NSA Phone Snooping Cannot Be Challenged in Court, Feds Say

http://www.wired.com/threatlevel/2013/07/spygate-snooping-standing/

by rb2e • 13 years ago

247 137 13 years ago

wired.com

lukifer2• 13 years ago

"When the President does it, that means that it's not illegal."

philip1209• 13 years ago

I was raised to believe that a core tenet of the government was checks and balances.

anigbrowl4• 13 years ago

Yes, 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_grad2• 13 years ago

The current core tenet of the government appears to be the executive branch.

alan_cx4• 13 years ago

Its cheques and bank balances.

rayiner3• 13 years ago

It 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_b3• 13 years ago

The 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.

cmsimike3• 13 years ago

I look forward to the day where the American public realizes its government thinks its citizens are no better than enemies.

jtokoph• 13 years ago

Oh 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_grad2• 13 years ago

What can we do?

cmsimike3• 13 years ago

I 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.

alan_cx4• 13 years ago

Sadly, we Brits aren't any better off. We don't even pretend to have a constitution or anything like it.

jacques_chester3• 13 years ago

The Westwinster system has some distinct advantages. All leaders of the executive branch are directly answerable to the electorate. The Head of State is a figurehead whose absolute surety of office means she needn't be a political figure and so some parts of the machinery of government are more trustworthy. The fusion of legislature and executive means that the executive must be exposed to the view of Parliament at all times. The fusion also means that governments usually form quickly and so can govern with some confidence of expeditiousness (vs endless hearings), while bicameralism provides an inbuilt mechanism of resistance and review.

Meanwhile, Americans think the President is some kind of God-king. The powers a President has are granted by Congress, the money is voted by Congress. The President has enormous day to day influence and power, and could at an order destroy billions of lives. Yet the President has no guarantee of a workable Congress and Congress has no incentive to work with a President.

The only thing that can cause the Washington system to act collectively is some terrifying outside threat, and all they will ever agree on is the kind of madness that's led us to this pass.

So, actually? The Westminster system is pretty damn good, constitution or not. Americans think they're badasses for having a revolution. One. And a civil war. One.

Britain's constitutional system is more thoroughly underpinned by blood and terror and war and suffering than the USA's. By a long shot.

betterunix4• 13 years ago

One would have thought that the use of soldiers to enforce domestic laws would have given that away. Unfortunately most Americans believe Hollywood's version of reality, which is that those soldiers are needed to fight armies of criminals and that those soldiers never threaten, injure, or kill innocent people.

dmix4• 13 years ago

The government deciding what is and what is not constitutional?

What could go wrong.

anigbrowl4• 13 years ago

The government isn't deciding it. It's asserting its position. To a judge, who will make the actual decision.

dmix4• 13 years ago

As long as what's being challenged as unconstitutional in court is protected as a state secret, that sadly isn't the case.

alan_cx4• 13 years ago

Who appoints the judges?

Wouldn't be the government, would it?

brymaster• 13 years ago

Another 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• 13 years ago

Infuriating? 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.

msandford3• 13 years ago

This 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• 13 years ago

It is both expected and infuriating.

perlpimp2• 13 years ago

.. or illegal immoral and so forth.

btilly6• 13 years ago

It 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• 13 years ago

Is it more accurate to say that the Supreme Court interpreted the law and the law makes this acceptable?

btilly6• 13 years ago

By 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.

foobarbazqux2• 13 years ago

All 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

greenyoda• 13 years ago

"You can't sue about being unconstitutionally searched unless you can prove it happened."

I thought the current lawsuits claim to prove this by asserting that:

- The NSA got access to all of Verizon's customer metadata (as indicated by a leaked FISA Court decision).

- The plaintiffs are customers of Verizon.

- Therefore the plaintiffs' metadata was provided to the NSA.

btilly6• 13 years ago

The government's legal position is that indiscriminately dumping large datasets of metadata into a database is not a search. But later looking things up in that database is, and has to be supported by further warrants.

