Tuesday, July 09, 2013


Yesterday the Electronic Privacy Information Center (EPIC), filed a request with the U.S. Supreme Court to hear a challenge by victims of NSA's domestic spying program against FISC's (the Foreign Intelligence Service Court) order that authorizes wholesale warrantless spying.  SCOTUS usually won't consider a case until it has been through lower courts, but in the nightmarish down-the-rabbit's hole world of FISA no one has standing to challenge anything FISC does.  That's right ... "mere" American citizens are not permitted to go to FISC, hence it is impossible to challenge anything it does, or even to know what "law" it is creating.

The Supreme Court, however, could agree to hear this case and perhaps bring some light and oversight to bear on FISC... I guess.  (Maybe they can't -- who knows, perhaps FISC could tell SCOTUS to go to hell -- then what?)

I have no idea whether SCOTUS will hear the case.  If they refuse, it's clear that SCOTUS agrees that American citizens should not have access to courts to challenge laws or defend themselves.  If they accept, I have no idea what they might rule.  I'm reminded of the 9-0 decision in Sackett vs. EPA in which a family building a house was fined by the EPA for millions of dollars for trying to build in "wetlands" (which turns out to be a developed subdivision) and then denied them access to court to challenge EPA's decision.  OTOH, John Roberts appointed the members of FISC, and members of SCOTUS seem capable of scribbling most any flight of fancy in legalese and calling it "logic."

If Americans do not have recourse to the courts in this matter, then obviously the courts are of no particular use to us.  One might also ask if that means anything FISC rules is beyond our challenge.  If, for example, under some odd "logic" FISC decided it could approve summary executions of Americans on American soil if a federal intelligence agency made the request, exactly what oversight or recourse would there be?

"Oh, they'd never do that...they are just trying to protect us."  Yeah, right.

EPIC's account of their challenge is available here and well worth reading.

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