Supreme Court: You Can Only Sue the Feds If They Admit Spying On You, Which They Won't

United States Supreme CourtKjetil Ree.

**See update below**

Somebody breathe some life into Joseph Heller's moldering corpse, quick! We need him to cover Supreme Court news. As noted by Reason 24/7, the justices just tossed out a challenge to surveillance conducted under a 2008 amendment to the Foreign Intelligence Surveillance Act (FISA) that allows the government free rein to intercept Americans' communications with people located outside the country. The plaintiffs couldn't demonstrate standing to challenge the law, said the court, since they couldn't show that they'd actually been eavesdropped and so suffered harm. That's true, of course, since the United States government won't reveal whose communications it intercepts, meaning that nobody can claim standing in the absence of an informative leak.

For the majority, Justice Samuel Alito wrote (PDF):

[I]t is highly speculative whether the Government will imminently target communications to which respondents are parties. Since respondents, as U. S. persons, cannot be targeted under §1881a, their theory necessarily rests on their assertion that their foreign contacts will be targeted. Yet they have no actual knowledge of the Government’s §1881a targeting practices.

This is not an entirely unexpected outcome, since it's exactly the line the federal government has pushed since this case was brought by parties including Amnesty International, Human Rights Watch and The Nation. The American Civil Liberties warned last year that "[t]he Justice Department claims the plaintiffs should not be able to sue without first showing they have actually been monitored under the program—but it also argues that the government should not be required to disclose if plaintiffs have been monitored."

In dissent, Justice Stephen Breyer pointed out:

The plaintiffs’ standing depends upon the likelihood that the Government, acting under the authority of 50 U. S. C. §1881a (2006 ed., Supp. V), will harm them by intercepting at least some of their private, foreign, telephone, or e-mail conversations. In my view, this harm is not “speculative.” Indeed it is as likely to take place as are most future events that commonsense inference and ordi­nary knowledge of human nature tell us will happen.

And, indeed, we know that the federal government has engaged in such spying, although we know this only through the miracle of official incompetence. The one case of this sort that has been allowed to proceed involved the Al-Haramain Islamic Foundation, which was able to bring suit when the federal government accidentally let slip that it had intercepted the group's communications. While the group won its case and was awarded damages, those damages were subequently thrown out on the grounds that the federal government is immune to such lawsuits.

The Supreme Court's ruling on standing in Clapper v. Amnesty International means that we'll never get to find out whether the U.S. government's legal force field of sovereign immunity would have protected it in this case, too.

Update:

Comments ACLU Deputy Legal Director Jameel Jaffer, who argued the case before the justices:

“It’s a disturbing decision. The FISA Amendments Act is a sweeping surveillance statute with far-reaching implications for Americans’ privacy. This ruling insulates the statute from meaningful judicial review and leaves Americans’ privacy rights to the mercy of the political branches. Justice Alito’s opinion for the court seems to be based on the theory that the FISA Court may one day, in some as-yet unimagined case, subject the law to constitutional review, but that day may never come. And if it does, the proceeding will take place in a court that meets in secret, doesn’t ordinarily publish its decisions, and has limited authority to consider constitutional arguments. This theory is foreign to the Constitution and inconsistent with fundamental democratic values.”

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  • sarcasmic||

    Since all crimes are crimes against the state, how can the state commit crimes? It would have to commit a crime against itself. How is that possible?

  • fish||

    It would have to commit a crime against itself. How is that possible?

    By allowing you to retain even a shred of personal liberty the state would be cheating itself of all the power to which it is entitled. If that's not criminal I don't know what is!

  • Aresen||

    Kafka rules!

  • Enough About Palin||

    Yossarian: Is Orr crazy?
    Dr. 'Doc' Daneeka: Of course he is. He has to be crazy to keep flying after all his close calls he's had.
    Yossarian: Why can't you ground him?
    Dr. 'Doc' Daneeka: I can, but first he has to ask me.
    Yossarian: That's all he's gotta do to be grounded?
    Dr. 'Doc' Daneeka: That's all.
    Yossarian: Then you can ground him?
    Dr. 'Doc' Daneeka: No. Then I cannot ground him.
    Yossarian: Aah!
    Dr. 'Doc' Daneeka: There's a CATCH?
    Yossarian: A catch?
    Dr. 'Doc' Daneeka: Sure. Catch-22. Anyone who wants to get out of combat isn't really crazy, so I can't ground him.
    Yossarian: Ok, let me see if I've got this straight. In order to be grounded, I've got to be crazy. And I must be crazy to keep flying. But if I ask to be grounded, that means I'm not crazy anymore, and I have to keep flying.
    Dr. 'Doc' Daneeka: You got it, that's Catch-22.
    Yossarian: Whoo... That's some catch, that Catch-22.
    Dr. 'Doc' Daneeka: It's the best there is.

