00:00 [Archival]: We'll hear argument first this morning in case 11-1025 Clapper versus Amnesty International.

[music]

00:08 Leon Neyfakh: Hey everyone, this is Leon Neyfakh, host of Fiasco and co-creator of Slow Burn. On today's episode of 5-4, Peter, Rhiannon, and Michael are talking about the 2013 ruling in Clapper v. Amnesty International. At issue is the federal government's ability to surveil communications between foreign suspects and their associates without showing probable cause. Supreme Court set up a Catch-22 by ruling that people who think they've been illegally surveilled, can't sue over it unless they can first prove that surveillance has taken place.

00:40 [Archival]: Don Verrilli, the Justice Department lawyer said it was a cascade of speculation when our clients said, "We think our data has been collected by the government."

00:50 Leon Neyfakh: This is 5-4, a podcast about how much the Supreme Court sucks.

01:00 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have latched on to American society like viruses onto a host cell. I am Peter, Twitter's The_Law_Boy, I'm here with Rhiannon.

01:17 Rhiannon: Hi. Oh, I got introduced first.

01:19 Peter: And Michael.

01:21 Michael: Hey everybody.

[chuckle]

01:23 Peter: Yeah, I figured since me and Michael aren't sitting in the studio, you know what? I'll start mixing up the order in which I introduce you.

01:30 Rhiannon: Yeah.

01:30 Peter: And I'm sure someone will run statistics on it, and it'll turn out I introduced Michael like 20% more often [chuckle] than Rhiannon and we'll get...

01:39 Rhiannon: And then we'll finally be canceled.

01:42 Peter: [chuckle] Finally.

01:45 Michael: At long last. [chuckle]

01:47 Peter: So today we are talking about Clapper v. Amnesty International, a 2013 case about the NSA's mass surveillance of American citizens. And much has been written and said about how new technology and post-9/11 politics combined to create an environment where aggressive government surveillance programs could thrive. And what we wanna touch on today is one of the many ways in which this country's courts have failed to fulfill their role as a check against these programs. Surveillance by intelligence agencies is a tricky issue for courts in large part because those agencies operate very secretively. And this should, I think, in a rational world, result in courts being more aggressive in their demands that these agencies operate with some transparency. And the Roberts Court has taken the opposite approach, right? Offering deference to those agencies and allowing them to hide behind their own secrecy to avoid legal liability. This case holds that you can't challenge the NSA's surveillance program unless you have proof that you're under surveillance, a standard that is basically impossible to meet.

03:04 Michael: Right.

03:05 Peter: And the law in question is the FISA Amendments Act of 2008, that is the Foreign Intelligence Surveillance Act. And that Act authorizes the US Foreign Intelligence Surveillance Court, a federal court dedicated to overseeing surveillance requests targeting foreign spies to authorize surveillance without a showing of probable cause. And so to be clear about the NSA's role versus, for example, the FBI. The NSA is the National Security Agency, and the NSA is a foreign-directed agency, meaning that they are targeting activities outside of the United States. And so these laws are allowing them to intercept the communications of foreigners, right? Or people outside the United States that might be acting against the United States. As a reminder, the Fourth Amendment protects against searches and seizures without probable cause.

04:05 Michael: Right. What this all means in plain language is this. The NSA is running surveillance on certain foreign citizens without probable cause, and that's legal, but those foreign citizens are the clients or contacts or sources of American organizations, journalists, and lawyers, including Amnesty International. So some of the communications the NSA is monitoring are between those foreign citizens and the American citizens, they have these sorts of professional relationships with. And the American citizens who are protected by the Fourth Amendment are saying, "Look, you're surveilling our communications with our clients without probable cause, and that's a violation of the Fourth Amendment."

04:56 Rhiannon: Yeah. I think the statutory background, like the reason why we have this law to begin with, is important because why we have this law is to establish some ground rules for when the government can spy on you in the first place, right? So this case, Clapper v. Amnesty International is about challenging some new provisions under FISA. Now, FISA was originally passed in 1978, and it established procedures for the surveillance and collection of foreign intelligence information between foreign powers and agents of foreign powers who were suspected of espionage or terrorism. So originally, back in the '70s, we get this law because after the Watergate scandal, it is revealed that the Nixon administration was using federal resources, including law enforcement agencies to spy on political and activist groups. So the law was created to provide judicial and congressional oversight of the government's covert surveillance activities of foreign entities and individuals in the US.

