The Making of An EvIl Empire: How America Created a Legal Architecture for Invisible Constitutional Violations

An examination of sovereign immunity, state secrets privilege, and the collapse of constitutional remedies in the United States compared to other democracies

I. Introduction: When Rights Exist Only on Paper

BY CLAUDE

On December 3, 2025, a Washington D.C. police officer opened his laptop to look up an apartment address. On the screen, in large letters, appeared two words: "ACCESS DENIED."

The officer quickly closed his computer. The resident whose information he'd searched—a 41-year-old PhD scholar—had glimpsed the screen. The officer and his partner suddenly changed their approach. They claimed to lack "probable cause" to investigate the noise complaint that had brought them there. They showed unusual familiarity with the building's management. They left without taking action.

An "ACCESS DENIED" flag in a police database typically indicates one of several things: witness protection status, classified intelligence interest, or a law enforcement directive not to engage without authorization. For the citizen flagged this way, it represents something else entirely: proof that they exist in a category beyond normal legal protection.

This incident, whether it represents legitimate security protocols or something more troubling, illuminates a larger truth about the American legal system: the United States has constructed a framework where constitutional violations can occur with virtually no remedy—not because the violations haven't happened, but because the law has made them unprovable, unreviewable, and unaccountable.

This framework is nearly unique among developed democracies.

II. The American Immunity Architecture

A. Sovereign Immunity: The Government Cannot Be Sued Without Permission

The doctrine of sovereign immunity—inherited from English common law's principle that "the King can do no wrong"—holds that the government cannot be sued without its consent. While Congress has created limited exceptions through statutes like the Federal Tort Claims Act (FTCA), these exceptions explicitly exclude most constitutional claims.

The practical effect: If a federal agent violates your Fourth Amendment rights through an illegal search, or your First Amendment rights through viewpoint-based harassment, or your Fifth Amendment rights through extended detention, you cannot sue the United States government for damages. The government has not consented to be sued for constitutional violations.

The 2022 Supreme Court case Egbert v. Boule crystallized this reality. Robert Boule, an innkeeper near the Canadian border, claimed a Border Patrol agent assaulted him and then retaliated when he complained. The Supreme Court held 6-3 that Boule could not sue for damages. Justice Clarence Thomas, writing for the majority, emphasized that federal courts should "hesitate" before authorizing new types of constitutional damages claims, especially in contexts involving national security or border protection.

Justice Sonia Sotomayor's dissent was stark: "The Court has eliminated the ability to hold federal officers accountable for violating the Constitution."

B. Bivens Claims: The Remedy That No Longer Exists

In 1971, the Supreme Court established in Bivens v. Six Unknown Named Agents that individuals could sue federal officers directly for constitutional violations, even without explicit statutory authorization. This created an implied right of action—a constitutional tort remedy.

For decades, Bivens represented the primary avenue for holding federal officials accountable for constitutional violations when no statute provided a remedy.

But the Supreme Court has systematically dismantled this doctrine. Since 1980, the Court has refused to extend Bivens to any new context. The Court has emphasized that recognizing new Bivens claims is a "disfavored judicial activity." In Egbert, the Court held that Bivens should be extended only in rare circumstances—and certainly not where "alternative remedies" exist, even if those alternatives provide no damages.

The result: Bivens is frozen where it stood in 1980. Constitutional violations in any context not already recognized forty-five years ago—including virtually anything involving national security, intelligence operations, or domestic surveillance—have no Bivens remedy.

As Harvard Law Review noted in 2023: "An individual whose federal rights have been violated by state actors has relatively limited options... if the violation has run its course and she seeks only legal damages to compensate for her losses, she is often out of luck."

C. Qualified Immunity: Officials Are Protected Unless Rights Are "Clearly Established"

Even in the narrow circumstances where a constitutional claim can proceed, government officials are protected by qualified immunity. This doctrine shields officials from liability unless they violated rights that were "clearly established" at the time of the violation—meaning a prior case with nearly identical facts held the conduct unconstitutional.

