2013.3.2

In Jewel, the Obama administration has already twice invoked the “state secrets” privilege, a mechanism left behind from the McCarthy-era persecution of Communist sympathizers which effectively lets the government ‘turn off’ the Constitution and the justice system whenever they feel that a case might jeopardize national security. The administration has promised to limit its use of the privilege to situations which present the potential for “significant harm” to the country. But that promise obviously hasn’t stopped them from deflecting recent challenges to warrantless wiretapping and other government counterterrorism initiatives — like indefinite detention provisions, or the secret program for targeted killings carried out by drones — nor will it necessarily restrain future administrations from doing the same.

Jewel may be the last chance for meaningful judicial review of the wiretapping programs in the foreseeable future. Failing that, the only remaining response for journalists and others dealing in sensitive overseas communications may be exactly what digital activists have been advocating for decades: widespread personal encryption. But aside from being somewhat impractical, the necessity of encrypted communications would more broadly underscore just how thoroughly the legal system has failed to protect citizens from unnecessary intrusion.

Joshua Kopstein, “Denied in the Supreme Court, warrantless wiretap opponents are losing ground fast: Does secret surveillance violate the Constitution? Sorry, that’s a secret”