Modeless, you are right. This court should be subject to the full light of day and a true adversarial process. All opinions published. With judges having to put their names on the opinions and own up to them.

The same can/should be said for "unpublished opinions"[1] of any court. I do not understand how in a common law system a judge can make a ruling and say "I don't want to be held accountable for this rash decision I just filed. Let's mark it unpublished and make sure it never has to undergo much scrutiny."

[1] This is a different unpublished than FISC decisions. Instead of "unpublished" read as "non-precedential opinions." http://en.wikipedia.org/wiki/Non-publication_of_legal_opinio...

I agree with you dfc. Not publishing opinions in this day and age is nuts. Everything should be published.

So no secret targets at all, then.

The court can publish opinions and cases without revealing identities or identifying details.

This would have caught the insane redefinition of "relevant" that allows for receiving all call records for everyone, for example.

This doesn't make any sense. Constitutional injury does not occur because a judge interprets the law. Constitutional injury occurs when the government does something to you.

If the government is the one surveilling you, you challenge that, and then you have standing.

All existing decisions i'm aware of (except the one in the past few days), even the SCOTUS one, dealt with third parties making claims that they were "likely being surveilled".

None of them could prove anything, because nobody has used the info against them. SCOTUS held that they could not establish standing, because they couldn't show it was actually happening. The parties wanted abrogation of the state secrets privilege to get the government to admit or deny whether they were being surveilled.

IE It wasn't known surveillance targets suing, it was "a group of international organizations, lawyers, and media personnel"

If you have a case where someone who was surveilled has been denied standing, i'd love to see it. So far, Jewell has not been denied standing in Jewell vs. The NSA

Apparently you have a non-standard definition of "surveilled"; perhaps the one James Clapper uses? The leaked Verizon FISA order clearly shows that practically everyone in the US has been surveilled by the NSA (every Verizon customer, and everyone who has ever called a Verizon customer). That means everyone has standing, and everyone whose standing was previously denied was wronged.

But suppose the leak hadn't happened. Suppose the government kept secrets perfectly, and nobody could establish standing. Is your position really that the government should be able to violate the 4th amendment as much as it wants, as long as it's kept secret?

This is your assertion, not the current precedent. I am objectively talking about the current precedent and what it states, not what my definition or my position is. Do not confuse the two.

Under current precedent, the answer to your questions are "No, not everyone in the US has standing" and "Yes, if they keep it secret enough that you can't prove it, you are fucked", at least given what SCOTUS has said.

At least the latter question has been almost directly answered by SCOTUS. I may disagree, but that is the current law of the land.

Congress could, of course, change that (as could SCOTUS)

You're not talking objectively about current precedent. There isn't sufficient precedent on whether the definition of "surveilled" includes something like the recently revealed FISA order to draw the conclusions you have. Precedent can't have been set because the extent of the program wasn't previously revealed. It is literally unprecedented.

Anyway, I didn't ask what current precedent was, I asked what your position is.

"There isn't sufficient precedent on whether the definition of "surveilled" includes something like the recently revealed FISA order to draw the conclusions you have. "

???

Actually, SCOTUS was pretty clear, see Clapper v. Amnesty International. If you can't prove they are surveilling you, you don't have standing. I'm not sure where you get "precedent can't have been set". This is just wishful thinking. You are hoping they decide their previous precedent was dumb or distinguishable.

As for my position: To the degree a court is satisfied with that the leaked info shows a plaintiff has suffered constitutional injury, they will override state secrets privilege and grant them standing. That is what has happened so far. See Jewell vs. NSA

To the degree they don't already have the info, and the rest is properly classified (already held to be 'yes' many times), they won't. That will be appealed by either side all the way up the Supreme Court. There are likely enough votes to hear it, and at least right now likely enough votes to overrule/distinguish Clapper, but until that happens, you are stuck.

Clapper v. Amnesty International is not precedent for the constitutionality of the recently revealed surveillance. It's irrelevant now because surveillance is proven, not hypothetical. Besides, it was 5-4, hardly ironclad.

Furthermore, to the extent that Congress hid actual violations of the constitution behind secrecy laws, the judicial branch has failed in its duty to uphold the constitution. SCOTUS was wrong to deny standing. Protecting our constitutional rights shouldn't require breaking the law just to prove standing first. You seem incapable of expressing a position or opinion about what the courts should do, rather than what they will do or have done, so you'll undoubtedly disagree.

Clapper will be used as the closest precedent.

I am not incapable of expression a position, I just don't find it a useful exercise of anything in particular in this instance. You seem a bit annoyed at this, for reasons i can't understand.

If you don't want to know what they are likely to do, why bother asking me rather than anyone else on the street?

The only thing you'll discover is whatever personal beliefs i have about the subject. Since they don't really matter to what will happen, who cares?

It won't help anything. I'd rather be doing things to help than complaining about how the court is wrong on an internet site (no offense meant to you, really!), so I am.

Which is why, basically, the parent's comment is correct. In essence, you're both right, but his issue of standing, as a practical matter, is almost certain to be true.

If surveillance is done against me, and nothing is found, then I never hear about the incident, even if it is wholly unconstitutional. If unconstitutional surveillance is done against me, and something is found, but the government keeps the source of that information secret, then the evidence is not challengeable. In an ordinary court, that would be a problem, but if I'm thrown into Guantanamo without an arraignment, trial or anything else, it does me little good.

Even if I somehow find my way to trial, it'll almost certainly be a military tribunal, where the rules of evidence are different enough then the evidence might stand, even if its sources are not disclosed by the government. If the sources aren't disclosed, I can't know whether the evidence was obtained as a result of a FISC decision or action, which does me little good.

The only way for a citizen to have standing in an action as a result of Prism activities is for the government to arrest me through normal channels, which would be surprising, if their information has revealed that I am likely to be a terrorist (JIHAD!), imprison me in a 'normal' jail, then to allow me access to an attorney in lieu of interrogations, then allow me a trial wherein the remove the veil of secrecy over the source of the evidence.

If all of those unlikely events occurred, then you're right, one would have standing whether or not one was found guilty, as either a civil matter if acquitted or appellate matter if convicted, but getting to there seems like small odds to me. And on top of all that, if you're going in on appeal, then the circumstances pertaining the constitutionality of the evidentiary source is polluted by all those other criminal facts of the case.