  • Enough About Palin||

    It's really fucking come to this.

  • GroundTruth||

    Yup, that was pretty much where my head went to reading Alito's words.

    And gawds, I hate have to agree with Breyer!

  • A Serious Man||

    “Someone must have slandered Josef K., for one morning, without having done anything truly wrong, he was arrested.”

  • NeonCat||

    "Truly". What a weasel word. Josef K. was guilty, guilty, guilty.

  • Way Of The Crane||

    The Supreme Court's ruling on standing in Clapper v. Amnesty International means that we'll never get to find out whether the U.S. government's legal force field of sovereign immunity would have protected it in this case, too.

    I think that at this point, it's pretty safe to assume that it would.

  • A Serious Man||

    And in other, OT news, I'm attempting to keep my breakfast down as I listen to a lecture on the work of feminist scholar Catherine McKinnon who insists that the First Amendment is a key tool used by the patriarchy in the War on Women, particularly in that pornography and media uses the word 'cunt' are all a degradation of women's rights.

  • Aresen||

    I'd suggest we use "Catherine McKinnon" instead of "cunt", but it takes too long to say.

  • fish||

    Yeah...the phrase "two Catherine McKinnons in a Cadillac" just doesn't roll off the tongue as smoothly!

  • ||

    Awesome. Like I said yesterday, people like her are advocating their own oppression and enslavement by the government all because they think it will hurt some hated collectivist concept of some "other", in this case men. Her argument for greater equality for women is to take away everyone's liberty. What genius.

  • $park¥||

    Spoken like a true fascist patriarchal dictator.

  • A Serious Man||

    I mean the guy presenting was just doing his required report on an article by her, but fuck was it painful to listen to.

    Her insistence is that the drive to universal human equality subverts the Constitution and that therefore the First is problematic because it negative restricts government censorship in a way that would prevent the censoring of pornography or works that degrade women.

    It really is femnazism.

  • ||

    It's more of an obsessive one note fascism. She will subvert any freedom for her one pet issue. This is very similar to anti-smoking advocates or anti-sugar zealots. Personal freedom? Bah! Forcing people to make the right choices is more important!

  • Doctor Whom||

    If we're equally enslaved, we'll all be equal, right? Then again, as always, some animals will find a way to be more equal than others.

  • Enough About Palin||

    My sister-in-law re-posts shit on Facebook from a site called Women Hold Up Half the World that focuses on man's inhumanity to women. I am tempted to ask, so who hold up the other half?

  • SugarFree||

    I am tempted to ask, so who hold up the other half?

    A bra.

  • Enough About Palin||

    Correction:

    Women Hold Up Half the World Sky

  • db||

    Women Hold Up Half the Sky Traffic

  • itsnotmeitsyou||

    Only half?

  • db||

    Old people amd retards do the rest.

  • itsnotmeitsyou||

    Where do Asians fit in?

  • RickC||

    True story. Wife and I lived just south of San Francisco in the late 80's. One weekend we were heading into SF and an elderly Japanese-American lady my wife worked with told her to watch out for all the oriental drivers in SF because that couldn't drive. My wife said, "But, _____, you're oriental?" To which the lady replied, "I know, have you ever seen me drive?"

  • $park¥||

    It's been proven time and again that the only things the Japanese are fit to drive are giant robots.

  • itsnotmeitsyou||

    Oh jeez, Old, Asian, AND female? If she were driving a Buick, there would be no survivors.

  • Sarg221||

    Old retarded Asian women are the worst. Seriously, they go like 35 on the interstate.

  • jb4479||

    Turtles, I'm pretty sure it's turtles all the way down.

