14 ms·
NSA Phone Snooping Cannot Be Challenged in Court, Feds Say
- malandrew 13y agoHow can enough people add their name to the the suit that it becomes a statistical likelihood to meet the criteria for standing? I would imagine that if you get as many people on the no-fly list as possible to be party to the suit then it is almost a certainty that at least one of the plaintiffs have had their information monitored and the suit can move forward.
- lukifer 13y ago"When the President does it, that means that it's not illegal."
- deleted 13y ago[deleted]
- philip1209 13y agoI was raised to believe that a core tenet of the government was checks and balances.
- anigbrowl 13y agoYes, it is. That's why this argument was being made in a court, to a member of judicial branch, who has the power to rule against the executive branch.
- future_grad 13y agoThe current core tenet of the government appears to be the executive branch.
- deleted 13y ago[deleted]
- alan_cx 13y agoIts cheques and bank balances.
- rayiner 13y agoIt is a core tenant of the government, but it is also a core tenant of the government that policy is decided via republican process, not unelected philosopher kings (judges). From that tenant comes the principle of judicial restraint. Conservatives would characterize it as the un-elected judiciary showing appropriate deference to the elected executive and legislature. Liberals usually characterize it as punting.
- s_q_b 13y agoThe problem is that this is exactly the type of issue a court should decide. When the government violates clearly expressed tenants of the Constitution, Federal courts stand as the sole safeguard between the people and the unbridled power of the state. Now, I'm not saying this is that exact situation. But it's definitely something I'd want a court to examine in detail.
- rayiner 13y ago> The problem is that this is exactly the type of issue a court should decide. Historically, policies relating to national security have not been within the purview of the federal courts. It's not some new phenomenon: http://www.huffingtonpost.com/peter-h-schuck/national-security_b_3543312.html http://www.huffingtonpost.com/peter-h-schuck/national-securi.... The Supreme Court didn't intervene when Congress passed the Alien and Sedition Acts. It didn't intervene when Abraham Lincoln suspended habeas corpus. It didn't intervene in Japanese internment.
- s_q_b 13y agoThat's false. The Supreme Court is, and has been since 1803, the final arbiter of the constitutionality of national security programs. The Alien and Sedition Acts were never appealed to the Supreme Court because the power of judicial review wasn't established until 1803, but they have referenced the acts in modern opinions and said they would be found unconstitutional. SCOTUS did in fact hear argument and issue a decision on Japanese internment, mostly famously in favor of the government in Korematsu v. United States, but they also struck down indefinite detention in Ex Parte Endo. In Ex Parte Merryman, Chief Justice Taney ruled Lincoln's suspension of habeas corpus unconstitutional. This almost precipitated a constitutional crisis, as Lincoln either threatened or actually ordered him to be arrested. In modern times there were the Guantanamo cases: Boumediene, Rasul, Hamdi, Hamden. And that's just working off your examples. The Supreme Court absolutely decides the constitutionality of national security cases.
- cmsimike 13y agoI look forward to the day where the American public realizes its government thinks its citizens are no better than enemies.
- jtokoph 13y agoOh we've realized it. We just don't seem to care enough to do anything about it. If we did try to do anything we would just end up getting arrested for being a terrorist.
- future_grad 13y agoWhat can we do?
- sampo 13y agoIn a continental Europe-style multiparty system, it would probably be possible for some 5% or 10% minority party to position against the current government and rise to above 30% in about a decade, thus rising to power. For example Fidesz in Hungary grew from 7% in 1994 to 53% in 2010 ( http://en.wikipedia.org/wiki/Fidesz http://en.wikipedia.org/wiki/Fidesz ). In the more stable US two-party system, you may need to resort to somewhat older methods, which are still widely used around the world even in present days: https://en.wikipedia.org/wiki/Opposition_to_the_U.S._involvement_in_the_Vietnam_War https://en.wikipedia.org/wiki/Opposition_to_the_U.S._involve... https://en.wikipedia.org/wiki/Tiananmen_Square_protests_of_1989 https://en.wikipedia.org/wiki/Tiananmen_Square_protests_of_1... http://en.wikipedia.org/wiki/Romanian_Revolution_of_1989 http://en.wikipedia.org/wiki/Romanian_Revolution_of_1989 https://en.wikipedia.org/wiki/Arab_Spring https://en.wikipedia.org/wiki/Arab_Spring https://en.wikipedia.org/wiki/2013_protests_in_Turkey https://en.wikipedia.org/wiki/2013_protests_in_Turkey
- cmsimike 13y agoI think we, the more informed individuals, have realized it. IMO there is a large chunk of the American population that either doesn't care, doesn't know or actually thinks this is in their best interest. A few voices on the internet don't have any leverage vs a whole silence country.
