Surveillance, secrecy, and the search for meaningful accountability.

• Author: Setty, Sudha

One of the most intractable problems in the debate around maintaining the rule of law while combating the threat of terrorism is the question of secrecy and transparency. In peacetime, important tenets to the rule of law include transparency of the law, limits on government power, and consistency of the law as applied to individuals in the polity. Yet the post-9/11 decision-making by the Bush and Obama administrations has been characterized by excessive secrecy that stymies most efforts to hold the government accountable for its abuses. Executive branch policy with regard to detention, interrogation, targeted killing, and surveillance are kept secret, and that secrecy has been largely validated by a compliant judiciary that has dismissed almost all suits challenging human and civil rights abuses resulting from counterterrorism programs. Efforts by Congress to engage in meaningful oversight have met with mixed results; in the area of government surveillance, such efforts have been fruitless without the benefit of leaked information on warrantless surveillance by government insiders. The executive branch has generally refused to make public vital aspects of its surveillance programs in ways that could give oversight efforts more muscle. At the same time, the executive branch has consistently defended the legality and efficacy of these surveillance programs.

This paper considers the nature and effect of the warrantless surveillance infrastructure constructed in the United States since the terrorist attacks of September 11, 2001, and discusses surveillance-related powers and accountability measures in the United Kingdom and India as comparative examples. Through this analysis, this paper questions whether accountability over government abuses in this area exist in an effective form, or if governments have constructed a post-9/11 legal architecture with regard to surveillance that engenders excessive secrecy and renders accountability mechanisms largely meaningless.

INTRODUCTION I. THE LEGAL ARCHITECTURE OF U.S. SURVEILLANCE EFFORTS II. CURRENT MECHANISMS MIMIC THE ACCOUNTABILITY NECESSARY UNDER THE RULE OF LAW A. Administration Claims of Accountability B. Congressional Efforts at Oversight and Accountability Enforcement C. Judicial Review 1. Foreign Intelligence Surveillance Court 2. Article III Courts III. COMPARATIVE PERSPECTIVES ON SURVEILLANCE AND ACCOUNTABILITY A. United Kingdom B. India IV. INCREASING REAL ACCOUNTABILITY CONCLUSION INTRODUCTION

What does it mean to maintain the rule of law, particularly when national security and counterterrorism policies are at issue? In its propagation of the "global war on terror" after the terrorist attacks of September 11, 2001, the Bush Administration was accused many times of behaving in a lawless fashion. (1) President Obama picked up on this theme, insisting early on that his administration would oversee a return to the primacy of the rule of law, regardless of whether the country viewed itself as being at peace or at war. (2) In doing so, Obama promised to restore the idea that the government should have limited power, should be held to account for its transgressions, and that the government's actions and the laws under which it acts ought to be transparent. (3)

Yet the post-9/11 decision-making by both the Bush and Obama administrations has been characterized by excessive secrecy that stymies most efforts to hold the government accountable for its abuses. Particularly in the area of government surveillance, meaningful oversight has seemed impossible without the trigger of leaked information. The executive branch has consistently defended the legality and efficacy of these surveillance programs, insisting that the administration acts in accordance with the rule of law and that secrecy has been necessary, and that leaks by government insiders have been criminal and counterproductive. (4) Congress has enabled the executive branch to engage in widespread surveillance in the post-9/11 context and has not been able to compel the executive branch to make available information regarding its surveillance programs that could give any oversight efforts more muscle.

This paper considers the nature and effect of national security-related surveillance and accountability measures constructed in the United States, the United Kingdom, and India since the terrorist attacks of September 11, 2001. In doing so, this paper questions whether accountability of government abuses in this area exist in a meaningful form, or if governments have constructed a post-9/11 legal architecture with regard to surveillance that engenders excessive secrecy in ways that render accountability mechanisms largely ersatz. Part I considers post-9/11 surveillance efforts in the United States and the legal architecture that has supported it. Part II questions whether the laws governing surveillance should legitimately be considered accountability mechanisms, or whether they instead mimic the rule of law by becoming relevant only when leaked information becomes available. Part III uses a comparative lens to consider the systems of surveillance adopted by the United Kingdom and India--other democratic nations struggling with security threats--and the efficacy of the accountability mechanisms in those nations. Part IV concludes with an exploration of possible avenues for the limitation of and accountability over government surveillance.

