Scalia said the high court originally ruled that there were no constitutional prohibitions on wiretaps because conversations were not explicitly granted privacy protection under the Fourth Amendment, which protects against Americans against unreasonable search and seizure of "their persons, houses, papers, and effects."

That 1928 opinion, in Olmstead v. U.S., was overturned nearly 40 years later by the Warren court, which found, Scalia said, "there's a generalized right of privacy that comes from penumbras and emanations, blah blah blah, garbage."

"The consequence of that is that whether the NSA can do the stuff it's been doing ... which used to be a question for the people ... will now be resolved by the branch of government that knows the least about the issues in question, the branch that knows the least about the extent of the threat against which the wiretapping is directed," he said.

Sure sounds like a guy who really cares about Constitutional rights and takes his obligation to adjudicate them seriously.

This idea that the courts are the least equipped body to address these issues is "blah, blah, blah, garbage." The fact is that individual rights supposedly protected by the Constitution were not taken seriously in this country until the Supreme Court started taking them seriously.

The Court has a better process of evaluating issues related to Constitutional rights than the other two branches, because the members of the court are experts on the Constitution, and the court has a formal process for evaluating different perspectives on issues that makes it difficult to ignore inconvenient information or disfavored points of view.

If only the hearings and testimony that occur in the Senate were taken half as seriously as the filings that the Supreme Court receives. In fact they are theater, in which predetermined outcomes are justified through stacked witness lists and phony questions.

We know that formal, adversarial processes produce carefully considered results - we should leverage that knowledge more, not less.

Antonin Scalia expects NSA wiretaps to end up in court - Associated Press - POLITICO.com

After screaming for years about the PATRIOT Act...

Democrats, protective of the Obama administration, are less critical of the NSA; 37 percent say it “goes too far,” for example, vs. 47 percent of Republicans and 51 percent of independents. And Democrats are a broad 18 points less likely than Republicans and independents to think the NSA intrudes unjustifiably on some Americans’ privacy rights.

On the other hand..

Conservatives, and especially strong conservatives, are much more likely than moderates or liberals to think the NSA intrudes on privacy without justification.

I wonder what those conservatives thought about the NSA back in 2006...

In 2006, 75 percent of Republicans said the NSA program was "acceptable."

Most Americans trust the leaders of the party they are affiliated with, and their opinion on civil liberties issues flip-flops depending on whether or not a member of their party is in the Whitehouse. This is why we can't have a rational political dialog about anything. People in America believe what their party leadership tells them to believe.

Americans are blinded by partisanship

The Lawyer Game has three kinds of players:

1. Honest Lawyers
2. Dishonest Lawyers
3. Clients

At the start of the game, each Client is assigned to a Lawyer and each Lawyer only serves a single Client.

The rounds of the game have three phases, an Advice Phase, a Judgement Phase, and a Hiring Phase.

During the Advice Phase, each Client asks their Lawyer a question. The questions have yes or no answers. Dishonest Lawyers always answer yes. Honest Lawyers answer yes 50% of the time and no 50% of the time.

Each time a Client receives a yes answer, the Client receives a point. Clients do not receive a point if they receive a no answer.

When the Advice Phase is complete, the game enters the Judgement Phase. During the Judgement Phase a certain percentage of the Clients who received a yes answer from a Dishonest Lawyer will be Punished. When a Client is Punished, it loses all of its points.

When the Judgement Phase is over, the game enters the Hiring Phase. During the Hiring Phase, each Client may choose to hire a different Lawyer. Clients may choose to hire any Lawyer they want, but they may only hire one Lawyer at a time. Lawyers may serve an unlimited number of Clients.

The game continues for a fixed number of rounds. The objective of Clients is to accumulate as many points as possible.

The most important variable in game play is the percentage of Clients of Dishonest Lawyers who are Punished during the Judgement Phase. The most effective Client strategy will depend on this percentage. If the risk of being Punished is high, Clients will accumulate more points over the long term by hiring Honest Lawyers. If the risk of being Punished is low, Clients will accumulate more points over the long term by hiring Dishonest Lawyers.

The game is meant to illustrate the economic incentives that influence lawyers, particularly when they are being asked questions that are open to interpretation. If the risk associated with providing bad advice is low, lawyers are rewarded for telling their clients what they want to hear. In the low Punishment scenario, Dishonest Lawyers will accumulate large numbers of Clients, and Honest Lawyers will not.

A slightly more complicated version of the game can be crafted by allowing Dishonest Lawyers to answer "no" a certain percentage of the time, in exchange for a comparable reduction in the risk that their Clients will be Punished. This variation could identify optimal strategies for Dishonest Lawyers when various levels of Punishment are occurring.

Now, imagine a real world scenario where you are a lawyer, you are being asked by your client whether or not it is legal for them to do something that they want to do, there is no risk of your client being punished for it, and your advice will never be read by anyone else. This scenario is the FISA court.

