now that's a judicial smackdown! (or, some more hope for the republic)

[twoeleven]

11-1025 Clapper v. Amnesty International USA

ORAL ARGUMENT OF DONALD B. VERRILLI, JR., ON BEHALF OF THE PETITIONERS

[Solicitor] GENERAL VERRILLI: Mr. Chief Justice, and may it please the Court:

The question in this case is whether Respondents have standing to bring a facial challenge to the 2008 amendments to the Foreign Intelligence Surveillance Act. Those amendments provide authority to the executive to conduct surveillance targeted at foreign persons located abroad for foreign intelligence purposes.

Along with that grant of authority, Congress imposed statutory protections designed --

JUSTICE SOTOMAYOR: General, is there anybody who has standing? As I read your brief, standing would only arise at the moment the Government decided to use the information against someone in a pending case. To me, that --

GENERAL VERRILLI: Several points, Your Honor --

JUSTICE SOTOMAYOR: -- would seem to say that the act -- if there were a violation; I'm not suggesting there is -- but that if there was a constitutional violation in the interception, that no one could ever stop it until they were charged with a crime, essentially.

GENERAL VERRILLI: Your Honor, under the statute, there are two clear examples of situations in which the individuals would have standing.

The first is if an aggrieved person, someone who is a party to a communication, gets notice that the government intends to introduce information in a proceeding against them. They have standing. That standing could include a facial challenge like the one here.

JUSTICE GINSBURG: General Verrilli, can you be specific on who that person would be? Because, as I understand it, it's unlikely that, for example, the lawyers in this case would be charged with any criminal offense. It's more probable that their clients would be; but, according to the government, their clients have no Fourth Amendment rights because they are people who are noncitizens who acted abroad.

So it's hard for me to envision. I see the theoretical possibility, but I don't see a real person who would be subject to a Federal charge who could raise an objection.

...

it's not quite as entertaining all the way through, but a number of the Supremes are going right for the government's throat, by pointing out the catch-22 in the law's construction. i'm extremely pleased by the way them doing this, in precisely the same way i was pleased by their discussion of potential abuses of giving the government unlimited authority to track people in us v. jones: it shows that they understand what power the government is asking for, and are pointing this out to anybody who reads the arguments.


tangentially related:

would you say that a good rule of thumb is: don't give the government any power you wouldn't want the politicians you consider to be the most loathsome to wield over you?