Well, this is somewhat interesting: A federal appeals court has ruled that the NSA’s phone data collection program is illegal. The ACLU, which was the plaintiff in the case, celebrates on Twitter:
VICTORY! #NSA call tracking program revealed by #Snowden ruled illegal. We filed suit in 2013 https://t.co/CzRyRbJMpZ pic.twitter.com/Etptl4gb2A
— ACLU National (@ACLU) May 7, 2015
Your move, Congress.
Jerzy Russian
Will this go on up to the Supreme Court?
Punchy
So why can’t the government completely re-classify the whole thing as top secret, continue to monitor calls as before, then claim all lawsuits void under their “state secrets” get-out-of-court-free card? Isn’t this what Bush did successfully for years with regards to monitoring email and other internet communications?
kindness
Great news unless this moves to the Supreme Court because you know what those dickheads will do.
Amir Khalid
Burnsie says he’ll read the whole thing and then report back.
@Jerzy Russian:
These rulings get appealed as a matter of course, don’t they?
srv
Yawn.
– Barack Hussein Obama & his perjurer Clapper
Brachiator
Western nations have already decided to expand the security state. Canada:
And in France:
Rolling it back in the US? Good luck with that.
balconesfault
Since the Tea Party is based on distrust of government, then all those Tea Party elected Congressmen will take action to reduce the power of government to intrude on our privacy, right?
Ha. I crack myself up sometimes …
Mandalay
@kindness:
The judges preempted that possibility to some extent:
As Betty said, your move Congress. If the government wants to capture metadata then make it legal, and force everyone in Congress to take a very public position on the issue.
Big ole hound
Maybe Snowden will get a pass now
different-church-lady
burnspbesq
@Big ole hound:
Snowden’s putative public service can be taken into account at sentencing. Criminal and hero are not mutually exclusive.
Omnes Omnibus
@Mandalay:
How does that remotely preempt an appeal to the Supreme Court?
burnspbesq
I’m heading into a meeting and won’t be able to finish reading the opinion until this afternoon, put the parts I have read so far (standing and the Administrative Procedure Act) have real problems. I don’t expect this decision to survive rehearing en banc, much less Supreme Court review.
burnspbesq
@Brachiator:
The whole world loves the wholesale slaughter of civil liberties. They just don’t like it when we slaughter their civil liberties without asking permission.
WereBear
Ya know, if Muslim Extremists didn’t exist, Republicans would have to invent them.
Carolinus
@Mandalay:
They’re clearly going to. The latest House GOP version of the USA Freedom Act (a version of the same bill the Dems and the President supported in the lame duck session w/ somewhat weaker & less robust reforms) will become law. It explicitly addresses patriot act section 215 collection. I imagine this ruling just eased its passage, since Congress will want to preempt the courts.
Mandalay
@Carolinus:
Exactly so.
Carolinus
BTW, contra that ACLU tweet, Snowden didn’t reveal the phone records metadata program. USA Today did:
http://usatoday30.usatoday.com/news/washington/2006-05-10-nsa_x.htm
Brachiator
@burnspbesq:
Fair point. However, even though I think it wrongheaded and paranoid, I think there is a consensus among Western intelligence services that expanded spying is essential. And these agencies co-operate with each other and share info. I don’t think that permission or even faux outrage at the US is a real concern.
kindness
@Mandalay: Meh. Just because a Federal Appeals Court rules something illegal does not mean the Supreme Court has to obey that ruling or logic. In fact as Chief Justice Roberts has repeatedly shown us they are the Honey Badgers of the Legal world. They don’t give a shit. President means squat to this new Dredd Scott crew.
Omnes Omnibus
@kindness: A lower court opinion does not does not constitute precedent at the Supreme Court. That being said, there is no reason that Congressional action will preempt either request for rehearing en banc and/or and appeal to the Supreme Court.
different-church-lady
@burnspbesq: Yeah, but VICTORY! in large red letters. So.
jonas
I think Atrios’s take on this is just about right.
joel hanes
Not just “a federal appeals court”, but the Second Circuit, which I believe usually leans conservative.