06:00 Rhiannon: But when the law was created, Congress worked with the Justice Department in kind of designing the law, and of course, the Justice Department insists that there's a necessary amount of secrecy that has to be maintained to protect national security. So the oversight mechanisms that are built into the law, those are still designed to be pretty secretive. One aspect of the kind of secret oversight mechanism is the creation of the FISA Court. So the FISA Court, it's also called FISC, Foreign Intelligence Surveillance Court, it oversees the requests for surveillance warrants by the federal law enforcement and intelligence agencies that warrant to conduct surveillance. And the role of the court is to review the government's request for surveillance warrants and ensure that the warrant is sort of sufficiently particularized, meaning there's a specific target of the warrant and to make sure the government has minimization procedures in place that are designed to limit the scope of surveillance, so basically, the wrong people don't get accidentally surveilled.

07:05 Peter: Right. And this is basically parallel to how it's done domestically as well, but the sort of surveillance of foreign individuals and foreign entities is so specialized that there essentially needs to be a separate court for it.

07:19 Michael: Right.

07:20 Rhiannon: Yeah, but it's important to note how the FISA court actually operates though. It's really secretive. The court is made up of 11 judges, they're appointed by the Chief Justice, and they serve seven-year terms. Now, proceedings before the FISA court, they're ex parte, meaning it's one party in front of the judge, and proceedings are also non-adversarial. So the court is just hearing evidence presented only by the DOJ, there isn't another side kind of arguing the other side of an issue. And there's no provision in FISA in the Act for release of information from these court hearings. There's also no provision for releasing the record of information that was actually collected. And the court importantly meets in secret, and all they really do is approve or deny the request for warrants. Just to give an idea about how this actually works in practice, between 1979 and 2006, we're talking 26, 27 years, a total of 22,290 applications for warrants were made to the FISA court, and only five of those were rejected.

08:33 Michael: Wow.

08:34 Peter: And that is a whole court dedicated to that.

08:36 Rhiannon: [laughter] Right, exactly.

08:37 Peter: Dedicated to rubber-stamping the fucking NSA's requests for surveillance. Yeah.

08:42 Michael: Are you so sure that that doesn't just speak to the rigor, thorough approach that our intelligence communities take to these applications?

08:53 Peter: Never thought of that, never thought of that. That's a good point.

08:54 Rhiannon: The NSA fills out those warrants just with incredible care and accuracy. [chuckle]

09:03 Michael: They come correct when they go to FISC.

09:03 Rhiannon: [laughter] That's right.

09:05 Peter: Your honor, here's genetic proof that this guy is an Arab, your honor.

[laughter]

09:13 Rhiannon: The NSA would be doing race science, like for sure. [chuckle]

09:17 Peter: 100%.

09:18 Michael: Absolutely.

09:19 Peter: 100%.

09:20 Rhiannon: So that's kind of just background how FISA and the FISC have worked since passage of the law in the late '70s. But what's at issue here is specifically like Peter said up top are amendments to FISA that were made in 2008. Now, after September 11th, the George W. Bush administration was revealed to have been conducting a massive secret warrantless wiretapping program in which private telecommunications companies like AT&T were shown to have likely been complicit, and so there was a push to expand the scope of FISA so that the government can basically keep on doing mass surveillance, but also bring it within the scope of the law, so it's like, "Don't worry, it's legal. We authorize this." And we don't know a lot about the specifics of that program, but basically, whistleblower evidence shows that perhaps millions of American's private communications were swept up in that surveillance.

10:19 Michael: Right. And the dysfunction of the "political branches" is not really the purview of our podcast, we only comment on that occasionally, but it is worth taking a moment to really savor how fucked up it is that up until the early 2000s, the FISC could basically authorize what were essentially warrants to surveil individuals communications abroad, right?

10:47 Rhiannon: Right, yes.

10:48 Michael: And then there was a big scandal about warrantless wiretapping scooping up American citizens communications and mass surveillance, and everybody agreed this was a problem, and the political response to that was to literally just empower the executive to continue doing it.

11:07 Peter: Right.

11:07 Rhiannon: Right.

11:08 Michael: And so now it would no longer be scandalous because it's no longer illegal.

11:12 Peter: Right.

11:13 Rhiannon: So the 2008 Amendments to FISA establish basically a new source of authority for the government in collecting intelligence. First, the 2008 Amendments don't require the government to demonstrate probable cause that the target of surveillance is a foreign power or an agent of a foreign power. And secondly, the new part of FISA doesn't require the government to specify the nature and location of each of the particular facilities or places at which surveillance will occur. So if you're paying attention, the effect of those changes is that the government could basically conduct surveillance on a massive programmatic basis rather than on sort of individualized or particularized targets, and Americans communications are gonna get swept up in there too. And the special secret FISA Court has been given even less power to supervise the minimization procedures that the government was supposed to use.

