US Supreme Court refuses to let Americans challenge FISA eavesdropping law

US Supreme Court refuses to let Americans challenge FISA eavesdropping law

rt.com

The United States Supreme Court will not let Americans challenge a provision in a foreign intelligence law that lets the federal government secretly eavesdrop on the intimate communications of millions of Americans.

On Tuesday, the top justices in the US said the country’s highest court will not hear a case in which Amnesty International and a slew of co-plaintiffs have contested a provision of the Foreign Intelligence Surveillance Act of 1978, or FISA, that lets the National Security Agency silently monitor emails and phone calls [.pdf].



Under the FISA Amendments Act of 2008 (FAA

(visit the link for the full news article)

Five more years of surveillance…I am not sure how different they will be from the previous years, that I am sure these types of programs have been utilized.

Here is a crucial bit:

“Under the FAA, the government can target anyone — human rights researchers, academics, attorneys, political activists, journalists — simply because they are foreigners outside the United States, and in the course of its surveillance it can collect Americans’ communications with those individuals,” the American Civil Liberties Union wrote on behalf of the plaintiffs in a legal brief filed last year with the court.

No one appears to be exempt from this policy, though I am confident many of us have nothing to fear from this, It certainly sets an ugly precedent that I am sure will pop up in the future in the name of national defense.

Oh and the article reports that people don’t really need to only worry about this particular policy, but:

In the court’s majority opinion, five justices even added that the government’s ability to wiretap Americans doesn’t begin and end with FISA, either. "The Government has numerous other methods of conducting surveillance, none of which is challenged here,”they ruled.

“All that Senator Udall and I are asking for is a ballpark estimate of how many Americans have been monitored under this law, and it is disappointing that the Inspectors General cannot provide it,” Sen. Wyden told Wired’s Danger Room at the time. “If no one will even estimate how many Americans have had their communications collected under this law then it is all the more important that Congress act to close the ‘back door searches’ loophole, to keep the government from searching for Americans’ phone calls and emails without a warrant.”

I find it troubling that they US is hesitant to provide exact numbers of people being monitored. Should we just assume everyone in US is being watch in some form or the other?

You know that feeling that someone is watching you, even though nobody is around? That feeling might just be accurate.

Looks like RT is only major media outlet reporting this right now, but I will keep an eye out for corroborating reports. I find the RT is usually good at posting Government rulings that make the US look over bearing.

Thoughts?


rt.com
(visit the link for the full news article)

Additional Links thanks to WhiteAlice from Below:
NY TIMES
USA TODAY
SUPREME COURT

I'll agree that Russia TV, as a direct owned property of the Government of the Russian Federation, DOES love making us look bad at every opportunity. They do a good job of it too.

In THIS case? Well...I guess even they get my agreement at times. FISA courts are ..necessary ...but NOT like this. I believe it's necessary because the lengthy process to get a proper warrant in daylight is flat out not possible in some cases of fast moving situations and changing circumstances in relation to a national security or otherwise lethal threat.

Having noted that...The WAY it's used is the ultimate abuse. I THINK. I can only guess because it's all hush hush secret. Shhhh..... We can't handle the truth. Didn't ya know? Ugh...

How I think it needs fixed is very simple. An absolute IRON CLAD time based lock of records of the FISA court ...and I mean *ALL* records, NO redaction...be established for full public release. I.E., a FISA decision made today is 100% certain to be public in 5 years or 10..or whatever figure is chosen. THAT means everyone in the FISA process knows damn good and well that after the emotion of the moment has passed, some day, there WILL be an accounting for what was done, why it was done and what the outcome was. That would add a level of honesty to a secret process it has none of right now, IMO.

reply to post by Wrabbit2000

I'll agree that Russia TV, as a direct owned property of the Government of the Russian Federation, DOES love making us look bad at every opportunity. They do a good job of it too.

Agreed. I typically take their reports with a grain of salt, just like i do with CNN, Fox, telegraph etc etc. Once other MSM jumped on this we will be able to see where the stories over lap and gleam some kind of truth of the matter.