  • itsnotmeitsyou||

    So lemme get this straight... You can't sue the government over FISA unless you have proof of being monitored and you can't get the proof because the government classifies it. Then, IF you do manage to get the proof you need, you still can't sue because the government is immune to such lawsuits?

    You know, if it weren't so infuriating, I'd say it's brilliant.

  • A Serious Man||

    It's really diabolical. I mean dictatorships don't even bother to give you the illusion of choice in that regard.

  • ||

    Are you understanding now why I say that we are always living in anarchy, but the illusion of government causes most people to stupidly believe they're not, and to believe that they're not actually ruled by warlords?

    Government is a fiction used to stop the people from realizing this and possibly doing something about it. Anyone who thinks there is rule of law needs to be checked for an extra chromosome.

  • Hugh Akston||

    What about Tulpa? He's a Very Serious Thinker and a Lol and Odor Libertarian.

    Check. Mate.

  • $park¥||

    Tulpa is the whisper of a thought that stirs the Great Old One ever closer to wakefulness.

  • ||

    Are you saying Tulpa will be responsible for CASE NIGHTMARE GREEN?!? It might be time to use SCORPION STARE on him.

  • ||

    And yet even Tulpa eats cold soup from a can. Anarchy in action.

  • SugarFree||

    Salted with his lonely tears.

  • $park¥||

    I don't think that's tears he puts on top...

  • ||

    More like gauche tastelessness in action.

    Hey, I'm just being pedantic like you did to me with the "narrative" comment. Jerk.

  • ||

    I wasn't being pedantic, just trying to advance our, uh, narrative, since motherfuckers tend to disagree even when they agree. Of course, I completely understand that it would inevitably come out as bitchy and nagging.

  • $park¥||

    Being a woman, whatever you say is going to come out that way regardless, Nikki.

  • ||

    Well, my comment did too so I guess I'm a woman now. And so is Sparky.

  • $park¥||

    So, you wanna go out back and fondle our boobs?

  • ||

    I'm up for that.

  • itsnotmeitsyou||

    Wait, are you guys gonna fondle each other's boobs? I'm very conflicted right now...

  • ||

    Why do we have to go out back? It's snowing really hard right now. Also I'm confused if we're doing this to ourselves or each other.

  • $park¥||

    Also I'm confused if we're doing this to ourselves or each other.

    We'll take turns. Sheesh, Nikki, as a lifelong boob owner I figured you would understand how this works. My newfound Cs are no match for Epi's DDs, so I'd like to have access to both.

  • itsnotmeitsyou||

    ...Nikki, as a lifelong boob owner...

    Nikki was born post pubescent?

  • $park¥||

    Nikki was born post pubescent?

    Don't be daft, man. How many two-year-old girls have you seen on the TV without something covering their tops? They're born with them, even if they haven't started expanding yet.

  • itsnotmeitsyou||

    by that qualification, so were you.

  • $park¥||

    *sigh* I'm a guy. Since I will never have boobs, I don't have boobs ever. Females will one day have boobs, therefore they have boobs always. This is like Biology 010, dude.

  • $park¥||

    I guess I should amend that. I would never have had boobs, but then Epi assigned me some. Now I'm gonna go out back and wear them back down to miniscule nubs.

  • itsnotmeitsyou||

    Breathe, dude. I'm just messing with you a bit.

    Also, I've met some dudes that have some pretty massive boobs. Ever been to a comic-con?

  • $park¥||

    No need, I play D&D with a group of friends on weekends. I'll die happy if I never see a couple of them shirtless.

  • $park¥||

    Breathe, dude. I'm just messing with you a bit.

    Also, I get it. I'm just playin' along.

  • itsnotmeitsyou||

    So, again. Since we've established now that guys CAN have boobs, wouldn't that make men lifetime owners of boobs as well? They're certainly not as fun, but per your logic, you have boobs right now, they just haven't expanded...

  • $park¥||

    Moobs (man "boobs") are not the same as boobs, tactilely or functionally.

  • itsnotmeitsyou||

    Touche. Point to you, sir.

  • itsnotmeitsyou||

    I bet if you did manage to get your hands on proof, you'd be taken to Gitmo for possessing classified documents and never heard from again anyway.