12:11 Peter: Think about how fucking shady the NSA must have been in the early 2000s that we have a law where there were over 22,000 requests for surveillance, five are rejected, and they are trying to evade that standard, they're trying to dodge that like 0.00, whatever was that...

12:29 Rhiannon: They're like we need more. Right. Yeah.

12:33 Michael: It's not enough.

12:35 Rhiannon: Yeah, it's fucking wild. So yeah, on the day these amendments are passed, which sort of broadens the authority and the scope of what the government is allowed to do, on the day those amendments are passed, the ACLU files this lawsuit, which becomes Clapper v. Amnesty International and the ACLU says basically like the 2008 Amendments to FISA are facially unconstitutional, and so there are several...

13:00 Peter: Under the Fourth Amendment, right?

13:00 Rhiannon: Under the Fourth Amendment, yes.

13:01 Peter: The idea is that surveillance, the capturing of the communications of American citizens, which is undoubtedly happening from time to time under this program is a violation of the Fourth Amendment. It's a search and it's done without probable cause.

13:17 Rhiannon: Yes, and so there are several plaintiffs here, they're all either lawyers or human rights advocates. There's a couple of labor organizations and also journalists, and they all say that they represent or they work with people who are the targets of US government surveillance and this new kind of really broad authorization to surveil their communications makes them, the plaintiffs, unable to do their jobs, like for example, obviously the case is named for one of the plaintiffs, Amnesty International, a massive human rights organization. Another one of the plaintiffs is Chris Hedges, he's a foreign correspondent for the New York Times, Naomi Klein, who's a columnist and author, and Sylvia Royce, for example, who was at the time representing detainees at Guantanamo.

14:05 Peter: Right. All heavy hitters, by the way. Chris Hedges, Naomi Klein. Cool as hell.

14:10 Rhiannon: Yes.

14:11 Peter: It's important to keep in mind here that on one side of this case is Amnesty International, a human rights organization, along with some journalists and lawyers, almost all of whom are doing important work. On the other side is the Director of National Intelligence, and in effect, the NSA itself, an organization whose primary responsibility is to monitor the wedding schedules of ostensible terrorists. And an organization which as Edwards Snowden revealed, is or has been engaged in wholesale monitoring of Americans' communications.

14:46 Rhiannon: That's right.

14:46 Michael: That's right.

14:48 Peter: So Amnesty is saying that this law is unconstitutional because it effectively allows for the surveillance of citizens communications without probable cause, but the court doesn't address that issue because it first needs to address whether Amnesty and the other plaintiffs have standing. Standing, in short, is your legal right to sue. And it's based on whether you have been sufficiently harmed. So you can't, for example, just bring a legal claim purely on behalf of someone else. You can't say, "Look, Amazon violated my buddy's rights and I wanna sue." You have to show that you yourself have been harmed. It's a pretty standard principle in the law, although the boundaries of it are very vague, and so Amnesty and the other plaintiffs, they argue that they do have standing because they engage in substantial international communications, much of it's confidential. It's very likely that they're going to be surveilled under the program. The court says, "No, no, no. That's too speculative. You don't know that your communications are being intercepted and standing can't be based upon hypothetical harm."

16:03 Michael: Right. One issue in this case is just the lengths the court will go to to avoid hot button issues or here this issue in particular, which is why we're gonna end up talking about standing rather than the Fourth Amendment, because it's sort of what the court uses to throw this case out without having to rule on the merits at all.

16:30 Peter: Right, so Amnesty and the other petitioners, the other plaintiffs here, are basically saying, "Look, we communicate frequently with groups and individuals who are likely targets of this law, and because of that, we can reasonably expect that their communications are being intercepted." The court says, "No, no, no. That's just speculation." And so we're gonna get into how silly this is. It's so fucking wild. So the main thrust of the majority opinion is that in order to challenge the constitutionality of this law, you need to be almost certain that you're being monitored by the NSA, and the main response to that is, how the fuck are you supposed to know if you're being monitored by the NSA? How is it even remotely possible for your average citizen to find out that their communications are being monitored by the NSA? It's not possible. This is basically telling the NSA that if they do their dragnet surveillance secretly enough, there's really no legal recourse for someone who's being listened in on, right?

17:35 Rhiannon: Exactly, yeah.

17:37 Michael: Yeah, absolutely.

17:38 Peter: And maybe more pointedly, the court is claiming that Amnesty and the rest of the petitioners don't have standing, but what they're actually saying is that they don't know whether they have standing.

17:48 Michael: Right.

17:48 Rhiannon: Right.

17:49 Michael: They might, in fact.