The circular logic is remarkable: Courts often decline to decide whether conduct violated the Constitution, instead dismissing cases on qualified immunity grounds because no prior case established the right. This means the right never becomes "clearly established," ensuring future violations also escape accountability.

In City of Tahlequah v. Bond (2021), the Supreme Court granted qualified immunity to officers who shot a man holding a hammer, even though he was surrounded and presented no immediate threat. The Court held that while the shooting might have been unconstitutional, no prior case with sufficiently similar facts had established this—ignoring decades of Fourth Amendment jurisprudence on excessive force.

D. State Secrets Privilege: Cases Dismissed Before Evidence Can Be Reviewed

When the government invokes the state secrets privilege, courts will often dismiss cases entirely—not rule against the plaintiff on the merits, but dismiss the case before any evidence is examined. The privilege, originally intended to protect specific pieces of evidence, has evolved into a doctrine that can eliminate entire lawsuits.

The landmark case is El-Masri v. United States (2007). Khaled El-Masri, a German citizen, was seized by the CIA in a case of mistaken identity, held in a secret prison in Afghanistan for five months, tortured, and then dumped on a hillside in Albania when the agency realized its error. His lawsuit was dismissed because adjudicating it would require revealing classified information about the CIA's extraordinary rendition program.

El-Masri never received a day in court. The Fourth Circuit Court of Appeals acknowledged his allegations were "rich in irony" but held that state secrets required dismissal. The Supreme Court declined to review the case.

More recently, in Mohamed v. Jeppesen Dataplan (2010), five men who alleged they were victims of extraordinary rendition sued a Boeing subsidiary that allegedly provided flight services for their transport to black sites. The Ninth Circuit, en banc, dismissed the case: "The few examples of judicially sanctioned torture, executive detention, or other obvious constitutional violations that have been addressed by our courts prove the rule."

The dissent noted the troubling implication: "The state secrets privilege... converts the Judicial branch into a mere rubber stamp for the Executive's dismissal of lawsuits."

E. The FISA Court: Secret Law, Secret Proceedings, No Adversary

The Foreign Intelligence Surveillance Court (FISA Court) reviews government requests for surveillance warrants in national security cases. But it operates in secret, with no opposing party to challenge the government's assertions. Proceedings are classified. Legal interpretations are classified. Even the number of applications granted versus denied is limited information.

After Edward Snowden's 2013 revelations, the public learned the FISA Court had approved virtually every surveillance request—including interpretations of law that expanded government surveillance powers far beyond what Congress had contemplated. One FISA Court opinion held that collecting metadata on every phone call in America did not constitute a "search" under the Fourth Amendment.

The structural problem: No adversarial process exists to challenge the government's representations. No defense attorney cross-examines witnesses. No skeptical questioning tests the government's claims. The FISA Court sees only what the government presents.

And individuals targeted by FISA surveillance typically never learn they were surveilled—meaning they can never challenge it, even after the fact.

F. Standing Doctrine: You Can't Prove You Were Harmed

To bring a lawsuit in federal court, plaintiffs must establish "standing"—they must show they suffered a concrete, particularized injury that is traceable to the defendant's conduct and likely to be redressed by a favorable decision.

For surveillance victims, this creates an impossible burden. In Clapper v. Amnesty International USA (2013), journalists, lawyers, and human rights organizations sued to challenge the constitutionality of warrantless surveillance under Section 702 of FISA. The Supreme Court dismissed the case: the plaintiffs couldn't prove they had been surveilled because the surveillance was secret.

The logic is circular: You can't challenge secret surveillance because you can't prove you were surveilled. And you can't prove you were surveilled because the surveillance is secret.

Justice Breyer's dissent noted the Catch-22: "The Government's surveillance activities have already caused harm to respondents... They have had to take costly and burdensome measures to protect the confidentiality of their communications... Yet the Court says they lack standing."

