NSA Phone Snooping Cannot Be Challenged in Court, Feds Say

Re:NSA Phone Snooping Cannot Be Challenged in Court, Feds Say by ewoodrich on Saturday July 20, 2013 @12:03AM (#6074295)

I believe what rayiner is describing is similar to the "political question" test. The court may have the ability to hear and decide on any constitutional question or appellate dispute, but they have determined certain issues to be fundamentally political in nature (such as gerrymandering), or primarily subject to legislative remedies (many national security issues, including Korematsu, which upheld broad discretion in affording leeway to the federal government in the interest of national security).

You may disagree with this. But, the Supreme Court has a staggering amount of written and unwritten precedent and protocol that is considered. And national security based cases are unlikely to be subject to as strict of scrutiny before the Court.

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Re:NSA Phone Snooping Cannot Be Challenged in Court, Feds Say by s_q_b on Saturday July 20, 2013 @01:18PM (#6075789)

You're moving the goal posts. "Strict scrutiny" is a specific legal standard that isn't really relevant to this discussion which implicates clearly established constitutional rights (automatically invoking a higher standard of review.)

The courts side against the government in national security cases all the time. See e.g. Ex Parte Endon, Merryman, Hamdi, Hamden, etc. so I'm really not sure what you're trying to say.

The Supreme Court also routinely addresses political questions, see e.g. Brown v. Board of Education, Roe v. Wade, Griswald v. Connecticut etc. The "political question test" is not a tenant of constitutional law, but rather an element of some conservative jurisprudence. Incidentally, one with which I'm intimately familiar, having taken Constitutional Law from Robert George.

The statement that the Supreme Court doesn't decide issues of national security, from a historical perspective, are just not correct. I've been told it's polite to give people a way out in these types of scenarios, but this is Hacker News. I don't disagree with some "unwritten precedent and protocol," I disagree with your statements.

All of which, by the way, I've proven wrong citing specific case law. This isn't discussion sections or precept. You can't not do the reading, wave your hands, and expect me to go along.

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