17:52 Peter: Only the NSA knows whether they have standing, which is sort of wild because the defendant in this lawsuit is the Director of National Intelligence. He's a party to this litigation, which means that whether or not the petitioners have standing is a question that can be answered by the other party to this case.

18:10 Rhiannon: Exactly.

18:12 Michael: Right.

18:12 Peter: So there is a question being posed here, which is, "Why don't we just ask the NSA who is effectively a party to this case, whether or not they are monitoring the plaintiffs here? And wouldn't that solve the problem?"

18:26 Michael: And Sam Alito writing for the majority has an answer to your question, Peter.

[laughter]

18:31 Michael: The answer might not be very persuasive, and that's because Sam Alito, I think rather than brain matter, I think his head is filled with like moldy cottage cheese.

18:41 Rhiannon: Giant dumbass.

18:43 Peter: That's right.

18:44 Michael: That just like sort of drips out of his nose. [laughter]

18:45 Peter: And look, there's a three strikes you're out rule, so if we get a third Italian on the court and he's a shithead too, that's it, we're done with them. [laughter]

18:54 Rhiannon: No more Italians.

18:54 Michael: No more Italians. So he has two answers...

19:00 Rhiannon: One is that the technical standard is that it's the plaintiff's burden to show standing, which is just a legal way of saying, "Well, look, it's not the government's job," which strikes me as bullshit. I'm not saying that's not technically right, but you could have a whole academic argument about burden-shifting...

19:19 Peter: It's not about whether it's technically right, it's about whether this circumstance...

19:22 Michael: Exactly.

19:23 Peter: Commands a different standard. And of course it does. The fucking program is entirely secretive. Of course, you can't just say, "Well, it's your burden. So it's too bad."

19:31 Michael: Right, right. I think the government actually raised this objection. I don't think this was brought by the court, and there's a special type of bullshit for the government to be like, "I don't think you have standing" and then to be the person in charge of the information about whether or not that's true and to be like, "Well, look, we don't have to share that. Whether or not what we're alleging is correct or not, that's not really our job to answer that question."

19:54 Peter: It's fucking wild. Yeah, I mean, their whole argument is, "Look, they don't even know that they're being surveilled," and the retort in a reasonable world would be, "Well, are they?" and...

[chuckle]

20:04 Rhiannon: Right. Because you know the answer... Yeah.

20:05 Peter: And they would have to answer but instead they're like, "Well, are they?" And the government's like, "That's their fucking problem, bro."

[chuckle]

20:12 Michael: Yeah, literally.

20:14 Rhiannon: Yeah, no, it's explicit. I watched the oral arguments, and Justice Breyer brings this up, there could be even like a secret review, an in-camera review, if the NSA is saying, these people are targets of surveillance or not, the court could review that and be able to make a determination, but the lawyer for the government is like... He says it in oral argument, he's like, "No, that information is confidential. Sorry."

20:38 Michael: Right.

20:38 Peter: Right. And Alito makes that point where he says like, "Well, look... " [chuckle] It's got so fucking obnoxious, he's like, "Well, look... " But actually, I'm too drunk for this. [laughter] Michael, do you want to do this bit?

20:50 Michael: Is this the terrorist?

20:51 Peter: Yeah, yeah, yeah, it's the terrorist thing.

20:52 Michael: And so, Alito has two arguments. It's not just that the burden is on the plaintiffs, he also says, "Well, look, if we allow this sort of secret review by judges, terrorists might take advantage of this and file lawsuits to find out if they're the targets of government surveillance." And he thinks this is like some fucking argument ender and not like the stupidest shit ever put in the pages of the Supreme Court reporter. Like there are two different types of terrorists that I wanna think about, one is like fucking, like Osama bin Laden or someone, right? Openly face of the terrorist organization. Does that asshole really need to be filing a lawsuit in federal court?

21:41 Rhiannon: Yeah, he's gonna...

21:42 Peter: Right, to be like...

21:42 Michael: To find out whether he is the target of government surveillance? That's so insanely stupid that that's like a potential problem...

21:49 Peter: The idea that fucking terrorists are going to out themselves...

21:54 Michael: Right. That's the second...

21:55 Rhiannon: Or that they don't know that they're being surveilled. They're terrorists. They're working in this context.

22:00 Michael: The only terrorists for whom this might be strategically useful information, are the ones who are secretive and don't want their identities known. Maybe it would be good to know if the government knows that they're associated with Al-Qaeda or something, but if so they're not gonna fucking file a lawsuit announcing themselves. Like yes, if you're a journalist who interviews sources, you might be like, "Look, I think my communications might be caught." But fucking some mechanic in Staten Island isn't gonna be like, "Hey, my communications might get swept up in this with Al-Qaeda so let's find out if I have standing to sue." If you didn't before like you're fucking now for sure. The government will have you on their list immediately afterwards, it's like I can't...

