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http://www.democracynow.org/2013/2/...rt_rejection_ofquote:In what’s being described as a Kafkaesque decision, the U.S. Supreme Court has ruled a group of human rights organizations and journalists cannot challenge the government’s warrantless domestic surveillance program because they can’t prove they are targets of it. The American Civil Liberties Union and a coalition of human rights groups and journalists filed the lawsuit in 2008 hours after President Bush signed amendments to the Foreign Intelligence Surveillance Act, which gave the National Security Agency almost unchecked power to monitor international phone calls and emails of Americans. We’re joined by the ACLU’s Jameel Jaffer, who argued the case before the Supreme Court. Long story short: a secret wiretapping program, which is inherently impossible to prove for any one individual because its secret, can't be challenged because you need standing to challenge it and the only way to have standing is to prove they were targets of it. Kafkaesque is right. The court refused to address the constitutionality of targeting journalists and human rights organizations with this sort of harassment and naturally it is also a 5-4 decision. So essentially, its okay if they don't get caught. At the same time, the president and his government has essentially declared war on whistleblowers. You should watch the video as the guy from the ACLU makes a lot of great points.
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| # ? Mar 2, 2013 04:45 |
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| # ? May 23, 2013 10:18 |
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Are supreme court rulings ever reversed? There's actually a similar situation going on with proving that various prosecutors are targeting minorities where they don't have to give access to information to prove said targeting until its proven.
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| # ? Mar 2, 2013 04:58 |
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Zewle posted:Are supreme court rulings ever reversed? There's actually a similar situation going on with proving that various prosecutors are targeting minorities where they don't have to give access to information to prove said targeting until its proven. Yes, they are. Most famously, Brown v Board of Education overturned a previous Supreme Court case, Plessy v Ferguson. They could also theoretically be overruled by a constitutional amendment, as happened with income tax.
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| # ? Mar 2, 2013 05:03 |
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Zewle posted:Are supreme court rulings ever reversed? Yes, many famous decisions were reversals of previous terrible decisions, Lawrence v Texas for example.
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| # ? Mar 2, 2013 05:04 |
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Zewle posted:Are supreme court rulings ever reversed?
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| # ? Mar 2, 2013 05:04 |
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The actual case at issue here is Clapper v. Amnesty International. While I'm generally sympathetic to the idea that the Court has limited standing too much, the Amnesty/ACLU attempt to assert standing in this case isn't great and it's hard to get too worked up about this one in particular; the actual parties here really don't have any connection to FISA. Given the reporting on the FISA program, it wouldn't be hard at all to find a test case plaintiff where there is decent evidence of a FISA warrant. Anyways, this really isn't a case about judicial oversight of FISA at all. It's a case about the scope of test plaintiff standing for interest groups. And there are ways in which the limitation of standing is pernicious too, but it's an entirely different section of the law from "you can't challenge secret wiretapping without proof." eta: I mean, we're dealing with American citizens trying to establish standing to challenge a provision of FISA that explicitly doesn't apply to American citizens, with an Article III federal court issuing the warrants so the Supreme Court is going to (almost certainly correctly) consider the idea that American citizens are actually being targeted even though they're not legally allowed to be as tinfoil hat stuff. If this suit is on behalf of McKay or Royce's clients instead of McKay or Royce, you no longer have the standing problem. This isn't a hard precedent to get around at all. jeffersonlives fucked around with this message at Mar 2, 2013 around 05:30 |
| # ? Mar 2, 2013 05:11 |
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Rent-A-Cop posted:Yes, though the Justices usually like to have a very strong reason to reverse the decisions of previous courts. For this decision though they wouldn't have to reverse anything if someone could show they were a target of secret wiretapping. Though the only way I can think of to demonstrate that would be to have the product of a secret wiretap used against you in court. The shortest turnaround to date has been 6 years. Dennis v. U.S. was partially changed by Yates v. U.S., then overturned completely 11 years after that in Brandenburg V. Ohio. But you and jeffersonlives pretty much have the long and short of it. Standing is important and while Democracy Now is happy to call it Kafka-esque, the standard is that the offended party has to show that they were harmed to file suit. Since non of them can prove they were warrantlessly wiretapped in any way, the court is kind of right in saying they have no case. This is a punt, it can be decided later when there is an actual case to decide. It is looking to be a punty year.