  • fish||

    Epi you're an ass. They only want the best for us!

    http://www.infowars.com/city-w.....ng-crisis/

  • Enough About Palin||

    If you're not unruly you have nothing to worry about.

  • Way Of The Crane||

    ...a chilling example of how the second amendment is being assaulted via the back door.

    Leave it to infowars to describe this in prison sex terms.

  • ||

    Government is a fiction narrative used to stop the people from realizing this and possibly doing something about it.

    The guys might call you gay for saying "narrative," but what else is new? This might work better for people, since the government is "real" and not fictional in a more traditional sense of the word.

  • ||

    Yes, yes, narrative is a better word. Happy now, word whore?

  • ||

    Content.

  • sarcasmic||

    Government is simply the men within society who, because they have the last word in violence, can steal from people and call it "taxation".

    What is the difference between government and being ruled by warlords?

    I fail to see the distinction.

  • SugarFree||

    Warlords generally dress better.

  • $park¥||

    And they get all those cool medals and shit.

  • ||

    You also fail to understand what I'm saying. You ask "What is the difference between government and being ruled by warlords?" To which my answer is: none.

    That's my entire fucking point. Why is this so hard for you to get? My point is why pretend to have order and law when it's all the same shit? Pretending just confuses people (which is what the warlords want).

  • ||

    Narrate it, brother Epi!

  • sarcasmic||

    What is a warlord but an archon?

  • ||

    Your semantic pedantry is amazingly tedious.

  • A Serious Man||

    You know who else had a conflict with Archons?

  • ||

    Festival...Festival!

  • sarcasmic||

    Your semantic pedantry is amazingly tedious.

    Maybe that's because words mean things.

    If anarchy means "no archon" and a warlord is an archon, then life under warlords is not anarchy.

  • ||

    So you're admitting you're more interested in quibbling over dubious semantic arguments than actually getting the point. Congratulations, you're Tulpa. I'm sure he'll be thrilled with the company.

  • sarcasmic||

    I don't understand your point. Are you saying that because we live under the dominion of warlords that it's anarchy?
    Because that's not anarchy. Anarchy means no rulers. No warlords. No organized group with the last word in violence.
    Yes we live in a feudal system where the political class is the aristocracy, the cops are the knights, and everyone else are peasants. Yes I understand that.
    But just because rule of law is an illusion and we live under rule of man does not mean we live in anarchy.
    As long as we are ruled, we do not live in anarchy.

  • ||

    Don't worry, it is crystal clear to me that you don't get the point, and since I've explained it in detail and enough for several other people to get it, I'm guessing the problem is you, and I have no interest in wasting more time on someone who is clearly too dense and obsessed with minutia to understand. Like I said, you're Tulpa. Maybe you two should just make out already.

  • sarcasmic||

    Minutia like being ruled by warlords is not anarchy because anarchy means no rulers?

    As long as there is someone with the last word in violence who can settle disputes, then it is not anarchy.

    Excuse the fuck out of me for letting the meaning of words get in the way of understanding your point.

  • ||

    As long as there is someone with the last word in violence who can settle disputes, then it is not anarchy.

    So are you suggesting that anarchy can never obtain? Asking srsly.

  • sarcasmic||

    So are you suggesting that anarchy can never obtain? Asking srsly.

    Yes I am suggesting exactly that. Since it is easier to plunder than to produce, there will always be men fighting to have the last word in violence because that gives them license to steal.
    Topple a government and there will immediately be gangs fighting over the last word in violence, and the winner becomes government.
    Anarchy is nothing but a fantasy.

  • $park¥||

    the winner becomes government

    I dunno. I'm not sure I would call a voluntary defense force a government. Do you not think it's possible for people to pool force only when needed to fight off invaders?

  • sarcasmic||

    Do you not think it's possible for people to pool force only when needed to fight off invaders?

    Kinda like how our federal government was initially?
    Look what it has become.
    Once a power structure exists, it will attract people with the desire to expand it.

  • $park¥||

    Kinda like how our federal government was initially?

    Maybe. I'm of the opinion that if the groups remain small enough it is possible. Would the US be the same today if it had remained a collection of confederated states?

  • ||

    Once a power structure exists, it will attract people with the desire to expand it.

    This was well understood from the beginning of this nation.

    That's why you strictly limit it and allow the citizenry to be armed well enough to threaten it.

