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.
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.
This is a stinking remnant from a time we should have put behind us when we transitioned from monarchies to republics. Of the course the fucking king is going to say that the king is immune, the fucking king had a divine right to rule. But we consent ourselves to be governed and we are not divine. This sovereign immunity has to go. How can there be checks and balances if the fucking judiciary cannot be used by the people to rein in the other branches?
This all reminds me of that game we play as kids. Tag, you're it. Except when you get to the base. Then you can't be it. It's fine in a bloody kids game but not in real life. If the game is rigged, you stop playing the game. I'm not advocating revolution, just deprecating the rules that make the playing field totally not level.
This is akin to the argument Thomas Paine made in "Common Sense" http://bit.ly/168gJkB that fired up the colonists in early 1776. "We consent ourselves to be governed" and if we select one or more among us to carry out our business, those folks don't have rights that the rest of us don't.
However, even at the time, there were "elites" among the colonists who wouldn't have agreed. And so its been ever since. The rhetoric of a democratic republic used to sway and motivate regular folks in order to protect the power and interests of a few.
I don't get why that is not used more often. There are some cases where it allows itself to be sued. Tort cases and I think patent infringement. But there aren't that many.
Democratic Governments are "punished" and fixed by voting for the right people. Un-democratic governments are "punished" and "fixed" by revolutions.
If it were used more often it would lose its efficacy as people would quickly see things for the sham that they are. You don't want to go nuclear too often lest people think you're a completely rogue entity.
It makes sense if you think about it. If Party A sues Party B and wins, the federal government is the ultimate top-level "enforcer" who makes sure that B pays up. Now, let's say that party B is the federal government. They get told to pay up, and say "no". What are you going to do about it? Appeal to a higher authority?
The USA has three branches of government, intend to help solve this problem. The federal government is not the top-level enforcer. The govt is for the people. The people are the top-level enforcer.
"The tree of liberty is watered with the blood of patriots and tyrants."
Every time I see that quote I'm forced to wonder whether the person making it is really willing to take a gun and a rope and go out into the streets and start shooting representatives and hanging their corpses from lampposts as an example to the others, until their demands are met.
This is not addressed to, or accusing you, specifically. I'm just sick of hearing the bloody rhetoric.
That history is pretty unsatisfying when it first quotes Holmes, presumably a century or so after the constitution was ratified. So next I looked at http://en.wikipedia.org/wiki/Sovereign_immunity_in_the_Unite... and it cites a case from 1983. This makes me at least wonder at the idea it derives directly from English law at the founding of the U.S.; "you can't sue the King" does not obviously transfer right over in the atmosphere of the time.
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.
"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.
Question. At what mythical point in time could the people reasonably hold their government accountable for its actions via the court system? I perhaps never got this particular prelapsarian memo as I may have been indisposed at the time.
This argument keeps coming up on HN lately. Either the HN echo chamber is in full effect, or just the age of people posting not aware of history...but secrecy has been alive and well and around long before 80% of the people on this website were born. Recent reference: The Cold War. I'm sure older references can be brought up if needed.
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.
This is exactly how FISA worked from its inception in 1978 to 2001 and the USAPATRIOT Act, when all these legal shenanigans first started.
The idea is that while the investigation is ongoing, of course it's going to be classified. When the subject is finally arrested and taken to court, or when the investigation was over, then the wire-tapping became unclassified as a matter of governmental record (as it should be imo).
What the government has been trying to argue or promote is the idea of a NEVER ENDING investigation, such that from the moment these systems are in place and turned on, subjects are "investigated" probably for the rest of their lives.
This is the TIA/Carnivore system that was hastily put aside due to massive public outrage, but the promoters of this new omnipresent surveillance state simply went back and developed their shaky legal framework to justify it instead.
Do not believe them, none of this is legal, prudent, or necessary. It exists to create an omnipresent surveillance state in which guilt is assumed and most of us will never be truly free.
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.
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.
I'm surprised no one has put the feet to the fire of those that argue this and ask them if it's ok for police to : 'walk into your house, take pictures of all your possessions and copy all your documents at any given time' and say it's not a warrant because they aren't going to sift through it later.
It's unfortunate that there is such a disconnect between real and virtual policies. People who can't handle the abstraction shouldn't be making decisions regarding it.
This is an interesting line of argument that I hope someone puts before the court.
Previously, search in a legal sense combined two elements that we've always blurred together:
1. Collection of data
2. Intepretation of the data.
So when a human searches, they are comingled. Light enters the eye, is processed into images in the brain, is elevated into consciousness and draws connections in the front cortex and elsewhere.
But an automated system can do it in two stages. The pictures could be recorded and never analysed.
The question is whether the act of searching includes both data gathering and analysis as inseparable parts or whether they are seperable. And if they are seperable, where does the search reside: in the data, or the analysis?
