Didn't the NSA delay sunsetting the program for a few months (because it was a legal option given to them by the court)? Convenient that this injunction occurred before the sunset date. Once again disappointed to see the court side against the 4th Amendment.
Edit: and this is rather unfortunate...
'It is entirely possible that, even if plaintiffs are granted discovery, the government may refuse to provide information (if any exists) that would further plaintiffs’ case. Plaintiffs’ claims may well founder in that event. But such is the nature of the government’s privileged control over certain classes of information. Plaintiffs must realize that secrecy is yet another form of regulation, prescribing not “what the citizen may do” but instead "what the citizen may know."'
Edit 2: nevermind that the entire states secret clause that the courts are so often to back up is based on the government trying to save face and not admit wrong-doing.
The district court opined that the bulk collection was not authorized by law, so the NSA was acting illegally (but ignored whether it was constitutional or not). The FISA court ignored that and said they still have 180 days to bulk collect, per the so-called 6/2/2015 Freedom Act.
> 'It is entirely possible that, even if plaintiffs are granted discovery, the government may refuse to provide information (if any exists) that would further plaintiffs’ case. Plaintiffs’ claims may well founder in that event. But such is the nature of the government’s privileged control over certain classes of information. Plaintiffs must realize that secrecy is yet another form of regulation, prescribing not “what the citizen may do” but instead "what the citizen may know."'
If secrecy is another form of regulation, then any such regulations must be subservient to the fact that a citizen is entitled to due process and to protection against their affects being seized.
This means that the government asserting state secret to block the judicial review of a case about them failing to uphold the constitution is a breach of the constitution, and subservient regulations like state secrecy must be set aside to uphold constitutional obligations.
Or at least, that's what my lawyer would probably say on appeal.
Tl;dr: The plaintiffs/petitioners presented only a tenuous case that their records were actually collected, which reduced their perceived likelihood of success on the ultimate merits of the case enough that they were not entitled to a preliminary injunction.
Let's unpack that a little bit. This is not a final ruling on the merits of the case, and it does not have anything (directly) to do with the 4th Amendment. Plaintiffs had moved for a preliminary injunction before the district court that would have stopped the program well before the ultimate outcome of the case. For obvious reasons, the standard for evaluating such requests is high. One of several factors used for evaluating such a motion is likelihood of ultimate success of the merits.
In order for plaintiffs to ultimately succeed, they have to convince the court that they have actually suffered an injury by having their own call records collected. They need to have been injured in order for the court ultimately to have jurisdiction. At this point, the DC Circuit concluded that they do not have any specific evidence of this (and, in fact, some of the indirect evidence weighs against them). So, the DC Circuit concluded that they were not so likely to ultimately succeed that it should give them the injunction they wanted before the ultimate outcome of the case.
This is not a good sign for a plaintiffs' case, but its important to emphasize that this is an early look at it with, necessarily, the benefit of only a small amount of evidence. The case will continue in the district court which will, among other things, try to determine whether the plaintiffs were actually injured.
Of course, the predictable outcome of that inquiry is that the NSA will invoke various legal privileges against disclosing the evidence necessary to actually make a determination, ultimately rendering plaintiffs' case impossible to maintain.
> In order for plaintiffs to ultimately succeed, they have to convince the court that they have actually suffered an injury by having their own call records collected.
Are you able to demonstrate the breaching of the 4th Amendment ? Or there just has to be some sustained injury presented before the courts?
I'm not a 4th Amendment expert, but I believe the beach of privacy inherent in a substantiated 4th Amendment violation is itself a sufficient injury to support standing.
Marcy Wheeler has more in a pair of posts on Emptywheel.
- one of the three judges said that the plaintiff didn't have standing because there wasn't explicit evidence that the government was collecting data from Verizon Wireless. [In a followup post, Marcy notes that a recent IG report (obtained by Charlie Savage of the NY Times via a FOIA suit) does explicitly include Verizon Wireless in a list; but this information probably wasn't known in time to include it in arguments in this suit.]
- another judge said that there wasn't any evidence the plaintiff had suffered any harm from the data collection
- and the third said that the plaintiffs "barely fulfilled the requirements for standing at this threshold stage, Plaintiffs fall short of meeting the higher burden of proof required for a preliminary injunction"
This "no standing" argument is really starting to piss me off. Are the judges blind to all the media releases in the past two years, or just pretending to be?
> - another judge said that there wasn't any evidence the plaintiff had suffered any harm from the data collection
Ugh. Where does it say in the 4th amendment that it's okay to seize and search all the documents without a warrant, as long as there's "no harm"?!
Does the 4th amendment say anything about bits flowing through a wire? That doesn't fit into the literal definition of either "paper" or "effect." The Constitution also doesn't even contain the word "privacy." The whole concept was pulled out of someone's "penumbra."
If we're playing the literal interpetation game, then the 4th amendment says nothing more than that the government needs a warrant to do what would for a private person amount to trespass to land or chattels. None of this mosaic theory malarkey.
One of the objections to even adding the Bill of Rights was that it would be taken to limit rights to only those listed. The Bill of Rights and later amendments do not encompass all rights, thus things like privacy do not need to explicitly be listed to count as a right.
My point was of the exact opposite. That the rights it clearly does list are still ignored and have holes punched in them until they look like Swiss cheese (just look at all the different sorts of gun bans in different areas).
> The Bill of Rights and later amendments do not encompass all rights, thus things like privacy do not need to explicitly be listed to count as a right.
The 9th Amendment was infamously vestigial for most of US history. There were until the New Deal very few SCOTUS cases that even mentioned it, let alone turned on it. In the few cases in which appellants hoped to rely on a notion of "unenumerated yet extant rights", SCOTUS rejected the interpretation.
History also doesn't do much to support an argument that the 9th hides a right to "privacy". The original drafts of the 9th Amendment weren't about unenumerated rights, but about state and local rights versus the power of the federal government. The language was bickered over, but apparently much of the jurisprudence of the 9th that happened anywhere close to the time of the founders was about devolution of state and local power.
See for instance Hugo Black's dissent in Griswold:
[The Ninth] Amendment was passed, not to
broaden the powers of this Court or any
other department of the [Federal
Government], but as every student of
history knows, to assure the people that
the Constitution . ..was intended to
limit the Federal Government to the
powers granted expressly or by necessary
implication. If any broad, unlimited
power to hold laws unconstitutional
because they offend what this Court
conceives to be the "[collective]
conscience of our people" is vested in
this Court by the Ninth Amendment
. . . , it was not given by the Framers,
but rather has been bestowed on th[is]
Court by th[is] Court.7
> Where does it say in the 4th amendment that it's okay to seize and search all the documents without a warrant, as long as there's "no harm"?!
That is not what they're saying. It is understood that, if it can be shown the plaintiffs' documents were "[unreasonably] seized or searched", there would be an injury. What has not been shown (at least not clearly enough for a preliminary injunction) is that these plaintiffs' documents were searched/seized.
> Are the judges blind to all the media releases in the past two years, or just pretending to be?
Judges are supposed to act on the law and the information presented in the cases before them, not on their biases formed from consumption of outside sources like the popular media.
> Where does it say in the 4th amendment that it's okay to seize and search all the documents without a warrant, as long as there's "no harm"?!
Injury of the type necessary to establish standing is a concrete, particularized violation of a legally-protected interest. Actually having one's own documents searched or seized in violation of the Fourth Amendment is such an injury, whether or not it results in additional harms. The problem here is that the court found that the plaintiff had not done enough to demonstrate that their data was seized.
Judge: "I can't tell the cops to stop secretly spying on everyone because I don't know who they've been spying on"
Plantiff: "Then make them tell us who they've been spying on"
Judge: "I'm sorry you have no standing because you can't prove they've been spying on you, so you can't demand anything"
Yes, I understand this kind of argument is correct in the legal system but it seems to make a mockery of "higher" notions of justice (which I think sometimes the courts take into account and sometimes they don't).
It isn't! In fact, in this very case they are being given the opportunity to obtain evidence from the government to establish standing. Of course, you're right that these efforts may fail, but if they do it will (probably) be because the government invokes the state secrets privilege to refuse to hand over the evidence, not the more kafkaesque problem of being unable to demonstrate standing because you lack standing.
No, actually it is correct in the court system. And therefore the government will make this argument whenever they can. Because if they win on standing, their life becomes easier.
That said, if you meet the standing bar, you still have an uphill battle through the inevitable invocation of the state secrets privilege to avoid giving you access to the facts that would be required to actually have a chance to win the court case...
..invokes the state secrets privilege to refuse to hand over the evidence, not the more kafkaesque problem of being unable to demonstrate standing because you lack standing
Your claim that the either approach is less "kafkaesque" or less Orwellian seems without merit and deplorable.
Injury of the type necessary to establish standing is a concrete, particularized violation of a legally-protected interest. Actually having one's own documents searched or seized in violation of the Fourth Amendment is such an injury, whether or not it results in additional harms. The problem here is that the court found that the plaintiff had not done enough to demonstrate that their data was seized.
I understand the legal theory. But given routine violations of the intent of the Constitutional protection from things like civil forfeiture, it seems to me to be merely one piece of a Kafkaesque system that is designed to provide the illusion of rights without any reality to them.
For those who don't know what civil forfeiture is, the government both can and regularly does seize people's property through the polite fiction of suing the property. The person who owned the property then gets to find out that since they are not a party of the lawsuit, they don't have legal standing to complain that THEIR stuff was taken.
(This practice is quite profitable for law enforcement agencies. There are significant civil rights concerns about the unequal way in which they implement the practice against different people...)
