A Secret Surveillance Program Proves Challengeable in Theory Only

On October 29, about seven months before the recent revelations about secret government surveillance programs, Solicitor General Donald B. Verrilli Jr. made a commitment to the Supreme Court. Verrilli, the Obama administration’s top appellate lawyer, argued that a challenge to a 2008 surveillance law should be dismissed. He said, a little comically in retrospect, that the human rights groups, lawyers and reporters who sought to challenge the law had no particular reason to think that their communications were being collected. The plaintiffs could not show they had been harmed by the surveillance program, he said, so they lacked standing to sue. Their fears, he said, were the product of “a cascade of speculation.” That was merely aggressive and effective advocacy.

In February, in a 5-to-4 decision that split along ideological lines, the Supreme Court accepted Mr. Verrilli’s assurances and ruled in his favor. Justice Samuel A. Alito Jr., writing for the majority in the case, Clapper v. Amnesty International, all but recited Verrilli’s representation. “If the government intends to use or disclose information obtained or derived from” surveillance authorized by the 2008 law “in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition.”

What has happened since then in actual criminal prosecutions? The opposite of what Verrilli told the Supreme Court. Federal prosecutors, apparently unaware of his representations, have refused to make the promised disclosures.