Ever since we learned ten years ago that telephone companies willingly surrendered information about their customers to the Bush administration, people actually affected by such surveillance have been unable to get redress from a court. Why is this? Because the Attorney General has—successfully, so far—maintained that plaintiffs’ only access to proof that they were surveilled is top secret and they don’t have a right to see it. Then, with the other hand, the Attorney General says, “And because you can’t prove that you were surveilled, you can’t prove an injury, so you don’t have standing to be here.” And courts have agreed with this argument.
But not Judge Richard Leon. In his landmark 68-page opinion finding the NSA’s dragnet “metadata” tracking unconstitutional, Judge Leon criticizes the government for wanting it “both ways.” Ironically, the program was so comprehensive that the Attorney General’s go-to argument—”you can’t prove that you were surveilled”—did the government in (p. 38):
Virtually all of the Government’s briefs and arguments to this Court explain how the Government has acted in good faith to create a comprehensive metadata database that serves as a potentially valuable tool in combatting terrorism—in which case, the NSA must have collected metadata from Verizon Wireless, the single largest wireless carrier in the United States, as well as AT&T and Sprint, the second and third-largest carriers. [Citation.] Yet in one footnote, the Government asks me to find that plaintiffs lack standing based on the theoretical possibility that the NSA has collected a universe of metadata so incomplete that the program could not possibly serve its putative function. Candor of this type defies common sense and does not exactly inspire confidence!
Just to stick it to the NSA (which the NSA fully deserves), Judge Leon adds a helpful footnote:
To draw an analogy, if the NSA’s program operates the way the Government suggests it does, then omitting Verizon Wireless, AT&T, and Sprint from the collection would be like omitting John, Paul, and George from a historical analysis of the Beatles. A Ringo-only database doesn’t make much sense, and I cannot believe the Government would create, maintain, and so ardently defend such a system.
Bottom line: I see what you did there, NSA, and it’s not going to work this time. But why did Judge Leon have to stick it to Ringo, too? Poor Ringo.