- dmix 13y agoThe government deciding what is and what is not constitutional? What could go wrong.
- anigbrowl 13y agoThe government isn't deciding it. It's asserting its position. To a judge, who will make the actual decision.
- dmix 13y agoAs long as what's being challenged as unconstitutional in court is protected as a state secret, that sadly isn't the case.
- anigbrowl 13y agoYes it is. Adding adjectives to your argument doesn't make it more persuasive.
- jessaustin 13y agoThe fact that the state secrets argument was overruled a couple of times in the mists of history before most of us were born doesn't mean any court would overrule it today.
- dmix 13y agoState secrets completely undermine the concept of judicial checks on government power. This isn't a new idea, it's been heavily criticized since Bush has been in power and expanded the use of it: > Glenn Greenwald alleges that the Bush administration attempted to expand executive power, as evidenced by the unitary executive theory propagated by John Yoo. The theory suggests that the President, as Commander-in-Chief, cannot be bound by Congress or any law, national or international. By invoking the state secrets privilege in cases involving actions taken in the war on terror (i.e. extraordinary rendition, allegations of torture, allegedly violating the Foreign Intelligence Surveillance Act) Greenwald opines the administration tried to evade judicial review of these claims of exceptional war powers. In effect, this is preventing a judicial ruling determining whether there is a legal basis for such expansive executive power. With that in mind, applying this privilege makes impeachment the only possible means left for Congress to exercise their duty to uphold the checks and balances constitutionally intended to prevent abuse of power. https://en.wikipedia.org/wiki/State_secrets_privilege https://en.wikipedia.org/wiki/State_secrets_privilege Since impeachment is a highly unlikely scenario... if a government action is unconstitutional and citizens have a no way of challenging the constitutionality in court due to the government deeming it's actions were a secret, then how is the government not deciding what is considered constitutional or not?
- brymaster 13y agoAnother infuriating and disappointing move by the Obama administration. On the contrary, this will be challenged in the courts by groups like the EFF and ACLU until they've won. Let's make Feds remember that they work for us instead of special interests, corporations and the military/surveillance-industrial complex.
- Osiris 13y agoInfuriating? This was exactly what everyone expected them to do. Of course they are going to rigorously defend their own spying program and using the best legal tactics available to them.
- msandford 13y agoThis isn't the "change" people voted for. That's why he's furious. He sadly mistook what a politician said to get votes for what he would actually do once in power. Most people make that mistake, I can't say I blame him.
- jlgreco 13y agoIt is both expected and infuriating.
- perlpimp 13y ago.. or illegal immoral and so forth.
- btilly 13y agoIt should be noted that their position on standing comes straight from Clapper v. Amnesty International, No. 11-1025 which the Supreme Court decided in the government's favor this year. The decision is that likely targets of surveillance who cannot prove that they were ACTUALLY surveilled have no standing to file a court case where they could issue subpoenas to the government which could prove whether they were. In short it is a catch-22. You can't sue about being unconstitutionally searched unless you can prove it happened. But you can't prove it happened without suing. And the Supreme Court thinks that this is acceptable.
- lonnyk 13y agoIs it more accurate to say that the Supreme Court interpreted the law and the law makes this acceptable?
- btilly 13y agoBy my non-lawyerly understanding, no. The question of when standing to sue exists is a question of common law, not statutory law. Had they decided that standing exists, then they would have had opportunity to rule on the law itself.
- dragonwriter 13y ago> The question of when standing to sue exists is a question of common law, not statutory law. Standing has both Constitutional elements and prudential elements (the latter could be referred to as "common law"); the actual injury element is Constitutional, but the prohibition on generalized rather than particular injury is prudential. Here, a particularized injury is raised but the problem is that the injury is speculative rather than actual, so the problem would be with Constitutional requirements for standing, not the prudential elements.
- foobarbazqux 13y agoAll those wars, all for naught. "Battle not with monsters lest ye become a monster; and if you gaze into the abyss the abyss gazes into you." - Nietzsche
- rfctr 13y ago> “one of the largest surveillance efforts ever launched by a democratic government.” Common, don't be shy! Don't pretend there are some "non-democratic" governments somewhere that do even more surveillance! Largest ever launched by any government, by far.