Showing likely irreparable harm is a requirement for any preliminary injunction. A preliminary injunction is an extraordinary remedy issued before a case is heard and decided, in order to prevent ongoing harm during the course of the case. When there is no likelihood of irreparable harm, courts are not supposed to issue a preliminary injunction before hearing the case. In that situation, the court can afford to wait for the full case to be heard, with a proper evidential record, etc., before making any decisions.
> the plaintiff had suffered any harm from the data collection
so you have to prove you've suffered harm from the removal of your rights? They're called rights and the country was founded on protecting them because they're both intrinsically valuable and completely invaluable!
Courts do not decide cases based on speculative future injury.
"To establish Article III standing, an injury must be "concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling." "
> so you have to prove you've suffered harm from the removal of your rights?
No, you have to be able to establish that you have had your rights violated. The standard that gets referred to as "harm" is more formally "concrete, particularized injury" where "injury" is defined as a violation of a legally-protected interest.
You don't have to prove, e.g., damages from the violation of your rights, but you can't just allege that an action is a violation of people's rights generally, and further that, as a person, you may have been impacted, so therefore you have standing to challenge the action. To have standing to sue, you have to allege with sufficient evidentiary basis that an action actually violated your rights in a concrete way.
So if rights are violated, but the violations are kept secret (eg. secret court gag order, national security, etc)... then you haven't been legally harmed?
In civil lawsuits, investigation to gather facts necessary to meet threshold requirements like standing is the responsibility of the plaintiff before filing suit.
Under current fourth amendment law, the data collected is likely to be viewed as verizon business records, not as the "papers" or "effects" of the complainant. If that it is the court's analysis then only verizon would have standing to object to the collection of the records, since only verizon would have a possessory interest in them, and only verizon would be harmed by their illegal search or seizure.
> The plaintiffs/petitioners presented only a tenuous case that their records were actually collected, which reduced their perceived likelihood of success on the ultimate merits of the case enough that they were not entitled to a preliminary injunction.
So let's see.. Because a person can't prove to the government that the government is violating its own rules, the government decides that the person doesn't actually have a case, even though everyone knows the government is spying on everyone, and thus violating its own rules.
Rright. So even if the government decided the case against itself, i.e. forbade itself from spying on everyone, why would anyone think they'd actually curtail their spying activities?
If a wolf had been eating sheep left and right, and suddenly declared he'll stop doing that because eating sheep is Ba-a-a-ad, would the sheep have reason to believe he'd actually stop?
Eating sheep is in the wolf's nature, and he's never had a problem with it before, so why would he stop? It would serve the wolf's interests to distract/placate the sheep though, so that they'd be easier to eat!
Try, if you can, to imagine that the government is not a single monolithic entity. Or you could just go through your comment and replace every instance of "government" with "people" for all the sense that would make.
There really is a difference between NSA staff and the average American. For that matter, there is also a difference between a federal judge and the average American. This "well next time be sure to vote for a good candidate!" horseshit is tiresome.
[EDIT:] Apparently this is not clear to everyone, but there is a logical difference between the proposition that two sets differ in some salient respect (e.g. that only those in the NSA may "illegally" spy on other Americans, with impunity), and the proposition that they differ in every respect. A careful reading of the previous paragraph will reveal that I have claimed the former.
Am I the only one that finds it ironic that everyone refuses to vote for anyone but the lesser of two evils, and then people are shocked and appalled that an evil of any kind got elected?
> There really is a difference between NSA staff and the average American.
What a terribly silly thing to say.
"there is a difference between people who work at X and the average American."
You are claiming that every single employee that works at NSA can in no way, shape, or form be considered an average American. All 30-50k or however many of them there are, they just can't be average Americans?
I mean, I totally agree. I bet they don't have lives outside of work. Probably none of them have kids. I bet they've never been married, or divorced. I'm sure they all rent under pseudonyms, none of them actually buy a house.
Hobbies, pshaw, all they care about is their job, and breaking the law as often as they can. Every single one, a zealot to the cause, insanely loyal to their employer. They don't have bad days at work, or don't feel like going in, because damn it, they're different than the average American.
I mean, there's no way that they just need to put food on the table, or can't leave the area because they have joint custody of their children. That kind of thing only happens to the average American, not NSA employees. By gosh, the horror of even considering that most of them are in fact average Americans, I'm getting tremors down my spine just thinking about it.
You lose credibility when you don't realize that the DC Circuit (the one in this story) and the CAFC (the target of your misplaced jab about patents) are completely different courts.
Look, all you need to know about the government is that they take our money by force. If the masses benefited from having a government, they wouldn't need to do that.
No seriously. Think about it. It really is as simple as that. Apple doesn't have to force people to buy their devices.
People aren't extorted for their benefit, but the extorter's, even if the extortion is shrouded in brainwashing, propaganda, rituals and so on.
So once you accept that taxation is extortion and politicians are psychopaths, you'll start being able to make sense of the insanity of the world.
> "NSA may access it only after demonstrating to the FISC that a 'reaonable articulable suspicion' that a particular phone number is associated with a foreign terrorist organization'".
Shouldn't this say "associated with a foreign terrorist organisation, or the UN"?
And I thought the NSA wasn't supposed to lie. When it says "only used to track a terrorist organization" or whatever, they are essentially lying. At the very least they should use words such as "and for other purposes".
But this is what we get when Clapper gets to lie and nothing happens to him (or when no one ever gets punished for abuses). The criminality of the system continues and expands - because why wouldn't it?
We already live in an anarcho-capitalist society. It's just that in the U.S., there is a government that has managed to convince most of the others in the area to acquiesce to it. Those few alternate governments that do arise aren't able to convince the U.S. Government and its subsidiaries to choose a different arbitrator than the ones they currently go to.
If you can explain how to construct an Anarcho-capitalist society that somehow prevented a sufficiently militarily strong government from deciding not try to dominate or collude with all other governments operating in its territory, I would love to hear it.
Does a plaintiff need to suffer injury if their constitutional rights were violated?
Wouldn't this be closer to a class action since there's broad injury and violation?
> Does a plaintiff need to suffer injury if their constitutional rights were violated?
Yes, they do. Even in a class action the class plaintiffs need to be able to show that they were injured. This stems from longstanding judicial interpretation of the "case or controversy" clause of Article III of the U.S. Constitution.
Article III specifically defines the powers of the judiciary, and these powers do not include hearing petitions.
It's an interesting question what substance the Petition Clause has. Unfortunately, it looks these days like it doesn't have much, since the First Amendment has never been interpreted to give petitions any binding legal effect. But I think it is clearly correct that the judicial branch, at least, does not have the power to adjudicate them under Article III.
Edit: By the way, an 'injury' does not necessarily have to be a monetary injury to support standing, though the law about what sorts of injuries count is exceedingly difficult and, perhaps, incoherent at the margins. One interesting wrinkle is that courts assume a fairly concrete definition of "injury", but also permit Congress to expand the applicable conception of injury (within some limits) in particular situations by statute. Lujan v. Defenders of Wildlife is a good entry point to this area of law, https://www.law.cornell.edu/supremecourt/text/504/555 (I do not think that the opinion itself is very good, but its discussion of other cases is helpful.)
Unsatisfying as this response may be, I think they would probably tell you--as courts have repeatedly told frustrated plaintiffs since the birth of the Republic--that this other venue is the political process.
The alternative targets of such petitions directed at the federal government that the courts are not empowered under the Constitution to address are:
1) The Congress,
2) The President (and executive branch more generally),
3) Insofar as the former two entities are Constitutionally prohibited from redressing the grievance raised satisfactorily and/or choose to exercise their discretionary power to not do so, the State governments, who can initiate Constitutional changes which may resolve the issue.
It is, however, not a Constitutional obligation of the federal judiciary to inform people of this in response to lawsuits that are outside of the power of the judiciary to resolve (though, its not uncommon for them to do so, at least as far as pointing to the first two alternatives.)
You are now the second person to make this claim. It's not true. Specifically, the courts are empowered to hear such petitions by Article III, Section 2 of the US Constitution:
>The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution
> You are now the second person to make this claim.
I didn't make any claim about the courts being empowered or not empowered to hear particular cases, which is why you had to cut out a small phrase from the middle of the sentence out of context to respond to with your irrelevancy.
I made a claim about the parts of governments that can be petitioned for things that the judiciary is not empowered to resolve, without any discussion of what the judiciary is empowered to resolve.
(The question of the correctness of the well-established legal principle that the existence of a "Case" requires the allegation of a concrete, particularized, redressable injury is perhaps an interesting discussion, but not one which I made any claim regarding.)
Well, you must be claiming that there is at least one particular case that a court may not be empowered to address. Otherwise, why are you making that specific distinction?
That claim is trivially false, again by Article III, Section 2, Sentence 1:
>The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
If you already accept that something is a case, the judicial Power extends to it, it does not matter what the particulars are.
He did not say there are cases that courts are not empowered to address. He said there are petitions that courts are not empowered to address.
His view, as espoused in the comment above, is a minimal one: there are some petitions that courts are not empowered to hear. This is only incoherent under Art III if one conflates "petitions" with "cases," contrary to the well-established legal meanings of those terms.
(Although, actually, there is another hole in your logic: a petition could be a 'case' but not a case in either law or equity "arising under this Constitution" etc. etc. The most obvious example would be a suit between two citizens of the same state arising under state law. It is well settled that federal courts cannot hear such cases. But since petitions and cases are quite distinct legal categories to begin with, I won't go any farther down that particular rabbit hole.)
The distinction was made in the post I responded to. This is about petitions, but specifically petitions for redress of grievances. This puts them squarely within Equity.
