Thurgood Marshall United States Courthouse, which houses the United States Court of Appeals for the Second Circuit, New York. 

© 2012 Reuters

The myths, knowledge gaps, and abuses of power that let the United States government get away with massive warrantless surveillance were on display yesterday in federal court – and showed why courts should find this monitoring violates rights.

United States v. Hasbajrami, an appeal, concerns the constitutionality of Section 702 of the Foreign Intelligence Surveillance Act. Under this controversial law, the government “targets” foreigners overseas for warrantless telephone and internet spying – and scoops up potentially large numbers of Americans’ communications in the process.

Hasbajrami, a US green-card holder then living in Brooklyn, was surveilled through this large-scale monitoring while communicating with someone overseas and pled guilty in 2012 to trying to provide support for a terrorist organization. But if the monitoring was unconstitutional, then the trial court should have thrown out the government’s tainted evidence.

One myth that underpins massive surveillance powers and that appeared during the hearing was the idea that intelligence agencies are both omniscient and yet unable to point to enough facts to get a warrant. The assumption underlying Section 702 surveillance – and some of the judges’ questions to the lawyers – is that the agencies will sometimes simply “know” someone is worth monitoring (for example, because they think she is a criminal or spy), even if they can’t or don’t want to provide evidence for that belief.  But in fact, the agencies have a long history of bad hunches, especially regarding people of color.

And the risk of wrong decisions based on inadequate facts is why the US warrant requirement exists.

Another myth the judges struggled with was the government’s Orwellian description of surveillance as “foreign” intelligence-gathering when it entails potentially large-scale monitoring of Americans as well. Prosecutors suggested a 1990 Supreme Court decision saying authorities could search a Mexican citizen’s houses in Mexico without a US judge’s sign-off, means that the National Security Agency can surveil any foreigner overseas without worrying about the Constitution. But the internet – a network Americans use to communicate with people worldwide – is not a house in Mexico. This surveillance is domestic as well as foreign.

Statistics about this surveillance gave the judges trouble, too – understandably, since key figures about how Section 702 affects Americans don’t exist or are unclear. The volume and reach of surveillance matter to its constitutionality, and the scope of snooping under this law may be very large, especially since the government had nearly 130,000 targets last year. But the court in Hasbajrami’s case is operating mostly in the dark.

Hasbajrami was in the dark, too. The government didn’t tell him evidence in his case came from Section 702 monitoring until nearly two years after he was convicted. And during the appeal hearing, it abruptly disclosed new information about the specific form the surveillance took, sending his lawyers scrambling.

This is not what justice or respect for rights look like, and Congress and the courts should rein in enormous secret surveillance programs before they produce more cases like Hasbajrami’s.