SCOTUS Says Domestic Spying Is Too Secret to Be Challenged in Court | Hacker News Reader

SCOTUS Says Domestic Spying Is Too Secret to Be Challenged in Court

reason.com

97 pointsclcaev44 comments

In saner times this would be grounds to impeach the entire court. It is not their role to determine what is "too secret" but whether laws are constitutional or as the final appeal for the federal courts, including a case about whether the government is operating within the law or not.

The US Justice system has been responding like this since at least the beginning of the War on Terror unfortunately. There are many lawsuits against the US government/CIA for their torture antics (leading to Congress writing their own report it!) that were dismissed as a matter of national security instead of dealing with the issue.

All of which exposes a constitutional weakness in the system: there's no way for the States to check the power of the federal government (short of what happened in the 1860s).

I wonder what would you propose to have such a check possible; how it can be done?

I guess it would be making the United States more like the EU, where the states would either have vetoes or use Qualified Majority Voting.

Wouldn't make any difference since the spying is part of a large defence establishment which is extremely popular.

Convention of States, perhaps.

https://cosaction-prod.s3.amazonaws.com/public/pocket_guide_...

> there's no way for the States to check the power of the federal government

Literally a states’ convention clause built into Article V [1]. That lets states directly amend the Constitution. No Congress or Court required. (After that, we get into the grey area between law and power.)

[1] https://en.wikipedia.org/wiki/Article_Five_of_the_United_Sta...

This isn't the issue. The reality is that actions taken covertly in the name of national security have wide bipartisan support. The states have the ability to change the Constitution (or send Congresspeople willing to change the laws), but pretty much everyone is perfectly fine with the way it is.

You can't really consent to something if you don't even know what you're consenting to. This even goes for congresspeople, most of who are as in the dark (wilfully or not) as we are.

Then let's not pretend it's some kind of federal vs unitary issue.

Lots of ways to get started!

States can withhold sending of collected fuel tax to feds.

States can remove exception that appears to be in State laws which allows IRS to file property lien without a court ruling.

States can mint their own gold or silver backed money.

States attorney general can start enforcing anti-monopoly laws against the medical cartels.

Unfortunately for civil rights and privacy, Americans no longer care.

You know it's more than just the Supreme Court right? There were DOJ attorneys for the government arguing against Wikimedia at every appeal but no one ever questions them. Every privacy victory in the courts has been the result of some defendant convicted on the basis of legally questionable evidence or a group like the IJ or ACLU spending years arguing against government lawyers with almost unlimited resources.

> SCOTUS Says Domestic Spying Is Too Secret To Be Challenged in Court

SCOTUS said no such thing. Here’s the exact quote ([1] p. 2)

    CERTIORARI DENIED
  22-190 WIKIMEDIA FOUND. V. NSA/CSS, ET AL.

Nothing else. “Certiorari” is a fancy word for appeal. “Denied” means fewer than four Justices were in favor of a hearing. When this happens (about 99% of the time) Justices don’t need to give a rationale, or report who voted which way. That single line is all we’ll ever know about their decision. Everything else is just speculation.

[1] https://www.supremecourt.gov/orders/courtorders/022123zor_g2...

This is a terrible article. SCOTUS declined to hear a case. It didn’t say domestic spying is too anything.

There is a circuit court ruling which, by default, holds—would anyone have a link to it?

I don't know why you're being downvoted, you're entirely correct.

The headline is totally unsupported by the text of the article.

SCOTUS said nothing at all. It declined to hear a case and gave no reasons, as it often does (it only hears 100-150 out of 7,000+ requested cases each year). If you look at the linked PDF, it's listed as just one of many (hundred plus) cases declined with zero reason given.

See pg. 3, line 2 of: https://www.supremecourt.gov/orders/courtorders/022123zor_g2...

Wikipedia covers the whole history of the case at: https://en.wikipedia.org/wiki/Wikimedia_Foundation_v._NSA

What I think you're looking for -- the final Sep 15, 2021 dismissal of the appeal, which is what the Supreme Court declined to reconsider: https://law.justia.com/cases/federal/appellate-courts/ca4/20...

I don't know why you're being downvoted

Well, the Supreme Court aren't the only ones who don't have to reveal or explain their votes.

Touché, well done.

USSC choosing what to hear was enabled by Congress via Judiciary Act of 1925. It can be repealed by Congress but it won't because people won't vote them out. The voters have been captured.

Who do you think should decide what the Supreme Court should hear instead?

Because the whole separation-of-powers principle strongly suggests it shouldn't be either of the other two branches, since they could abuse that to prevent the court from checking their own abuses of power.

> Who do you think should decide what the Supreme Court should hear instead?

Maybe just the people or institutions who want to appeal.

But there's WAY more cases that want appeals to be heard than the Supreme Court can hear. Like 7,000-8,000 petitions a year, but only room for 100-150.

Somebody has to decide and it obviously can't be the people petitioning because they all just want their own case heard.

However, an independent court deciding what to review is the best check and balance against the other two branches.

