SCOTUS Grants Clapper Cert, Stalls on Detainee Cases

SCOTUS has just listed orders from last week’s conference, where they had been discussing the handful of Gitmo cases that had petitions for cert pending. It has relisted the detainee cases, which suggests they may need a week or more to sort through their decision.

SCOTUS did, however, grant cert to Clapper v. Amnesty, which I wrote about here and here. On its face, Clapper is just about the FISA Amendments Act. But it also has implications for wiretap exceptions–and, I’ve argued–data mining exceptions to the Fourth Amendment. In any case, SCOTUS seems interested in reversing the 2nd Circuit opinion, which had granted standing to people whose work had been chilled by the passage of the FAA. Also, as I hope to note further today, SCOTUS’ Clapper decision may also impact the Hedges v. Obama ruling from last week.

8 replies
  1. MadDog says:

    Hmmm…I didn’t see Latif listed anywhere in the order so there must me a method to SCOTUS’s madness. How does one determine that the detainee cases have been relisted?

  2. MadDog says:

    As I was reading through the order, I wondered about dockets 11M109 and 11M111 both of which were granted cert, but with seems to me the unusual allowance of being able to do so under seal and only redacted copies for the public.

    I searched on both dockets and while neither gave much more information, I did notice that Solicitor General Donald B. Verrilli is the respondent attorney for the party of the US.

    I wonder what these cases are and why they are under seal?

  3. ondelette says:

    With respect to your datamining theory (about the “unintentional” cases of parties within the U.S.): Interestingly, the case referred to by Vladeck, the In re Directives case, contains the following in the opinion (p.26)

    The government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons, and there is no evidence to the contrary. On these facts, incidentally collected communications of non-targeted United States persons do not violate the Fourth Amendment.

    Of course, the opinion was written before the disclosure of the Narus STA 6400 in the AT&T building in San Francisco and all. Leahy had proposed a version of the FAA with rollbacks to do minimizations to correct targeting failures that provoked a huge backlash from the Bush Administration, so the notion that they don’t have unintentionals in databases is absurd.

    They have everyone in the databases, and the FISA courts have long since okayed the notion that looking at the data constitutes the act of surveillance, not collecting it. Otherwise you can’t do what the original bill that became the PATRIOT act was supposed to do: replace the gathering of signals that the NSA had done on the airwaves now that everything was fiberoptics and packet switching. Because you have to reconstruct the packets, and no way anyone will give you a warrant to do that.

    So the solution to the problem is Bayesian filters gone wild and a nexus of multiple unrelated filters or searches makes a target. Now that they’re deploying that, they’re killing totally unrelated people, because they’re killing based on probabilities. Someone should make them defend it in open court on law of war charges. Make them define a ‘fixed sign’ in a database to a Bayesian filter or a graphical search method, under common Article 4.

    Then instead of the plaintiffs going through gyrations to prove their standing, the government can go through the gyrations to prove they haven’t developed terminal cybertechnopathological insanity.

  4. emptywheel says:

    @ondelette: The opinion was after that–based on the PAA. BUt as I wrote about it when it was released, the assurances seem to be tied to some kind of narrow question. That is, it may be the govt was asked if they had a database of JUST incidentally collected info. We know they don’t bc of their veto threats during the FAA debate. But that doesn’t mean they don’t have a database that INCLUDES incidentally collected US person data.

  5. ondelette says:


    The Narus case plus the Leahy flap indicates they have a database of all that is packetswitched — that is what the Narus captures, and why they can’t roll it back.

    The understanding is that no privacy has been invaded and no warrant is needed until a search is run and data is pulled from that database and examined. It’s been more recently confirmed that the meaning has changed to this but I can’t remember off hand when that was, just recently (last 9 or less months).

    The upshot is that they (NSA) believe they are returning to status quo ante when the signals were all there and they needed a warrant to look at them. Everyone else sees a change because there is collection happening prior to anything, where before a warrant was needed for collection.

    Everyone else is right.

    But once the database is in existence, then suddenly searches and filters look like eyesight. And juxtaposition of filters becomes the new principle of distinction. Only nobody seems to be paying attention, I haven’t heard the question raised in any discussions on the topic.

    That’s why I brought up common Article 4.

  6. ondelette says:

    @ondelette: Sorry, it’s not a common article, it’s GC3 Article 4. The principle of distinction. It determines when someone is or is not a combatant. My point was that it has always been determined by looking at a person, on a battlefield, or by the fact that combatants are required to distinguish themselves. Determining it by a nexus of search material in a database is entirely different, and would change the meaning entirely.

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