If this came from the Ninth, I’d bet on reversal at SCOTUS.
Mandalay
@kindness:
Maybe so, but the larger point is that the decision has put pressure on Congress to explicitly authorize the collection of phone metadata (or not).
ruemara
This story reminds me of the attempted discussion I had with a workmate on the new PayPal IP clause. It just sounds like bad law meeting bad interpretation of the law.
AxelFoley
@srv:
Why is this asshole allowed to troll here?
AxelFoley
@burnspbesq:
Can’t wait to see him in an orange jumpsuit.
different-church-lady
@AxelFoley:
Personally I’d let him off the hook if, in return, his champions would shut the fuck up.
Cacti
@Jerzy Russian:
Almost certainly.
Unless at least 6 of 9 SCOTUS members are content to let the Second Circuit have the last word on this issue.
Randy P
@srv: Can you clarify a legal question? When this program was revealed in 2006, was it illegal then? Or does your comment indicate that it’s only illegal if the President’s name starts with O?
Omnes Omnibus
@burnspbesq:
I have to disagree with you on this. Perhaps my sympathy with the end result is clouding my reading but I think the court is on reasonably firm ground here.
liberal
@burnspbesq:
Why should we take seriously anything from someone who is so ill-informed he thinks TPP needs 2/3 of the Senate to pass?
Bobby Thomson
@jonas: the ACLU has its ruling. Now let it enforce it.
burnspbesq
@AxelFoley:
I’m surprised he doesn’t don an orange jumpsuit every time he appears in a video, just to fuck with us.
Cacti
@Omnes Omnibus:
I imagine I’ll get around to reading some of the scholarly commentary on the court’s conclusion at some point, but all of us with a legal background know that unless Congress passes new law that moots the issue, SCOTUS is going to have their say.
I don’t pretend to know how the big 9 will split on this one.
burnspbesq
@liberal:
WADR, what is an agreement among 12 countries, if it’s not a treaty?
Omnes Omnibus
@Cacti: Even if Congress passes a law okaying the explicit collection of metadata, the Court will still have its say. This opinion doesn’t address the Constitutional issues; those will eventually be heard.
Bobby Thomson
@Carolinus: the court also got that wrong. Pages 13-14.
Omnes Omnibus
@Bobby Thomson: Nice catch.
burnspbesq
@Omnes Omnibus:
Much of the history of the Roberts Court’s standing jurisprudence consists of the Second Circuit reaching and the Supreme Court slapping its hand. Doesn’t mean the Supremes are right or the Second Circuit is wrong as a matter of what you or I might say is objectively the right answer, but it is what it is.
The APA issue is one that we tax lawyers are dealing with in real time right now. In the wake of the Supreme Court in Mayo saying that Chevron is the right way to think about the validity of tax regulations, and the emasculation of the Anti-Injunction Act in NFIB v. Sebilius, the historical understanding that you couldn’t do pre-enforcement challenges to the validity of tax regulations (which would be a convenient escape hatch if the Supremes decide they want to duck the issue in King v. Burwell) is up for grabs. But there is about 50 years of case law that stands for the proposition that if Congress gave you an effective post-hoc way to challenge the validity of regulations, you don’t get to make a pre-enforcement challenge. In the case of metadata collection, the argument would run, if you are indicted for something as a result of information obtained through the unlawful collection of metadata, a motion to suppress is your remedy, and if you’re never indicted, you’re not damaged, so go away anyway. I’m not in love with the argument, but I think it will appeal to a majority of the Supreme Court.
liberal
@burnspbesq:
Read it and weep, Mr. Ignorant.
burnspbesq
There is one aspect of the ruling that I find puzzling.