Since HN likes to severely rate-limit my speech, I'll respond here to some other points people are making. dragonwriter gave a counter-example where a hypothetical group attempting to amend the Constitution is viewed as a petition for redress of grievances that courts are not empowered to hear. It may be correct that such a move could be labeled as a petition (though, I might contest such labeling), an Amendment is not a redress of grievances, it's merely the changing of text in a document. It is therefore not (nor is the act of attempting it) a petition for (nor actual) redress of grievances and is not a counter-example. The meaning of Amendments is even explicitly given in Article V.
tptacek seems to think that my argument means that we are subject to the whims of unelected philosopher kings. I ask, when has that not been true? The US Supreme Court usurped its power very early on in US history. The fact that we, people in 2015, live by the words of people who are no longer alive (and haven't been for a coupleish centuries) is bare testament. But, my answer is that it depends on the structure of the court. If the judge is an unelected philosopher king, then yes, we are subject to them. If you have some other, 'democratic' (or whatever system you propose) judge, court, or other arbiter, then you are subject to whatever rules exist in that system (which...maybe could be something other than the whims of philosopher kings? Not sure).
> It may be correct that such a move could be labeled as a petition (though, I might contest such labeling), an Amendment is not a redress of grievances, it's merely the changing of text in a document.
Changing law (including the Constitution) is as much a redress of grievances as issuing judicial orders (which is no more than "creating a new document with text" when looked at on the same level of analysis at which a change to law or Constitution is "changing the text of a document".)
> Well, you must be claiming that there is at least one particular case that a court may not be empowered to address.
(1) No, I'm saying that there are petitions protected by the First Amendment right to petition that are not cases within the power of the courts to resolve, and
(2) More particularly to the issue in this thread, the concrete, particularized injury (where injury is a violation of a legally-protected interest) requirement is a threshold test for whether something is a case, and
(3) Finally, there are cases that the federal courts are not empowered to address; the reason that Article III has to spend so many words enumerating all the kinds of cases and controversies that are within the judicial power is that all the other kinds of cases (and controversies) are not within that power.
For one example: Cases in law or equity arising under state law, between citizens of the same U.S. state, none of whom are ambassadors, public ministers, or consuls, and who are not claiming land under grants from different states.
> If I'm reading the text correctly, the judicial power extends to every case and controversy of any human being.
Sorry, but all of those cases are covered by the first clause:
>The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution [,etc]
Well, assuming the case between the citizens of the same state are Cases of Law and/or Equity (is there another type?). Some of these cases are explicitly protected by the US Constitution itself (c.f. Amendment VII).
The important part of Art III that you are misunderstanding is covered by your "etc.". This clause (though not the entire sentence) is limited to cases "arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority." This excludes cases arising under state law. (Because "laws of the United States" means, basically, "federal laws." I realize this is not self evident, but I assure you that this is indeed the historical and accepted legal meaning of the phrase. I suggest googling it if you don't believe me. One clue that this is the case is the fact that this limitation is not included in subsequent clauses in that sentence.)
Yes, the [, etc] does cover it. Specifically, the Laws of the United States. You can know purely from the pluralization alone, but it is also evident in the entirety of the document and historical context. Each State's Laws are a component of the Laws of the United States (in addition to the Constitution and those passed by Congress).
Can you point me to a Particular Case that the judicial Power does not extend to?
Are you seriously arguing that States can act without judicial oversight?
3. I had assumed it was clear that Article III only relates to the powers of the federal judiciary. State courts are totally unaffected by it. (This is, a result of the fact that Article III, by its terms, only vests powers in courts "of the United States" which, again, means "federal courts.") This means that, although federal courts cannot hear cases between citizens of the same state arising under state law, state courts still can and do. In fact, with a few exceptions, state court can hear all the cases that federal courts can, and then some.
But you will not be able to find a single case in the last 200 years where a U.S. federal court constituted under Article III (without later getting reversed on appeal) has ruled on the merits of a dispute between citizens of only one state, where the dispute involved only a question of state law. Guaranteed. (Though I'm intentionally being precise in my language here. Things do get tricky when there are multiple plaintiffs and defendants, multiple state and federal claims, etc. all in the same case. This gets into some of those nasty details: http://www.pavlacklawfirm.com/blog/2013/01/25/federal-divers...)
United States refers to the now (well, upon ratification) literally, united, individual states. This is plain and obvious just from reading the document. Laws refers to the laws of those collective states (including laws enacted in a single state and those enacted collectively through the Congress). It is not so much the pluralization in United States that is interesting (it is actually obvious that it must be that way [since we are talking about a collection of states]), but the pluralization in Laws. The Article refers to a collection of laws, not a single unit. US Federal Law is a single unit manifested in the U.S. Code. You will see these referred to as Law elsewhere in the document.
You are confusing courts, jurisdiction, and judicial Power. While certain courts may be established with particular jurisdiction, the judicial Power extends over them.
Congress has actually already ruled on this (See 28 U.S. Code § 1257(a) https://www.law.cornell.edu/uscode/text/28/1257). You will be able to pull in any State law on (at least) Amendment IX and/or Amendment X grounds.
Again I ask, can you point to a Particular Case where the US Supreme Court is not empowered to rule (or will not be able to eventually, once all other levels have failed)?
Well, the edit window for the above post is now gone, but...
You can also see that the first clause is talking about the collection of States in the use of 'their' at the end:
>The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority
In Article III, Section 2, Sentence 1, United States does not refer to a monolithic entity and Laws does not refer to a specific unit of law (U.S. Code). The sentence refers to the totality of all laws that exist within the United States (that is, all states which the Constitution subsumed).
Can someone show a valid parse of that sentence that means otherwise?
You are clearly unfamiliar with historical linguistic references to the federal government; use of the plural form was the norm from the foundation of the United States as an organization with institutions through the period of the Articles of Confederation and the early part of the period under the Constitution. Tge institutions, laws, etc. of the federal government were, at least in terms of grammar, portrayed as belonging collectively to the states, not to a singular entity named "the United States".
The singular form, IIRC, didn't become common until sometime in the mid- to late-19th century (maybe after the civil war.)
There is no reading where Laws of the United States refers exclusively to U.S. Code. As I said, to show that I'm wrong, one only needs to provide a valid parsing of the sentence where United States refers exclusively to a monolithic entity known as the federal government (note that "federal" does not appear anywhere in the document). If you look at the other usages of United States in the document, it becomes even more clear that it refers to the States as a collective and not to a separate entity.
The other thing someone could show that would prove me wrong, is a Particular Case that the US Supreme Court will never be able to hear. I haven't seen anyone even attempt to show such a case. Some hypotheticals and lots of pushing words around, but no actual Case.
Federal courts, including the U.S. supreme court refuse to hear cases for lack of jurisdiction all the time. As in, many times every day.
At the Supreme Court, one place to see this is in the doctrine of adequate and independent state grounds, that applies when reviewing decisions of a state's highest court. Here is the Wikipedia page on that concept with several citations: https://en.wikipedia.org/wiki/Adequate_and_independent_state...
For other federal courts, one relevant concept is "federal question jurisdiction." (So called, because raising a "federal question," is synonymous with presenting a case that arises under the "laws of the United States.") Here is a classic case on that issue (though it is much more complex than necessary to prove the present point.) Tennessee v. Union and Planters' Bank, https://supreme.justia.com/cases/federal/us/152/454/case.htm...
Here is a relevant quote (though if you really want to learn how this all works, I recommend reading the entire case carefully):
> "We find it unnecessary to consider other objections to the maintenance of these three bills, or of any of them, because we are clearly of opinion that each suit is not one arising under the Constitution and laws of the United States, of which the circuit court of the United States has jurisdiction, either original, or by removal from a state court, under the Act of March 3, 1887, c. 373, as corrected by the Act of August 13, 1888, c. 866. 25 Stat. 434."
And here is a more quotidian example: Lake v. Malone, No. CA 3:11-824-CMC-PJG, 2011 WL 2162711, at 2 (D.S.C. May 6, 2011) report and recommendation adopted, No. CA 3:11-824-CMC-PJG, 2011 WL 2162159 (D.S.C. June 1, 2011)
> “This case is subject to summary dismissal because the allegations contained in Plaintiff's Complaint do not fall within the scope of either form of this court's limited jurisdiction, and there is no other possible basis for federal jurisdiction evident from the face of the pleading. There is no viable federal question alleged and there is no apparent diversity of citizenship between the plaintiff and the defendants.
> Generally, a case can be originally filed in a federal district court if there is “federal question” jurisdiction under 28 U.S.C. § 1331 or “diversity of citizenship” under 28 U.S.C. § 1332. Federal courts are courts of limited jurisdiction, “constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute.” In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir.1998). Since federal courts have limited subject matter jurisdiction, there is no presumption that the court has jurisdiction. Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir.1999) (citing Lehigh Mining & Mfg. Co. v. Kelly, 160 U.S. 337 (1895). Accordingly, a federal court is required, sua sponte, to determine if a valid basis for its jurisdiction exists, “and to dismiss the action if no such ground appears.” Bulldog Trucking, 147 F.3d at 352; see also Fed.R.Civ.P. 12(h)(3) (“Whenever it appears ... that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”). “[T]he facts providing the court jurisdiction must be affirmatively alleged in the complaint.” Davis v. Pak, 856 F.2d 648, 650 (4th Cir.1988) (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)). To this end, Federal Rule of Civil Procedure 8(a) (1)requires that the complaint provide “a short plain statement of the grounds upon which the court's jurisdiction depends[.]” If, however, the complaint does not contain “an affirmative pleadi...
Do you know where I can find the three bills that Gray references in his opinion?