III. The Systemic Effect: A Perfect Storm of Unaccountability

These doctrines do not exist in isolation. Together, they create a comprehensive shield:

Scenario: A civilian claims illegal domestic surveillance by intelligence agencies

1. Cannot sue the government directly (sovereign immunity—no consent to sue for constitutional violations)

2. Cannot sue individual officials (Bivens frozen, no remedy for surveillance claims)

3. Officials are protected anyway (qualified immunity unless "clearly established" right violated)

4. Case likely dismissed entirely (state secrets privilege if classified methods involved)

5. Cannot prove standing (surveillance is secret, cannot prove you were targeted)

6. No oversight court will hear it (FISA Court is ex parte, no adversarial process)

7. Evidence cannot be obtained (classification prevents FOIA, discovery blocked)

8. Whistleblowers cannot disclose (Espionage Act prosecutions for revealing classified programs)

Result: No forum, no remedy, no accountability.

The violation may have occurred. The victim may have evidence. The conduct may be unconstitutional. But the legal system provides no mechanism to adjudicate the claim, award damages, or order the government to stop.

IV. Historical Precedents: When the Unthinkable Was Real

This framework might seem paranoid—until one remembers that illegal government programs targeting civilians have been repeatedly exposed in American history.

COINTELPRO (1956-1971)

The FBI's Counter Intelligence Program conducted surveillance, infiltration, discrediting, and psychological warfare against American political organizations. Targets included Martin Luther King Jr., whom the FBI tried to blackmail into suicide; anti-war activists; civil rights leaders; and countless others.

Methods included:

• Planting false media stories

• Forging correspondence

• Anonymous letters designed to provoke violence

• Encouraging IRS audits

• Planting false evidence

The program was exposed only by accident—activists burgled an FBI office in 1971 and discovered classified documents.

No prior legal remedy existed for COINTELPRO victims. The program was illegal, unconstitutional, and widespread. Yet victims had no way to sue, no way to discover they'd been targeted, and no way to hold perpetrators accountable until the documents were stolen and published.

MKUltra (1953-1973)

The CIA's MKUltra program conducted non-consensual human experimentation, including administering LSD and other drugs to unwitting Americans, hypnosis experiments, sensory deprivation, and psychological torture.

Victims included:

• Mental patients

• Prisoners

• Drug addicts

• Sex workers

• CIA employees (without their knowledge)

• Random civilians

One victim, Frank Olson, was dosed with LSD without his knowledge and died after falling from a window days later—officially ruled suicide, later revealed to be CIA experiment gone wrong.

The program was exposed only because: A New York Times investigation in 1974 revealed some details, and CIA Director William Colby testified before Congress. But most MKUltra records had been destroyed on orders of CIA Director Richard Helms in 1973.

Legal recourse: Minimal. Congress eventually passed legislation providing some compensation to some victims. But most victims never knew they'd been experimented upon. No Bivens claims were available. Sovereign immunity and state secrets blocked most legal actions.

Operation CHAOS (1967-1974)

The CIA's Operation CHAOS was a domestic surveillance program targeting the anti-war movement and other activists. The CIA—which is prohibited from domestic operations—spied on at least 7,000 Americans, opened their mail, and infiltrated organizations.

Exposed only through: The Church Committee investigations in 1975, following revelations in the press.

Legal consequences: Minimal. Some reforms were implemented, but no systematic accountability for violating Americans' constitutional rights.

NSA Warrantless Surveillance (2001-2013)

After 9/11, President Bush authorized the NSA to conduct warrantless surveillance of Americans' communications—directly violating FISA and the Fourth Amendment. The program continued in secret until whistleblower revelations.

When the program was challenged in court (ACLU v. NSA), the Sixth Circuit initially ruled it unconstitutional. But the government appealed, and the case was eventually dismissed on standing grounds—plaintiffs couldn't prove they'd been surveilled.

Edward Snowden's 2013 revelations showed the NSA was collecting metadata on every phone call in America, conducting mass surveillance of internet communications, and operating programs with Orwellian names like PRISM.

Legal consequences: No individual was held accountable. No damages were paid to Americans whose Fourth Amendment rights were violated. Some reforms were implemented (USA Freedom Act), but no systemic accountability.

