Skip to main content

Electronic surveillance poster
In a 5-4 decision issued Tuesday morning, the Supreme Court of the United States has decided that individuals and organizations cannot challenge the constitutionality of FISA's global surveillance regime without proof that they, in fact, are being spied upon, despite the fact that no one can know for sure that he's being spied upon until after being arrested and shown the government's evidence—to the extent that, too, isn't deemed too secret to share. Justice Alito wrote the majority opinion for the five justices you'd suspect; Justice Breyer dissented on behalf of the other four.

A group of lawyers, journalists, human rights researchers, and others had sued to challenge the constitutionality of the government eavesdropping system, based upon an "objectively reasonable likelihood" of being spied upon and the extent to which each had already modified his or her communications to avoid what was deemed illegal surveillance. Among this group are attorneys who work with Guantanamo detainees who need to speak to their clients' families in overseas trouble spots and journalists who need to speak to sources in Iran, Syria, Cuba and Libya. The Obama Administration, in response, asked the Court to find that no one could file suit without first demonstrating that he or she had been or would be monitored, or that the monitoring would cause any real harm.

Trust the FISA Court, they argued, and the Court agreed that speculative harm was not enough, both as to whether they would be monitored or that the FISA Amendments would be the method. Was this kind of one-sided system fair? According to Justice Scalia during oral argument, so what if no one can challenge the government?

JUSTICE SCALIA: Mr. Verrilli, we've had we've had cases in the past where it is clear that nobody would have standing to challenge what is -- what is brought before this Court.

GENERAL VERRILLI: That's exactly right, Justice Scalia.

JUSTICE SCALIA: And we've said that that just proves that under our system of separated powers, it is none of our business.

Why this is a bad idea, under the gnocchi:

As Justice Breyer explains, there's nothing speculative about this harm at all:

First, the plaintiffs have engaged, and continue to engage, in electronic communications of a kind that the 2008 amendment, but not the prior Act, authorizes the Government to intercept. These communications include discussions with family members of those detained at Guantanamo, friends and acquaintances of those persons, and investigators, experts and others with knowledge of circumstances related to terrorist activities. These persons are foreigners located outside the United States. They are not “foreign power[s]” or “agent[s] of . . . foreign power[s].” And the plaintiffs state that they exchange with these persons “foreign intelligence information,” defined to include information that “relates to” “international terrorism” and “the national defense or the security of the United States

Second, the plaintiffs have a strong motive to engage in, and the Government has a strong motive to listen to, conversations of the kind described. A lawyer representing a client normally seeks to learn the circumstances surrounding the crime (or the civil wrong) of which the client is accused. A fair reading of the affidavit of Scott McKay, for example, taken together with elementary considerations of a lawyer’s obligation to his client, indicates that McKay will engage in conversations that concern what suspected foreign terrorists, such as his client have done; in conversations that concern his clients’ families, colleagues, and contacts; in conversations that concern what those persons (or those connected to them) have said and done, at least in relation to terrorist activities; in conversations that concern the political, social, and commercial environments in which the suspected terrorists have lived and worked; and so forth. …

At the same time, the Government has a strong motive to conduct surveillance of conversations that contain material of this kind. The Government, after all, seeks to learn as much as it can reasonably learn about suspected terrorists (such as those detained at Guantanamo), as well as about their contacts and activities, along with those of friends and family members. … And the Government is motivated to do so, not simply by the desire to help convict those whom the Government believes guilty, but also by the critical, overriding need to protect America from terrorism. …

Third, the Government’s past behavior shows that it has sought, and hence will in all likelihood continue to seek, information about alleged terrorists and detainees through means that include surveillance of electronic communications. As just pointed out, plaintiff Scott McKay states that the Government (under the authority of the pre-2008 law) “intercepted some 10,000 telephone calls and 20,000 email communications involving [his client] Mr. Al-Hussayen.”