As far as I can tell from reading his opinion, his argument is a purely syntactical one: the language of the original bills does not contain a reference that the court understands and is therefore not a Case. It appears the Supreme Court only heard the case because a circuit court took the case out of the Tennessee courts before they issued a final ruling, not because the Plaintiffs actually brought the case to them [SC].
The case does not appear to have been dismissed with prejudice. It was dismissed on a technicality of the language in the original suits (which, I believe, were never originally intended to be pursued outside of some Tennessee court). Without access to the language in those original suits though, I can't say much more.
I'm afraid not. Though it may be possible to find them through some more thorough Googling than I've attempted. Note, though, that the bills are probably not literal documents. "Bill," in the somewhat antique terminology used in the opinion. referred to what we would probably now call a "claim."
But in any event, this case makes clear that the Supreme Court (or any other federal court) will not hear cases that arise under state law.
>In each of the three cases now before this Court, the only right claimed by the plaintiffs is under the law of Tennessee, and they assert no right whatever under the Constitution and laws of the United States. In the first and second bills, the only reference to the Constitution or laws of the United States is the suggestion that the defendants will contend that the law of the state under which the plaintiffs claim is void, because in contravention of the Constitution of the United States, and by the settled law of this Court, as appears from the decisions above cited, a suggestion of one party that the other will or may set up a claim under the Constitution or laws of the United States does not make the suit one arising under that Constitution or those laws. In the third bill, no mention is made of the Constitution or laws of the United States or of any right claimed under either, and no statement in the petition for removal or in the demurrer of the defendant corporation can supply that want under the existing act of Congress.
> The result is that in the first and second cases, the decrees must be reversed at the cost of the plaintiffs, and the cases remanded to the circuit court of the United States with directions to dismiss the bills for want of jurisdiction, and that in the third case, the decree must be reversed at the cost of the defendants, and the case remanded to the circuit court of the United States with directions to remand it to the state court from which it was removed.
What this is saying is that on all three claims, the asserted cause of action arises under Tennessee law, so they cannot hear it. The fact that the defendants may make constitutional arguments in response to the first two claims is not enough to trigger federal jurisdiction.
The entire case revolves around whether the Supreme Court is able to hear the case in spite of the fact that the claims asserted y the plaintiff are state-law claims only. A notable case that came out the other way is Osborn v. Bank of the United States, https://supreme.justia.com/cases/federal/us/22/738/case.html, where the court concluded that it could hear a case involving only state-law claims, but only because the defendant was a bank of the United States (note, by the way, that this means a federal bank, as opposed to, e.g., a Tennessee state bank) and thus, pursuant to one of the exceptions I mentioned several messages ago, the Supreme Court could hear it because it involved distinctly federal interests. But here too, the whole question was whether a federal court was empowered to hear this case since it involved only state-law claims. The premise being, of course, that ordinarily a federal court cannot hear such claims.
Consider this sentence from Osborn:
> We think, then that when a question to which the judicial power of the Union is extended by the Constitution forms an ingredient of the original cause, it is in the power of Congress to give the circuit courts jurisdiction of that cause, although other questions of fact or of law may be involved in it.
This would be a very silly thing to write if the Constitution extended "the judicial power of the Union" to all cases.
I have directed you to many other sources that say the same thing. I can also tell you (though perhaps you won't believe me, or will not care) that this--the fact that federal courts have limited powers...
That sounds right. And there are some other technical things, I think, like the ability to bring a lawsuit (though not, of course, the ability to win one on the merits).
First, the word 'lawsuit' does not occur in Article III (nor anywhere else in the US Constitution). You making a distinction between the word lawsuit and petition here is nonsense.
Second, Article III, Section 2, Sentence 1:
>The judicial power shall extend to all cases, in Law and Equity, arising under this Constitution
A petition for redress of grievance is exactly a case in Equity and is specifically allowed under Amendment I.
How is this not a formulation that says that at bottom we are a nation governed by unelected philosopher kings? Any issue can generate a "petition for redress of grievances".
It's not that there isn't an argument to be made that a petition is a case. As a matter of language, of course, it could be. This depends on the precise definitions of "case" and "petition."
But you are way too late to the party when it comes to deciding the legal meaning of these words. The prevailing judicial understanding, for more than 100 years, of the "Case and Controversy" clause has been that Article III courts can only hear lawsuits involving more-or-less concrete injuries.
And as tptacek has pointed out, this is probably for the best. Imagine the chaos if the courts were constitutionally required to hear every grievance brought by a member of the public, even if it did not affect his or her interests in any concrete way. Then also imagine the quality of the legal reasoning that would result from such a farcical system, where there was no guarantee that a plaintiff actually had any interest in its outcome.
You may wish that courts had the power to hear petitions for the redress of grievances when it is your grievance you wish to see redressed. But you should also consider the wider universe of grievances and whether you would really want to see them all ventilated in a court of law.
Edit: There are very many cases that state this clearly but here is is a somewhat random selection:
"The party who invokes the [judicial] power must be able to show, not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally." - COM. OF MASSACHUSETTS v. MELLON, http://caselaw.findlaw.com/us-supreme-court/262/447.html#488
"Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements: first, the plaintiff must have suffered an "injury in fact" -- an invasion of a legally-protected interest which is (a) concrete and particularized and (b) "actual or imminent, not ‘conjectural' or ‘hypothetical.'" Second, there must be a causal connection between the injury and the conduct complained of -- the injury has to be fairly trace[able] to the challenged action of the defendant, and not the result of the independent action of some third party not before the court." LUJAN v. DEVENDERS OF WILDLIFE, https://www.law.cornell.edu/supremecourt/text/504/555 (very many citations omitted)
"Although the law of standing has been greatly changed in the last 10 years, we have steadfastly adhered to the requirement that, at least in the absence of a statute expressly conferring standing, federal plaintiffs must allege some threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdiction." LINDA R. S. v. RICHARD D., http://caselaw.findlaw.com/us-supreme-court/410/614.html#t4
> The prevailing judicial understanding, for more than 100 years, of the "Case and Controversy" clause has been that Article III courts can only hear lawsuits involving more-or-less concrete injuries.
Its important to understand the reasoning here: to wit, that if there isn't a concrete, particularized, redressable injury -- where "injury" is understood to be a violation of a legally-protected interest -- then there is no "Case" to resolve.
The contentious part of this is primarily the "particularized" part, since that requirement means that violations of the Constitutional limits of government power do not give rise to a cause of action based solely on the general citizens interest in constraining the government to its bounds, as even though this may be a concrete violation of a legally-protected interest, it is not particularized.
This certainly serves some economy-of-justice purposes, but it also makes it particularly hard to address systemic violations of the Constitution where an integral part of the charged abuse of power is the governments active concealment of the details of its actions and their particularized impacts.
Here is another analytical tack to consider: If Art III already empowered the judiciary to adjudicate petitions for the redress of grievances (since these are just "cases") why was it necessary to include this right again in the First Amendment? And why not make any clear link to the legal concepts or terminology already written in Art III?
> A petition for redress of grievance is exactly a case in Equity
No, it is not. Petition for redress of grievances are much broader than (but include) cases in law and equity as those terms were well understood at the time of the writing of the Constitution. For a fairly obvious case, a request to consider a Constitutional amendment because of the purportedly undesirable effects of the operation the Constitution in the absence of such an Amendment is clearly a petition for redress of grievances -- and clearly not a case in law or equity within the scope of the Article III judicial power.
Your right to petition government for your grievances arising from such an undesirable (to you) state of the Constitution is protected by the First Amendment right of petition, but that protection does not empower the Judiciary to act favorably on such a petition. Congress, however, could act on it by submitting a proposed Amendment for ratification by the States aimed at resolving the issue.
The First Amendment right of petition does not bring all petitions it protects within the power of the judiciary to grant.
> The US constitution allows for the people to petition the government for a redress of grievances.
Yes, it does. And you are free to petition the government, either in general or any of its particular branches, for redress of grievances.
However, the 1st Amendment right to petition for redress of grievances does not grant the federal government, either in general or any of its particular branches, any additional powers not already provided to it elsewhere in the Constitution to provide redress of those grievances.
Which is, I would think, a good thing: while you might prefer something more of the judiciary in this case, you probably don't want a blank check where just because someone is entitled under the First Amendment to complain to the government, suddenly the government is granted unlimited power to deal with that complaint.
One can only make an educated guess, but I think there are a few possibly easy cases:
1. Documents are leaked that specifically identify one or people whose records were illegally collected. Those people probably could sue, I would think.
2. Documents are leaked (or evidence otherwise emerges) that the NSA collected data on virtually all of a particular company's calls. Subscribers to that service would probably have a good case for standing.
Bear in mind, though, that we're only at the preliminary injunction stage. The review at this stage will typically take a pessimistic view of plaintiffs' ability to prevail on issues like this if there is substantial uncertainty.
It's possible they could lose on the injunction, but ultimately win on the merits.
I'd appreciate for someone else to weigh in here, since this is well outside my area of expertise. But my somewhat informed legal instinct is that the government can invoke certain privileges to protect it from having to disclose certain information, but these privileges would allow it bar information that is already public from use in court.
> Couldn't the government just say whatever documents presented were obtained illegally or are 'state secrets'?
State secrets probably -- that privilege is extremely easily abused. Obtained illegally, less so, since illegally obtained evidence isn't generally excluded except when offered by the government in a criminal case; in other cases, the remedy for illegally obtained evidence is just to prosecute for the act of illegally obtaining it.
"1. Documents are leaked that specifically identify one or people whose records were illegally collected. Those people probably could sue, I would think."
If I remember correctly, that actually did happen - in fact, the Governemnt accidentally leaked them itself - and the courts ruled that because the person wouldn't have known about it if they hadn't accidentally been sent those documents, they still didn't have standing to sue. It's basically impossible to take any kind of legal action against these secret mass surveillance programs in the US.