Thus under the theory the government follows, the activity that you can prove happened is not a search. So you have no standing to sue. And if they look you up later (of course filing appropriate warrants with the FISA court), then you can't prove it happened, so you still can't sue.

cavilling_elite• 13 years ago

So one could send out a bunch of dummy encryption files, get caught, get in jail, then show that the files were empty, then sue?

Sounds easy, just hope one doesn't land in gitmo!

RexRollman• 13 years ago

Kafka would be proud.

rhizome• 13 years ago

Oh, it's worse than that. You don't have standing even if you know you were surveilled:

https://www.eff.org/cases/al-haramain

As long as all possible proof is classified, nobody will ever have standing, and as we've seen in the Snowden case, classified info does not lose its classification when it's released to the public.

zwegner2• 13 years ago

I had heard of that case before, but didn't know why it was dismissed:

"The case was subsequently dismissed by the 9th Circuit on the grounds of sovereign immunity."

And sure enough: https://en.wikipedia.org/wiki/Sovereign_immunity

"In the United States, the federal government has sovereign immunity and may not be sued unless it has waived its immunity or consented to suit."

So apparently the government cannot break the law, by definition. What the hell?!

baddox• 13 years ago

the Supreme Court decided in the government's favor

If you close your eyes really hard, you can convince yourself that the Supreme Court isn't part of government and that therefore this phrase isn't completely ludicrous.

pyre• 13 years ago

Which is a better rephrasing:

* The judicial branch decided in the executive branch's favour.

* America decided in America's favour.

If you abstract far enough out, we're all part of the same group (humans), so any thing done that favours anyone else is just us being self-interested, right?

dragonwriter5• 13 years ago

If you close your eyes really hard, you can convince yourself that the Supreme Court isn't part of government and that therefore this phrase isn't completely ludicrous.

Its not ludicrous as it is; the executive branch represents the government, as such, in court. The courts may be part of the same government, but they can, and do, rule against the government position in cases in which the government is a party, as well as ruling for the government in some such cases, making it perfectly reasonable to describe the Supreme Court deciding for (or against, as applicable) the government.

betterunix4• 13 years ago

How is that phrase ludicrous if we acknowledge that the courts are a part of the government? Our government is deliberately partitioned into branches that may or may not work together. The Supreme Court can and does rule against the government that it is a part of; the Justices are not servants of the Attorney General nor of the President.

rayiner3• 13 years ago

And the Supreme Court thinks that this is acceptable.

Courts hate to decide issues if they can avoid deciding issues, and conservative courts especially so. Conservatives would prefer political issues (more surveillance versus less surveillance) to play out in the political sphere, not in the courts.

It goes back to the idea that the un-elected judiciary is supposed to be the weakest branch of government, and therefore should defer to the elected branches if it is possible to do so.

pitiburi• 13 years ago

I know about that idea of deferring decision from un-elected to elected authorities. But, the problem is nobody elects NSA hierarchies. Or FBI, CIA, etc. And they have such amount of power that THEY decide over elected officials, and not the other way around. No president can take a decision against what the powers inside the NSA want. The officials nominated by the president to head those agencies are either guys imposed to them from within that agency, or a nominal authority with no real saying in the power structure inside. The more you think about it, the more you realize is a catch-22.

n09n2• 13 years ago

Why do you conclude that they find it acceptable? Shouldn't judges be ruling on the merits of the case, not based on what outcome they find pleasing?

charonn0• 13 years ago

They should indeed. Courts of law should rule on what the law says; the court of public opinion is the proper venue for determining what what the law ought to say.

btilly6• 13 years ago

Why do you conclude that they find it acceptable?

The majority made their ruling despite lawyers for the other side pointing out this catch-22, and the minority decision outlining this exact scenario as a reason to have granted standing. I do not think that the majority could have so ruled if they found the existence of this catch-22 to be unacceptable.

lukev• 13 years ago

I don't think it's acceptable either, but really it's an impossible question from either direction.