22:54 Peter: It's so fucking stupid.

22:56 Michael: It's so stupid.

22:57 Rhiannon: It's really dumb.

22:57 Peter: Completely detached from reality. So look, the concern with this whole approach, the approach where you need to be aware of whether or not you're being surveilled by the NSA, when no human being can actually figure that out, is pretty obvious, right? It makes the NSA immune to legal challenge under the law. And clearly no one's gonna know whether they're being surveilled by the NSA, so the counter-argument that the NSA provides and that this court mindlessly accepts is this. They say, "Look, we promise that if we decide to use the information that we gather under this law against someone in a criminal proceeding, we will disclose it to that person and then they can sue." And this is insane for two reasons. First, it means that in order to sue, you must be prosecuted under the law. That essentially means that the NSA can put anyone under surveillance under the statute and they can't sue unless the NSA prosecutes them for it. That means that there is functionally no constitutional limit on how much they can monitor you as long as they don't bring charges.

24:10 Rhiannon: Exactly.

24:12 Peter: We talked in our Terry v. Ohio episode about how you can only bring Fourth Amendment claims in the stop and frisk context after you've been caught with a weapon or drugs. There's no remedy if the cop just stops and frisks you and has temporarily robbed you of your freedom and this is conceptually similar. The court is saying that you can only sue once they find something on you and bring charges against you. If you're just being monitored day in, day out, maybe years on end, you can't do anything. There's no constitutional remedy for that.

24:51 Rhiannon: Yeah, and there's a way that the conservative Justices are treating this to take the court's concern away from that really big idea. So Ruth Bader Ginsburg during the oral argument, she brings up this point exactly. She says there's no way that anyone would ever know if they have standing because they never know for certain if they've suffered that injury. The NSA is never going to tell them you're being surveilled, and Justice Scalia has a really, really dumbass response where he's just like, "There are tons of laws. Don't we have a bunch of statutes like this where we don't know who the injured party of people would be? And that just means that this isn't the place of the court to step in, that's not how the law was written. It's not for the court to monitor." And it's just like, "What's the fucking point of the Supreme Court, dude, if not to answer these questions. The conservative argument here is taking the court out of dealing with this at all.

25:48 Michael: Right. And it's like, "I don't care how the law was written, I know how the fucking Fourth Amendment is written." Right?

25:53 Rhiannon: Right, right, exactly. Yeah, yeah.

25:55 Michael: And I think you have a pretty strong role under the Fourth Amendment in reviewing these laws.

26:00 Peter: Right.

26:00 Michael: God, fuck that guy.

[laughter]

26:02 Rhiannon: Yes.

26:02 Peter: RIP. So again, the NSA is saying that they will reveal to the people that they're prosecuting, that they've been prosecuted under this statute, which will allow them to challenge the statute, and that does away with the idea that they are immune to suit. And this trust that the NSA is telling the truth when they say that they will tell the people they prosecute, that they're doing so under this law and...

26:31 Rhiannon: Yeah.

26:31 Peter: Perhaps trusting one of the most secretive agencies in the Federal government, which has consistently acted as if it were above the law within the past 10, 15 years, right?

26:40 Rhiannon: Yeah.

26:41 Michael: Right.

26:42 Peter: Is not the smartest move. And if you think I'm being dumb or a conspiratorial, you're a fucking sucker because they were lying.

26:49 Michael: Yes.

26:50 Rhiannon: Yes. Right.

26:51 Peter: Despite making explicit assurances to the Supreme Court in this case that defendants would receive notice of surveillance, federal prosecutors have consistently refused to make such disclosures over the past several years.

27:04 Rhiannon: Yeah.

27:04 Michael: Yeah, it was enough of an issue that Eric Holder had to... In 2014, I think, issue a directive being like, "No, you really have to do it, guys."

27:13 Peter: Right, right.

27:14 Rhiannon: Yeah.

27:16 Michael: And there finally was this guy who got his notification that he had intelligence being used against him that was collected pursuant to these amendments. His case went all the ways through trial, he got found guilty, he challenged the constitutionality of the statute, and just now in 2020, it's being briefed for oral argument in the 10th Circuit, which means maybe, maybe by 2021 or 2022, this issue will be back before the Supreme Court, a decade later.

27:51 Rhiannon: Right.

27:51 Michael: That they dodged handling this issue, and that's a decade where the NSA could do whatever the fuck they wanted.