How I think it needs fixed is very simple. An absolute IRON CLAD time based lock of records of the FISA court ...and I mean *ALL* records, NO redaction...be established for full public release. I.E., a FISA decision made today is 100% certain to be public in 5 years or 10..or whatever figure is chosen. THAT means everyone in the FISA process knows damn good and well that after the emotion of the moment has passed, some day, there WILL be an accounting for what was done, why it was done and what the outcome was. That would add a level of honesty to a secret process it has none of right now, IMO.

Will agree 100% with this and I see this as at the very least a minimal compromise to appease the public. The fact that they are hiding so much gives just cause for people to complain and question.

Who knows what the average joe/jane may do that could be misinterpreted by this government ease dropping plan…

In any case, they have at least given a concession to review the matter in 5 years. I wonder if certain US goals will be accomplished by then

Here's a NY Times version: www.nytimes.com...

And USA Today: www.usatoday.com...

Actual docket with assenting/dissenting opinions for those who like to go straight to the source: www.supremecourt.gov...

There...no more icky RT. Haven't read the opinions yet by the members of the SC but I can see where it would be problematic. Courts generally don't like future potential injuries and prefer things that have occurred and are somewhat quantifiable. However, getting it heard and weighed in on properly would decide whether it is Constitutional or not, which I think was the ultimate point of getting it before the SC in the first place.

reply to post by WhiteAlice


Thank you very much for the links. If you dont mind I will add them to the OP.

Well regardless of the policy is deemed constitutional or not, the US may be stuck with it until the 5 year term expires or an formal inquiry is comissioned.

So...

Basically don't email or call any bad guys that aren't US citizens overseas?

Well, there's always a pen, paper, envelope and stamp.

ETA: Maybe keeping it old school is the way to go. As they beef up their telecomunications spying, they're probably ignoring the older methods of communications. Sad, but the return of the wax-sealed letter may be upon us...

Originally posted by MystikMushroom
So...

Basically don't email or call any bad guys that aren't US citizens overseas?

Well, there's always a pen, paper, envelope and stamp.

ETA: Maybe keeping it old school is the way to go. As they beef up their telecomunications spying, they're probably ignoring the older methods of communications. Sad, but the return of the wax-sealed letter may be upon us...

edit on 26-2-2013 by MystikMushroom because: (no reason given)

Good point. I used to have a monogrammed stamp and wax for letters as a kid, btw--just had to say that, lol. The majority of snail mail seems to be (at least for me lol) junk mail so it's probably not looked at very closely anymore at all. Email and social media, on the other hand, are nearly instantaneous and easily accessible for purview. Comparatively, one would seem dead in the water from an intelligence aspect while the other would be plentiful and fast.

Not that I do anything that I'd be worried about as a flag, mind you.

"This theory of future injury is too speculative," Justice Samuel Alito said in announcing the decision, calling it "hypothetical future harm."

Alito was joined by Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas.

Justice Stephen Breyer dissented, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Breyer wrote that the harm is not speculative.

If we ever want the Supreme Court to overturn this kind of legislation, then we need one less conservative Justice and liberal one to take their place. As we can see, this decision was split based entirely upon political leanings....more small government from conservatives, huh?

reply to post by MystikMushroom
or US citizen listed on a no fly list,and or, that might be a target, linked to a known terror group or organization.
ie, one that might have been sent to Afghanistan to cover a story but havering talked to said terrorist, is now on the watch list, and at this moment is being; taped, spied on, and band from flying, and for being in association with known terrorist is now one as well.
How the law and act could be interpreted, or implemented.
FISA and NDAA 2012- 2013

Originally posted by LeatherNLace

"This theory of future injury is too speculative," Justice Samuel Alito said in announcing the decision, calling it "hypothetical future harm."

Alito was joined by Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas.

Justice Stephen Breyer dissented, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Breyer wrote that the harm is not speculative.

