October 30, 2012

"A challenge to a federal law that authorized intercepting international communications involving Americans appeared to face an uphill climb at the Supreme Court..."

"... on Monday, but not one quite as steep as many had anticipated," observes Adam Liptak at the NYT.
The question in the case was whether journalists, lawyers and human rights advocates could show they had been harmed and so had standing to sue, and several justices seemed open to the idea....

The possibility that the courts may never rule on the constitutionality of the law seemed to rankle some of the justices. “Is there anybody who has standing?” Justice Sonia Sotomayor asked....

Justice Antonin Scalia [said] “We’ve had cases in the past where it is clear that nobody would have standing to challenge what is brought before this court... That just proves that under our system of separated powers, it is none of our business.”
Here's the transcript.

19 comments:

wyo sis said...

Never let a crisis go to waste.

Dan said...

Nearly all international calls in the world go through the united states:

How the USA became the switchboard of the world

Mogget said...

Sigh. I wish I though Romney would change this.

David said...

You mean the courts can hear every case they want to? Isn't that unconstitutional?

The Drill SGT said...

I have news for people. US Citizen's have always had their phone calls on international calls monitored, just perhaps not targeted.

example:

1. We have a list of 'bad guy" phone numbers. A collection of all the contact files on all the Jihadi cell phones we pick up, etc. That big list is on an NSA computer. We log the outgoing number and incoming number of every international call we can find, and that's a lot.

2. Some 'bad guy" number calls a Madison household. That call is rolling to tape and likely scanned by computer for key words. If you say "Rogers bombed in the last game. We got blown out by their offense", well your tape is going to an analyst for a look. At this point we don't know that you a choir boy uS citizen in say Madison. Let's call you "Meade".

3. your Madison number is going to be run against databases, that I would theorize about, but the Meade number may end up on a list of numbers that deserve attention, all without knowing the name or citizenship of the person who got the call.

Bendir01c said...

If a law can be crafted in such a way that it can't be challenged, that seems to fly in the face of the Supreme Court being an equal branch of government.

Paul said...

There are plenty of ways to encrypt one's communications.

Not only such as PGP but you can use a BOOK as a key and use a very hard to break system (cause one has to know what the book is to even start figureing out the keys.

And then there is word code...

Marshal said...

That may be the most discordant statement I've ever read from Scalia.

Big Mike said...

As always, the government is employing a Catch-22. One lacks standing to sue unless one has been notified that they are subject of wiretaps, but the government cannot tell anyone that they are the subject of a wiretap because of national security.

This is even better than the catch Joseph Heller wrote about.

heyboom said...

Slightly off topic, but it just occurred to me the other day that Eric Holder has pretty much vanished from the face of the earth since about three or four weeks ago. Not a peep about him, or have I just missed any news about him? Or is Obama hiding him out in the Tora Bora mountains until after the election?

Rusty said...

The Drill SGT said...
I have news for people. US Citizen's have always had their phone calls on international calls monitored, just perhaps not targeted.

Since FDR as a matter of fact.

Sigivald said...

What Drill SGT said; my understanding is further that "back in the day" international telegrams were routinely and constantly monitored.

And that this was both assumed to be the case by everyone, and somehow not a civil liberties issue at the time.

Bendir: There's nothing here about it being "crafted" in such a way that it can't be challenged. The question is whether anyone suffered some harm from the law, such that they've got standing.

If the State had used the surveillance on these people to do them some identifiable harm of some sort they'd have perfectly good standing automatically - the problem with their case is that it didn't, as far as their claims go.

Jack Burton said...

I can't help but believe that the Supreme Court would rule that any phone call, let alone a journalist, to government headquarters in Tokyo or Berlin in 1943 would be of interest to the U. S. government at that time.

Methadras said...

What's interesting is that all you hear about is the FISA law with respect to Bush and as being the unlawful and unwarranted wiretapping of international calls made internationally and to within the US. But you hear no one, and I mean no one talk about Clinton's commission of two programs that do much much worse, Carnivore and Echelon. The leftards have been utterly silent.

Rabel said...