27:57 Peter: And yeah, and Michael, remind us, what was that guy charged with again?

28:00 Michael: So Jamshid Muhtorov was found guilty of providing $300 and other support to the Islamic Jihad Union, a militant Islamic group, opposed to secular rule in Uzbekistan.

28:11 Peter: $300. Like an Amazon giftcard. Fucking...

28:15 Rhiannon: Right.

[laughter]

28:15 Michael: He's slightly more generous than like a bougie wedding guest.

28:19 Peter: Right. Just like Venmoing ISIS $50.

[laughter]

28:25 Michael: And he got 11 years for that, but six years, time served, most of that time spent during trial while they were fighting a lot in part over the constitutional issues about the use of FISA derived surveillance against him in court. So he is still in jail for another few years, don't worry, there are no more dozens of dollars going into esoteric terrorist organizations in Uzbekistan. We are all safe.

28:54 Peter: So we're talking about the untrustworthiness of the NSA. They lied to the Supreme Court here in this case, and if you're not a fucking moron, you would have known as a Supreme Court justice that the NSA was maybe not being super honest in this case. Edward Snowden, the whistle-blower gave us a glimpse into their tactics, including surveillance that involved the scanning of all communications entering or exiting the United States en masse and without a warrant. Despite the fact that these laws are supposed to target non-citizens abroad, there is very good evidence that the NSA has targeted US citizens explicitly and more holistically, the NSA, together with the CIA, comprise this vast secretive component of the National Security complex that has consistently throughout history been not just unwilling to provide information about what they do, but outright dishonest with the American government and dishonest with the American people, and whenever we do find out what they're doing, it's always some fucking horrific, amoral shit, and their defense is just some variation of like the Jack Nicholson, you need me on that wall speech in A Few Good Men, right?

30:15 Rhiannon: Yes, yes.

30:15 Michael: Right.

30:16 Peter: They believe they're defending America, but not American ideals and not American people, more just like America as some amorphous abstraction, some undefinable concept, and they view American principles and American people as like an obstacle in the way of them as they try to achieve their goals. And so maybe in light of what is best described as a lengthy history of ungodly abuses, maybe the court shouldn't act, like we need to be deferring to what these agencies say, maybe the court should be acting as if they are more likely than the average party to be lying to them at any given time.

30:56 Rhiannon: Yeah, yeah, and maybe we should have a court that's more aggressive about looking at this stuff than less so. The other thing here, and this is an issue that's highlighted by the dissent, is that whether or not the NSA is monitoring these plaintiffs is not actually speculative. The majority wants to say that the plaintiffs are just speculating about it. They don't know for sure, but it's not speculative. Several plaintiffs are lawyers for various people who were the subject of terrorism charges, either in the past or ongoing. They have clients who were detained at Guantanamo, etcetera, including Khalid Sheikh Mohammed, who is of course the alleged mastermind of the 9/11 attacks.

31:37 Peter: Right, right. So fucking Khalid Sheikh Mohammed, who is like public enemy number one, is in question here, and what Breyer in dissent, what he says is that the government has the "motive" and the "capacity" to be monitoring these types of individual. But what he would say if he wasn't so fucking dull is that it's ludicrous to think that the American government is not monitoring the communications of Khalid Sheikh Mohammed. Of course, they fucking are, right?

32:08 Rhiannon: Right, right.

32:09 Michael: It's not fucking speculative whether the moon is gonna come out tomorrow night, right?

32:13 Rhiannon: Yeah, yeah.

32:13 Michael: We fucking know how this shit works. We're not idiots.

32:17 Peter: Right.

32:18 Rhiannon: Right.

32:18 Michael: Well, Alito is.

[laughter]

32:20 Peter: Right. Imagine if it became public information that the government was not monitoring Khalid Sheikh Mohammed's communications. Imagine like your boss comes in and you're like, "You guys are up on KSM, right? You guys have a wire on him." and you're like, "Oh my God. Jesus."

32:35 Rhiannon: "Oh fuck. We were supposed to do that."

[laughter]

32:39 Rhiannon: So, yeah, like Breyer says, I mean, he does... He recognizes in his dissenting opinion that the entire point of this law is collecting Americans international communications, that's the point. And so by doing so, the government is literally doing the job that it gave itself...

33:00 Michael: Right. Right.