If we ever want the Supreme Court to overturn this kind of legislation, then we need one less conservative Justice and liberal one to take their place. As we can see, this decision was split based entirely upon political leanings....more small government from conservatives, huh?

Not going to happen any time soon for what it's worth unless one of them meets an untimely end (not threatening, mind you--just acknowledging that accidents DO happen). The justices that would be most likely retiring in the next 10-20 years are all the more liberal justices. Bush wasn't being a dummy when he appointed young 'uns to the SC.

Originally posted by WhiteAlice
The justices that would be most likely retiring in the next 10-20 years are all the more liberal justices. Bush wasn't being a dummy when he appointed young 'uns to the SC.

I don't know, it's more of a toss-up. We've got 4 justices born in the 1930s (2 Rs & 2Ds)

Republican Appointed Justices
Antonin Scalia - 77 years old (Reagan)
Anthony Kennedy- 77 years old (Reagan)
Clarence Thomas - 65 years old (GHW Bush)
John G. Roberts - 58 years old (GW Bush)
Samuel Alito - 63 years old (GW Bush)

Average age: 68

Democrat Appointed Justices
Ruth Bader Ginsburg - 80 years old (Clinton)
Stephen Breyer - 75 years old (Clinton)
Sonia Sotomayor - 59 years old (Obama)
Elena Kagan - 53 years old (Obama)

Average age: 66.75

First off I would like to say good job OP of presenting this with a level head and not emotionally charged. My only qualm is the Court refused this instance, not all instances of a challenge as highlighted below. As pointed out by a poster above, the refusal to grant petition was based on no evidence of injury to the parties; only speculation. There have been countless cases in which the Supreme Court refuses to hear for that very reason and injured parties have to show cause under Article III standings.

Here is the Supreme Court opinion on the matter: PDF: Clapper v. Amnesty Int. et. al

Over all, the respondents sought to question the Constitutionality of §1881a. This section states the following:

...the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.

At the heart of the argument not to hear the case, this statement from Justice Alito:

...respondents’ theory of future injury is too speculative to satisfy the well-established requirement that threatened injury must be “certainly impending.”

Overall after reading much of the opinion, the respondents had a very weak case and at times became almost irrational. Trying to claim that if they cannot sue then no one can is an argument from a child in my opinion. The Justice corrects such a notion by pointing to case law that states otherwise and offers this:

...our holding today by no means insulates §1881a from judicial review.

They continue to some actual good news on the "secrecy" factor. Alito states the following:

[I]f the Government were to prosecute one of respondent-attorney’s foreign clients using §1881a-authorized
surveillance, the Government would be required to make a disclosure.

That statement could lead to a future case if someone can actually show cause of injury in relation to §1881a and will force the Government to open up and disclose practices in the court of law.

Moving onto the dissent, some valid points were made there also and should never be dismissed. The dissent brings up valid points that will more than likely be used in future cases against §1881a; point that the respondents should have honed in on in my opinion.

Overall, the Opinion highlights the failures of the respondents' reasoning and logic. This logic would be similar to me challenging a law that allows police officers to walk a beat only to reason that it forces me to take action or incur costs to avoid (possible) imminent 4th Amendment violations with conjecture that the officer might abuse their power.

Originally posted by LeatherNLace
If we ever want the Supreme Court to overturn this kind of legislation, then we need one less conservative Justice and liberal one to take their place. As we can see, this decision was split based entirely upon political leanings....more small government from conservatives, huh?

No if you want something like this challenged bring a valid legal argument that has some basing in logic and reason. It might also be a good idea to actually show cause on Article III standing; as are nearly all cases heard by the Supreme Court. Read the opinion and it becomes clear that the respondents were reaching. The Justices fell back on precedent and nothing earth-shattering or controversial in regards to this ruling.

Originally posted by ownbestenemy

Originally posted by LeatherNLace
If we ever want the Supreme Court to overturn this kind of legislation, then we need one less conservative Justice and liberal one to take their place. As we can see, this decision was split based entirely upon political leanings....more small government from conservatives, huh?

