February 26, 2013

"Supreme Court Rejects Challenge to Surveillance Law."

"In a 5-to-4 decision that broke along ideological lines, the Supreme Court on Tuesday turned back a challenge to a federal law that authorized intercepting international communications involving Americans."

This was a predictable decision based on existing standing doctrine.

50 comments:

Nomennovum said...

No problem whatsoever.

This decision inures to the benefit of Obama.

mccullough said...

The Supreme Court will also kick out the DOMA and the California gay marriage cases on standing as well.

Good to see them tighten up the rules to get rid of the professional plaintiffs.

pduggie said...

Why do four people have trouble with the doctrine then? Are they heretics?

cubanbob said...

Presumably someone with standing will eventually file a challenge. The question then becomes how will the court rule then?

pduggie said...

They should ask about the nominees view of what goes into determining a plaintiffs standing in a case more.

It would be interesting and maybe its so procedural they'd fall into the trap of talking about it.

It seems to matter a great deal.

mccullough said...

pduggie,

the 4 dissenters have problem with standing because they think federal courts are the center of the universe.

Roberts and Alito have done a great job of hardening the standing requirements. The professional plaintiffs are mad because they only exist to bitch and moan in court.

Robert Cook said...

No surprise that the "conservative" (sic) members of the court, you know, they who lie when they claim to hold our individual freedoms supreme, rule for blanket warrantless electronic evesdropping on Americans.

Robert Cook said...

"Presumably someone with standing will eventually file a challenge. The question then becomes how will the court rule then?"

How do we know those who filed this suit do not have standing? The government is keeping secret the information about who is being (and has been) evesdropped on.

How would someone demonstrate they have standing? How would someone know for certain he or she has standing?

Frankly, all of us, every American has standing, as we are all subject to warrantless surveillance of our electronic communications by the government.

Robert Cook said...

I don't think we have to wonder how the court would rule if someone with somehow demonstrable standing were to bring suit: they would rule exactly as they have ruled here.

mccullough said...

Cook,

Take up your complaints with Obama, Holder, and Clapper.

The person who would have standing is the person who is criminally charged based on information taken from an unlawful wiretap.

Also, the government applies for warrants from the FISA court, so it's not as if no judges are involved. So it's not warrantless.

Instead of knee-jerk reaction, please read the opinion. Don't rely on the New York Times to accurately report it. Adam Liptak is a douchebag.

Glen Filthie said...

Yeah Robert - well I've seen what some of your ilk choose to define as 'Americans'. Most of 'em can't even produce a birth certificate proving their citizenship.

I have no problems spying on your phoney Americans whatsoever.

Glen Filthie said...

Yeah Robert - well I've seen what some of your ilk choose to define as 'Americans'. Most of 'em can't even produce a birth certificate proving their citizenship.

I have no problems spying on your phoney Americans whatsoever.

Darrell said...

If you get a call from an international phone number that has in the past been linked to terrorist activity, your call may be monitored. Sounds about right, given that there is no expectation of privacy on any phone anyway.

The Left weeps because they know they deserve the chair.

Greg said...

Mr. Cook, United States v. Jones gives some idea of how the conservative wing of the court might vote were standing not an issue.

cubanbob said...

Robert Cook said...
"Presumably someone with standing will eventually file a challenge. The question then becomes how will the court rule then?"

How do we know those who filed this suit do not have standing? The government is keeping secret the information about who is being (and has been) evesdropped on.

How would someone demonstrate they have standing? How would someone know for certain he or she has standing?

Frankly, all of us, every American has standing, as we are all subject to warrantless surveillance of our electronic communications by the government.

2/26/13, 12:16 PM


Look I don't like this law anymore than you do but the concept of standing wasn't pulled out of the air by this ruling. A lot of the things the government does today can or will hurt me tomorrow but that doesn't allow me to sue today to prevent that damage.

As for who has standing in this matter presumably someone who either has been prosecuted and convicted or is currently is being prosecuted. If the defense in either situation has demanded discovery and the discovery request included this has not been provided by or denied by the prosecution then eventually we will know who has standing and who has been harmed and the courts will make their rulings. But for once I tend to agree with you that they will rule and not favorably from a civil libertarian perspective.