> 2. Documents are leaked (or evidence otherwise emerges) that the NSA collected data on virtually all of a particular company's calls. Subscribers to that service would probably have a good case for stanodding.
This already happened in 2007 I believe. AT&T and Verizon phone services were implicated, implying mass violations of the Telecomminications Act of 1998. Congress turned around and have the telecoms retroactive immunity.
Because "ignorance of the law is no excuse" only applies to you and me. Companies with millions of dollars worth of lawyers on retainer couldn't possibly have known that it was illegal.
Yeah I can see why it's a nice-to-have for them. I'm just saying they're pretty clearly above the law for all intents and purposes. I wouldn't consider the opposite result here a real win for freedom.
The best result, given the situation they're in right now, is to accept defeat. Put up a bit of a struggle, have some media drama, have some politicians make speeches, get a couple of laws passed, heck, maybe even come out with a begrudging mea culpa.
Then make sure the legal opinion isn't actually binding in the way the general public thinks it is, that the law has plenty of non-obvious loopholes, and continue on as if nothing has happened.
In their mind, they don't have a legality problem; they have a security leak problem. I honestly believe they'll keep it all legal -- but good luck in figuring out exactly what "legal" means.
This is how we know we've crossed the Rubicon regarding government spying.
We don't expect them to stop spying, even if they're "legally" required to stop, and spying on us is made "illegal". We have zero faith in their word, and that was theirs to lose!
I completely reject your fatalistic line of thinking on a few grounds:
1. You can totally win, provided that you show up with thousands of your friends and a desire to wreck shit. See the corpse of STASI, which the Western surveillance apparatus has surpassed in every dimension: https://en.wikipedia.org/wiki/Stasi#Storming_the_Stasi_headq... (especially read the part about the headquarters being stormed and unconfirmed reports of lynchings-- sounds a lot like they lost on a permanent basis) The KGB office in Berlin met a similar fate (it was supposed to be clandestine, but oops-- intelligence agency installations are seldom hard to find because they rely on being hidden in plain sight), however most of the files contained within were destroyed thanks to the quick thinking of an officer there-- Vladimir Putin.
Another example of total victory is the ugly rout of South African intelligence agencies at the very end of apartheid-- quick, gory, and intentionally forgotten during the "truth and reconciliation" period. These agencies had a premium on brutality, and they aren't nearly as well known as the CIA or Mossad. Interestingly, there were actually several intelligence agencies of SA at the time-- the military intelligence organization was hit the hardest, but responded by digging in and doubling down on brutality. The other (which has had its name changed a number of times but was at the time known as the National Intelligence Service) was horrified by the military intel agency being hunted and killed, and changed focus to clandestinely work on a truce.
2. You can partially win by forcing them away from your area, provided that you have access to the political apparatus. There was an article trending on HN today about how Bolivia had forced out the DEA. Sure, maybe you can argue the DEA isn't the CIA or Mossad, but the point is clear: these organizations can't operate with impunity if the (quasi stable) political apparatus decides to resist them. An alternative set of examples here are Iraq/Afghanistan/Pakistan/Kurdistan/Syria-- both the CIA and Mossad (and likely Shin Bet) chalked big losses here (with heavy loss of life of their own personnel as well as countless indigenous assets) because the population was hostile to them. Collecting HUMINT requires willing humans, and torturing people doesn't cause that. It's also extremely hard to blackmail or bribe a tribesman.
3. You can buy them out or co-opt them, if you have the right connections. It's no secret that Putin rose to power via the KGB's influence, but during the transformative 90s, Russia's economic power was privatized and separated from the government's apparatus creating a plurality of power loci. Following this, there began a curious phenomena (replicated by corollaries in the US around the same time) of the Russian intelligence agencies being caught willy nilly for industrial espionage. In the midst of economic strife and violent internal insurgency in the Muslim territories around the same time period, the intelligence agencies of Russia were largely busy chasing dollars rather than mujaheddin. Why? Because the newly minted oligarchs were more concerned with making more cash. This is currently happening in the US. The takeaway point here is that a change in focus can count as a win.
4. You can change their political mandate with reforms. The US has done this once already with the CIA, and will likely do this many more times. There are too many examples of this to list.
So essentially, without obscene amounts of money and political power, I have to be willing to commit treason and violently attack a government building? Okay. So basically not something I'm going to achieve any time soon.
Has anyone tried to use probability to cut through this cloud of bullshit that the government keeps spewing about the plaintiffs not being able to prove that their records were collected? If you put 100,000 names on that lawsuit, there's no way they can say that none of them got caught in the dragnet.
122 comments
[ 3.0 ms ] story [ 174 ms ] threadEdit: and this is rather unfortunate...
'It is entirely possible that, even if plaintiffs are granted discovery, the government may refuse to provide information (if any exists) that would further plaintiffs’ case. Plaintiffs’ claims may well founder in that event. But such is the nature of the government’s privileged control over certain classes of information. Plaintiffs must realize that secrecy is yet another form of regulation, prescribing not “what the citizen may do” but instead "what the citizen may know."'
Edit 2: nevermind that the entire states secret clause that the courts are so often to back up is based on the government trying to save face and not admit wrong-doing.
If secrecy is another form of regulation, then any such regulations must be subservient to the fact that a citizen is entitled to due process and to protection against their affects being seized.
This means that the government asserting state secret to block the judicial review of a case about them failing to uphold the constitution is a breach of the constitution, and subservient regulations like state secrecy must be set aside to uphold constitutional obligations.
Or at least, that's what my lawyer would probably say on appeal.
Let's unpack that a little bit. This is not a final ruling on the merits of the case, and it does not have anything (directly) to do with the 4th Amendment. Plaintiffs had moved for a preliminary injunction before the district court that would have stopped the program well before the ultimate outcome of the case. For obvious reasons, the standard for evaluating such requests is high. One of several factors used for evaluating such a motion is likelihood of ultimate success of the merits.
In order for plaintiffs to ultimately succeed, they have to convince the court that they have actually suffered an injury by having their own call records collected. They need to have been injured in order for the court ultimately to have jurisdiction. At this point, the DC Circuit concluded that they do not have any specific evidence of this (and, in fact, some of the indirect evidence weighs against them). So, the DC Circuit concluded that they were not so likely to ultimately succeed that it should give them the injunction they wanted before the ultimate outcome of the case.
This is not a good sign for a plaintiffs' case, but its important to emphasize that this is an early look at it with, necessarily, the benefit of only a small amount of evidence. The case will continue in the district court which will, among other things, try to determine whether the plaintiffs were actually injured.
Of course, the predictable outcome of that inquiry is that the NSA will invoke various legal privileges against disclosing the evidence necessary to actually make a determination, ultimately rendering plaintiffs' case impossible to maintain.
Are you able to demonstrate the breaching of the 4th Amendment ? Or there just has to be some sustained injury presented before the courts?
- one of the three judges said that the plaintiff didn't have standing because there wasn't explicit evidence that the government was collecting data from Verizon Wireless. [In a followup post, Marcy notes that a recent IG report (obtained by Charlie Savage of the NY Times via a FOIA suit) does explicitly include Verizon Wireless in a list; but this information probably wasn't known in time to include it in arguments in this suit.]
- another judge said that there wasn't any evidence the plaintiff had suffered any harm from the data collection
- and the third said that the plaintiffs "barely fulfilled the requirements for standing at this threshold stage, Plaintiffs fall short of meeting the higher burden of proof required for a preliminary injunction"
https://www.emptywheel.net/2015/08/28/dc-circuit-reverses-ju...
https://www.emptywheel.net/2015/08/28/government-recently-re...
> - another judge said that there wasn't any evidence the plaintiff had suffered any harm from the data collection
Ugh. Where does it say in the 4th amendment that it's okay to seize and search all the documents without a warrant, as long as there's "no harm"?!
Does the 2nd say 'except for criminals'?
We've long ago tossed out the Constitution and have since just been playing pretend.
If we're playing the literal interpetation game, then the 4th amendment says nothing more than that the government needs a warrant to do what would for a private person amount to trespass to land or chattels. None of this mosaic theory malarkey.
My point was of the exact opposite. That the rights it clearly does list are still ignored and have holes punched in them until they look like Swiss cheese (just look at all the different sorts of gun bans in different areas).
Who decides what rights exist?
History also doesn't do much to support an argument that the 9th hides a right to "privacy". The original drafts of the 9th Amendment weren't about unenumerated rights, but about state and local rights versus the power of the federal government. The language was bickered over, but apparently much of the jurisprudence of the 9th that happened anywhere close to the time of the founders was about devolution of state and local power.
See for instance Hugo Black's dissent in Griswold:
That is not what they're saying. It is understood that, if it can be shown the plaintiffs' documents were "[unreasonably] seized or searched", there would be an injury. What has not been shown (at least not clearly enough for a preliminary injunction) is that these plaintiffs' documents were searched/seized.
Judges are supposed to act on the law and the information presented in the cases before them, not on their biases formed from consumption of outside sources like the popular media.
> Where does it say in the 4th amendment that it's okay to seize and search all the documents without a warrant, as long as there's "no harm"?!
Injury of the type necessary to establish standing is a concrete, particularized violation of a legally-protected interest. Actually having one's own documents searched or seized in violation of the Fourth Amendment is such an injury, whether or not it results in additional harms. The problem here is that the court found that the plaintiff had not done enough to demonstrate that their data was seized.
