
NSA Phone Snooping Cannot Be Challenged in Court, Feds Say - rb2e
http://www.wired.com/threatlevel/2013/07/spygate-snooping-standing/
======
btilly
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.

~~~
lukev
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.

~~~
betterunix
"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.

~~~
quantumpotato_
Yes. HN, please keep the discussion going strong. So glad to see the NSA's
surveillance hasn't died off the front page.

------
cheald
> _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
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.

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

------
brymaster
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
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.

~~~
msandford
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.

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

------
sage_joch
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...](http://www.reddit.com/r/news/comments/1in7p5/president_obama_nsa_surveillance_cannot_be/)

~~~
slinkyavenger
Why is this relevant to the discussion?

~~~
sage_joch
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.

~~~
cheald
Technically speaking, isn't Wired "corporate media"?

~~~
specialist
_" Corporate media" is a term which refers to a system of mass media
production, distribution, ownership, and funding which is dominated by
corporations and their CEOs. It is sometimes used as a term of derision to
indicate a media system which does not serve the public interest in place of
the mainstream media or "MSM," which tends to be used by both the political
left and the right as a derisive term._

[http://en.wikipedia.org/wiki/Corporate_media](http://en.wikipedia.org/wiki/Corporate_media)

~~~
cheald
Now explain to me why Wired doesn't fit that definition.

~~~
specialist
No contest. I don't read Wired. Too corporate.

~~~
cheald
Haha, okay. I misinterpreted the Wikipedia quote as a correction of my
original comment. Sorry!

------
throwit1979
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
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?

~~~
ihsw
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.

------
rfctr
> “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.

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

~~~
jtokoph
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.

~~~
cmsimike
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.

~~~
nathas
The age demographic on HN is also deeply skewed. I'm hoping that once the
25ish-year-olds run for Congress we'll see a shift.

It's all I can do right now, other than write my Congressman.

~~~
cmsimike
I agree with this. I don't expect there to be much change in the US for
another 30 years, unfortunately. Hopefully by then the technology to
transplant my brain into a newer, fresher body is available. That way I can
enjoy a truly free America, hopefully one that focuses on science and
engineering rather than whatever the hell the focus of it is now. War? World
domination?

------
msandford
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!

------
agl
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...](http://www.volokh.com/2013/07/17/metadata-the-nsa-and-the-fourth-
amendment-a-constitutional-analysis-of-collecting-and-querying-call-records-
databases/)

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

------
dmix
The government deciding what is and what is not constitutional?

What could go wrong.

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

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

~~~
anigbrowl
Yes it is. Adding adjectives to your argument doesn't make it more persuasive.

~~~
dmix
State 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?

------
philip1209
I was raised to believe that a core tenet of the government was checks and
balances.

~~~
rayiner
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_b
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.

~~~
rayiner
> 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-
securi...](http://www.huffingtonpost.com/peter-h-schuck/national-
security_b_3543312.html).

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
That'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.

~~~
ewoodrich
I believe what rayiner is describing is similar to the "political question"
test. The court may have the ability to hear and decide on any constitutional
question or appellate dispute, but they have determined certain issues to be
fundamentally political in nature (such as gerrymandering), or primarily
subject to legislative remedies (many national security issues, including
Korematsu, which upheld broad discretion in affording leeway to the federal
government in the interest of national security).

You may disagree with this. But, the Supreme Court has a staggering amount of
written and unwritten precedent and protocol that is considered. And national
security based cases are unlikely to be subject to as strict of scrutiny
before the Court.

~~~
s_q_b
You're moving the goal posts. "Strict scrutiny" is a specific legal standard
that isn't really relevant to this discussion which implicates clearly
established constitutional rights (automatically invoking a higher standard of
review.)

The courts side against the government in national security cases all the
time. See e.g. Ex Parte Endon, Merryman, Hamdi, Hamden, etc. so I'm really not
sure what you're trying to say.

The Supreme Court also routinely addresses political questions, see e.g. Brown
v. Board of Education, Roe v. Wade, Griswald v. Connecticut etc. The
"political question test" is not a tenant of constitutional law, but rather an
element of some conservative jurisprudence. Incidentally, one with which I'm
intimately familiar, having taken Constitutional Law from Robert George.

The statement that the Supreme Court doesn't decide issues of national
security, from a historical perspective, are just not correct. I've been told
it's polite to give people a way out in these types of scenarios, but this is
Hacker News. I don't disagree with some "unwritten precedent and protocol," I
disagree with your statements.

All of which, by the way, I've proven wrong citing specific case law. This
isn't discussion sections or precept. You can't not do the reading, wave your
hands, and expect me to go along.

------
ethomson
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.

~~~
dragonwriter
> 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
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.

~~~
dragonwriter
The 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".

~~~
ethomson
Can you cite that from the article? Because I don't see that anywhere. What I
see is:

> ... the alleged metadata program is fully consistent with the Fourth
> Amendment ... Because the Fourth Amendment is not breached, it follows that
> the First Amendment is not violated either

Which asks for a summary dismissal. The referenced article never suggests that
the court lacks authority, at least not that I can read.

So I will continue to deem the title awful.

------
aray
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)

~~~
msandford
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.

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

~~~
lukifer
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.

------
malandrew
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.

------
callmeed
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)_

~~~
dragonwriter
> 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.

------
lazyjones
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.

------
ctdonath
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.

------
eyeareque
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.

------
mtgx
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.

------
trackztar
Time for a revolution!