33:01 Rhiannon: So, that's really the heart of the matter. The government is acting in this way, even though the government is trying to really obfuscate that issue. The NSA argues, and obviously the conservative Justices agree that the statute... This doesn't regulate lawyers. What the law does is it confers authority on the government to do certain things, and there needs to be a clear application of that authority for anybody to have standing to sue. That's obviously splitting hairs. The rebuttal, which is argued by the plaintiffs, is that the substantial risk, or actually the near certainty of future injury, is compelling the lawyers and the plaintiffs to act in a certain way, and the majority kind of just picks apart the semantics of this. Alito highlights journalist Chris Hedges affidavit, where he states, quote, "I have no choice but to assume that any of my international communications may be subject to government surveillance." And Alito says, "Look how speculative that is, he says he has no choice but to assume that his communications may be subject." But that is in fact what's happening and they have to comport their behavior to that incredibly realistic assumption. So, it's just stupid that there's no injury found.

34:14 Michael: Right. Alito followed that up by saying, "And you know what happens when you assume."

[laughter]

34:19 Rhiannon: Right. Right. It's like...

34:21 Michael: You make an ass out of you...

34:23 Rhiannon: Gotcha.

34:24 Michael: And me.

[laughter]

34:25 Rhiannon: Yeah.

34:25 Michael: He attributed to Confucius.

[laughter]

34:28 Rhiannon: Yeah.

34:28 Michael: Incorrect.

34:29 Rhiannon: Yeah.

34:31 Peter: So, I wanna take a step back here because a couple of things. First, this is a facial challenge to this statute, meaning that they're not challenging the government's application of this law to them. They're saying this is on its face unconstitutional because you're lowering the standard below probable cause, and probable cause is required by the fourth amendment. You barely need a plaintiff to decide whether that is true or not, and...

34:58 Rhiannon: Right.

35:00 Michael: Right.

35:00 Peter: It's essentially just a cumbersome technicality that there has to be a plaintiff in a lawsuit like this.

35:06 Michael: Right.

35:06 Peter: And the court could absolutely say, "Look, whether or not these plaintiffs are particularly implicated is sort of hard to discern, but this is clearly unconstitutional."

35:16 Rhiannon: Yeah.

35:17 Michael: Right.

35:17 Peter: Nothing is stopping that. And the other part of that is that fucking obviously these people are implicated, obviously, the government...

35:24 Rhiannon: Yes. Right.

35:24 Peter: Is monitoring Khalid Sheikh Mohammed, and you should just be fucking deciding whether or not this law is constitutional. The only way to dodge this is to avoid both of those. You have to say, "Well, I don't know. Maybe they're monitoring Khalid Sheikh Mohammed. Maybe they're not." That's a fucking joke of a...

35:42 Rhiannon: Right.

35:42 Peter: Fucking position to take, it's absurd.

35:43 Rhiannon: Right.

35:44 Peter: And it's one of those things where, yes, standing is a real principle within the law, but it serves a purpose, and what purpose is it serving here other than to allow the court to dodge this fucking question, right? It's not saving anyone any money in litigation, which is really the purpose of standing, right?

[laughter]

36:05 Rhiannon: Yeah.

36:05 Peter: It's just a way for the court to dodge the fundamental question here, and the fundamental question here is whether this violates the Fourth Amendment, and the court doesn't address it. They say, "Well, don't have standing, so we don't need to." And we talked about, again, the fourth amendment in our Terry v. Ohio episode. It protects against unreasonable searches and seizures. So, let's talk about whether this might violate the Fourth Amendment, and the court doesn't talk about it, so this is just us, we're just vibing here. We're just talking. So, first, obviously, the court doesn't wanna deal with whether or not this violates the Fourth Amendment, right?

36:37 Rhiannon: Yeah.

36:37 Peter: They don't want to confront whether or not this sprawling NSA surveillance complex might actually be a Fourth Amendment nightmare because...

36:47 Rhiannon: Right.

36:47 Michael: Right.

36:47 Peter: Confronting that would be a huge political bureaucratic issue with massive implications that they don't want to tread into it.

36:57 Rhiannon: Right.

36:58 Michael: Right.

36:58 Peter: And so they decided on standing, right? But to give you some context, the question of whether the Fourth Amendment requires a warrant in a wire tapping cases is more or less settled. It does.

37:07 Rhiannon: Yes.

37:08 Michael: Yeah.

37:08 Peter: The real question is whether it's still true where the target is foreign, and the American citizen who's protected by the Constitution is on the other side of the conversation, but they're not the target, right?

37:21 Rhiannon: Right.

37:22 Michael: Right.

37:22 Peter: So, there are a lot of little angles here, but the bottom line to me is this. Doesn't matter if the target is foreign. If you're listening to a citizen's communication, that is clearly a search under the Fourth Amendment, and you need probable cause. Cops aren't allowed to make arrests without cause just because they're investigating a foreigner.

37:41 Michael: Right.

37:41 Rhiannon: Right.