Reversing your analogy, the NSA approach is like the police having housefly-sized drones in every house, keeping HD video of everything that goes on. Most of the time, nobody sees it. The data is gathered but not analysed.
That is clearly not OK because the 4th specifically mentions that your house is protected.
The issue here is indiscriminate copying of data from third parties through whom your information traveled. Under the government theory it is not a search (because nobody has looked at it), it is not a seizure (because you still have your data), and your person, house, papers and effects were not touched. Therefore it is an activity that lies outside the protection of the Constitutional phrase, The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...
This position is being challenged in court by multiple lawsuits.
I bring up the government's theory not because I agree with it, but because it is virtually impossible to understand their public statements without understanding their reasoning.
By the same logic, I suppose you could walk into a bank vault, take all the money home, but not really consider it theft until you spend it. Complete BS.
> 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.
> 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.
* 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?
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.
> 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.
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.
When you elect a president, you're also electing the leaders of the DoJ, DoD and NSA.
This is such a fundamental concept in our system of government that the Constitution spells out a check and balance system for principal officers of the USG.
Note that all of those positions are also approved by the legislative branch through Senate confirmations. The only unique position is the Director of the FBI which holds a 10 year appointment.
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.
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.
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.
> The question of when standing to sue exists is a question of common law, not statutory law.
Standing has both Constitutional elements and prudential elements (the latter could be referred to as "common law"); the actual injury element is Constitutional, but the prohibition on generalized rather than particular injury is prudential.
Here, a particularized injury is raised but the problem is that the injury is speculative rather than actual, so the problem would be with Constitutional requirements for standing, not the prudential elements.
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.
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.
> 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.
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.
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.
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.
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.
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.
Technically yes, and so is Reddit. I need a better word to describe organizations like CNN, MSNBC and Fox that make concerted efforts to divide and distract. Maybe I should have just said "cable news".
"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.
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?
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.
"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.
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.
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.
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.
I'm hoping that once the 25ish-year-olds run for Congress we'll see a shift.
Don't hold your breath. I don't think it's an age thing. I felt like you do when I was in high-school, and/or in college... now "my generation" is well into the range where people my are are serving in Congress and other government positions, and it's still business as usual.
There just seem to be certain types of people, regardless of age, who are drawn to becoming part of the State and who are good at getting elected. And every generation churns out its measure of assholes.
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?
In a continental Europe-style multiparty system, it would probably be possible for some 5% or 10% minority party to position against the current government and rise to above 30% in about a decade, thus rising to power. For example Fidesz in Hungary grew from 7% in 1994 to 53% in 2010 ( http://en.wikipedia.org/wiki/Fidesz ).
In the more stable US two-party system, you may need to resort to somewhat older methods, which are still widely used around the world even in present days:
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.
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.
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!
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:
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.
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?
The fact that the state secrets argument was overruled a couple of times in the mists of history before most of us were born doesn't mean any court would overrule it today.
No, it wouldn't. It's an administration, one temporary occupant of a government role. Federal judges serve for life so that they are not beholden to any other part of government once appointed, and even you will have to admit that federal judges frequently rule against the government.
I'm getting tired of your trite anarchism; according to your profile you're here for the 'grown up comments' and I wish you try making some instead of always going for the cheap shot.
My comment was admittedly hyperbolic, so I'll provide an expanded reply. Yes, the government doesn't have the ability to deem what is constitutional in every situation, but as long as it's under the umbrella of national security, the safeguards of judicial checks on power are crippled.
State secrets have been used as a defense in courts more times in the last decade than the 50 years before 2001.
There are countless situations where the Bush and Obama administration have acted without traditional judicial oversight with seemingly legal proceedings justified by national security (see CIA secret prison network).
The supreme court has even ruled so on many occasions against the government. But those cases are quite rare compared to the frequency of which the government acts under the safeguard of secrecy. Very few people (probably >99.9%) ever challenge the governments claim to secrecy (for example NSLs). Even mega-corporations are fearful, let alone citizens. So the question of the efficacy of judicial oversight regarding the constitutional limitations imposed on the government is a very challenging one to even measure.
> The court, encouraged by the government, has thus created at Catch -22: only the government knows who it is wiretapping without a warrant; so long as it claims that information is a “state secret”, no one will have standing to sue and the government can never be held accountable for breaking the law.
The concept of state secrecy is quite brilliant in it's ability to limit legal challenge. Therefore leading to the states ability to say any action conducted in secret is "constitutional", because it can't be proven otherwise in court (unless a radical judge ignores the state secret clause which has happened only in extremely rare situations).
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.
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.
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.
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.
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.
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.
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.
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.
> 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.
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.
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".
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.
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)
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.
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.
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.
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.
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.
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.
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.