No if you want something like this challenged bring a valid legal argument that has some basing in logic and reason. It might also be a good idea to actually show cause on Article III standing; as are nearly all cases heard by the Supreme Court. Read the opinion and it becomes clear that the respondents were reaching. The Justices fell back on precedent and nothing earth-shattering or controversial in regards to this ruling.

That may very well be the case; however, the political division between those that affirmed and those who dissented is very clear. Do you not find it curious that this appears to be a "party line ruling" for lack of better term? No? Me either.

Originally posted by LeatherNLace
That may very well be the case; however, the political division between those that affirmed and those who dissented is very clear. Do you not find it curious that this appears to be a "party line ruling" for lack of better term? No? Me either.

Maybe such a division of the Court is a subtle signal to those thinking of challenging this law that there is a more than a good enough chance to get it changed. Given that in such cases as these, the Opinion lays out what needs to be met in a sound legal argument and the dissent also shows what else needs to be met.

Also, split decisions such as these typically signal to the States to design ways of protecting its citizens. In Kelo, after that disastrous ruling, States took the charge and protected its citizens from imminent domain.

Justice Kennedy by the way is by no means a "conservative" and neither is Chief Justice Roberts. I think they may hold a political ideology but they base every single case on precedent, case law and Constitutional grounds. Each of them are their own person and will interpret those findings in a different manner.

Some Justices believe that the Commerce Clause gives broad regulatory powers over not only business, but individuals, to the Federal Government and Roberts reversed that. Some believe that eminent domain doesn't just apply to the State but can be expanded to private interest: See Kelo v. New London. They are not infallible and I think falling back on "party-lines" argument only helps to serve a narrative that everything is either this or that. Just my opinion on the matter.

reply to post by MDDoxs


Here is the thing: until we, as a nation, are willing to concede that the rights afforded to us, as people, are to be afforded to all living beings (at the very least, human beings), baloney like this will keep happening.

"We hold these truths to be self evident", "all men are created equal"....these are words that actually mean something to me. They call me to act greater than I otherwise would have. They are a beacon that guide me, helping me to control my actions and to live up to the ideals of being an American. The ideals I was born and raised under, and taught to revere.

The absurdity that drives the notion that our rights are not to be afforded to non-Americans....it is sheer lunacy. And those supporting and espousing such viewpoints are a breed that needs to find extinction from our ranks.

I actually call everyone's attention to this little gem in the syllabus the OP provided..

Surveillance under §1881a is subject to statutory conditions, judicial authorization, congressional supervision, and compliance with the Fourth Amendment.

So it seems like even though they can do this, there's a ton of oversight to make sure it's not abused..

reply to post by vkey08


My only issue is that the "oversight" comes from within the Good Ol Boys group.

Originally posted by vkey08
I actually call everyone's attention to this little gem in the syllabus the OP provided..

Surveillance under §1881a is subject to statutory conditions, judicial authorization, congressional supervision, and compliance with the Fourth Amendment.

So it seems like even though they can do this, there's a ton of oversight to make sure it's not abused..

This part was highlighted in the dissent. Here Breyer points out just how "good" of a track-record the Government has at getting FISA approvals.

Of course, to exercise this capacity the Government must have intelligence court authorization. But the Government rarely files requests that fail to meet the statu­tory criteria.

In which he points us to a letter from Ronald Weich, Assistant Attorney General, to Joseph R. Biden, Jr. In that letter it states that only 2 requests were withdrawn by the Government in 2011. Any guess on how many they requested? 1676. That is a 99.8% approval rating meeting all those factors above. 2010 numbers....100%.

Compare that in contrast of just one State where it is reported that on average, 57% approval of warrants. (Granted, different type of warrant, but still has obstacles to overcome and those judges are actually accountable in a more open fashion).

I share BFT's concern when I read those numbers. Those numbers a too statistically improbable in terms of the Government seeking action against an entity.