Judge: "I can't tell the cops to stop secretly spying on everyone because I don't know who they've been spying on"
Plantiff: "Then make them tell us who they've been spying on"
Judge: "I'm sorry you have no standing because you can't prove they've been spying on you, so you can't demand anything"
Yes, I understand this kind of argument is correct in the legal system but it seems to make a mockery of "higher" notions of justice (which I think sometimes the courts take into account and sometimes they don't).
In fact this is what the government won on for https://en.wikipedia.org/wiki/Clapper_v._Amnesty_Internation....
That said, if you meet the standing bar, you still have an uphill battle through the inevitable invocation of the state secrets privilege to avoid giving you access to the facts that would be required to actually have a chance to win the court case...
Your claim that the either approach is less "kafkaesque" or less Orwellian seems without merit and deplorable.
I understand the legal theory. But given routine violations of the intent of the Constitutional protection from things like civil forfeiture, it seems to me to be merely one piece of a Kafkaesque system that is designed to provide the illusion of rights without any reality to them.
For those who don't know what civil forfeiture is, the government both can and regularly does seize people's property through the polite fiction of suing the property. The person who owned the property then gets to find out that since they are not a party of the lawsuit, they don't have legal standing to complain that THEIR stuff was taken.
(This practice is quite profitable for law enforcement agencies. There are significant civil rights concerns about the unequal way in which they implement the practice against different people...)
so you have to prove you've suffered harm from the removal of your rights? They're called rights and the country was founded on protecting them because they're both intrinsically valuable and completely invaluable!
This is precedent set by the supreme court in http://www.scotusblog.com/case-files/cases/clapper-v-amnesty...
Courts do not decide cases based on speculative future injury.
"To establish Article III standing, an injury must be "concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling." "
No, you have to be able to establish that you have had your rights violated. The standard that gets referred to as "harm" is more formally "concrete, particularized injury" where "injury" is defined as a violation of a legally-protected interest.
You don't have to prove, e.g., damages from the violation of your rights, but you can't just allege that an action is a violation of people's rights generally, and further that, as a person, you may have been impacted, so therefore you have standing to challenge the action. To have standing to sue, you have to allege with sufficient evidentiary basis that an action actually violated your rights in a concrete way.
Until YOU can prove that YOU have been harmed, YOU don't have standing.
So let's see.. Because a person can't prove to the government that the government is violating its own rules, the government decides that the person doesn't actually have a case, even though everyone knows the government is spying on everyone, and thus violating its own rules.
Rright. So even if the government decided the case against itself, i.e. forbade itself from spying on everyone, why would anyone think they'd actually curtail their spying activities?
If a wolf had been eating sheep left and right, and suddenly declared he'll stop doing that because eating sheep is Ba-a-a-ad, would the sheep have reason to believe he'd actually stop?
Eating sheep is in the wolf's nature, and he's never had a problem with it before, so why would he stop? It would serve the wolf's interests to distract/placate the sheep though, so that they'd be easier to eat!
[EDIT:] Apparently this is not clear to everyone, but there is a logical difference between the proposition that two sets differ in some salient respect (e.g. that only those in the NSA may "illegally" spy on other Americans, with impunity), and the proposition that they differ in every respect. A careful reading of the previous paragraph will reveal that I have claimed the former.
What a terribly silly thing to say.
"there is a difference between people who work at X and the average American."
You are claiming that every single employee that works at NSA can in no way, shape, or form be considered an average American. All 30-50k or however many of them there are, they just can't be average Americans?
I mean, I totally agree. I bet they don't have lives outside of work. Probably none of them have kids. I bet they've never been married, or divorced. I'm sure they all rent under pseudonyms, none of them actually buy a house.
Hobbies, pshaw, all they care about is their job, and breaking the law as often as they can. Every single one, a zealot to the cause, insanely loyal to their employer. They don't have bad days at work, or don't feel like going in, because damn it, they're different than the average American.
I mean, there's no way that they just need to put food on the table, or can't leave the area because they have joint custody of their children. That kind of thing only happens to the average American, not NSA employees. By gosh, the horror of even considering that most of them are in fact average Americans, I'm getting tremors down my spine just thinking about it.
That is, it's compromised in some way, and therefore rules in favor of Deep State type things all the time.
https://www.youtube.com/watch?v=ngpsJKQR_ZE http://spot.colorado.edu/~huemer/Contents.pdf
No seriously. Think about it. It really is as simple as that. Apple doesn't have to force people to buy their devices.
People aren't extorted for their benefit, but the extorter's, even if the extortion is shrouded in brainwashing, propaganda, rituals and so on.
So once you accept that taxation is extortion and politicians are psychopaths, you'll start being able to make sense of the insanity of the world.
This book thoroughly destroys most of the pro-state arguments people have come up with: http://spot.colorado.edu/~huemer/Contents.pdf
Are you uncomfortable with reading that? -Well why might that be? What sense does it make? Keep going anyway.
> "NSA may access it only after demonstrating to the FISC that a 'reaonable articulable suspicion' that a particular phone number is associated with a foreign terrorist organization'".
Shouldn't this say "associated with a foreign terrorist organisation, or the UN"?
http://www.theguardian.com/world/2015/aug/17/un-att-nsa-spy-...
So yes, I believe you.
But this is what we get when Clapper gets to lie and nothing happens to him (or when no one ever gets punished for abuses). The criminality of the system continues and expands - because why wouldn't it?
If governments were actually useful to us, they wouldn't have to take our money by force. We'd be happy to pay for their services voluntarily.
That tells you everything you need to know about the system's nature.
If you can explain how to construct an Anarcho-capitalist society that somehow prevented a sufficiently militarily strong government from deciding not try to dominate or collude with all other governments operating in its territory, I would love to hear it.
Not always, take a look at tragedy of the commons:
https://en.wikipedia.org/wiki/Tragedy_of_the_commons
Yes, they do. Even in a class action the class plaintiffs need to be able to show that they were injured. This stems from longstanding judicial interpretation of the "case or controversy" clause of Article III of the U.S. Constitution.
https://en.wikipedia.org/wiki/Case_or_Controversy_Clause
It's an interesting question what substance the Petition Clause has. Unfortunately, it looks these days like it doesn't have much, since the First Amendment has never been interpreted to give petitions any binding legal effect. But I think it is clearly correct that the judicial branch, at least, does not have the power to adjudicate them under Article III.
Edit: By the way, an 'injury' does not necessarily have to be a monetary injury to support standing, though the law about what sorts of injuries count is exceedingly difficult and, perhaps, incoherent at the margins. One interesting wrinkle is that courts assume a fairly concrete definition of "injury", but also permit Congress to expand the applicable conception of injury (within some limits) in particular situations by statute. Lujan v. Defenders of Wildlife is a good entry point to this area of law, https://www.law.cornell.edu/supremecourt/text/504/555 (I do not think that the opinion itself is very good, but its discussion of other cases is helpful.)
Edit: Removed an imprecise first sentence.
1) The Congress,
2) The President (and executive branch more generally),
3) Insofar as the former two entities are Constitutionally prohibited from redressing the grievance raised satisfactorily and/or choose to exercise their discretionary power to not do so, the State governments, who can initiate Constitutional changes which may resolve the issue.
It is, however, not a Constitutional obligation of the federal judiciary to inform people of this in response to lawsuits that are outside of the power of the judiciary to resolve (though, its not uncommon for them to do so, at least as far as pointing to the first two alternatives.)
You are now the second person to make this claim. It's not true. Specifically, the courts are empowered to hear such petitions by Article III, Section 2 of the US Constitution:
>The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution
I didn't make any claim about the courts being empowered or not empowered to hear particular cases, which is why you had to cut out a small phrase from the middle of the sentence out of context to respond to with your irrelevancy.
I made a claim about the parts of governments that can be petitioned for things that the judiciary is not empowered to resolve, without any discussion of what the judiciary is empowered to resolve.
(The question of the correctness of the well-established legal principle that the existence of a "Case" requires the allegation of a concrete, particularized, redressable injury is perhaps an interesting discussion, but not one which I made any claim regarding.)
That claim is trivially false, again by Article III, Section 2, Sentence 1:
>The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
If you already accept that something is a case, the judicial Power extends to it, it does not matter what the particulars are.
His view, as espoused in the comment above, is a minimal one: there are some petitions that courts are not empowered to hear. This is only incoherent under Art III if one conflates "petitions" with "cases," contrary to the well-established legal meanings of those terms.
(Although, actually, there is another hole in your logic: a petition could be a 'case' but not a case in either law or equity "arising under this Constitution" etc. etc. The most obvious example would be a suit between two citizens of the same state arising under state law. It is well settled that federal courts cannot hear such cases. But since petitions and cases are quite distinct legal categories to begin with, I won't go any farther down that particular rabbit hole.)
Since HN likes to severely rate-limit my speech, I'll respond here to some other points people are making. dragonwriter gave a counter-example where a hypothetical group attempting to amend the Constitution is viewed as a petition for redress of grievances that courts are not empowered to hear. It may be correct that such a move could be labeled as a petition (though, I might contest such labeling), an Amendment is not a redress of grievances, it's merely the changing of text in a document. It is therefore not (nor is the act of attempting it) a petition for (nor actual) redress of grievances and is not a counter-example. The meaning of Amendments is even explicitly given in Article V.
tptacek seems to think that my argument means that we are subject to the whims of unelected philosopher kings. I ask, when has that not been true? The US Supreme Court usurped its power very early on in US history. The fact that we, people in 2015, live by the words of people who are no longer alive (and haven't been for a coupleish centuries) is bare testament. But, my answer is that it depends on the structure of the court. If the judge is an unelected philosopher king, then yes, we are subject to them. If you have some other, 'democratic' (or whatever system you propose) judge, court, or other arbiter, then you are subject to whatever rules exist in that system (which...maybe could be something other than the whims of philosopher kings? Not sure).