Kudos to Adam Liptak. It takes quite a wordsmith to analyze a case brought against the Obama administration and AG Holder by the ACLU and Amnesty International without using the words "Obama" or "Holder."

Bruce Hayden said...

What's interesting is that all you hear about is the FISA law with respect to Bush and as being the unlawful and unwarranted wiretapping of international calls made internationally and to within the US. But you hear no one, and I mean no one talk about Clinton's commission of two programs that do much much worse, Carnivore and Echelon. The leftards have been utterly silent.

Or, probably more importantly here, the reality that the Obama Administration apparently didn't do anything differently.

The problem then was that FISA had not been brought into the 21st Century. Haven't been following it lately, so don't know of the 2008 amendments did much good. The basic problem was partly the volume of international and foreign calls coming through U.S. bassed switches that trigger some sort of alert. As noted, the NSA has large databases of suspect numbers and the like. They look at those numbers, then the ones that communicate with them, and then maybe down another level or two, looking for something suspicious.

FISA was written at a time when international communications were primarily either by cable, satellite, microwave. All could relatively easily be intercepted outside the U.S., not invoking the domestic intercept side of FISA. Moreover, the volume was small enough that warrants were not an issue. The law was written for surveiling the Soviet, ChiCom, and maybe North Korean embassies. Very few phones were involved.

No longer - the best, and almost only, way to intercept international calls is at the switch these days. Suspect calls trigger recording, then possibly voice recognition and automatic translation, and maybe someone listens to the calls a day or so later. Of course, it was argued that the warrant requirement required that a FISA warrant had been issued before any of this happened. But, again, FISA warrants were designed for land lines, and not burner cell phones. By the time that they could get FISA warrants, the phones involved are likely discarded. So, the Bush people pushed the interpretation of the law for international and foreign calls (those calls having one or both ends outside the U.S.)

Rabel said...

Flip/Flop

Money talks when you're running for President.

Bruce Hayden said...

The problem with the cases against FISA revolves around the problem that no Americans (or those legally in this country), while making or receiving a call inside this country, can prove that they were surveiled by FISA intercepts, absent FISA warrant. Part of their problem is that what calls are being surveiled is top secret, and attempts to breach that secrecy have been unsuccessful to this point.

This isn't like the police raiding your house without a warrant, because you have no way of knowing whether or not a phone call you had with someone outside the U.S. was intercepted by the NSA. None. Unless, of course, you are tried for terrorism, and in that case, they will have had valid FISA warrants for anything that they try to use in court.

You would think that since no one can prove actual harm (because they can't prove that their phone calls were actually intercepted), that there wouldn't be standing to sue (no harm, no foul). The way that these plaintiffs tried to get around this is to show fear that their phone calls were intercepted, based on the calls supposedly being within suspicious guidelines. Their fear then would be the harm that would make this a case or controversy, and, thus, give them standing.

Right now, with this Court, I just don't see this as being effective. Fear of having your calls intercepted (without any proof that any such ever were) would, I think, be quite speculative, and the sort of thing that would open a lot of things that the feds do to judicial review. Seems to me to be quite the slippery slope.

Besides, what is the standard remedy for cops violating the 4th Amdt? Suppression of the ill-gotten gains. Which, of course, is moot here, since there is no evidence that any of these interceptions, assuming that there are any in the first place, will ever be used in court. If they are, then, fine, move to suppress the ill-gotten evidence. But, very, very, rarely are the police penalized beyond suppression of evidence for illegal searches and seizures. Making this even more problematic - the justification for FISA surveillance is national security, which is where the President's power is greatest, and where Congress arguably impermissibly intruded into his realm with the passage of FISA.

purplepenquin said...

But you hear no one, and I mean no one talk about Clinton's commission of two programs that do much much worse, Carnivore and Echelon. The leftards have been utterly silent.

Actually, that was one of the main reasons that was given by a lot of the Nader voters I knew in 2000.

The Democrats may now be silent about these type of issues...much like how a lot of Republicans only started complaining about it once Bush was out of office...but a lot of folks on "the left" sure ain't supportive of it.