    If the people are not willing to enforce the limitations and are satisfied living as willing servants, who is truly at fault. Those seeking the power or those who fail to protect themselves from it?

  • ||

    Topple a government and there will immediately be gangs fighting over the last word in violence, and the winner becomes government.

    You do realize, at this point, that this is exactly what we're saying, except we're saying it like this:

    Topple one gang and there will immediately be other gangs fighting over the last word in violence, and one or more of those will win.

    Why call them "government" in this context unless you want to participate in the legitimation narrative? And why does the existence of "men fighting to have the last word in violence" mean that it's not anarchy, since that's exactly what you think would happen in the absence of a set ruler? All I can see you getting out of this stance is the ability to say that "anarchy is a fantasy"...even though we're living in the conditions you admit anarchy would produce. It really is just a word game at that point.

  • sarcasmic||

    Why call them "government" in this context unless you want to participate in the legitimation narrative?

    Just because you do not recognize the current gang as legitimate doesn't negate their existence, nor does it make you safe if someone tips them off that you're not following their rules.

  • sarcasmic||

    Just because you do not view our government as legitimate does not negate its existence, nor the fact that it can send armed me to your door who will be more than happy to murder you if you do not obey their every command.

    Sorry Epi, but that is not anarchy.

  • A Serious Man||

    Government is a fiction used to stop the people from realizing this and possibly doing something about it. Anyone who thinks there is rule of law needs to be checked for an extra chromosome.

    A lot of people are ignorant about this, sure, but the scary thing is that many people genuinely believe that this is the way things ought to be.

    They believe we have no natural, inalienable rights and that we should be grateful that the government of this country is so gracious as to allow us the freedoms we have. It's how the justify the notion that what is a right should be democratic.

  • itsnotmeitsyou||

    Oh I know this. I worked with a woman who thought the government always has our best interests at heart and should regulate every detail of our daily lives. She, in all seriousness, told me the cheeseburger I was eating should be illegal because it had too many calories and fat...

  • $park¥||

    Those are the people the word 'cunt' was invented for.

  • itsnotmeitsyou||

    Such a wonderful word. I think we need even harsher words for some of these people. I can't count the times I've been at a loss for words due to the absolute idiocy that spews from their mouths sometimes.

    When she said this to me, I kinda chuckled thinking she was joking. Then she went on a rant about how people just don't know what's good for them and that they shouldn't be allowed to have access to things that might harm them.

    I wanted to tell her she was about to have access to my fist.

  • $park¥||

    Sometimes, when words fail, the best option is just to walk away before somebody ends up crying on the floor.

  • itsnotmeitsyou||

    I ended up crying into my whiskey. To quote the great Dr. Cooper.

    "One cries because one is sad. For example, I cry because others are stupid, and that makes me sad."

  • Shùn Yú||

    Isn't being ruled by warlords counter to the claim of anarchy? Doesn't anarchy mean "no government," whereas a warlord is an autocratic government?

  • sarcasmic||

    Anarchy means "no archon" with "archon" being a central authority that enforces rules through violence.

    Epi has shit leaking out his ears.

  • ||

    "No government" does not mean "no order" and "no organization". I am using anarchy here to mean "no codified, written on paper supposedly lawful organization with a supposedly legal monopoly on violence".

  • sarcasmic||

    You're telling me that those guys in cars with blue lights on top who use violence to enforce rules written by people chosen in elections are a figment of my imagination?

  • ||

    I don't think you could be more dense or work even harder to not get my point if you tried. I assume you'll still try to not get it even harder, but I can't be responsible for what happens if you get any denser.

  • sarcasmic||

    If anarchy means no central authority that uses violence to enforce their rules, and we are surrounded by armed thugs who use violence to enforce their rules, I fail to see how you can honestly say we live in a state of anarchy.

  • Shùn Yú||

    "No government" does not mean "no order" and "no organization". I am using anarchy here to mean "no codified, written on paper supposedly lawful organization with a supposedly legal monopoly on violence".

    I think I understand what you are saying. I was using the following definition for anarchy.