The Second Circuit spends god-knows-how-many pages explaining why the Government’s interpretation of Section 215 is wrong, and at the end they sustain the District Court’s denial of a preliminary injunction. Now, unless something has changed recently, one of the things you have to show to get a preliminary injunction is probable success on the merits, and didn’t the court just spend god-knows-how-many pages explaining why plaintiffs are likely to succeed?
Bobby Thomson
@Omnes Omnibus: you don’t think it’s an issue that the standing analysis relies on a privacy interest that the court never addresses except in dicta? The merits analysis is all about what “relevance” means, with the government arguing that all phone metadata are relevant. That’s a bridge too far for anyone but Alito, but I could see them reversing on standing.
burnspbesq
@liberal:
Proves nothing. That a thing can be done does not mean that it is being done. Show me a bill, and then shove it up your ass.
Bobby Thomson
@burnspbesq: it’s very weird. Their rationale is that the patriot act will expire in June so why rock the boat, but here’s some stuff for Congress to consider. It’s basically a naked advisory opinion.
Omnes Omnibus
@Bobby Thomson: I guess, for me, the standing issue comes down to this: if not this plaintiff, then who? But again, I may well be giving the opinion an overly friendly reading.
liberal
@burnspbesq:
LOL. Spoken like the true blithering idiot that you are.
None of these trade agreements are passed with the 2/3 Senate requirement, which you’d know if you looked at the linked CRS publication.
As for a bill, right now they’re debating fast track, as far as I can tell, so I would assume that that means there’s no bill introduced for the “treaty” yet. But what difference does it make? You’re clearly wrong.
Why anyone takes a blowhard like you seriously on anything is beyond me.
liberal
@burnspbesq:
Moreover, why would Congress be debating fast track authority if ultimately it was considered via the 2/3 Senate requirement, given that fast track is a procedure for the context where the “treaty” is passed by a majority of both houses?
J R in WV
@WereBear:
Some people would say that is exactly what it happening.
Omnes Omnibus
@Bobby Thomson: @Omnes Omnibus: If the argument being made is that the collection of metadata by the government is improper, I would submit that anyone whose metadata was collected by the government would necessarily have standing.*
*Simplified to a thumbnail sketch, of course.
J.D. Rhoades
@kindness:
They already have. Smith vs. Maryland legalized the warrant-less collection of what’s now called “metadata” in 1979.
Omnes Omnibus
@J.D. Rhoades: As noted in this opinion, there have been technological changes since 1979. I think Smith v. Maryland is distinguishable – if not ripe to be overturned (n.b. if we had a better Supreme Court. …and a pony).
Mandalay
Here’s an analysis of the opinion. No doubt the Rumpoles here will put him straight.
Tree With Water
Victory? Says who, one lousy judge? Those people break laws with impunity, and when they’re busted pass bipartisan legislation absolving themselves of their crimes.
According to Digby, one CIA honcho is now publicly contending that Snowden bears a fair share of responsibility for the rise of Isil. They no longer even try to hide their contempt for democracy or the Republic.
Cacti
@Bobby Thomson:
Having had a chance to peruse it now, and Orin Kerr’s post-ruling analysis, I’d say that’s a fairly accurate thumbnail sketch.
Ruling limited to statutory interpretation, found it illegal as interpreted by the FISC court, over whom they have no jurisdiction. Declined to enjoin the law even after their ruling on the merits, because sunset provision.
And this case was heard back in early September. So they’ve been sitting on this ruling for about 8-months now. Methinks they were waiting for the sunset date to give them an escape hatch.
Omnes Omnibus
@Cacti: Yeah, having now read through it a second time at a more leisurely pace, it is pretty much a symbolic decision that really doesn’t do much of anything.
ETA: OTOH, it does go down as a win in the ACLU’s books, so that’s nice.
Fair Economist
Charles Pierce’s delightfully titled piece on the subject:
In which we discover that the NSA has lost its appeal
LT
The NSA dweebs in threads like this are a weird and sad entertainment.
LT
@Tree With Water: God that’s lazy.
No, three. Two of them Obama-appointed. The other: Clinton.