Moreover, the dissenters explain:
The Government does not deny that it has both the motive and the capacity to listen to communications of the kind described by plaintiffs. Nor does it describe any system for avoiding the interception of an electronic communication that happens to include a party who is an American lawyer, journalist, or human rights worker. One can, of course, always imagine some special circumstance that negates a virtual likelihood, no matter how strong. But the same is true about most, if not all, ordinary inferences about future events. Perhaps, despite pouring rain, the streets will remain dry (due to the presence of a special chemical). But ordinarily a party that seeks to defeat a strong natural inference must bear the burden of showing that some such special circumstance exists. And no one has suggested any such special circumstance here.

Consequently, we need only assume that the Government is doing its job (to find out about, and combat, terrorism) in order to conclude that there is a high probability that the Government will intercept at least some electronic communication to which at least some of the plaintiffs are parties. The majority is wrong when it describes the harm threatened plaintiffs as “speculative.”

And the rest of the dissent outlines how often other types of plaintiffs, with other claims, have been able to maintain access to courts to avoid harms which are even more speculative than these. But no matter: Trust the government, trust the FISA Court is the principle which prevailed today.

SCOTUSblog has the briefs and other case documents.

Originally posted to Adam B on Tue Feb 26, 2013 at 08:34 AM PST.

Also republished by Daily Kos.

Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags


More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

Meteor Blades, GainesT1958, Thumb, Alumbrados, Angie in WA State, filkertom, decisivemoment, grollen, Don Quixote, Danno11, Powered Grace, mimi, karlpk, Shockwave, Andrew C White, eeff, TX Unmuzzled, xynz, hubcap, Creosote, bronte17, TracieLynn, cyberKosFan, whenwego, roses, ovals49, fumie, wader, mrkvica, pat bunny, gerrilea, barbwires, walkshills, solesse413, oortdust, Brecht, ExStr8, marina, radarlady, jrooth, denise b, UncleCharlie, Simplify, basquebob, Clem Yeobright, terrypinder, eru, Burned, lotlizard, Ozymandius, bunsk, Rogneid, Paper Cup, Jim R, BachFan, detroitmechworks, tommymet, Patriot Daily News Clearinghouse, Kingsmeg, BlueInARedState, Yellow Canary, KenBee, bluebrain, fou, raincrow, kck, DarkestHour, praenomen, MJ via Chicago, twigg, JVolvo, democracy is coming, doingbusinessas, Dreaming of Better Days, shaharazade, Little, NonnyO, ammasdarling, old wobbly, FoundingFatherDAR, camlbacker, VClib, yoduuuh do or do not, FishOutofWater, DvCM, david mizner, dclawyer06, jayden, progressivevoice, bobswern, jnhobbs, Rumarhazzit, leonard145b, TomP, JDWolverton, MKinTN, End game, mconvente, also mom of 5, fuzzyguy, wayoutinthestix, zerone, treesrock, Lujane, tofumagoo, mofembot, Gemina13, petulans, Parthenia, Troubadour, legendmn, zmom, arendt, jarbyus, Carol in San Antonio, UnaSpenser, thestructureguy, jfromga, Leftcandid, Words In Action, FogCityJohn, roadbear, blueyescryinintherain, samanthab, SoonerG, Betty Pinson, Oh Mary Oh, Actbriniel, slice, Colorado is the Shiznit, slowbutsure, FarWestGirl, Teiresias70, trumpeter, thomask, MRA NY, PhilJD, SouthernLiberalinMD, No one gets out alive, livingthedream, stormicats, Mindful Nature, The Lone Apple, DarkStar57, Horace Boothroyd III, Mr Robert, peachcreek, rivercard, wasatch, fauve, mythatsme, GeoffT, Steve Canella, Chaddiwicker, Neapolitan, Tod OL Mundo, leeleedee, Smoh, blue91, The Story Teller, pragmaticidealist, Jim Tietz, Penny GC

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site