the people. The Bill of Rights was added to keep the precincts of belief and expression, of the press, of political and social activities free from surveillance. The Bill of Rights was designed to keep agents of government and official eavesdroppers away from assemblies of people. The aim was to allow men to be free and independent and to assert their rights against government. There can be no influence more paralyzing of that objective than Army surveillance. When an intelligence officer looks over every nonconformist’s shoulder in the library, or walks invisibly by his side in a picket line, or infiltrates his club, the America once extolled as the voice of liberty heard around the world no longer is cast in the image which Jefferson and Madison designed, but more in the Russian image, depicted in Appendix III to this opinion.