Consider the alternative ruling; all covert surveillance at all including (including legitimate, warranted intelligence collection) would become impossible. Classification itself would only be a matter of nobody bothering to ask.

Of course, such total transparency is a viable philosophical viewpoint, but unfortunately it's not really on the table in any of the current discussions.

betterunix4• 13 years ago

"Of course, such total transparency is a viable philosophical viewpoint, but unfortunately it's not really on the table in any of the current discussions."

That speaks more to the current political environment than to the validity of transparency or secrecy. We should be very concerned that we have gotten to the point where surveillance and intelligence collection are considered to be more important than the ability of the people to hold the government accountable for its actions via the court system.

grey-area• 13 years ago

Specific and limited investigations should be secret for a given length of time or until they are complete, and can't obviously be disclosed during the investigation, that is quite normal. Just as the identity of witnesses is sometimes protected during a trial. However methods and the extent of programmes should never be secret, even if that means investigations are less effective. Otherwise so much can be secret that no-one truly knows what is being done in our name, and there are no practical limits on the power of those who manage the secrets.

All this is quite well established in other areas of police-work and prosecution. We have specific, individual warrants with normal judicial oversight for a reason, and broad general warrants giving carte blanche to follow certain rules in collecting data simply shouldn't be allowed, because there's too much scope for abuse.

So I think there is a third way in the middle between making all investigations completely open, and allowing secrecy to consume every operation of government.

bobwaycott• 13 years ago

As a student of critical social theory, the fact that it is a viable philosophical and practical viewpoint means it should be on the table for discussion. We get absolutely nowhere by only considering the already approved options set before us as citizens. Making qualitative change requires considering all viable options.

perlpimp2• 13 years ago

They can do extraordinary renditions and indefinite detention without trial. I say take the axes and budozers and excavators to buildings of NSA and deliver citizen's disconnection service.

mtgx2• 13 years ago

I don't think this will work again. This time even the administration admitted they are spying on people. And last time the Supreme Court decision was 5-4.

Andrew_Quentin• 13 years ago

Surely the fact that Verizon was ordered to hand over all its phone records for a period of three months means that anyone who is a Verizon customer has standing.

rfctr• 13 years 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.

ethomson3• 13 years 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.

dragonwriter5• 13 years 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.

ethomson3• 13 years ago

Which 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.

throwit1979• 13 years ago

tl;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• 13 years ago

Are 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?

foobarbazqux2• 13 years ago

It'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• 13 years ago

All 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.

betterunix4• 13 years 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.

sage_joch3• 13 years ago

Note 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...

slinkyavenger• 13 years ago

Why is this relevant to the discussion?

sage_joch3• 13 years ago

Because 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.

speeder• 13 years ago

Why a blowjob get more outcry than.ignoring the constitution repeatedly in US? As non US person I don't get it.

lukifer2• 13 years ago

Short 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• 13 years ago

Orin 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-fo...

In short, these legal actions have a hard journey ahead of them.

aray• 13 years ago

Why 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)

msandford3• 13 years ago

It'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• 13 years ago

Wow, 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.

cheald5• 13 years 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.

zwegner2• 13 years ago

Not only that, but "the requested injunction is irreconcilable with the public interest". Irreconcilable. I expected them to say the "public interest" bit, but... wow.

cheald5• 13 years ago

Reading the Administration's statements made my brain start screaming Ayn Rand quotes about "the public interest" at me.

aspensmonster• 13 years ago

I'm putting my vote in for vim.

rfnslyr• 13 years ago

Finally, was waiting for another vim vs emacs bout. Bring it on boys.

callmeed• 13 years 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"?

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)

dragonwriter5• 13 years 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.

msandford3• 13 years ago

So 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• 13 years ago

Time for a revolution!

malandrew• 13 years ago

How 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.

lazyjones• 13 years ago

Nice 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.

mtgx2• 13 years ago

So 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• 13 years ago

You (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.

NSA Phone Snooping Cannot Be Challenged in Court, Feds Say

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