Nomennovum said...

I eagerly anticipate Obama's issuing an executive order effectively overturning this travesty of a decision. So confident am I in my prediction that I am holding my breath till it happens. How about you, Robert Cook?

sean said...

What pduggie said. I have a lot of trouble with Prof. Althouse's glib comment: if the outcome is predictable based on relevant precedent, why was it a 5-4 decision? Do Democratic justices not follow precedent? Do Democratic justices behave unpredictably?

The Drill SGT said...

Darrell has it right. thse are almost entirely automated intercepts.

1. we capture OBL's cell phone or his contact file.
2. those numbers go on the 'bad' list.
3. That number calls anybody and the contacted number goes on the 'maybe' list and the conversation goes to tape.
4. a Thesarus program scans the tape, and if there are hits, it goes out to a translator (machine or human) to be looked at.
5. If the traffic looks interesting, then and only then are you going to start back checking who owns the receiving phone number. If it turns out to be a US Cit or Journalist, oh well...

traditionalguy said...

So does Al Qaeda have a list of 21 ways to beat the surveillance like they do the drones?

If so will they share it?

Phil 3:14 said...

What ideology?

(or did they mean to suggest "political" lines)

Achilles said...

People do not really know how this works. If they did they wouldn't be so glib. The government shouldn't be doing what they are doing with this little transparency.

You should all be more afraid of what the government is doing. Especially with wireless networks.

hombre said...

I'm afraid I'm going to have to read this opinion. I'm troubled by what a person would have to admit to be perceived as having standing to challenge this law.

hombre said...

Would it have to be raised as a defense in a criminal case?

Mike said...

Maybe Cook is right and the courts can't be trusted to "do the right thing" anymore. It's as if they are adrift. If only there was an anchor to keep the courts well grounded. You know, like a document that laid out in detail the checks and balances on Power in our venerable old republic. Man that would be handy, huh?

john said...

What the decision says is that no one can have standing to try to appeal the law until something bad happens. Such as if the surveillance lead to a drone attack.

The dead, by laying down, would still have no standing, nor would it benefit them anyway.

Crunchy Frog said...

So does Al Qaeda have a list of 21 ways to beat the surveillance like they do the drones?

No, but they have 50 ways to leave your lover.

Bob Ellison said...

Robert Cook, thank you for not practicing law.

AReasonableMan said...

Robert Cook said...
No surprise that the "conservative" (sic) members of the court, you know, they who lie when they claim to hold our individual freedoms supreme, rule for blanket warrantless electronic evesdropping on Americans.


Not exactly a great day for American freedom, standing or lying down.

whoresoftheinternet said...

It's hilarious to watch the anti-lefties scurry about to find any ruling by Benedict Arnold Roberts that seems to support them.

Like pointing out that a man gave a homeless guy a dollar...after being convicted of child molestation (he was gay, after all).


Enjoy the decline, bitches!

Rabel said...

In his dissent Breyer makes a pretty good case that the court has not always been so particular about speculative harm in determining standing.

For a moment I thought that this ruling might have a positive effect on Obama's next selection for an SC nominee, but since any surveillance decision by that nominee would most likely occur after he leaves office, probably not

Titus said...

I enjoy unpredictable Supreme Court rulings.

Predictable boring.

Unpredictable exciting.

Same with life in general.

I would be interested in 9-0 against fag marriage and 9-0 supporting DOMA-fags would freak, but it would be kind of exciting seeing them get all pissed.

tits.

Rabel said...

Here's an op-ed from the NY Times regarding a similar decision a few years ago.

A Law Unto Herself

The author delivers a cruelly neutral slapdown to an activist judge.

Lem said...

The feds don't have to eavesdrop on these "institutions"...

If the want to know what they are really doing, all they have to do is ask their big lender, the Chinese.

A sort of intelligence rendition... cut the CIA budget and reward a potential enemy... an Obama win win.

Lem said...

In his dissent Breyer makes a pretty good case that the court has not always been so particular about speculative harm in determining standing.

My understanding is that the supremes are more deferential regarding "commander in chief" powers as opposed to just plain, meat and potatoes "executive" powers... or something.

Lem said...

