Standing and Covert Surveillance

Abstract

This Article, written for a symposium on national security, describes and analyzes standing doctrine as it applies to covert government surveillance, focusing on practices thought to be conducted by the National Security Agency. Primarily because of its desire to avoid judicial incursions into the political process, the Supreme Court has construed its standing doctrine in a way that makes challenges to covert surveillance very difficult. Properly understood, however, such challenges do not call for judicial trenching on the power of the legislative and executive branches. Instead, they ask the courts to ensure that the political branches function properly. This political process theory of standing can rejuvenate the “chilling” arguments that the Supreme Court has rejected in Fourth and First Amendment cases. Additionally, the theory provides a third, independent cause of action against covert surveillance that is based on separation of powers principles, specifically the notion that, in a representative democracy governed by administrative law principles, one role of the courts is to ensure that the legislative branch authorizes and monitors significant executive actions and that the executive branch promulgates reasonable regulations governing itself. Litigants who can show that their participation in the political process has been concretely compromised by covert surveillance should have standing to bring any of these causes of action.