Re:Secret government: America against democracy
by bmelton on Wednesday July 10, 2013 @03:55AM
(#6018046)
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.
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.