- deleted 13y ago[deleted]
- deleted 13y ago[deleted]
- future_grad 13y agoWe are currently unable to confirm or deny there is a flaw in the legal system at this time.
- ethomson 13y agoI'm not a lawyer, but to say that this "cannot be challenged in court" is a pretty terrible interpretation. The government asks the court system (where this is, in fact, already being challenged) to deny an injunction stopping the metadata collection before this is fully heard in court.
- dragonwriter 13y ago> I'm not a lawyer, but to say that this "cannot be challenged in court" is a pretty terrible interpretation. The government asks the court system (where this is, in fact, already being challenged) to deny an injunction stopping the metadata collection before this is fully heard in court. They don't do that. They actually go beyond that to say that not only should the injunction be denied, but that the filing should be dismissed for failing to state a claim heir complaint should be dismissed for failure to state a claim "that plausibly suggest[s] an entitlement to relief." Which is, exactly, saying that the challenge they raise is not the kind which can be considered by a court.
- ethomson 13y agoWhich is just fairly typical legal maneuvering in any case - the complaintant files an injunction, the defendant writes that the injunction should not proceed and that instead they file a motion to dismiss summarily. If we have a process story about every single motion filed in these cases, we're in for a long, tedious hall. Regardless, these motions will of course, be heard in court and the title remains awful.
- dragonwriter 13y agoThe title is a perfectly accurate representation of the government's argument, which is that the Court's authority on this matter is limited to recognizing that the substantive questions raised are not ones subject to adjudication and dismissing the entire matter on that baisis without reaching the substance of the claims. The fact that such arguments are within he range of common legal arguments does not make a title accurately reflecting them "awful".
- throwit1979 13y agotl;dr: 1. The surveillance occurs in secret 2. Due to #1, you can't possibly prove that you, specifically, are a target of surveillance 3. Due to #2, you have no standing with the court QED. I am speechless.
- tzs 13y agoAre we only talking about broad surveillance that is not targeted at specific people, or are we also talking about surveillance where some agency got a warrant to spy on a particular person or place? For instance, if the FBI gets a warrant to bug the office of the head of the Gambino crime family, should he be able to sue to find that out?
- foobarbazqux 13y agoIt's more like the FBI bugged every office in the city, but only listened in on suspicious people (which probably includes the Gambinos), so nobody is allowed to complain about it since the chances of any given individual being suspicious are negligible.
- ihsw 13y agoAll these questions fall flat when the federal government can slap 'national security secret' on anything. Suffice to say the government will pull out all stops to combat your legal challenge, the judicial branch will side with them for obvious reasons, and your congressional representative will send you a canned response detailing how it's for the children/for fighting terrorists/none of your business.
- betterunix 13y ago"For instance, if the FBI gets a warrant to bug the office of the head of the Gambino crime family, should he be able to sue to find that out?" Consider the alternative: vast, unconstitutional surveillance that can never be challenged in a court because you have no legal way to prove that your rights are being violated. Oh, wait, that would be the world we live in right now. The problem here is that we have wandered so far down the "law and order" road that we have forgotten that we have civil rights. Yes, if we defend our civil rights and if we allow people to challenge violations of their rights, there will be criminals who escape justice. Our entire criminal justice system is meant to protect the innocent despite the risk of allowing the guilty to go free.
- deleted 13y ago[deleted]
- sage_joch 13y agoNote this story was also near the top of /r/news on Reddit, but has since been removed. http://www.reddit.com/r/news/comments/1in7p5/president_obama_nsa_surveillance_cannot_be/ http://www.reddit.com/r/news/comments/1in7p5/president_obama...
- slinkyavenger 13y agoWhy is this relevant to the discussion?
- sage_joch 13y agoBecause a big part of these stories is how they are being spun and downplayed by the corporate media. Reddit is one of the few places in which such stories (concerning the loss of individual rights and government checks and balances) can still reach a large audience. And /r/news is one of the few remaining default subreddits that is relevant to such stories. For it to be deleted right as it is about to reach the front page is concerning, because we need an informed public now more than ever.
- kunai 13y agoAFAIK the post was deleted because of a misleading title.
- n09n 13y agoSure, but is presenting sensationalized articles to online echo chambers really getting us closer to an informed public, or further away?
- cheald 13y agoTechnically speaking, isn't Wired "corporate media"?
