In Security Cases, Feds No Longer Get Benefit Of The Doubt

Disclosures by former NSA contractor Edward Snowden have shaken the intelligence community and spurred Congress to try to impose new limits on electronic surveillance. In recent weeks, aftershocks from those leaks have been rippling through the courts too. Some judges have signaled they're no longer willing to take the government's word when it comes to national security.

STEVE INSKEEP, HOST:

It's MORNING EDITION from NPR News. I'm Steve Inskeep.

RENEE MONTAGNE, HOST:

And I'm Renee Montagne. Good morning. We have been hearing for months about how disclosures by former NSA contractor Edward Snowden have shaken the intelligence community and spurred Congress to try to impose new limits on surveillance. In recent weeks, after-shocks from those leaks have been rippling through the courts as well. NPR's Carrie Johnson reports some judges have signaled they're no longer willing to take the government's word when it comes to national security.

CARRIE JOHNSON, BYLINE: Earlier this year, for the first time in the 36 year history of the Foreign Intelligence Surveillance Act, a federal judge in Chicago ordered the Justice Department to share secret wiretap applications with a defense lawyer. Former prosecutor David Laufman says the ruling represents something big.

DAVID LAUFMAN: I think what we are starting to see is a slow erosion in the court's willingness to rely exclusively on the government's invocations of national security without affording defendants, or at least through their attorneys, a meaningful opportunity to contest them.

JOHNSON: In other words, the days of taking the government's word are over. The Justice Department wants to appeal the Chicago decision. And even if defense lawyers win, it's not clear the material will help their client, a 20-year-old accused bomber, win in court. Two other cases involve NSA programs that collect American phone metadata and snoop on electronic conversations overseas.

Defendants there are demanding prosecutors open up their files and reveal how those men got on the U.S. government radar screen in the first place. Their requests foreshadow a long and messy court fight that could call into question the legality of their surveillance and eventually tee up a case before the U.S. Supreme Court.

Justice Department and intelligence leaders say the programs operate under strict oversight. But ACLU deputy legal director Jameel Jaffer is no longer willing to give the government the benefit of the doubt.

JAMEEL JAFFER: What we've seen over the last few months is a growing recognition that the government has been using secrecy not just to protect legitimate sources and methods, but also to prevent the disclosure of programs that would be controversial or programs that might even be unlawful, and that secrecy is being misused in many different ways.

JOHNSON: Jaffer says the Foreign Intelligence Surveillance Court, sometimes perceived as a rubber stamp for the NSA, recently ordered the government to go back and make more information public about its electronic surveillance programs.

JAFFER: And if that court is now telling the government some of the secrecy that you guys are demanding is unjustified, I do think that we are, you know, we're in a different era.

JOHNSON: And then there's another set of cases. American University law professor Jennifer Daskal studies the U.S. no fly list for terrorists. A judge in California recently revealed a former Stanford University student taken into custody more than eight years ago and barred from re-entering the U.S. originally got on the no fly list because an FBI agent checked the wrong box on a form. The judge called the move a monumental human error. Daskal wonders how many more such cases are out there buried in classified files.

JENNIFER DASKAL: I think this case highlights the importance of having an adversarial process and having some mechanism for both sides to be heard and for an airing of the information to protect against mistakes and abuse.

JOHNSON: For all the focus on transparency lately, there's one area that remains a black box: the U.S. targeted killing list, the Obama administration's debating whether to kill or capture an unnamed American believed to be living overseas and plotting against the U.S. That bothers Jaffer of the ACLU.

JAFFER: You've got, you know, a group of government bureaucrats deliberating behind closed doors on the basis of secret law and secret evidence and the result of their deliberations is that somebody's going to get killed with a predator drone.

JOHNSON: It's one more area where secrecy is breeding skepticism. Carrie Johnson, NPR News, Washington.

Copyright © 2014 NPR. All rights reserved. Visit our website terms of use and permissions pages at www.npr.org for further information.

NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.