Do they differentiate between the two?

I don't know that for sure... I'm just speculating.

Eric said...

No surprise that the "conservative" (sic) members of the court, you know, they who lie when they claim to hold our individual freedoms supreme, rule for blanket warrantless electronic evesdropping on Americans.

That's not at all what they ruled, was it?

President-Mom-Jeans said...

"That's not at all what they ruled, was it?"

Robert Cook is about as good at reading links as Manboobs Mahal, which is to say not at all. Knee jerk leftism is his game.

He certainly does not have a law degree, and most likely is another lefty who fell off the education cart at the conclusion of high school.

gbarto said...

While I disagree with the program, there's something to be said for the standing question. It keeps the plaintiffs bar from litigating every last detail of every last law that someone, somewhere might not like because they have to produce a person who has actually been harmed.

In this case, there's actually a slam dunk for overturning if the feds decide to use this as a law enforcement tool, rather than a war fighting tool: the first time they prosecute, say, a drug dealer that they "accidentally" overheard on one of these wiretaps, there will be someone with standing to ask that their conversations be kept out of evidence under the exclusionary rule because they were gathered unconstitutionally.

Bruce Hayden said...

This has always the problem with the suit. A bunch of people who opposed the Bush war effforts and the NSA surveilance program tried to manufacture standing. So, they crafted an argument based on publically available material that they would likely be surveiled illegally, and even if they weren't they were afraid that they would be. The latter was dismissed as near frivilous.

The problem was that the plaintiffs had no actual knowledge of whether or not they had been surviled illegally, and, as time has gone on, it has become less and less likely, since if the NSA knew that they were U.S. Persons in the U.S., the feds needed a (likely FISA) warrant, and they are presupposing that they didn't get one. But, their phone calls presumably had US phone numbers, which would have been known immediately. And, statistically, most likely owned by a U.S. Person (citizen or legal alien). At worst, the NSA may have recorded the call automatically, but most likely no one listened to it, at least until a warrant was issued, given the knowledge of where the US end of the conversation was. They would have had the number, and likely, the name of the owner of the phone (along with address, etc.) before the call was listened to by a human.

But, if their calls were recorded, so what? The calls were never used in a criminal prosecution, nor have any such recordings ever directly affected any of the plaintiffs directly. Ever.

Normally, I am fairly strong on civil liberties, but in this case, the plaintiffs were essentially saying that they were likely to be surveiled because they were consorting with our enemies, the same enemies that brought down the twin towers. Not a lot of sympathy here for that, esp. given the level of wiretapping done by our government in previous conflicts (most notably by FDR in WWII and Korea) in the name of national security. At least here, we have court oversight

Lem said...

I'm assuming that the presidents powers to wage war are at its zenith for the duration of that war.

A pertinent question here should be when will this war on terror... or whatever legal umbrella the president is using... end?

Achilles said...

We all should have standing. Everyone using the cell networks is being surveilled.

Robert Cook isn't in the wrong here. The people who trust the government are wrong and foolish. The people who think the Supremes aren't in on it are also foolish. It will always be a 5-4 decision in a way to allow the government to continue what they are doing. If there were 9 Ginsburgs on the court 5 of them would find a way to let the government spy on people with no due process.

mariner said...
This comment has been removed by the author.
Bruce Hayden said...

I think that first we need to define "surveiled" before you can say whether or not we are all having it done to us. Let me suggest three levels here. First, you have tracking of calls - who made what call to whom. That is equivalent to a pen registry, and is pretty well legal for the NSA under FISA. Then, there is the automatic recording of selected calls. And third, there is analysis of and maybe listening to the recorded calls.

The big problem with FISA early in the Bush Admin was that it was designed for land lines, and not disposable cell phones, so a warrent was expected to be in place before anything could be recorded. Remember, it was designed for surveiling the Soviets during the Cold War. By the time that could happen now, the phones would be dumped.

