re: #238 HSG

Professor Orin Kerr from George Washington University Law School, one of the leading experts on the Fourth Amendment law in the digital age, has a must-read piece for constitutional wonks at The Volokh Conspiracy with his reactions to the recent New York Times article Charles references here.

He writes:

As always, Kerr writes cleanly and clearly on his topic.

volokh.com

I agree, he is very clear and I could find nothing addressing Standing. But, as you have pointed out, I am not a lawyer so if I missed it or it was alluded to you will have to point that out.

In the Politico article that I think that you referenced in one of these comments but that I do know that you are familiar with as you did make several comments there, it discussed the ACLU case. And in that discussion it mentioned the previous problems that the ACLU has had with Standing and felt that the Snoweden leaks will help them with that in this case. I have a accomplished a Google search and found about a dozen references to Snowden and the leaks and what they will have on the ACLU case and of those, they all mention is having a poisitve effect but of those I found only 2 that had unique (non repeated quoates from ACLU attorneys who have an obvious bias) and of those 2, non were of note i.e. Tribes. It will be interesting to see these opinions as they roll out.

Then the article that you provided as well as this Politico story have many experts weigh in on the case and how it would be decided on the merits. There is not a single expert cited in any of the articles who give hope to the ACLU is a positive outcome of thier case if it gets to the merits - not even the ACLU. I quoted that in the post. But it is noted that the ACLU’s strategy is probably to begin the crack the secret nut open with the discovery phase. As was alluded to in the article the hope is that through the facts learned in Discovery on this case they can investigate for the next case and even effect public opinion.

That seems to be the strategy of the Senate Dems who are putting presure, not to end the program quickly, but for more transparency to allow the judicial and politcal porcesses to take place. Remember, these are Dems in the Senate. It is obvious that they want to change the law and the programs but it is just as obvious that they want to give cover to Obama so that he can get involved.

How better to do so than prove that it doesn’t work.

They actually want to help Obama undo and or escape from the situation that he is currently in. Despite the obvious discomfort that many who support him have, Obama bears much of the responsibiltiy for this reality. But ending or greatly modifying the law and or programs is politically risky - if you are on the wrong side and an attack occurs, you are finished politcally. He has to be President and act as Chief executive and enforce the laws. But he also has to been seen as maintaining some moral authority and with each leak or revolation that is slipping away from him. The administration is already talking about modifying the progams. I think that as his supporter it is interesting to know the reality of it and why he is doing so.

Experts: NSA Lawsuit Could Break New Legal Ground
“The suit filed argues that the phone-tracking system detailed in The Guardian violates freedom of speech and privacy rights .”

Link