Kurt Eichenwald: Contributing editor, Vanity Fair; senior writer, Newsweek; New York Times bestselling author.

snowdens leak did nothing but reveal some details about what anyone who paid attention 2 FISA amendment debate already knew

Trevor Timm: EFF at 12:58 PM on Nov 18th, 2013

Later today, the govt will pretend they're voluntarily releasing more NSA and FISA docs. They're actually being forced to by @EFF's lawsuit.

Director of National Intelligence at 8:26 PM on Nov 18th, 2013

Release of these documents reflects the Executive Branch’s continued commitment to making information about this intelligence collection program publicly available when appropriate and consistent with the national security of the United States.

Orin Kerr, Law Professor at 2:35 AM on Nov 19, 2013

Yesterday afternoon, the DNI declassified an 87-page FISC opinion authored by Judge Kollar-Kotelly that had allowed a bulk Internet metadata collection...

I’ve read the opinion, and I find its analysis quite strange...

The opinion largely overlooks the statutory clues that the pen register statute was written for the micro scale, not the macro scale. In particular, key words of the pen register statute are written in the singular not the plural. The statute authorizes the judge to issue an order requiring the installation of “a” pen register to monitor “the person who is the subject of the investigation.” This is written in the singular, suggesting that each pen register requires a subject.

Judge Kollar-Kotelly hints at this problem around pages 21-24, but as far as I can tell she never dwells on it or addresses the issue squarely. That seems like a surprising oversight for a statute based on mere certification.

If the statute allows bulk collection of all Internet metadata, it allows bulk collection of all Internet metadata purely on the AG’s say-so with no review by the FISC. And because the criminal law version of the pen register statute uses the same language but allows any AUSA to get a pen register order, the court’s reasoning would seem to allow the same bulk collection of all Internet metadata simply on the say-so of any random AUSA.

Is that really what Congress authorized?

Emphasis mine:

Judge Kollar-Kotelly’s decision approving the program and granting the application strikes me as odd for a few reasons.

First, the opinion largely overlooks the statutory clues that the pen register statute was written for the micro scale, not the macro scale. In particular, key words of the pen register statute are written in the singular not the plural. The statute authorizes the judge to issue an order requiring the installation of “a” pen register to monitor “the person who is the subject of the investigation...”

If the statute allows bulk collection of all Internet metadata, it allows bulk collection of all Internet metadata purely on the AG’s say-so with no review by the FISC. And because the criminal law version of the pen register statute uses the same language but allows any AUSA to get a pen register order, the court’s reasoning would seem to allow the same bulk collection of all Internet metadata simply on the say-so of any random AUSA.

Is that really what Congress authorized?

Lawfare › Problems with the FISC’s Newly-Declassified Opinion on Bulk Collection of Internet Metadata

“Although a denial may appear to sanction the government’s conduct, such a respite will be temporary at best, given the challenges to metadata collection pending in the lower courts, including the ACLU’s lawsuit in federal district court in Manhattan.”

Supreme Court Declines Challenge to NSA on Verizon Records, for Now - ABC News

The Supreme Court has denied a petition by a civil liberties group called EPIC challenging the mass domestic meta-data surveillance program that Edward Snowden revealed. In the post I'm linking here, a lawyer predicted this outcome...

...based on the conclusion that either Congress intended to preclude customers from bringing statutory challenges to Section 215 orders altogether or Congress intended to permit such challenges (such as the ACLU’s) in district court under the Administrative Procedure Act.  It would not be necessary for the Court to choose between these two options, because either way mandamus would not be appropriate.

In other words, it is possible that the reason the Supreme Court denied EPIC's petition is because lawmakers have set things up so that YOU, mere citizen, have absolutely no right whatsoever to challenge the legality of the mass surveillance in a court of law. The phone company has the right to raise legal questions about this mass meta-data surveillance, but they haven't. As long as they choose not to, it can continue to go on whether you like it or not and regardless of whether or not it is either constitutional or legal.

YOU, mere citizen, have no right to challenge government spying.

Without explanation, the high court refused to entertain a suit from the Electronic Privacy Information Center, seeking to stop the intelligence organization’s bulk data collection program. Now that hope is lost that the courts could strike down the controversial spy programs, all eyes turn to the most unproductive Congress in history.

Supreme Court Rejects NSA Case Without Explanation | TechCrunch

THIS is why the NSA meta-data program is unconstitutional:

California NORML experienced an abrupt drop in the number of hotline calls we received after revelation of NSA's phone surveillance program in late June. Prior to then, we received an average of about 15-20 calls daily on our hotline; afterwards, calls dropped to 5 -10 per day.

Freedom of Association

EFF Files 22 Firsthand Accounts of How NSA Surveillance Chilled the Right to Association | Electronic Frontier Foundation

Please forgive the ALL CAPS:

THE BATTLE LINES OF TODAY’S DEBATES OVER GUN CONTROL, STAND-YOUR-GROUND LAWS, AND OTHER VIOLENCE-RELATED ISSUES WERE DRAWN CENTURIES AGO BY AMERICA’S EARLY SETTLERS

Tufts Magazine / fall 2013 - Up in arms