The other thing to keep in mind is that the universe of calls is divided into three categories: domestic; international; and foreign under FISA. It mostly doesn't apply to domestic (wiretap laws for that). NSA has pretty much free rein with foreign calls. Which leaves international calls, which are calls with one end in the US and one not. These plaintiffs were selected to have highly suspicious international calls to fall into this category. But how did they know that their calls were being recorded and ultimately listened to? The only way would have been consorting with identified enemies, since they really didn't know the NSA algorithms involved for selection for recording and potential later analysis. And those algorithms inevitably have changed over time. They may have made a decent guess up front. But now, a number of years later? Pure guesswork, and mostly wishful thinking.

So, is Achilles right? Unlikely, unless you mean government knowledge of who called whom when, and that has long not typically required a warrent.

Robert Cook said...


Bruce, it isn't just phone calls,


and just because "it's legal under FISA," it doesn't mean all of us shouldn't be concerned about it. The government can make legal (for itself) anything it wants to be able to do.

Bruce Hayden said...

Well, maybe a bit naive, but think that tapping everyone's email is a bit harder than it seems. One is the sheer volume. Another problem is that while email is end to end, the emails tend to travel as packets, with pieces often taking different routes. Hard to tap unless you are just talking the big ISPs like Hotmail, AOL, etc.

Bruce Hayden said...

Well, maybe a bit naive, but think that tapping everyone's email is a bit harder than it seems. One is the sheer volume. Another problem is that while email is end to end, the emails tend to travel as packets, with pieces often taking different routes. Hard to tap unless you are just talking the big ISPs like Hotmail, AOL, etc.

Bruce Hayden said...

Well, maybe a bit naive, but think that tapping everyone's email is a bit harder than it seems. One is the sheer volume. Another problem is that while email is end to end, the emails tend to travel as packets, with pieces often taking different routes. Hard to tap unless you are just talking the big ISPs like Hotmail, AOL, etc.

Robert Cook said...

Bruce,

Yes, you're being naive. You should assume that the NSA (if not aided and abetted by other Government intelligance organizations) is watching, reading, listening to, and keeping records of all our electronic communications...all telephone, email, and internet activity.

Bruce Hayden said...

RCA- why?

First, it would be illegal, and second, impractical and essentially infeasible. I am not talking the call data, which they can get from the phone companies, but rather, the actual calls, along with actual emails.

Let's stick with telephone calls for a minute. As I pointed out earlier, federal law varies on tapping phone calls, depending on where the two ends of the call are located. If both are within the U.S., FISA doesn't apply, but the federal wiretap laws do apply. The government needs a warrant to tap your phone calls w/i the U.S. So, could the President waive that? No. Obviously, there are 4th Amdt. ssues, but above and beyond that, the Youngstown Steel factors would lean strongly against the President being able to ignore Congress (just opposite the situation where we are talking international calls to/from terrorists, during a time of war - which is where the argument was going back during Bush (43) before FISA was revised).

The next piece of that is that if it is happening, it is probably criminal, and even if the AG decided not to prosecute (which Holder is famous for), there would have been whistle blowers (with credible information) and those doing the warrantless recordings would be vulnerable to civil suit under the civil rights laws. And, those authorizing such. If it were as widespread as you suggest, the potential damages would probablly be in the trillions - maybe even enough to pay off Obama's debt.

Now, how do you tap email? It is often encrypted, at least a bit, but more importantly, it is end-to-end, in a network where messages are fragmented and the fragments can travel different routes. Because of the encryption, grabbing internal segments is likely fruitless, even for the NSA. The answer is that they access the email at the servers, which is probably somewhat easy with a warrant from the big ISPs like hotmail. MSN, Yahoo, AOL, etc., but for the rest of us? I long ran my own email server, so that I didnt have confidentiality issues with ISP employees accessing my end of my email conversations. Most decentt sized law firms and companies do the same.

Problem with tracking web traffic is similar - again end-to-end, with tools available (and, that I have used) to identify every node through which message segments flow. And, a network that tries to route through the least number of nodes (which means that the feds can't really force traffic through their own data collection nodes).

And, then there is the sheer magnitude of the whole endeaver. Sure, the feds are putting in that mega data facility in Utah. But, even with the best technology, it won't be able to record even a fraction of the country's (or world's) voice, email, and web traffic.

But, if you can find some hard evidence of any of this, let me know, and I will help start the class action suit, since the contingency fee would likely let my grandchildren live the life of leisure.

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