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| # ? Mar 2, 2013 05:34 |
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Would anyone comment on the opinions of the dissenting judges?
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| # ? Mar 3, 2013 17:25 |
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Lief posted:Would anyone comment on the opinions of the dissenting judges? The four dissenters simply have a much wider view of standing in civil cases than the majority. This is a back and forth that's been ongoing since a 1992 case called Lujan, and really even before that. As a standing case, it's entirely unremarkable and breaks no new ground.
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| # ? Mar 3, 2013 17:34 |
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Lief posted:Would anyone comment on the opinions of the dissenting judges? here is the opinion (both of them; the majority one is like 24 pages long). Basically it's "actually the plaintiffs do have standing computer parts fucked around with this message at Mar 3, 2013 around 17:41 |
| # ? Mar 3, 2013 17:37 |
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Red_Mage posted:Since non of them can prove they were warrantlessly wiretapped in any way, the court is kind of right in saying they have no case. I'm confused-how could you think that kafkaesque is not an appropriate descriptor for this decision, yet write this sentence?
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| # ? Mar 3, 2013 17:59 |
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Will Rice posted:I'm confused-how could you think that kafkaesque is not an appropriate descriptor for this decision, yet write this sentence? He phrased it poorly. They can't even show that they're likely to have been wiretapped. They are American social justice organizations and journos claiming that they themselves (as opposed to the people they talk to and represent) are likely to be targets of wiretapping a)through a statute that explicitly excludes Americans and b)where the warrants under the statute are still subject to judicial review. I hate these kinds of decisions on principle (more on that below) but it's defensible. Under this case, the people that are Constitutionally able to bring a suit like this are the actual wiretap targets. That's not nearly as Kafka-esque as it sounds. For example, any time the FBI arrests a bunch of people on US soil and the DA later uses phone calls to Pakistan as evidence against them, this exact set of facts creates a plausible challenge that has far less standings issues; they don't have to prove that they *were* wiretapped through such a warrant, merely that they were likely to have been (and if the statute is ruled unconstitutional at that point, the DA would have to disclose whether they actually were and/or retry them without that evidence). The problem with this, and borderline standings punts in general, is that postponing a resolution has a very human cost. It's merely annoying for a DA who doesn't know whether they're relying on valid evidence, and life-changing for anyone caught in the net. Any time an appeals court punts a criminal case specifically on borderline standings grounds, the result is thousands of people who get worse plea deals than they could have, who get arrested for bullshit that is eventually thrown out a decade later, or who 'merely' spend tens of thousands of extra dollars going through an appellate process that shouldn't exist. *That* part is Kafka-esque, IMO: some number of defendants are now going to spend a few or more than a few years in limbo because five people decided to take a black and white interpretation of a very gray line.
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| # ? Mar 3, 2013 18:27 |
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Will Rice posted:I'm confused-how could you think that kafkaesque is not an appropriate descriptor for this decision, yet write this sentence? Adar sort of beat me here, but distilled into a couple sentences: the plaintiffs here aren't alleging that they were wiretapped; if they were alleging that they actually were tapped by a § 1881a warrant they'd easily have standing. This was a preemptive lawsuit before § 1881a was even being applied - filed literally on the day it was passed - by a group of plaintiffs that alleges that they may be targeted in the future.
