Our good friend (and separation-of-powers maven) Peter Shane from (the) Ohio State University’s Moritz College of Law is hosting a “virtual” symposium on NSA surveillance in conjunction with I/S: A Journal of Law and Policy for the Information Society. Although all of the papers will eventually be available here, I’ve taken the liberty of posting my contribution–on “Standing and Secret Surveillance” to SSRN. Although I reproduce the abstract in full below the fold, the short version is that the paper argues that (1) Congress probably could overrule Clapper and allow for more surveillance challenges by private citizens if it pays attention to Justice Kennedy’s concurrence in Lujan; (2) such a move might not actually accomplish all that much; (3) the standing issues vis-a-vis a “special advocate” only arise (as Marty and I argued) on appeal; and (4) whether or not those can be resolved, the lingering standing issues underscore the extent to which, even if a “special advocate” is a necessary reform for the future of U.S. surveillance law, it almost certainly will not be a sufficient one.

This essay, part of a symposium on the law and policy regarding U.S. surveillance programs, seeks to provide a comprehensive assessment of the relationship between the Supreme Court’s Article III standing doctrine and efforts to challenge (and/or reform) secret government surveillance programs.

In light of the Supreme Court’s February 2013 decision in Clapper v. Amnesty International, most have assumed that standing imposes fatal obstacles to judicial review of such programs (if not all secret government conduct) on the merits–even after Edward Snowden’s disclosures of the government’s bulk telephony metadata collection and PRISM surveillance programs. Indeed, Justice Scalia’s opinion for the Court in Lujan v. Defenders of Wildlife appears to bar Congress from conferring standing where it would not otherwise have existed. As Part I documents, though, upon closer examination, Justice Kennedy’s far narrower concurrence in Lujan leaves at least some room for Congress to “fix” Clapper by lowering the burden of proof that plaintiffs must surmount in challenges to secret surveillance. Instead, the real problem with such a “fix” is not its constitutional validity, as Part II explains, but its long-term utility and efficacy as a policy matter.

With that in mind, Part III considers an alternative possibility—that, instead of empowering individuals like the Clapper plaintiffs to bring civil suits challenging secret government surveillance programs (which may very well defeat the purpose of secret surveillance), Congress might provide for greater (secret) adversarial process before the FISA Court itself. As Part III explains, such reforms would raise no new Article III concerns in the FISA Court, but would trigger difficult questions about standing to appeal—especially after the Supreme Court’s decision in the Proposition 8 case. To be sure, there may well be a workaround for the appellate standing problem. But, as the essay concludes, the standing questions underscore the extent to which an increase in quasi-adversarial litigation cannot be the sum total of efforts to “reform” the foreign intelligence surveillance activities of the U.S. government, at least for those who truly believe that such reform is warranted.

Needless to say, thoughts and comments are welcome!!