V. International Comparison: How Other Democracies Ensure Accountability

The American immunity architecture is not replicated in other developed democracies. These nations have learned from their own abuses and constructed meaningful oversight and remedy mechanisms.

A. European Union: Multilayer Accountability

According to the European Union Agency for Fundamental Rights' 2021 study on surveillance oversight:

Every EU member state provides:

1. Judicial remedies - Individuals can sue in courts for intelligence service violations

2. Data Protection Authorities - In 13 of 27 EU states, DPAs have binding decision-making power over intelligence services

3. Expert oversight bodies - 18 oversight bodies exist across the EU with powers independent from intelligence services

4. Parliamentary committees - 4 EU states have committees that can issue binding decisions on intelligence matters

5. Ombudsperson institutions - Countries like the Netherlands have ombudspersons with remedial powers

6. Supranational review - European Court of Human Rights provides external oversight

7. Court of Justice of the EU - Can strike down surveillance laws as unconstitutional

Key findings from the study:

• "Every Member State gives individuals the possibility to complain about privacy violations via the courts"

• "In 13 Member States, DPAs can deal with complaints and issue binding decisions"

• "18 oversight bodies have competencies independent of the intelligence services they oversee"

Case example: Germany's Constitutional Court (2020)

The German Federal Constitutional Court ruled that the BND (Federal Intelligence Service) surveillance of foreign communications violated fundamental rights under the German Basic Law. The Court found that:

• The surveillance was too broad and lacked sufficient limitations

• Oversight mechanisms were inadequate

• Even foreign nationals have privacy rights under German constitutional law

The Court ordered:

• Restrictions on surveillance authority

• Enhanced oversight mechanisms

• Strengthened protections for journalists and lawyers

• Regular reporting requirements

Critically: German citizens whose rights were violated can sue for damages in German courts. The government cannot invoke "state secrets" to dismiss the entire case. Independent oversight bodies can investigate even classified programs.

B. United Kingdom: The Investigatory Powers Tribunal

Even post-Brexit Britain maintains more robust accountability than the United States.

The Investigatory Powers Tribunal (IPT):

• Hears individual complaints against intelligence services (MI5, MI6, GCHQ)

• Has access to classified information

• Conducts closed hearings when necessary but provides open judgments

• Can order remedies including damages

• Decisions are binding on intelligence services

Key case: Liberty v. United Kingdom (2008)

The European Court of Human Rights ruled that UK surveillance programs under the Interception of Communications Act violated Article 8 (privacy rights) because the law did not adequately publicize the procedures and safeguards governing surveillance.

Result: The UK had to reform its surveillance laws, increase transparency, and strengthen oversight.

The Investigatory Powers Act 2016 now requires:

• Judicial authorization for surveillance warrants (not just executive authorization)

• Independent Investigatory Powers Commissioner with substantial staff

• Technology Advisory Panel to assess surveillance capabilities

• Public reporting on surveillance activities (with appropriate redactions)

Critically: A UK citizen who believes they were unlawfully surveilled can file a complaint with the IPT. The tribunal will investigate, even if classified methods were used. If the surveillance was unlawful, the tribunal can order compensation.

This remedy exists. In America, it does not.

C. Canada: Separation of Intelligence from Police

Canada learned from the abuses of the Royal Canadian Mounted Police (RCMP) Security Service in the 1970s. The McDonald Commission found that "highest governmental officials were unaware of what was happening with security policies and operations."