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| # ? Mar 3, 2013 18:30 |
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Yep. So long as the government keeps the evidence of their domestic surveillance program secret, they are completely free to spy on whoever they want because literally no one will ever have standing to challenge the law. VVV-you quoted before I finished editing (though the content is the same). The problem is that we know the domestic surveillance is ongoing right now from leaks, though. Will Rice fucked around with this message at Mar 3, 2013 around 23:37 |
| # ? Mar 3, 2013 23:29 |
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Will Rice posted:Well, the wiretaps are warrantless (and secret), so by definition no one has standing and the law can never be challenged in court. If evidence is gathered against someone as a result of the wiretap then they have standing. The issue is that the ACLU (or Amnesty International in this case I guess) specifically does not have standing, because it doesn't have anything brought against it due to secret wiretaps. It's basically saying you can only be reactive to a law and not proactive, which is lovely yes but also consistent with how the court typically operates (it can't declare something unconstitutional until an event already occurred). e: vvv I guess I misinterpreted it too because that doesn't really sound as terrible as I thought. vvv computer parts fucked around with this message at Mar 3, 2013 around 23:43 |
| # ? Mar 3, 2013 23:34 |
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Will Rice posted:Well, the wiretaps are warrantless (and secret) No, these are still FISA wiretaps and still subject to the Article III federal courts, more specifically the Foreign Intelligence Surveillance Court. I don't think you understand what this provision actually does. eta: If Amnesty and friends want to file a lawsuit about secret domestic warrantless wiretapping, that's an entirely different lawsuit. This case was about a FISA amendment for wiretaps - wiretaps that still have to go through the regular FISC procedure for a warrant if targeting Americans. jeffersonlives fucked around with this message at Mar 3, 2013 around 23:58 |
| # ? Mar 3, 2013 23:38 |
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jeffersonlives posted:No, these are still FISA wiretaps and still subject to the Article III federal courts, more specifically the Foreign Intelligence Surveillance Court. I don't think you understand what this provision actually does. I'm specifically referring to this: ACLU posted:The plaintiffs in the lawsuit, Clapper v. Amnesty, include attorneys and human rights, labor, legal, and media organizations, and their work requires sensitive and at times privileged international communications. The FISA Amendments Act permits the government to conduct dragnet secret surveillance of Americans’ international communications—that is, surveillance that is not limited to a specific person and may go on for up to one year without any court approval. In this way, the FISA Amendments Act of 2008 has created a new surveillance regime that is starkly different from the particularized surveillance of the past. You can read the rest of their explanation here http://www.aclu.org/blog/national-s...ess-wiretapping if you think I am misinterpreting what they are saying. edit: maybe "wiretaps" is the wrong word to use here; I'll stick with surveillance from now on Will Rice fucked around with this message at Mar 3, 2013 around 23:46 |
| # ? Mar 3, 2013 23:44 |
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Will Rice posted:You can read the rest of their explanation here http://www.aclu.org/blog/national-s...ess-wiretapping if you think I am misinterpreting what they are saying. This is a PR release by the losing party in the case. It is not the opinions, it is not the briefs, it is not even a legal argument; it's a base appeal. The ACLU has been lobbying against the entire FISA scheme for decades now, of course they're outraged by the unconstitutionality of it all. Let me repeat this once more: if the ACLU wanted to file a domestic warrantless surveillance lawsuit, they are free to file that case. This case, on the other hand, was a test to see if they could take a quick shot at this specific provision without actually finding a targeted person to be the plaintiff. The plaintiff-appellees in the Clapper case definitionally cannot be targeted persons because the provision they're trying to bring down in Clapper involves foreign-only targets. If they refile this case with the plaintiffs as the targeted clients of the lawyers, for example, there is no standing problem.
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| # ? Mar 3, 2013 23:55 |
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jeffersonlives posted:Let me repeat this once more: if the ACLU wanted to file a domestic warrantless surveillance lawsuit, they are free to file that case. This case, on the other hand, was a test to see if they could take a quick shot at this specific provision without actually finding a targeted person to be the plaintiff. The plaintiff-appellees in the Clapper case definitionally cannot be targeted persons because the provision they're trying to bring down in Clapper involves foreign-only targets. If they refile this case with the plaintiffs as the targeted clients of the lawyers, for example, there is no standing problem.
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| # ? Mar 4, 2013 00:05 |
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Rent-A-Cop posted:Yes, though the Justices usually like to have a very strong reason to reverse the decisions of previous courts. For this decision though they wouldn't have to reverse anything if someone could show they were a target of secret wiretapping. Though the only way I can think of to demonstrate that would be to have the product of a secret wiretap used against you in court. Yeah, if the government ever has the balls to use a secret wiretap against you in court not only will it be thrown out, but you can bring it back the court when more liberal justices are on it hoping for a reversal.
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| # ? Mar 4, 2013 00:06 |
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gvibes posted:Well, there's still potentially a standing problem, right? The targeted clients can't prove they've been targeted, right? Evidence generally has to have a source attributed to it. If someone says "the way we got this information is a matter of national security" that's a big red flag and an easy way to get it thrown out.