37:42 Peter: A cop can't walk up to you in New York City and search your fucking car or whatever and be like, "Sorry, we're investigating this terrorist in Saudi Arabia." And if the NSA says that, that makes their job too hard, I don't give a shit. Get a fucking warrant.

37:56 Michael: Right.

37:56 Peter: Sorry if the Constitution...

37:57 Rhiannon: Right.

37:58 Peter: Got in the way of you drone striking a cafe in Yemen, 'cause some terrorist nephew goes there once a week or whatever the NSA is trying to do.

[laughter]

38:10 Peter: The NSA is distinctly ghoulish and horrific, and their entire purpose is to monitor threats to the state, but that is so vague and lacking in detail that what they've actually morphed into is this massive, unfettered surveillance apparatus that is designed to target foreigners who ostensibly threaten America, but probably are much more innocence, on average, than the victims of, say, the police in America, because there are no constitutional boundaries when it comes to foreign citizens. That's why they can fucking drone strike weddings. That's why they can find a terrorist sitting at a...

39:03 Peter: In a restaurant in Bangladesh and just nuke the whole fucking place, killing 20 people and not have to worry about some constitutional challenge because the Constitution is to protect the rights of Americans, those people aren't Americans. The NSA doesn't fucking care about them, and of course, the court never reaches this issue because it decides the plaintiffs don't have standing, and I wanna talk about, as we wrap up, standing as like a general concept. Standing is supposed to be about whether someone suffered harm, you can only sue if you suffered a harm. But it is remarkable how often courts will toss a lawsuit for standing in situations where there's clearly some harm taking place, and what's happening I think as a result is that people are unable to sue for certain harms that are just a little too diffuse or hard to pinpoint, even if there's no real question in anyone's mind that there is a harm occurring.

40:02 Peter: So here you have the court shrugging, right? Even though obviously this is implicating the rights of American citizens, and they're saying, "Well, we don't know for certain, whether these plaintiffs here are being surveilled." And in other cases, you have something like pollution, where study after study shows that there's a real impact on all of our well-being, but it's often the case that no single person could sue because they can't prove with that much certainty that Exxon's emissions are impacting their health. So we all know that these sorts of emissions might be hurting us, but no individual person can trace it to themselves very directly.

40:39 Michael: Right.

40:40 Peter: So this doctrine gets weaponized by powerful interests who impose these very real burdens on the rest of us, and courts absolutely could, and occasionally do, allow these cases to proceed if they wanted, but standing is just one way to avoid it. And it's part of why it's so hard to challenge the less tangible and less identifiable harms caused by big corporations and the government because they're just so spread out.

41:07 Rhiannon: Yeah.

41:07 Michael: Right. I like standing because it's an area where many of the law professors, and legal professionals that we insult a lot on this, agree with us and are legal realists and to all our law students, listeners out there, you'll find this professors who will talk about the importance of precedent and methods of constitutional interpretation, and all this shit that we say doesn't matter, when it comes to standing, they'll be like, "Look. The court, they really like... They fudge it on standing." They'll use standing to avoid questions they don't wanna answer. They will use standing as a proxy for the merits of the case, where they're sort of signaling how they would actually rule without having to come out and rule that way. Everybody, not everybody, but most, I think law professors are legal realists when it comes to standing, and the fact that they're not about everything else, well, maybe these people just aren't very good at applying pretty obvious principles more broadly, 'cause I think the lesson is that standing is not special and different from everything else.

42:14 Peter: No, right.

42:15 Michael: It's all like that. But...

42:17 Peter: Standing is one of the more obviously bullshit parts of the law.

42:21 Michael: Right, right.

42:22 Rhiannon: Yeah.

42:23 Peter: And I want to wrap this up by making one point, which is, we've talked about the conservatives' deference to the government on national security issues before, and it doesn't get that much more egregious than this. And so the next time you hear some fucking schmuck say that true conservatism is about a small and limited government, you can maybe ask them why five of the most accomplished and sophisticated conservatives in the world allowed the largest mass surveillance apparatus in history to carry on completely unchecked.

42:54 Rhiannon: Yeah.

42:56 Michael: Right.

[music]

43:03 Peter: Next week, we are doing Tyson v. Arizona, a case about the death penalty and felony murder. Alright, we will see you guys next week. Follow us on Twitter @fivefourpod. Subscribe to us wherever you get your podcast. If you follow us on Twitter we'll Venmo you $3000, that's a guarantee. It's coming out of the general fund.

43:29 Michael: Some terms and conditions may apply.

[laughter]

43:36 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.

43:56 Leon Neyfakh: From the Westwood One Podcast Network.