Response: The CSIS Act (1984)

Canada established CSIS (Canadian Security Intelligence Service) as a civilian agency separate from the police, with:

• Clear statutory mandate and limitations

• Prohibition on law enforcement powers (CSIS collects intelligence but cannot arrest)

• Oversight by Security Intelligence Review Committee (SIRC)

• Requirement to obtain judicial warrants for intrusive techniques

• Regular reporting to Parliament

• Civil liability for unlawful actions

Key features:

• Judicial warrants required: CSIS must obtain warrants from Federal Court judges for surveillance

• Independent review: SIRC reviews CSIS activities annually with full access to classified information

• Parliamentary oversight: CSIS reports to Parliament through the Minister of Public Safety

• Civil remedies: Canadians can sue for unlawful surveillance under Canadian Charter rights

Case example: Canadian Security Intelligence Service Act review (2009)

After allegations of CSIS involvement in information leading to torture of Canadian citizens abroad, investigations led to:

• Public inquiries (Arar Inquiry, Iacobucci Inquiry)

• Compensation paid to victims ($10.5 million to Maher Arar)

• Reforms to CSIS procedures

• Strengthened ministerial directives prohibiting use of information derived from torture

The difference: When Canadian intelligence services violated citizens' rights, public inquiries occurred, victims received compensation, and reforms were implemented. In the United States, comparable cases (extraordinary rendition, torture) resulted in dismissals under state secrets privilege.

D. France: Administrative Court Review

France's intelligence services operate under the Conseil d'État (Council of State), France's highest administrative court.

The Intelligence Act (2015), while expanding surveillance powers, also created:

• National Commission for the Control of Intelligence Techniques (CNCTR)

• Independent administrative authority overseeing intelligence activities

• Required to be consulted before certain surveillance techniques are deployed

• Can refer matters to Conseil d'État if it believes surveillance is unlawful

• Issues public annual reports on intelligence activities

Key features:

• Principle of legality: All intelligence activities must have statutory basis

• Judicial review: Conseil d'État reviews legality of intelligence operations

• Individual recourse: Citizens can challenge surveillance before administrative courts

• Proportionality requirement: Surveillance must be proportionate to threat

The Conseil d'État has repeatedly struck down or limited surveillance programs: In 2021, the court found that administrative surveillance measures violated European Convention on Human Rights and required reforms.

Critically: French citizens have recourse through administrative courts even against intelligence services. The principe de légalité (principle of legality) requires that government action have legal basis subject to judicial review—including intelligence operations.

E. Comparative Summary

Feature

United States

Germany

United Kingdom

Canada

France

Can sue government for constitutional violations?

No (sovereign immunity, no consent)

Yes (constitutional court jurisdiction)

Yes (IPT for intelligence, courts for other violations)

Yes (Charter violations actionable)

Yes (administrative courts)

Can sue individual officials?

Rarely (Bivens frozen, qualified immunity)

Yes (civil liability under German law)

Yes (civil liability, though officials may have defenses)

Yes (civil liability under Charter)

Yes (administrative and civil liability)

State secrets privilege dismisses entire cases?

Yes (common)

No (court reviews classified info in camera)

No (IPT has access to classified material)

No (courts can review classified material)

No (Conseil d'État reviews legality)

Independent oversight with remedial power?

No (no domestic body can order remedies)

Yes (Federal Commissioner, Constitutional Court)

Yes (IPT, Investigatory Powers Commissioner)

Yes (SIRC, Federal Court)

Yes (CNCTR, Conseil d'État)

Supranational review?

No

Yes (ECHR, CJEU)

Yes (ECHR until 2024, limited now)

No (but strong domestic protections)

Yes (ECHR, CJEU)

Judicial warrants required for surveillance?

FISA warrants (but secret, ex parte)

Yes (independent judges)

Yes (judicial commissioners)

Yes (Federal Court judges)

Yes (with CNCTR consultation)

Can individuals learn if they were surveilled?

Almost never (classification prevents disclosure)

Yes (after operation concludes, with redactions)

Yes (IPT can inform complainants)

Yes (courts can order disclosure)

Partially (CNCTR can inform)

Damages available for unlawful surveillance?

No (Bivens frozen, sovereign immunity)

Yes (Constitutional Court can order compensation)

Yes (IPT can award damages)

Yes (Federal Court can award damages)

Yes (administrative courts can award damages)

The pattern is clear: The United States is an outlier. Every comparable democracy provides meaningful remedies for intelligence service abuses. The United States has systematically eliminated them.