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| # ? Mar 4, 2013 00:09 |
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gvibes posted:Well, there's still potentially a standing problem, right? The targeted clients can't prove they've been targeted, right? If they can allege they've been or are likely to have been targeted and show "plausibility" under Twombly/Iqbal, they should survive a motion to dismiss for failure to state a claim. You don't have to be able to prove your case to get standing, unless your judge is Scalia and you're black, a woman, or a black woman alleging discrimination.
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| # ? Mar 4, 2013 00:10 |
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gvibes posted:Well, there's still potentially a standing problem, right? The targeted clients can't prove they've been targeted, right? They don't have to prove that they've been targeted as a definite matter of fact, no. The problem the plaintiff-appellees have here is that they definitely weren't targeted.
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| # ? Mar 4, 2013 00:12 |
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jeffersonlives posted:They don't have to prove that they've been targeted as a definite matter of fact, no. The problem the plaintiff-appellees have here is that they definitely weren't targeted. quote:Moreover, because § 1881a at most authorizes — but does not mandate or direct — the surveillance that respondents fear, respondents' allegations are necessarily conjectural. Even if you know you will be surveilled, the court makes it sound like you have to show that you will be surveilled under 1881A to show standing. quote:Second, even if respondents could demonstrate that the targeting of their foreign contacts is imminent, respondents can only speculate as to whether the Government will seek to use § 1881a-authorized surveillance (rather than other methods) to do so... Even if respondents could demonstrate that their foreign contacts will imminently be targeted — indeed, even if they could show that interception of their own communications will imminently occur — they would still need to show that their injury is fairly traceable to § 1881a. But, because respondents can only speculate as to whether any (asserted) interception would be under § 1881a or some other authority, they cannot satisfy the "fairly traceable" requirement
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| # ? Mar 4, 2013 00:41 |
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gvibes posted:OK, I actually read it. I don't see a way that any claim against this provision pass the standing bar set forth herein unless you have some proof that you are being surveilled under 1881A. Yeah, the majority has a much higher bar for standing - and the dissent points that out. I think there are still some fatal defects in Clapper that make it less than ideal for challenging 1881(a), but narrowing standing has long been a staple of the right-wing legal agenda.
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| # ? Mar 4, 2013 00:47 |
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gvibes posted:This seems like a pretty high bar. Of course it's a high bar, it's a Roberts Court standing decision. I don't mean to downplay the actual cost of the increasingly high standing bars to litigation that the current trend favors; I think Adar went over them quite well earlier. But I'm skeptical that they'd put such a high bar in a case where there's an actual potential target. Most of the problems here are in construction of the action where they tried to take a bite at this one new subsection of FISA instead of taking the whole thing down with obviously injured plaintiffs, IMO.
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| # ? Mar 4, 2013 01:09 |
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Fire, you could save a lot of time by just making a "Death to America" thread and adding a new post when they manage to somehow outdo themselves. Also, Kafkaesque is the wrong term to use, a catch-22 would be more appropriate.
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| # ? Mar 4, 2013 03:45 |
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jeffersonlives posted:Of course it's a high bar, it's a Roberts Court standing decision. I don't mean to downplay the actual cost of the increasingly high standing bars to litigation that the current trend favors; I think Adar went over them quite well earlier. There is no one obviously injured-how can you prove you are wiretapped in secret?
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| # ? Mar 4, 2013 03:54 |
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| # ? May 23, 2013 10:18 |
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Will Rice posted:There is no one obviously injured-how can you prove you are wiretapped in secret? What I am suggesting is that instead of getting a group of plaintiffs who couldn't possibly have been targeted under the provision being attacked to make a weak facial challenge, you get a group of plaintiffs who have been overwhelmingly likely to be targeted in the FISC (i.e., accused terrorists), and make a case against FISA as a whole. This case needed to have plaintiffs who might have actually been targeted instead of plaintiffs in fear of being targeted, and depending on how much weight you put on Alito's fairly traceable standard, it probably needed to be broader than just the new amendment. Since this is getting lost, I generally agree with the Breyer dissent's widened view of standing. However, in this instance it really doesn't matter because the underlying Fourth and First Amendment claim is a hail mary attempt loser. This case would have almost no chance to even end up on the Supreme Court docket on the merits, and despite the protestations by both the majority and the dissent to the contrary, of course that actually matters when they're deciding what to do with this.
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| # ? Mar 4, 2013 04:44 |
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