- sage_joch 13y agoTechnically yes, and so is Reddit. I need a better word to describe organizations like CNN, MSNBC and Fox that make concerted efforts to divide and distract. Maybe I should have just said "cable news".
- speeder 13y agoWhy a blowjob get more outcry than.ignoring the constitution repeatedly in US? As non US person I don't get it.
- lukifer 13y agoShort version: they have propaganda down to a science here. The blowjob scandal came out of a massive PR campaign and courtroom circus created by Republicans for political gain; meanwhile, most members of both parties are supporting the spying program, with the implication that most of them already knew about it. Chomsky's "Manufacturing Consent" pretty much captures the way that America's democracy has been hacked.
- agl 13y agoOrin Kerr (law professor at George Washington University) has written on the subject of whether the collection of phone metadata violates the 4th Amendment, given the history of Supreme Court opinions on the matter: http://www.volokh.com/2013/07/17/metadata-the-nsa-and-the-fourth-amendment-a-constitutional-analysis-of-collecting-and-querying-call-records-databases/ http://www.volokh.com/2013/07/17/metadata-the-nsa-and-the-fo... In short, these legal actions have a hard journey ahead of them.
- aray 13y agoWhy not intentionally put someone in the "surveillance spotlight"? Have them checkout on the wrong books from the library, join the wrong forums, frequently make phone calls to foreign malign actors overseas. Then lay all of this information bare to the public and say "Either I am being surveilled by the NSA or they are utterly incompetent to the point of not being effective in their charge". If then you still don't have standing, at least sue them for not doing their jobs. (Disclaimer: IANAL)
- msandford 13y agoIt's a really nice idea. I like it. Sadly in order for it to be effective, at least according to a recent article I saw, you'd have to connect yourself purposefully with a terrorist to less than 3 degrees.
- eyeareque 13y agoWow, I didn't see that one coming </sarcasm>. I just hope the patriot act gets killed or significantly rewritten for the better in 2015 when it is up for renewal.
- cheald 13y ago> The Obama administration for the first time responded to a Spygate lawsuit, telling a federal judge the wholesale vacuuming up of all phone-call metadata in the United States is in the “public interest,” does not breach the constitutional rights of Americans and cannot be challenged in a court of law. Oh, this changes everything. It's in our public interest, so we have nothing to worry about, guys. We can all go back to arguing vim vs emacs now.
- zwegner 13y agoNot only that, but "the requested injunction is irreconcilable with the public interest". Irreconcilable. I expected them to say the "public interest" bit, but... wow.
- cheald 13y agoReading the Administration's statements made my brain start screaming Ayn Rand quotes about "the public interest" at me.
- aspensmonster 13y agoI'm putting my vote in for vim.
- rfnslyr 13y agoFinally, was waiting for another vim vs emacs bout. Bring it on boys.
- callmeed 13y agoI'm confused: why does the executive branch ("Obama's administration" in paragraph 1) get to tell a judge this or submit a "filing"? Is this just them stating their position? At what point can/will SCOTUS get involved? (pardon my ignorance if I incorrectly assumed the president doesn't get to decide what's constitutional)
- dragonwriter 13y ago> I'm confused: why does the executive branch ("Obama's administration" in paragraph 1) get to tell a judge this or submit a "filing"? The same reason you get to submit a filing stating your legal position if you get sued. Because otherwise, court cases would be pretty one-sided. > Is this just them stating their position? At what point can/will SCOTUS get involved? If/when it gets appealed to the SCOTUS after decisions by the lower courts and SCOTUS decides to accept the appeal.
- msandford 13y agoSo along these lines the government should have no problem supplying me with the names and home addresses of all of the government officials, provided that I really, REALLY promise (seriously!) to not look at it unless I'm authorized to. Because I don't actually HAVE it until I LOOK at it. Cool, where do I find this data? I promise not to look until I'm authorized!
- trackztar 13y agoTime for a revolution!
- lazyjones 13y agoNice dictatorship with a faux democracy attached you have got there, people ... I take it that since the president set up FISA and the NSA spying, which cannot be unrooted by a court, he considers himself completely immune and above the law also.
- mtgx 13y agoSo much for that "debate" we were supposed to have. There's also the "balance" thing that apparently only Obama administration gets to decide on.
- ctdonath 13y agoYou (and I mean you, Ameican reader) put up with full scale systemic 4th Amendment violations by TSA searching every bag at airports on grounds of public safety and non-targeted searches. NSA now does the same, just with phones. Precedent matters.