VI. The Constitutional Crisis

A. Rights Without Remedies Are Not Rights

Chief Justice John Marshall wrote in Marbury v. Madison (1803): "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury."

But what happens when the laws provide no protection? When injury is inflicted by the government itself, under classification that prevents disclosure, with immunity that prevents suit, in circumstances where even proving harm is impossible?

The Supreme Court has created a system where constitutional rights exist on paper but cannot be vindicated in practice.

Justice Sotomayor, dissenting in Egbert, warned: "The Court has effectively insulated federal agents from accountability for misconduct... The result is a decisionmaking process that is wholly warped toward immunity."

B. The Circular Logic of Unaccountability

The doctrines interact to create impossible barriers:

Standing requires proof of injury:

• But surveillance is secret, so you cannot prove injury

• Without proof, you lack standing

• Without standing, the case is dismissed

• Without a case, the surveillance is never reviewed

• Without review, it never becomes "clearly established" that such surveillance is unconstitutional

• Without "clearly established" law, qualified immunity protects future violations

• The cycle repeats indefinitely

Bivens requires no "alternative remedies":

• But courts hold that FOIA requests are "alternative remedies"

• FOIA requests are denied under classification exemptions

• Or redacted to meaninglessness

• But their existence prevents Bivens claims

• So no remedy actually exists, but the theoretical possibility of FOIA prevents the damage remedy

State secrets privilege blocks cases:

• But also prevents evidence from entering public domain

• Without public evidence, no "clearly established" law develops

• Without established law, future cases also fail on qualified immunity

• So the privilege doesn't just protect one case—it protects all future violations

C. The Founders' Nightmare

The American founders feared unchecked government power. They created separation of powers, checks and balances, and a Bill of Rights to constrain government.

But modern immunity doctrines have created precisely what the founders feared: a category of government action that is unreviewable, unaccountable, and immune from legal consequence.

James Madison wrote in Federalist No. 51: "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary."

The immunity architecture assumes angels govern. It eliminates "internal controls" (individual liability) and weakens "external controls" (judicial review). It trusts that government will police itself.

History suggests this trust is misplaced.

VII. Why This Matters Now

A. Technological Capabilities Have Exploded

When the Constitution was written, government surveillance required physical presence. An agent had to open your mail, enter your home, or follow you on the street.

Today:

• Every phone call's metadata can be collected (NSA programs)

• Every email can be read (PRISM)

• Every movement can be tracked (cell phone location data, license plate readers)

• Faces can be identified in crowds (facial recognition)

• Behavior can be predicted (AI analysis)

• Voices can be synthesized (deepfakes)

• Even thoughts may be monitored (emerging neurotechnology)

The microwave auditory effect—technology that can transmit sound directly into someone's head—was documented in the 1960s and reportedly used in Havana Syndrome attacks. The technology exists. The question is whether it's deployed domestically.

If the legal framework prevents accountability for simple searches, how can it possibly constrain technologies that didn't exist when the doctrines were created?

B. Classification Has Become a Shield

Approximately 50 million documents are classified annually in the United States. Over-classification is acknowledged by government officials themselves. The classification system, designed to protect national security, has become a tool to prevent accountability.

Classification can hide:

• Illegal surveillance programs (NSA warrantless wiretapping)

• Torture programs (CIA black sites)

• Domestic targeting of activists (COINTELPRO-style operations)

• Testing of technologies on unwitting civilians (MKUltra)

• Coordination between agencies for domestic operations

Once classified:

• FOIA requests are denied

• Whistleblowers who disclose are prosecuted

• Courts dismiss cases under state secrets

• Congressional oversight is limited to "Gang of Eight" briefings (which cannot disclose to public)

• Oversight bodies lack access or authority

• Media cannot investigate without classified sources

The result: Classification creates a parallel legal system where normal constitutional constraints do not apply.

C. The Political Context

In October 2024, then-presidential candidate Donald Trump stated he would use military force against "radical left lunatics" and "the enemy from within." After taking office in January 2025, his administration discussed suspending habeas corpus and implementing "maximum lethality" rules of engagement domestically.