Changing law (including the Constitution) is as much a redress of grievances as issuing judicial orders (which is no more than "creating a new document with text" when looked at on the same level of analysis at which a change to law or Constitution is "changing the text of a document".)
(1) No, I'm saying that there are petitions protected by the First Amendment right to petition that are not cases within the power of the courts to resolve, and
(2) More particularly to the issue in this thread, the concrete, particularized injury (where injury is a violation of a legally-protected interest) requirement is a threshold test for whether something is a case, and
(3) Finally, there are cases that the federal courts are not empowered to address; the reason that Article III has to spend so many words enumerating all the kinds of cases and controversies that are within the judicial power is that all the other kinds of cases (and controversies) are not within that power.
Such as? If I'm reading the text correctly, the judicial power extends to every case and controversy of any human being.
For one example: Cases in law or equity arising under state law, between citizens of the same U.S. state, none of whom are ambassadors, public ministers, or consuls, and who are not claiming land under grants from different states.
> If I'm reading the text correctly, the judicial power extends to every case and controversy of any human being.
You are not reading the text correctly.
>The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution [,etc]
Well, assuming the case between the citizens of the same state are Cases of Law and/or Equity (is there another type?). Some of these cases are explicitly protected by the US Constitution itself (c.f. Amendment VII).
Can you point me to a Particular Case that the judicial Power does not extend to?
Are you seriously arguing that States can act without judicial oversight?
1. "United States" is, of course, a proper noun. That "States" in pluralized within it tells us nothing.
2. It is, in fact, very well established that the federal judicial power does not extend to suits between citizens of the same state that arise under federal law and, likewise, that "laws of the United States" refers to federal, and not state laws. This rule is as old as the United States itself: see Martin v. Hunter's Lessee,. http://caselaw.findlaw.com/us-supreme-court/14/304.html. In fact, Alexander Hamilton discussed this in Federalist 80. http://avalon.law.yale.edu/18th_century/fed80.asp Here is a fairly accurate overview: http://litigation.findlaw.com/legal-system/federal-vs-state-...
3. I had assumed it was clear that Article III only relates to the powers of the federal judiciary. State courts are totally unaffected by it. (This is, a result of the fact that Article III, by its terms, only vests powers in courts "of the United States" which, again, means "federal courts.") This means that, although federal courts cannot hear cases between citizens of the same state arising under state law, state courts still can and do. In fact, with a few exceptions, state court can hear all the cases that federal courts can, and then some.
But you will not be able to find a single case in the last 200 years where a U.S. federal court constituted under Article III (without later getting reversed on appeal) has ruled on the merits of a dispute between citizens of only one state, where the dispute involved only a question of state law. Guaranteed. (Though I'm intentionally being precise in my language here. Things do get tricky when there are multiple plaintiffs and defendants, multiple state and federal claims, etc. all in the same case. This gets into some of those nasty details: http://www.pavlacklawfirm.com/blog/2013/01/25/federal-divers...)
You are confusing courts, jurisdiction, and judicial Power. While certain courts may be established with particular jurisdiction, the judicial Power extends over them.
Congress has actually already ruled on this (See 28 U.S. Code § 1257(a) https://www.law.cornell.edu/uscode/text/28/1257). You will be able to pull in any State law on (at least) Amendment IX and/or Amendment X grounds.
Again I ask, can you point to a Particular Case where the US Supreme Court is not empowered to rule (or will not be able to eventually, once all other levels have failed)?
You can also see that the first clause is talking about the collection of States in the use of 'their' at the end:
>The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority
In Article III, Section 2, Sentence 1, United States does not refer to a monolithic entity and Laws does not refer to a specific unit of law (U.S. Code). The sentence refers to the totality of all laws that exist within the United States (that is, all states which the Constitution subsumed).
Can someone show a valid parse of that sentence that means otherwise?
The singular form, IIRC, didn't become common until sometime in the mid- to late-19th century (maybe after the civil war.)
There is no reading where Laws of the United States refers exclusively to U.S. Code. As I said, to show that I'm wrong, one only needs to provide a valid parsing of the sentence where United States refers exclusively to a monolithic entity known as the federal government (note that "federal" does not appear anywhere in the document). If you look at the other usages of United States in the document, it becomes even more clear that it refers to the States as a collective and not to a separate entity.
The other thing someone could show that would prove me wrong, is a Particular Case that the US Supreme Court will never be able to hear. I haven't seen anyone even attempt to show such a case. Some hypotheticals and lots of pushing words around, but no actual Case.
At the Supreme Court, one place to see this is in the doctrine of adequate and independent state grounds, that applies when reviewing decisions of a state's highest court. Here is the Wikipedia page on that concept with several citations: https://en.wikipedia.org/wiki/Adequate_and_independent_state...
For other federal courts, one relevant concept is "federal question jurisdiction." (So called, because raising a "federal question," is synonymous with presenting a case that arises under the "laws of the United States.") Here is a classic case on that issue (though it is much more complex than necessary to prove the present point.) Tennessee v. Union and Planters' Bank, https://supreme.justia.com/cases/federal/us/152/454/case.htm...
Here is a relevant quote (though if you really want to learn how this all works, I recommend reading the entire case carefully):
> "We find it unnecessary to consider other objections to the maintenance of these three bills, or of any of them, because we are clearly of opinion that each suit is not one arising under the Constitution and laws of the United States, of which the circuit court of the United States has jurisdiction, either original, or by removal from a state court, under the Act of March 3, 1887, c. 373, as corrected by the Act of August 13, 1888, c. 866. 25 Stat. 434."
And here is a more quotidian example: Lake v. Malone, No. CA 3:11-824-CMC-PJG, 2011 WL 2162711, at 2 (D.S.C. May 6, 2011) report and recommendation adopted, No. CA 3:11-824-CMC-PJG, 2011 WL 2162159 (D.S.C. June 1, 2011)
> “This case is subject to summary dismissal because the allegations contained in Plaintiff's Complaint do not fall within the scope of either form of this court's limited jurisdiction, and there is no other possible basis for federal jurisdiction evident from the face of the pleading. There is no viable federal question alleged and there is no apparent diversity of citizenship between the plaintiff and the defendants.
> Generally, a case can be originally filed in a federal district court if there is “federal question” jurisdiction under 28 U.S.C. § 1331 or “diversity of citizenship” under 28 U.S.C. § 1332. Federal courts are courts of limited jurisdiction, “constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute.” In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir.1998). Since federal courts have limited subject matter jurisdiction, there is no presumption that the court has jurisdiction. Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir.1999) (citing Lehigh Mining & Mfg. Co. v. Kelly, 160 U.S. 337 (1895). Accordingly, a federal court is required, sua sponte, to determine if a valid basis for its jurisdiction exists, “and to dismiss the action if no such ground appears.” Bulldog Trucking, 147 F.3d at 352; see also Fed.R.Civ.P. 12(h)(3) (“Whenever it appears ... that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”). “[T]he facts providing the court jurisdiction must be affirmatively alleged in the complaint.” Davis v. Pak, 856 F.2d 648, 650 (4th Cir.1988) (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)). To this end, Federal Rule of Civil Procedure 8(a) (1)requires that the complaint provide “a short plain statement of the grounds upon which the court's jurisdiction depends[.]” If, however, the complaint does not contain “an affirmative pleadi...
As far as I can tell from reading his opinion, his argument is a purely syntactical one: the language of the original bills does not contain a reference that the court understands and is therefore not a Case. It appears the Supreme Court only heard the case because a circuit court took the case out of the Tennessee courts before they issued a final ruling, not because the Plaintiffs actually brought the case to them [SC].
The case does not appear to have been dismissed with prejudice. It was dismissed on a technicality of the language in the original suits (which, I believe, were never originally intended to be pursued outside of some Tennessee court). Without access to the language in those original suits though, I can't say much more.
But in any event, this case makes clear that the Supreme Court (or any other federal court) will not hear cases that arise under state law.
>In each of the three cases now before this Court, the only right claimed by the plaintiffs is under the law of Tennessee, and they assert no right whatever under the Constitution and laws of the United States. In the first and second bills, the only reference to the Constitution or laws of the United States is the suggestion that the defendants will contend that the law of the state under which the plaintiffs claim is void, because in contravention of the Constitution of the United States, and by the settled law of this Court, as appears from the decisions above cited, a suggestion of one party that the other will or may set up a claim under the Constitution or laws of the United States does not make the suit one arising under that Constitution or those laws. In the third bill, no mention is made of the Constitution or laws of the United States or of any right claimed under either, and no statement in the petition for removal or in the demurrer of the defendant corporation can supply that want under the existing act of Congress.
> The result is that in the first and second cases, the decrees must be reversed at the cost of the plaintiffs, and the cases remanded to the circuit court of the United States with directions to dismiss the bills for want of jurisdiction, and that in the third case, the decree must be reversed at the cost of the defendants, and the case remanded to the circuit court of the United States with directions to remand it to the state court from which it was removed.
What this is saying is that on all three claims, the asserted cause of action arises under Tennessee law, so they cannot hear it. The fact that the defendants may make constitutional arguments in response to the first two claims is not enough to trigger federal jurisdiction.
The entire case revolves around whether the Supreme Court is able to hear the case in spite of the fact that the claims asserted y the plaintiff are state-law claims only. A notable case that came out the other way is Osborn v. Bank of the United States, https://supreme.justia.com/cases/federal/us/22/738/case.html, where the court concluded that it could hear a case involving only state-law claims, but only because the defendant was a bank of the United States (note, by the way, that this means a federal bank, as opposed to, e.g., a Tennessee state bank) and thus, pursuant to one of the exceptions I mentioned several messages ago, the Supreme Court could hear it because it involved distinctly federal interests. But here too, the whole question was whether a federal court was empowered to hear this case since it involved only state-law claims. The premise being, of course, that ordinarily a federal court cannot hear such claims.