The idea that supreme court has to be small is not given by god.

Nobody said it was "given by god".

Courts at every level turn down appeals. Otherwise every case would be appealed higher and higher and it would be unworkable.

Circuit courts work just fine for most cases, they're already courts of appeal.

There's no reason why the Supreme Court should be another "regular" appeal court one level higher -- that would just be redundant.

Rather, the Supreme Court is reserved for major constitutional questions, the ones over which circuit courts may be particularly divided or lacking in precedent.

So I think you might be confusing the role of the Supreme Court with the role of the circuit courts.

The SCOTUS didn’t say that. The 4th Circuit did. The SCOTUS declined to take the appeal, which is not an endorsement and does not establish precedent.

Precedent means little now, since overturning Roe vs. Wade. Declining has the same effect, so the difference is in form, not in substance.

Roe was overturned by Casey. There hadn’t been meaningful precedent on abortion for 30 years.

Roe is even older, but the point is that even long precedent may not stand.

There should be a new game where we see how quickly someone will bring up Roe whenever SCOTUS is mentioned even if it’s completely irrelevant.

My new fun game aside, you might be confusing 2 different concepts: some form of legal/judicial precedent and stare decisis. Since SCOTUS didn’t take the case and rule on it, they did not establish some sort of precedent, so presumably, the plaintiffs are free to petition the court again over this same matter and with different arguments or a different set of justices they may have their day in court and may or may not prevail. The second concept - stare decisis - seems to be more what you’re getting at where you don’t think the court should be able to revisit issues it’s already decided on and if that’s the case you would end up having to champion some really shitty decisions like Plessy.

> There should be a new game where we see how quickly someone will bring up Roe whenever SCOTUS is mentioned even if it’s completely irrelevant.

It would be a rather sad game. SCOTUS is supposed to be an institution with some features, and for long time many assumed those features were such that this reversal would be nearly impossible, not the way it was done.

The reason Roe comes to mind is because Roe reversal puts the whole idea of SCOTUS in doubt, in a way that's worrisome for the court's purpose. And if the whole idea is in doubt - why we should worry what SCOTUS does in other areas? The idea is broken, and it's now not a meaningful mechanism - unless another idea will underlie it - but a kind of uncontrollable force.

> Since SCOTUS didn’t take the case and rule on it, they did not establish some sort of precedent

That could be true if it would be a freshly taken case, not the case from the lower court. In the latter case the precedent is whichever decision SCOTUS implicitly agreed with.

Jurisprudence should be - and the real one is - simple, otherwise people cannot take it into account to make decisions.

> so presumably, the plaintiffs are free to petition the court again over this same matter and with different arguments

"different arguments" can well make it a different case.

> or a different set of justices they may have their day in court and may or may not prevail

That's court shopping - it should be a different jurisdiction for it to be rational.

> where you don’t think the court should be able to revisit issues it’s already decided on

The problem is not that court can't re-decide - Congress famously admitted an error with Prohibition amendment - but that after some period of time re-decision is not enough. There should be reasons other than change of opinion.

If something is too secret to be in court then isn’t it defective illegal? If you can’t challenge something the government is doing in court how can it ever be legal?

It's Schrodinger's legality. We just refuse to open the box and settle it.

This does seem like a terminal vulnerability in the U.S. system. Just make all your unconstitutional activities secret, which makes the only check on them the voting booth, presuming you haven't done anything secret and unconstitutional to reduce the power of voting from almost nothing to nothing.

Seems rather similar to parallel construction. Use any method, illegal or not, to crack the case, and then lie in court and say that you figured it out some legal way. Just the government lying to itself for a "good cause".

Refer to the 4th painting in Thomas Cole’s The Course of Empire. It’s been real.

I’ve never seen this series of paintings. Love it. Thanks for sharing.

https://en.m.wikipedia.org/wiki/The_Course_of_Empire_(painti...

Well, now we know this Supreme Court isn't really "originalist". The concept of a national security exception exists nowhere in the Constitution. Nor does "executive privilege". These concepts were invented in the early days of World War II.[1] They do not go back to the Founding Fathers. Mostly, they go back to an arrangement between J. Edgar Hoover at the FBI and the Attorney General in 1954.

[1] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2226404

Big brother just got bigger … It is very disappointing that the court behaves like this … where is “we the people”?

> The "Upstream" surveillance program at issue collects "communications 'to, from, or about'" a foreign target designated under Section 702 of the Foreign Intelligence Surveillance Act, according the NSA.

The courts are very reticent to interfere in how the US deals with foreign affairs in general deferring heavily to the executive and legislative branches.

Call it what it is. Willful dereliction of duty.

Unconstitutional delegation of authority.

Some may point to this as evidence of the deep state, but there could be some innocuous explanation that’s not being reported.

It's just the regular state.

I know that but some might argue if the regular state is beyond the reach of our legal system and ordinary checks and balances than makes it “deep” in that it is secret rather than public.

Enjoy your date in court! oh, nevermind.

Too much illegal stuff has been done so they simply can’t admit anything.

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