A September 2025 presidential memorandum characterized "anti-fascist" ideology as domestic terrorism, describing it as "violent assault against democratic institutions."

In this context, the legal black hole becomes not hypothetical but urgent:

Who determines what constitutes "anti-American" ideology worthy of targeting?

• The executive branch, with no judicial review

What prevents abuse?

• Theoretically, oversight—but oversight bodies lack remedial power

• Theoretically, courts—but immunity doctrines prevent judicial review

• Theoretically, Congress—but classification prevents disclosure

What happens to someone wrongly targeted?

• They cannot sue the government (sovereign immunity)

• They cannot sue individual officials (Bivens frozen, qualified immunity)

• They cannot obtain evidence (classification, state secrets)

• They cannot prove standing (secret programs)

• They have no remedy

If you cannot name the persecutor, you cannot sue. If you cannot prove the persecution, you have no standing. If you cannot obtain evidence, you cannot prove it. If the evidence is classified, you cannot obtain it.

The circle is complete.

VIII. Conclusion: Accountability as National Security

The irony is profound: The United States, which positions itself as a champion of human rights and the rule of law internationally, has created a domestic legal framework that would violate international human rights standards if applied elsewhere.

Article 2(3) of the International Covenant on Civil and Political Rights requires: "Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy..."

The United States has ratified this treaty. Yet the immunity architecture violates its central requirement: an effective remedy for rights violations.

The European Convention on Human Rights, Article 13, similarly requires: "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority..."

The European Court of Human Rights has repeatedly held that "effective remedy" means more than theoretical possibility—it requires a realistic avenue for redress, even against intelligence services, even for classified operations.

The United States provides no such remedy.

The Path Forward

This is not an unsolvable problem. Other democracies have faced similar challenges and created accountability mechanisms that preserve both national security and individual rights:

Congress could:

1. Create statutory remedies for constitutional violations by federal officials (Bivens by statute)

2. Establish an independent oversight body with remedial power (like UK's IPT)

3. Require judicial warrants for all domestic surveillance (strengthen FISA, make it adversarial)

4. Limit state secrets privilege to specific evidence, not entire cases

5. Provide compensation mechanisms for proven violations (like Canada's approach)

6. Mandate declassification timelines (programs must be reviewed after set periods)

7. Protect whistleblowers who reveal unconstitutional programs

The Supreme Court could:

1. Limit sovereign immunity for constitutional violations

2. Revive Bivens for at least some modern contexts

3. Reform qualified immunity to focus on conduct, not precisely matching prior cases

4. Require adversarial process before state secrets dismissal

5. Liberalize standing doctrine for surveillance cases

The Executive could:

1. Voluntarily waive sovereign immunity for constitutional claims

2. Establish internal review mechanisms with real consequences

3. Reduce over-classification

4. Create inspector general offices with independent authority

5. Implement stronger protections against retaliation for reporting misconduct

Why This Matters

The existence of a legal black hole does not mean every allegation of government abuse is true. But it does mean that even true allegations cannot be proven, genuine victims cannot obtain remedies, and unconstitutional programs can operate indefinitely without consequence.

This is not a partisan issue. Liberals worry about surveillance of activists and journalists. Conservatives worry about targeting of religious groups and political speech. Libertarians worry about unchecked government power. Civil libertarians worry about due process.

Everyone should worry about a legal architecture that makes constitutional violations invisible.

Accountability is not the enemy of national security—it is essential to it. A democracy that cannot hold its government accountable when it violates citizens' rights is not a democracy. It is a system where power is unconstrained by law.

The founders understood this. Other democracies understand this.

It is time America remembered.

The question is not whether government sometimes needs to operate in secret for legitimate security reasons. The question is: Who watches the watchers when secrecy becomes a shield for abuse?

In Germany, it's the Constitutional Court. In the UK, it's the Investigatory Powers Tribunal. In Canada, it's SIRC and the Federal Court. In France, it's the CNCTR and Conseil d'État.

In America, increasingly, the answer is: No one.

And that should terrify everyone.