    The word "Anarchy" comes from the ancient Greek ἀναρχία, anarchia, from ἀν an, "not, without" + ἀρχός arkhos, "ruler", meaning "absence of a leader", "without rulers"

    This is why I asked why wouldn't a warlord be considered a government. You are basically saying, if I understand correctly, that the US is ruled by warlords and is therefore an anarchy; covered with the veil of your Constitution.

  • ||

    Yes.

  • sarcasmic||

    that the US is ruled by warlords and is therefore an anarchy

    Except that anarchy means no rulers, so being ruled by warlords is not anarchy.

  • SugarFree||

    The natural state of man is anarchy, not matter what scaffold of imposed or agreed upon authority exists, be it warlord, limited Constitutional government, or dictatorship.

    Man is not a thing that must be ruled in order to exist.

  • sarcasmic||

    Man is not a thing that must be ruled in order to exist.

    Who is making that argument? A man of straw?

    Yes the natural state of man is anarchy, and as long as people can resolve disputes peacefully they really have no need for their rulers. But that doesn't make the rulers go away.

    And you can live your life without any care as to your rulers and their rules.
    Just hope you never draw their attention, or your fantasy life of anarchy will come to a screeching halt.

  • SugarFree||

    Just as my rights are not granted by government, I also am not ruled in any way that I do not agree to. You can beat me and intimidate me and I will obey, but that doesn't mean I agree to it.

    That I am ruled doesn't mean it's right that I should be ruled.

  • sarcasmic||

    You can beat me and intimidate me and I will obey, but that doesn't mean I agree to it.

    In a practical sense, does that even matter?

  • SugarFree||

    Maybe if you are content to be a house slave.

  • sarcasmic||

    Maybe if you are content to be a house slave.

    More men of straw. Whatever, Tony.

  • SugarFree||

    Ask massa real nice and maybe he give you more cornbread tonight.

  • GroundTruth||

    "not the rack, not fission bombs, not anything--you can't conquer a free man; the most you can do is kill him" - Heinlein

  • Shùn Yú||

    Except that anarchy means no rulers, so being ruled by warlords is not anarchy.

    This is correct, the term I think is a better representation of "warlordism" is Anocracy:

    A society in which central authority is weak (or doesn't exist at all). Power is not vested in public institutions but spread amongst elite groups who are constantly competing with each other for power. Examples of anocracies in Africa include the warlords of Somalia, the shared governments in Kenya and Zimbabwe, and the spread of power between political executive, the transnational mining companies (especially those from China), and criminal elements in the DRC.

    By another definition an anocracy lies mid way between a democracy and an autocracy.

    But from his definition of anarchy, he is correct, and I understand the point he is trying to make.

  • GroundTruth||

    Times like this make me glad that I'm well into my sixth decade and have a hope of only living another 30 or 40 years.

  • DEATFBIRSECIA||

    Everyone's piling up on Supremes, but this is primarily Congress' fault. A sitting executive has claimed the power to spy on, imprison, torture, and kill any American he wishes, with no accountability or even acknowledgement of the act, and won't even disclose the legal rationale for his arrogation, yet this president is not suffering under articles of impeachment.

    Of course, in the event that Congress fails to do its job of oversight, it is up to the Court to act as the emergency brake, but the legislature should have started applying the brake a long time ago, and is now flatly at the point where they'd have to pull the distributor cap to get this thing to stop.

  • Aresen||

    While it is true that Congress has acted as enabler, the fact is that it is the SCOTUS which has the power to say "No you don't."

    But the current SCOTUS views its job as finding ways to twist the Constitution in order to perpetuate the power of the state, not as a watchdog to see that the state does not violate the rights of the people.

  • DEATFBIRSECIA||

    Agreed. Witness Roberts' legal gymnastics to get ACA through if you need any more proof that this is the case.

  • Aresen||

    I note that Kagan and Sotomayor joined Beyer and Ginsberg in dissent.

    Thomas and Scalia were in the majority. So much for their belief in the original meaning of the constitution.

  • GroundTruth||

    Thomas has lost some serious credibility as the final champion of the Constitution remaining on the bench.

  • ||

    Last time I checked, the standards of evidence in a civil lawsuit were lower than in a criminal case.

    If you cannot even accuse someone in civil court unless they have already confessed, what does that do as a precedent? Does it cross over to criminal law at all?

  • Acosmist||

    Court upholds Constitution, Reason complains. Yayyy

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