1. THE LEGAL ARCHITECTURE OF U.S. SURVEILLANCE EFFORTS

   After the terrorist attacks of September 11, 2001, U.S. surveillance efforts were ramped up, in part due to the perception that intelligence agencies failed to gamer vital information that could have prevented the attacks. (5) There was significant disagreement as to whether the failure was due primarily to legal constraints (6) or primarily to an inability to synthesize and analyze the available intelligence accurately and thoroughly. (7) The 9/11 Commission agreed with the latter view, concluding that the inability of intelligence agencies to learn about and prevent the attacks of September 11 was not attributable to a lack of legal authority. (8) Nonetheless, the legal and policy constraints on intelligence gathering were loosened significantly in the wake of the September 11 attacks. As discussed below, the PATRIOT Act arguably authorized the collection and storage of domestic telephony and internet metadata (9) and the collection and content searches of substantial amounts of foreign telephone and internet communications, (10) thereby giving the intelligence community a much larger "haystack" of information from which to attempt to glean details of emerging and ongoing terrorist threats." This shift generated critiques from civil libertarians and lawmakers, (12) but critics have been largely unable to secure significant and lasting victories in curtailing surveillance powers, either through judicial action (13) or legislative initiative.

   However, the tenor of the public debate became more contentious in June 2013, when then-National Security Agency (NSA) contractor Edward Snowden began revealing classified documents detailing the scope of NSA surveillance on foreign and U.S. persons in order to prompt public scrutiny and debate over the programs. Snowden revealed, among many other things, that the NSA was engaged in the practice of collecting and retaining the metadata of all U.S. telephone customers for five years (the "NSA Metadata Program"), and had been running searches through that metadata when there was a "reasonable, articulable suspicion" that a particular telephone number was associated with potential terrorist activity. (14)

   This program--with its broad scope, lack of particularized suspicion, and lengthy duration of data retention--provides a useful vehicle through which to analyze the question of meaningful accountability over warrantless government surveillance more generally. (15) Snowden's revelations over the year following the publication of his initial disclosure continued to foster debate and demands for better oversight of the NS A. (16) The administration initiated various review mechanisms, (17) Congress convened oversight hearings, (18) and the public engaged in a vigorous debate as to the legality, efficacy, and morality of the NSA's activities, particularly the bulk collection and retention for several years of telephony and internet metadata of U.S. persons.

   This collection has been described at times as lawless, (19) yet the architecture constructed to support arguments as to the domestic legality (20) and constitutionality of the NSA Metadata Program is extensive. On a purely constitutional level, some have asserted that inherent Article II power confers on the executive branch expansive surveillance powers based on a view that the United States continues to be on a post-9/11 war footing. (21) From a legislative perspective, a significant number of statutes, such as the Authorization for the Use of Military Force (AUMF), (22) provisions of the USA PATRIOT Act (PATRIOT Act), (23) the Protect America Act and the FISA Amendments Act of 2008 (FAA) (24) were enacted by Congress and interpreted by the NS A as providing ample legal authority for the capture and storage of data. (25) Compounding these statutory authorities, the executive branch has likely sought its own nonpublic legal guidance in the form of secret legal opinions from the Office of Legal Counsel memoranda (26) and other Department of Justice memoranda defending the legality and efficacy of the surveillance program. (27)

   The surveillance and data collection that are part of the NSA Metadata Program have been largely validated by two forms of relatively weak judicial review: Article III courts have, until recently, largely refused to hear the merits of cases challenging the government surveillance, instead finding that plaintiffs are unable to satisfy the standing requirement, (28) or dismissing suits at the pleadings...