Consider this sentence from Osborn:
> We think, then that when a question to which the judicial power of the Union is extended by the Constitution forms an ingredient of the original cause, it is in the power of Congress to give the circuit courts jurisdiction of that cause, although other questions of fact or of law may be involved in it.
This would be a very silly thing to write if the Constitution extended "the judicial power of the Union" to all cases.
I have directed you to many other sources that say the same thing. I can also tell you (though perhaps you won't believe me, or will not care) that this--the fact that federal courts have limited powers...
Isn't the Petition Clause what makes lobbying a Constitutional right, and not something that Congress could ban or otherwise unduly burden?
First, the word 'lawsuit' does not occur in Article III (nor anywhere else in the US Constitution). You making a distinction between the word lawsuit and petition here is nonsense.
Second, Article III, Section 2, Sentence 1:
>The judicial power shall extend to all cases, in Law and Equity, arising under this Constitution
A petition for redress of grievance is exactly a case in Equity and is specifically allowed under Amendment I.
But you are way too late to the party when it comes to deciding the legal meaning of these words. The prevailing judicial understanding, for more than 100 years, of the "Case and Controversy" clause has been that Article III courts can only hear lawsuits involving more-or-less concrete injuries.
And as tptacek has pointed out, this is probably for the best. Imagine the chaos if the courts were constitutionally required to hear every grievance brought by a member of the public, even if it did not affect his or her interests in any concrete way. Then also imagine the quality of the legal reasoning that would result from such a farcical system, where there was no guarantee that a plaintiff actually had any interest in its outcome.
You may wish that courts had the power to hear petitions for the redress of grievances when it is your grievance you wish to see redressed. But you should also consider the wider universe of grievances and whether you would really want to see them all ventilated in a court of law.
Edit: There are very many cases that state this clearly but here is is a somewhat random selection:
"The party who invokes the [judicial] power must be able to show, not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally." - COM. OF MASSACHUSETTS v. MELLON, http://caselaw.findlaw.com/us-supreme-court/262/447.html#488
"Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements: first, the plaintiff must have suffered an "injury in fact" -- an invasion of a legally-protected interest which is (a) concrete and particularized and (b) "actual or imminent, not ‘conjectural' or ‘hypothetical.'" Second, there must be a causal connection between the injury and the conduct complained of -- the injury has to be fairly trace[able] to the challenged action of the defendant, and not the result of the independent action of some third party not before the court." LUJAN v. DEVENDERS OF WILDLIFE, https://www.law.cornell.edu/supremecourt/text/504/555 (very many citations omitted)
"Although the law of standing has been greatly changed in the last 10 years, we have steadfastly adhered to the requirement that, at least in the absence of a statute expressly conferring standing, federal plaintiffs must allege some threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdiction." LINDA R. S. v. RICHARD D., http://caselaw.findlaw.com/us-supreme-court/410/614.html#t4
Its important to understand the reasoning here: to wit, that if there isn't a concrete, particularized, redressable injury -- where "injury" is understood to be a violation of a legally-protected interest -- then there is no "Case" to resolve.
The contentious part of this is primarily the "particularized" part, since that requirement means that violations of the Constitutional limits of government power do not give rise to a cause of action based solely on the general citizens interest in constraining the government to its bounds, as even though this may be a concrete violation of a legally-protected interest, it is not particularized.
This certainly serves some economy-of-justice purposes, but it also makes it particularly hard to address systemic violations of the Constitution where an integral part of the charged abuse of power is the governments active concealment of the details of its actions and their particularized impacts.
No, it is not. Petition for redress of grievances are much broader than (but include) cases in law and equity as those terms were well understood at the time of the writing of the Constitution. For a fairly obvious case, a request to consider a Constitutional amendment because of the purportedly undesirable effects of the operation the Constitution in the absence of such an Amendment is clearly a petition for redress of grievances -- and clearly not a case in law or equity within the scope of the Article III judicial power.
Your right to petition government for your grievances arising from such an undesirable (to you) state of the Constitution is protected by the First Amendment right of petition, but that protection does not empower the Judiciary to act favorably on such a petition. Congress, however, could act on it by submitting a proposed Amendment for ratification by the States aimed at resolving the issue.
The First Amendment right of petition does not bring all petitions it protects within the power of the judiciary to grant.
Yes, it does. And you are free to petition the government, either in general or any of its particular branches, for redress of grievances.
However, the 1st Amendment right to petition for redress of grievances does not grant the federal government, either in general or any of its particular branches, any additional powers not already provided to it elsewhere in the Constitution to provide redress of those grievances.
Which is, I would think, a good thing: while you might prefer something more of the judiciary in this case, you probably don't want a blank check where just because someone is entitled under the First Amendment to complain to the government, suddenly the government is granted unlimited power to deal with that complaint.
1. Documents are leaked that specifically identify one or people whose records were illegally collected. Those people probably could sue, I would think.
2. Documents are leaked (or evidence otherwise emerges) that the NSA collected data on virtually all of a particular company's calls. Subscribers to that service would probably have a good case for standing.
Bear in mind, though, that we're only at the preliminary injunction stage. The review at this stage will typically take a pessimistic view of plaintiffs' ability to prevail on issues like this if there is substantial uncertainty.
It's possible they could lose on the injunction, but ultimately win on the merits.
State secrets probably -- that privilege is extremely easily abused. Obtained illegally, less so, since illegally obtained evidence isn't generally excluded except when offered by the government in a criminal case; in other cases, the remedy for illegally obtained evidence is just to prosecute for the act of illegally obtaining it.
If I remember correctly, that actually did happen - in fact, the Governemnt accidentally leaked them itself - and the courts ruled that because the person wouldn't have known about it if they hadn't accidentally been sent those documents, they still didn't have standing to sue. It's basically impossible to take any kind of legal action against these secret mass surveillance programs in the US.
This already happened in 2007 I believe. AT&T and Verizon phone services were implicated, implying mass violations of the Telecomminications Act of 1998. Congress turned around and have the telecoms retroactive immunity.
Because "ignorance of the law is no excuse" only applies to you and me. Companies with millions of dollars worth of lawyers on retainer couldn't possibly have known that it was illegal.
Why would they have to disobey the judge if they can make the court say what they need?
Then make sure the legal opinion isn't actually binding in the way the general public thinks it is, that the law has plenty of non-obvious loopholes, and continue on as if nothing has happened.
In their mind, they don't have a legality problem; they have a security leak problem. I honestly believe they'll keep it all legal -- but good luck in figuring out exactly what "legal" means.
We don't expect them to stop spying, even if they're "legally" required to stop, and spying on us is made "illegal". We have zero faith in their word, and that was theirs to lose!
1. You can totally win, provided that you show up with thousands of your friends and a desire to wreck shit. See the corpse of STASI, which the Western surveillance apparatus has surpassed in every dimension: https://en.wikipedia.org/wiki/Stasi#Storming_the_Stasi_headq... (especially read the part about the headquarters being stormed and unconfirmed reports of lynchings-- sounds a lot like they lost on a permanent basis) The KGB office in Berlin met a similar fate (it was supposed to be clandestine, but oops-- intelligence agency installations are seldom hard to find because they rely on being hidden in plain sight), however most of the files contained within were destroyed thanks to the quick thinking of an officer there-- Vladimir Putin.
Another example of total victory is the ugly rout of South African intelligence agencies at the very end of apartheid-- quick, gory, and intentionally forgotten during the "truth and reconciliation" period. These agencies had a premium on brutality, and they aren't nearly as well known as the CIA or Mossad. Interestingly, there were actually several intelligence agencies of SA at the time-- the military intelligence organization was hit the hardest, but responded by digging in and doubling down on brutality. The other (which has had its name changed a number of times but was at the time known as the National Intelligence Service) was horrified by the military intel agency being hunted and killed, and changed focus to clandestinely work on a truce.
2. You can partially win by forcing them away from your area, provided that you have access to the political apparatus. There was an article trending on HN today about how Bolivia had forced out the DEA. Sure, maybe you can argue the DEA isn't the CIA or Mossad, but the point is clear: these organizations can't operate with impunity if the (quasi stable) political apparatus decides to resist them. An alternative set of examples here are Iraq/Afghanistan/Pakistan/Kurdistan/Syria-- both the CIA and Mossad (and likely Shin Bet) chalked big losses here (with heavy loss of life of their own personnel as well as countless indigenous assets) because the population was hostile to them. Collecting HUMINT requires willing humans, and torturing people doesn't cause that. It's also extremely hard to blackmail or bribe a tribesman.
3. You can buy them out or co-opt them, if you have the right connections. It's no secret that Putin rose to power via the KGB's influence, but during the transformative 90s, Russia's economic power was privatized and separated from the government's apparatus creating a plurality of power loci. Following this, there began a curious phenomena (replicated by corollaries in the US around the same time) of the Russian intelligence agencies being caught willy nilly for industrial espionage. In the midst of economic strife and violent internal insurgency in the Muslim territories around the same time period, the intelligence agencies of Russia were largely busy chasing dollars rather than mujaheddin. Why? Because the newly minted oligarchs were more concerned with making more cash. This is currently happening in the US. The takeaway point here is that a change in focus can count as a win.
4. You can change their political mandate with reforms. The US has done this once already with the CIA, and will likely do this many more times. There are too many examples of this to list.
http://www.scotusblog.com/case-files/cases/clapper-v-amnesty...